Hedonic Damages, Hedonic Adaptation, and Disability

60 Vand. L. Rev. 745 (2007) 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 individuals 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 this Article argues 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. Over the past quarter century, the concept of "adaptive preferences" has played an important role in debates in law, economics, and political philosophy. As Professor Jon Elster has described this psychological phenomenon, "people tend to adjust their aspirations to their possibilities."1 A number of prominent scholars have argued that the existence of adaptive preferences "raises serious problems for neoclassical economics and for unambivalent enthusiasm for freedom of choice."2 Because our current preferences are constrained by the opportunities available to us, proponents of adaptive preference theory contend, those preferences may not be the best guide to what is in our interests; we may be unduly content with unfair limitations on our opportunities. In a typical passage, Amartya Sen describes the phenomenon this way: The underdog learns to bear the burden so well that he or she overlooks the burden itself. Discontent is replaced by acceptance, hopeless rebellion by conformist quiet, and-most relevantly in the present context-suffering and anger by cheerful endurance. As people learn to adjust to the existing horrors by the sheer necessity of uneventful survival, the horrors look less terrible in the metric of utilities.3 Thus, scholars have typically invoked the adaptive preferences phenomenon as an argument that some preferences are not a proper measure of justice and ought not guide policy.4 Although some have recognized in the abstract that nothing in the theory of adaptive preferences requires preferences to be disregarded uniformly,5 the concept has nearly always been deployed as part of an argument for disregarding revealed, expressed, or felt preferences.6 Critics of adaptive preference theory have argued that the theory lacks "both conceptual coherence and empirical grounding"7 and that it is "undemocratic"8 because the true "argument for satisfying preferences is that they are the individual's, whatever their origin."9 We take a different tack. We agree with the theory's proponents that adaptive preferences exist and that they raise significant normative questions about the unreflective use of preferences as a measure of justice or a basis for policy. But-and this is a point to which proponents of adaptive preference theory have given too little attention-identifying adaptive preferences is only the beginning of the normative inquiry. …