Academic

More on Hedonic Adaptation from Bronsteen, Buccafusco, and Masur

By Lawrence Solum

The debate started in ohn Bronsteen, Christopher Buccafusco & Jonathan Masur, Hedonic Adaptation and the Settlement of Civil Lawsuits, 108 Colum. L. Rev. 1516, 1543 (2008) continues.  The latest is a reply by John Bronsteen, Christopher Buccafusco & Jonathan Masur, Describing the Effect of Adaptation on Settlement, 109 Colum. L. Rev. Sidebar 21 (2009), http://www.columbialawreview.org/Sidebar/volume/109/21_Bronsteen.pdf, which responds to two pieces:

Here is a snippet from reply:

Let us begin with a one paragraph summary of our Essay to clarify what we have claimed. Civil procedure scholars have spent decades analyzing the circumstances under which lawsuits settle. We argue that the settlement models created by those scholars have omitted a relevant factor: plaintiffs' psychological adaptation to their ailments. Because people adapt to certain injuries?i.e., their happiness or subjective well-being increases with time, even if the injury is permanent?the sum they will accept in settlement should decrease as time passes, all else being equal. That is the sum and substance of our claim.

It is worth taking a moment to note what we do not claim. First, we of course do not claim that adaptation is the only thing that affects settlement or even that people with adaptable injuries will settle earlier than those without them. Indeed, our Essay's contribution is to identify one new factor that should be added to the sophisticated, multi-factor analysis of settlement behavior that exists within the literature. Other factors can and do cut in the other direction, as we discuss at length in the Essay. But all else being equal, adaptation will make the plaintiffs who experience it more likely to settle than they would have been if they had not adapted at all. Second, we need not and do not assert that people adapt entirely to their injuries. Rather, we identify a class of injuries that admit of adaptation, then point to substantial empirical evidence that people adapt partly to those injuries?i.e., that their level of happiness increases as time passes after the injury, even though it may never rebound fully to its pre-injury level. Our claim is only that, other things being equal, people will be less happy immediately after their injury (and therefore less willing to settle, all else equal) than later, due to adaptation. That people do not adapt fully to reach pre-injury levels (a point we acknowledge repeatedly) does not undercut this central claim.1 Third, we draw no normative conclusions whatsoever: Our Essay describes a phenomenon and predicts behavior, nothing more.

Full post as published by Legal Theory Blog on April 21, 2009 (boomark / email).