In 2005, I was invited to give an address to the annual meeting of the European Association of Law and Economics in Ljubljana, Slovenia. At the urging of my friend and colleague, the distinguished psychologist Professor Ed Diener, I had been reading some scholarship on what is sometimes called “positive psychology” (that is, “the study of subjective well-being” or “hedonic psychology”), to distinguish its focus on what makes people happy from its focus on what the field’s proponents apparently think of as “negative psychology,” which involves the study of things that give people psychological difficulties or abnormalities. The happiness literature I was reading was not far removed from the behavioral literature with which I have long been familiar. And just as that behavioral literature proposed a profound challenge to my rational-choice-theory roots in economics, the happiness literature hinted at a profound challenge to another touchstone of economics: that well-being or happiness is so deeply subjective that it can be revealed only through observing the choices people actually make, and that it is incommensurable among individuals.
In this 2005 talk, I sought to summarize the happiness literature and share my sense of why it may be very important for economics. Moreover, given the connection between standard economics and law and economics, I sought to explain why the happiness literature has implications for legal scholarship that are just as important as those of behavioral economics.
Apparently, I misjudged my audience. Although they listened politely and attentively, they were not buying what I was selling. The questions that the audience members posed when I concluded speaking were skeptical, almost incredulous, of my claim that the happiness literature might force legal scholars to rethink some of their fundamental claims. And to my chagrin, I was not adept enough to respond to those questions in such a way as to turn the mood from incredulity to acceptance.
I thought of this episode as I was reading Professors John Bronsteen, Christopher Buccafusco, and Jonathan Masur’s marvelous new book, Happiness and the Law. Where I failed, they have succeeded wonderfully. This book accomplishes everything that I had hoped to achieve in my 2005 talk and does so persuasively, thoughtfully, and thoroughly. Moreover, it is delightfully written.
In what follows, I summarize the authors’ work with the intention not simply of reproducing it in an abbreviated form but rather of using it to make the case that the happiness literature is extremely important to academic and policy-oriented analyses of the law. From time to time, I shall add my own views about additional points that I wish the authors had made or examples that they might have added. But my principal goal is to urge a very wide readership for this important and pathbreaking book.
Happiness and the Law is best described as an introduction to a vast literature rather than a comprehensive treatise. The authors have written a book that is valuable to members of the general legal community, including law students, policymakers, and law professors. In particular, I suspect that the authors hope to make an impact on both those who endorse law and economics and those who are deeply skeptical of law and economics. The book exhibits not only a respectful tone toward law and economics—as one would expect from three distinguished practitioners of that field—but also a sense that the theory contains weaknesses, some of which can be addressed by the happiness literature. The authors are enthusiastic proponents of the use of a happiness standard to examine law, and they skillfully advocate for that use.
To these ends, the book reviews the happiness literature but does so in a rigorous scholarly fashion, not in a casual or didactic voice. The authors’ enthusiasm, which they have previously expressed in important law review articles, is based on organized, compelling, and well-presented evidence rather than on a merely theoretical or philosophical basis.
There are only 185 pages of text, only a few tables and figures, and no off-putting technicalities. But for those who want to dig deeper into the various topics raised, the authors have included seventy-four pages of endnotes and a twenty-two-page bibliography. Between these two resources, the authors have included most of the happiness scholarship with which I am familiar and more.
A summary of a vast and expanding literature can always be criticized for not emphasizing some aspect of the scholarship, for relying on an incomplete selection of articles or books, for misrepresenting some scholarly conclusions, and so on. I detect very few grounds for those criticisms here. This book is the best summary of the literature that exists and is the best book to put in the hands of those who ought to know about the scholarship of happiness.