If you want to understand law, you have to understand people.
But people, as it turns out, don’t always understand themselves. For one thing, we’re lousy at knowing what makes us happy and lousy at predicting whether we’ll adapt to a particular change, such as losing an arm or going to prison. Worse, we make decisions based on these mistakes — and the law, in many ways, fails to account for our limited rationality. It assumes we know what we want.
That’s the focus of a new book co-authored by Professor Jonathan Masur that applies the latest empirical research on happiness to several areas of law, including criminal punishment and tort litigation. The authors argue that new findings from the growing field of hedonic psychology are so compelling, and run so contrary to intuition and conventional wisdom, that they warrant a rethinking of how we make law.
“Psychologists and other scientists are developing a whole new way of thinking about the quality of life — what is making people’s lives better, what is making their lives worse — and in many ways, it is a more reliable and sensible way than had been used before,” said Masur, the John P. Wilson Professor of Law and David and Celia Hilliard Research Scholar. “And law, at its heart, is supposed to be a mechanism for improving lives and citizens. But it hasn’t really begun to incorporate any of this new thinking.”
Happiness and the Law (University of Chicago Press, December 2014), which Masur wrote with Loyola University Chicago School of Law Professor John Bronsteen and IIT Chicago-Kent College of Law Professor Christopher Buccafusco, proposes a shift from the traditional economic evaluation of law to a broader behavioral analysis that considers data on how people actually experience life. This approach could help explain criminal recidivism, offer a better foundation for tort settlements, and provide insight on how laws and policies affect people’s well-being. It is the latest project to investigate the intersection of hedonic and legal thinking: Law and Happiness, a collection of papers edited by Professor Eric A. Posner and former Law School professor Cass R. Sunstein, was released in 2010, and a conference on the topic was held at the Law School in 2007.
“Economists look at whether people’s preferences are being satisfied,” Masur said. “Maybe what you think you want is to have a gigantic house in the suburbs with a lot of space. An economist would say if you get that house, your life is better — and if you don’t get that house, your life is not better. What we’re learning now is that people are really bad at predicting whether these things will actually make them happier.”
As a result, Masur and his co-authors propose assessing laws and policies not through traditional cost-benefit analysis, which focuses on people’s stated preferences and essentially monetizes costs and benefits, but through a measure they call well-being analysis, which relies on real-time studies of people’s actual experiences and essentially “hedonizes” costs and benefits. The idea is to focus on what tends to actually matter to people instead of what they predict will matter.
For example: in a lawsuit, a jury would probably award much higher damages to a victim who has lost an arm than to another victim who, as a result of the same accident, now suffers chronic migraines — the assumption being that a lost arm is worth more than occasional headaches. Here’s the problem: social scientists have been able to quantify the effects of these circumstances — using sophisticated and scientifically validated studies of self-reported well-being — and the findings squarely challenge the assumption. Happiness science tells us that people adapt surprisingly well, and often more quickly than expected, to permanent changes like a lost limb. But they struggle with changes that are intermittent, unpredictable, and difficult to ignore, like chronic migraines.
Another example: law typically takes a very linear view of criminal punishment, imposing a five-year sentence for one crime and a ten-year sentence for another that’s seen as twice as serious. But that logic also fails to account for actual experience. Well-being data show that people generally adapt to imprisonment, so the second half of a ten-year sentence is likely to be better than the first. What’s more, having been in prison has such negative effects on employment, mental and physical health, and personal relationships that life on the outside is often less of an improvement than expected. The hedonic upshot: the gap between five and ten years in prison isn’t nearly as big as we thought.
“Everything in our criminal justice system is based around the idea that ten years in prison is a lot worse than five years, and that twenty years is a lot worse than ten years. We structure plea bargaining negotiations around that idea, we structure the sentences we apply to crimes around that idea,” Masur said. “But if it turns out they’re all pretty similar, then we’ve been doing this wrong all along.”
Even recidivism starts to make sense when viewed through the hedonic lens.
“One of the reasons that people so often commit another crime is that life outside prison isn’t really that good,” Masur said. “The difference between being in prison and being out of prison winds up not being that stark – and we need it to be stark.”
Masur and his co-authors acknowledge concerns about the well-being analysis, including that “feeling good” is too subjective to measure, but they argue that it improves upon the preference-driven economic approach.
“We’ve been so grounded for so long in this idea that people’s lives will be better if they get what they think they want,” Masur said. “But there was never any scientific basis for this belief — it was just a belief. Part of our goal is to try to convince people that just because we’ve been thinking this way for a long time, just because we’re comfortable with it — that doesn’t make it correct, and it doesn’t make it reliable.”
In fact, the subjective and personal nature of “feeling good” is actually a strength of the hedonic approach, Masur said.
“We think the best way to judge whether someone’s life is going well is to judge it on their own terms,” he said. “The move from that to quantification is, of course, hard — you and I might rate things differently — but even if there’s some fuzziness there, across large numbers of people those little differences average out.”
And it isn’t any more subjective that the traditional economic approach: “A dollar to you is different than a dollar to me,” he said.
What’s more, science doesn’t need to answer the deep philosophical questions — what is happiness? — to successfully apply hedonics to law.
“Even if people disagree to some extent about what it really means to live the good life, everyone will agree that their happiness plays some role in it,” he said. “That part is uncontroversial. And if we can all agree on that, then we absolutely ought to be looking at this.”