Tort Damages and the New Science of Happiness

49 Pages Posted: 6 Mar 2009 Last revised: 2 Aug 2009

See all articles by Rick Swedloff

Rick Swedloff

Rutgers Law School

Peter H. Huang

Retired Professor; University of Colorado Law School


The happiness revolution is coming to legal scholarship. Based on empirical data about the how and why of positive emotions, legal scholars are beginning to suggest reforms to legal institutions. In this article we aim to redirect and slow down this revolution.

One of their first targets of these legal hedonists is the jury system for tort damages. In several recent articles, scholars have concluded that early findings about hedonic adaptation and affective forecasting undermine tort awards for pain and suffering, mental anguish, loss of enjoyment of life, and other non-economic damages. In the shadow of a broader debate about the propriety of indefinite damages, the legal hedonists argue that these findings provide new support for the argument that jurors cannot award indefinite damages rationally or consistently. The legal hedonists argue that, on the one hand, awards for non-economic tort damages are inappropriate, because individuals will adapt to any negative emotional or physical state. On the other hand, they argue that jurors are incapable of granting these damages, because they systematically predict inaccurately the impact of injuries upon tort victims.

We conclude that these legal hedonists understate the flexibility of the law and overstate dated empirical research on which their arguments are based. First, the law is more nuanced than these legal hedonists care to admit. To the extent it is appropriate, the law allows jurors to take account of adaptation, and more importantly, the law provides compensation for far more than just emotional changes. It compensates for loss of capabilities, loss of emotional and experiential variety, and lost options. Second, recent studies document the incompleteness and variability of hedonic adaptation. This reinforces our concerns about basing legal policy on hedonic adaptation and our belief that judges and juries, acting in combination, appropriately individuate tort awards. That said, we conclude that expert testimony may help jurors craft awards by providing information about hedonic and non-hedonic losses.

Keywords: Happiness, Affective Forecasting, Emotional Harms, Hedonic Adaptation, Juries, Non-pecuniary Damages, Torts

JEL Classification: K13, K41, D03

Suggested Citation

Swedloff, Rick and Huang, Peter H., Tort Damages and the New Science of Happiness. Indiana Law Journal, Vol. 85, Temple University Legal Studies Research Paper No. 2009-23, Available at SSRN:

Rick Swedloff (Contact Author)

Rutgers Law School ( email )

217 N. 5th Street
Camden, NJ 08102
United States


Peter H. Huang

Retired Professor ( email )

University of Colorado Law School
Boulder, CO 80309
United States


University of Colorado Law School ( email )

Colorado Law
401 UCB
Boulder, CO 80309
United States
303-492-1200 (Fax)

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