A conference on law and the emotions at Boalt Law School this past February featured a talk by Liz Phelps entitled, Emotion and the Brain: Potential Insights for Legal Decisions. On that same panel, Jeremy Blumenthal presented a talk entitled, Moral Passions or Passionate Morals? Emotion, Moral Decision-Making, and the Law. On another panel, Dan Kahan presented his forthcoming article, Two Conceptions of Emotion in Risk Regulation, critiquing Cass Sunstein's view that lay persons' emotions are irrational and should be replaced by experts' reflective judgments. Also as part of that panel, I presented Law and Human Flourishing: Happiness, Affective Neuroscience, and Paternalism.
My talk analyzed this question: are there particular decision-making environments for which categories of paternalism are justifiable by considerations of an individual’s ex post self-reported experienced happiness or subjective well-being? Recent affective neuroscientific data provides evidence of a disjunction between two brain systems: wanting and liking. There is a burgeoning literature demonstrating that across many diverse contexts, people make systematic mistakes in predictions about what will make them happy. See generally, Jeremy A. Blumenthal, Law and the Emotions: The Problems of Affective Forecasting, 80 Indiana Law Journal 155 (2005); and Daniel Gilbert, Stumbling on Happiness. According to Colin F. Camerer, Wanting, Liking, and Learning: Speculations on Neuroscience and Paternalism, 73 University of Chicago Law Review 87 (2006); a gap between wanting and liking supplies a scientific language for normative and positive theories of paternalism. The talk examined policy consequences of such empirical findings in affective neuroscience, happiness research, and positive psychology for a recent debate among some behavioral economists and legal scholars about if and when paternalism is desirable or justifiable. Much of this debate focuses on people being subject to cognitive biases and utilizing heuristics as rationales for some type of paternalism. A noteworthy exception to such cognitively-based paternalism is Jeremy A. Blumenthal, Emotional Paternalism, 35 Florida State University Law Review (forthcoming). Instead of stressing cognitive mechanisms of bounded rationality, the presentation highlighted alternative roles that affect, emotions, and moods play in helping or hindering learning and markets to close gaps between wanting and learning.