Thursday, October 19, 2006
Sam Bagenstos presented a fascinating paper today to the Brooklyn Law faculty, entitled "Hedonic Damages, Hedonic Adaptation, and Disability." It is co-authored with his wife Margo Schlanger and is available at SSRN here. Here's the abstract:
This article contributes to the broad debate over "adaptive preferences" in law, economics, and political philosophy by addressing an important ongoing controversy in tort law. Hedonic damages compensate for the lost enjoyment of life that results from a tortious injury. Lawyers seeking hedonic damages in personal injury cases emphasize their clients' new status as compromised and damaged persons, and courts frequently uphold jury verdicts awarding hedonic damages to individuals who experienced disabling injuries based on a view that disability necessarily limits one's enjoyment of life. This view is consonant with a general societal understanding of disability as a tragedy and of people with disabilities as natural objects of pity. But a rich psychological literature demonstrates that disability does not inherently limit enjoyment of life to the degree that these courts suggest. Rather, people who experience disabling injuries tend to adapt to their disabilities. To be sure, the views of people with disabilities about their own quality of life are classic adaptive preferences. Accordingly, one might suggest that the legal system should disregard those views. But we argue that the legal system goes wrong by so devaluing the experience of people with disabilities. When courts award damages based on the (nondisabled person's) view that disability is tragic, they distract attention from the societal choices and stigmas that attach disadvantage to disability; they also make it harder for people with disabilities to make hedonic adjustments to their conditions. For deterrence and compensation reasons, people who experience disabling injuries should be able to recover for their physical pain; for medical expenses and the cost of assistive technology and personal assistance; for the opportunities society denies people with their conditions; and for the effects of social stigma. But they should not recover for any purported effect of disability on the enjoyment of life.
I highly recommend this paper. It provoked a stimulating discussion and is grappling with a very complex problem. Comments ranged from "icky" to "paternalistic" and from "semantic" to "unbelievably interesting and compelling." It is a quick read -- and it treats you to a taste of very suprising research about how the disabled adapt to their disabilities and how lawyers cast the disabled in an effort to extract more money from juries in tort damages. Just what to do about those potentially adaptive preferences and lawyer practices is a normative inquiry that the hedonic damages debate puts in especially salient relief.
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I look forward to reading it. I know I've seen a great deal of "happiness literature" (i.e., Layard, Seligman, R. Frank, etc.) that notes that lottery winners and paraplegics both tend toward baseline self-reported "happiness" levels a year or so after their windfall/loss (respectively). One more strike against welfarism, and for the capabilities approach to measuring well-being.
Posted by: Frank | Oct 19, 2006 6:26:07 PM