NON-ILLUSORY LOSSES: WHY PAIN AND SUFFERING DAMAGES SHOULD (JUST) BE ABOUT PAIN AND SUFFERING

Abstract

Recent psychological research suggests that people underestimate their ability to adapt to radical changes (“hedonic adaptation”). Consequently, we overestimate the impact that adverse events will have on our long-term happiness. This tendency to mis-predict future (un)happiness raises the legal question: Are juries are overcompensating for pain and suffering of tort victims? Cass Sunstein and Peter Ubel and George Lowenstein argue that juries would be overcompensating according to purely hedonic conceptions of pain and suffering. Nonetheless, victims deserve compensation for their non-hedonic losses. The controversy over pain and suffering compensation is an instance of the broader conflict between three general theories of happiness: hedonic wellbeing, desire fulfillment, and objective list. Sunstein and Ubel and Lowenstein [hereinafter “U&L”] argue that hedonic adaptation vitiates victims’ claims to lost hedonic wellbeing. Nonetheless, we still have a strong moral intuition that such injuries are worthy of compensation. Therefore, hedonic wellbeing is insufficient justification for tort compensation.