Fagundes on Buying Happiness

David Fagundes (Univ. of Houston Law Center) recently posted Buying Happiness: Property, Acquisition, & Subjective Well-Being (William & Mary Law Review, Vol. 58, 2017, Forthcoming) to SSRN. Here is the abstract:

Acquiring property is a central part of the modern American vision of the good life. The assumption that accruing more land or chattels will make us better off is so central to the contemporary preoccupation with acquisition that it typically goes without saying. Yet an increasing body of evidence from psychologists and economists who study hedonics — the science of happiness — yields the surprising conclusion that getting and having property does not actually increase our subjective well-being. In fact, it might even decrease it. While scholars have integrated the insights of hedonics into other areas of law, no scholarship has yet done so with respect to property. This Article maps this novel territory in three steps. In Part I, it summarizes recent findings on the highly conflicted effect on subjective well-being of the acquisition of both land and chattels. In Part II, it explores the implications of these findings for four leading normative theories of property law, showing that in different ways, the evidence produced by happiness studies undermines the core empirical propositions on which these theories rest. Part II also explores the potential of subjective well-being as a framework for assessing the optimal regulation of ownership. Finally, Part III investigates how looking at property through the lens of happiness can help us see this ancient body of law in a new light. Evidence from happiness studies casts doubt on some policies (e.g., state promotion of homeownership), while suggesting the appeal of others (e.g., tax incentives and disincentives designed to nudge acquisition in the direction of greater subjective well-being). Happiness analysis also suggests promising new insights about related aspects of property, including law’s attempts to prevent dispossession, the proper allocation of public versus private land, and the nascent sharing economy. This Article concludes by showing why these findings actually tell an optimistic, if nonobvious, story about the nature and future of property.

I highly recommend this ambitious, creative, and provocative article. Fagundes provides a remarkably thoughtful and comprehensive review of the “happiness” literature, and identifies an unexpected, but quite productive application in property law. Essentially, he observes that happiness research shows that acquiring property does not necessarily increase happiness, and argues that welfarist policies should focus on increasing happiness, rather than increasing property ownership.

Admittedly, I am not entirely convinced by Fagundes’s argument, for both substantive and normative reasons. According to Fagundes, happiness theory typically defines “happiness” as “experience well-being,” or “a person’s positive or negative affect during any moment of their life. To be happy, and have well-being, is to be in a mental state that you would choose to continue. By contrast to be unhappy, as to lack well-being is to be in a mental state that you would prefer not to continue.” Happiness theory hopes to provide a “better measurement of welfare than preference satisfaction.” As Fagundes points out, preference satisfaction does not necessarily increase “happiness” as defined by happiness theory. But I wonder whether happiness theory fails to account for the possibility that unhappiness is simply a luxury good. And from a normative perspective, I’m not sure I’m entirely comfortable with encouraging policies that decrease economic welfare with the intention of making people “happier.” At the very least, public choice theory suggests that is a potentially risky move.

Nevertheless, I found Fagundes’s article fascinating, and potentially quite useful to charity law scholarship. As Fagundes observes, happiness research shows that making charitable contributions increases “happiness,” providing empirical evidence of the salience of “warm glow” associated with charitable giving. In addition, it suggests ways in which utilitarian analyses of policies intended to encourage charitable giving could consider hedonic benefits to donors, as well as benefits to recipients.

Brian L. Frye