Nou, Jennifer, Duke Law Journal
Happiness measures, like any decisionmaking criteria, will not reside in sterile vacuums, but rather will thrive within policymaking institutions. Appreciating the dynamics within and between these bodies thus can help to illuminate further dimensions of the subjective well-being (SWB) debate. This Commentary seeks to bring those institutional considerations to the foreground. Its principal argument is that happiness measures necessarily implicate issues of deep disagreement that must be resolved by legitimate actors and procedures before such measures can be implemented. Given the current lack of methodological consensus, individual agencies should thus experiment with such measures in discrete rulemakings when the available well-being data are robust and could usefully supplement a rule's cost-benefit analysis (CBA). Only then, through learning and experience, should other government actors consider institutionalizing happiness measures through their respective processes and governing texts. (1) Each stage of this dynamic process, in turn--within agencies, the executive branch, Congress, and the courts--promises distinct sources of information and legitimacy.
The articles, Well-Being Analysis vs. Cost-Benefit Analysis (2) and Happiness Surveys and Public Policy: Wkat's the Use?, (3) offer rich insights into many of the contentious issues endemic to SWB research. In the former paper, John Bronsteen, Christopher Buccafusco, and Jonathan Masur propose a method that they call well-being analysis (WBA) as a "hedonized" counterpart to CBA and consider its operation in practice. (4) Matthew Adler's contribution is valuable for highlighting, among other things, the role of the "observer" in happiness measurement. (5) Specifically, he points out that when observers have diverging rankings of preference profiles, "objective" frameworks such as measures of gross national happiness can only be "observer-relative." (6) Such inevitable variations, he fears, will lead to "arbitrary" conclusions about so-called "objective happiness." (7)
The potential for arbitrariness, however, should not in itself doom the enterprise; it counsels only that pretensions to pure objectivity can be shed. In their place should operate familiar and evolving principles of administrative law and institutional processes that help to ensure that such arbitrariness is appropriately cabined. Part I surveys potential sources of deep disagreements regarding SWB that prevent consensus on its policymaking role. Part II compares an array of institutional mechanisms for resolving those disagreements in the analogous context of CBA. Part III then explores the reasons why the best initial mechanisms for implementing SWB measures reside at the individual agency level, when they can supplement the CBA of particular rules.
I. DEEP DISAGREEMENTS
If long-running cost-benefit debates are any indication, there are multiple dimensions along which SWB experts will be unlikely to find universal agreement in the near future. (8) These areas of deep disagreement may arise for multiple reasons. Perhaps they implicate questions about the ends rather than the means of government. (9) Or perhaps they require second-order measurement specifications that are essentially contestable. (10) Or perhaps they require incommensurable tradeoffs between the monetized and nonmonetized, the quantitative and the qualitative. All of these possibilities threaten intractability for academics and government actors alike. At the same time, there may be deep disagreements about whether these disputes are even deep at all; some will argue that sufficient conceptual or technical refinement will reveal them to be quite shallow; others will remain skeptical. This Part surveys a few of these sources of disagreement, but there are many more.
A. Ends, Not Means
Whether the government should promote overall life satisfaction, or positive experiences, or the obtainment of objective goods "is a matter for substantive normative argument. …