Well-Being Analysis vs. Cost-Benefit Analysis (with J. Bronsteen & J. Masur) (symposium)

Cost-benefit analysis is the primary tool used by policymakers to inform administrative decisionmaking. Yet its methodology of converting preferences (often hypothetical ones) into dollar figures, then using those dollar figures as proxies for quality of life, creates systemic errors so large as to deprive the tool of value. These problems have been lamented by many scholars, and recent calls have gone out from world leaders and prominent economists to find an alternative analytical device that would measure quality of life more directly. This Article proposes well-being analysis (WBA) as that alternative. Relying on data from the field of hedonic psychology that tracks people’s actual experience of life — data that has consistently survived scrutiny by passing the social science tests of reliability and validity — WBA is able to provide the same policy guidance as CBA without CBA’s distortionary conversion of preferences to dollars. We show how WBA can be implemented, and we catalog exhaustively its superiority over CBA. In light of this comparison, we conclude that there is no reason for CBA to continue as the decisionmaking tool of choice for administrative regulation

On the Legal Consequences of Sauces: Should Thomas Keller\u27s Recipes Be Per Se Copyrightable?

The restaurant industry now takes in over $500 billion a year, but recent courts have been skeptical of the notion that one of its most valuable assets, original recipes, are subject to copyright protection. With more litigation looming and the contours of the debate insufficiently mapped out, this article establishes the appropriate groundwork for analyzing the copyrightability of recipes. I show that, contrary to recent appellate court opinions, recipes meet the statutory requirements for copyrightability. I argue, by analogizing to musical compositions, that written recipes work to satisfy the fixation requirement of copyright law just as musical notation does for compositions. Accordingly, the dish is the final work of authorship, the recipe is the fixation medium, and the various cooking techniques - braising, grilling, sous vide - are the potentially patentable processes. In order to meet copyright law\u27s requirement of originality, though, the work must be deemed expressive. To determine whether and how recipes are expressive, I interviewed some of America\u27s best chefs, each of whom claimed to use recipes to express various ideas and emotions. Since there are no doctrinal limitations to recipes\u27 copyrightability, in Part II, I offer reasons for the late recognition as protectable works. First, I consider the marginalized status of the sense of taste in the history of Western aesthetic philosophy. For many philosophers, only objects that presented themselves to the eyes and ears, such as music, painting, and literature, could be truly beautiful. Partly out of the fear that fancy foods can lead to gluttony, Western, and more specifically Anglo-American writers have often tried to limit cuisine to its fundamentally nutritive components, further isolating it from the realm of creative expression. Furthermore, the producers of cuisine have been treated no better than their products. Throughout history cooking has been the province of lowly household servants and housewives, with only a select few chefs rising to the status of artisan. Chefs rose from the ranks of obscurity far more slowly than did writers, painters, and musicians. Finally, chefs have a long history of directly copying recipes and dishes from their predecessors, suggesting that the norms of Romantic original authorship formed much later in cuisine than in other arts. In Part III, I return to the law to consider whether the copyright monopoly should be extended to culinary creations. Chefs are not likely to take serious advantage of copyrights, as the time and money necessary for suit would rarely be worth the benefit. The chefs I interviewed were uncomfortable with the idea of owning their recipes, and they all approved of others using their recipes, subject to certain limits. Increased innovation is also unlikely as a more robust intellectual property regime would likely inhibit chefs\u27 willingness to experiment with other chefs\u27 dishes. Furthermore, the public domain would not see any meaningful increase, because few chefs who currently keep their recipes secret will be persuaded to publish them to obtain the limited benefits of copyright. The article concludes by arguing that formal copyright protection is not necessary for culinary creation, because a vibrant system of social norms already exists to sanction plagiarism, encourage attribution, and reward innovation. Thus, although recipes meet the formal doctrinal requirements of copyright law, an extension of the monopoly is neither necessary nor appropriate at this time

Welfare as Happiness (with J. Bronsteen & J. Masur)

Perhaps the most important goal of law and policy is improving people’s lives. But what constitutes improvement? What is quality of life, and how can it be measured? In previous articles, we have used insights from the new field of hedonic psychology to analyze central questions in civil and criminal justice, and we now apply those insights to a broader inquiry: how can the law make life better? The leading accounts of human welfare in law, economics, and philosophy are preference-satisfaction - getting what one wants - and objective list approaches - possessing an enumerated set of capabilities. This Article argues against both major views and in favor of a third, defining welfare as subjective well-being. As a result, we advocate the replacement of cost-benefit analysis (CBA, the tool of the preference-based approach) with well-being analysis (WBA). Like its sibling CBA, WBA compares the costs and benefits associated with enacting some law or policy. But while CBA requires monetizing costs and benefits to make them commensurable, WBA simply considers their direct effects on reported well-being. Groundbreaking new research in hedonic psychology makes this possible, and we discuss how it can be accomplished

Well-Being Analysis vs. Cost-Benefit Analysis (with J. Bronsteen & J. Masur) (symposium)

Cost-benefit analysis is the primary tool used by policymakers to inform administrative decisionmaking. Yet its methodology of converting preferences (often hypothetical ones) into dollar figures, then using those dollar figures as proxies for quality of life, creates systemic errors so large as to deprive the tool of value. These problems have been lamented by many scholars, and recent calls have gone out from world leaders and prominent economists to find an alternative analytical device that would measure quality of life more directly. This Article proposes well-being analysis (WBA) as that alternative. Relying on data from the field of hedonic psychology that tracks people’s actual experience of life — data that has consistently survived scrutiny by passing the social science tests of reliability and validity — WBA is able to provide the same policy guidance as CBA without CBA’s distortionary conversion of preferences to dollars. We show how WBA can be implemented, and we catalog exhaustively its superiority over CBA. In light of this comparison, we conclude that there is no reason for CBA to continue as the decisionmaking tool of choice for administrative regulation

Happiness and Punishment (with J. Bronsteen & J. Masur)

This article continues our project to apply groundbreaking new literature on the behavioral psychology of human happiness to some of the most deeply analyzed questions in law. Here we explain that the new psychological understandings of happiness interact in startling ways with the leading theories of criminal punishment. Punishment theorists, both retributivist and utilitarian, have failed to account for human beings\u27 ability to adapt to changed circumstances, including fines and (surprisingly) imprisonment. At the same time, these theorists have largely ignored the severe hedonic losses brought about by the post-prison social and economic deprivations (unemployment, divorce, and disease) caused by even short periods of incarceration. These twin phenomena significantly disrupt efforts to attain proportionality between crime and punishment and to achieve effective marginal deterrence. Hedonic psychology thus threatens to upend conventional conceptions of punishment and requires retributivists and utilitarians to find novel methods of calibrating traditional punitive sanctions if they are to maintain the foundations upon which punishment theory rests

Making Sense of Intellectual Property Law

Intellectual property (IP) scholars have long struggled to explain the boundaries of and differences between copyright and patent law. This Article proposes a novel explanation: copyright and patent can be fruitfully understood as establishing a dichotomy between the different human senses. Copyright has bracketed works addressed to the senses of sight and hearing, and it treats products appealing to touch, taste, and smell as functional and, thus, uncopyrightable. To the extent the latter receive IP protection, it is through the utility patent regime. The Article begins by establishing this descriptive proposition, and it shows how some of the most contested areas of IP (e.g., the useful articles doctrine in copyright law and design patents) involve breaches of this sensory dichotomy. Next, I argue that the sensory dichotomy in IP reflects the sensory hierarchy in traditional Western aesthetic theory. According to this tradition, sight and hearing are considered “high” senses capable of unconstrained aesthetic and cultural experiences. Touch, taste, and smell, by contrast, are considered “low” senses, because their connection to natural bodily needs constrains their aesthetic capacities. IP law’s treatment of the senses in copyright and patent law matches this hierarchy. In recent years, however, fundamental principles of Western aesthetic theory have been undermined by developments in cognitive neuroscience, evolutionary aesthetics, and haptic and culinary communication. This research suggests that sight and hearing are not as aesthetically unconstrained and functionless, nor are touch, taste, and smell as aesthetically constrained and functional as previously believed. Accordingly, I argue that IP law should treat appeals to the senses uniformly. Works that express or communicate ideas, emotions, or pleasures to any of the five senses in such a way that creates original works of authorship should be potentially copyrightable. The Article concludes with an analysis of this proposal’s effects on various creative fields, including tactile objects, fashion, culinary dishes, and yoga

Valuing Attribution and Publication in Intellectual Property (with C. Sprigman and Z. Burns)

This is the third in a series of articles focusing on the experimental economics of intellectual property. In earlier work, we have experimentally studied the ways in which creators assign monetary value to the things that they create. That research has suggested that creators are subject to a systematic bias that leads them to overvalue their work. This bias, which we have called the \u27creativity effect,\u27 potentially results in inefficient markets in IP, because creators may be unwilling to license their works for rational amounts. Our prior research, however, like American IP law itself, focused exclusively on the monetary value that creators derive from their work. In this set of experiments, we expand that focus. The same methods used in our previous studies enable us to test the proposition that creators value opportunities for publication and attribution separately from the opportunity for financial remuneration. Although some previous scholarship has provided strong qualitative evidence for the notion that creators value attribution, it has made no effort to quantify that value. The experiments reported in this latest article attempt to do just that. The results reported here suggest that creators are willing to significantly reduce the amount of money they demand to license their IP rights in exchange for the opportunity to receive attribution for their work. These findings shed important light on emerging debates over whether and how American IP law should adopt attribution rights. Perhaps counterintuitively, for reasons explained in the article, our results suggest that adding a default right to attribution to American IP law would more likely worsen, rather than improve, inefficiencies in IP licensing markets. For this reason, we believe that the U.S. should hesitate to adopt an attribution right

Welfare as Happiness (with J. Bronsteen & J. Masur)

Perhaps the most important goal of law and policy is improving people’s lives. But what constitutes improvement? What is quality of life, and how can it be measured? In previous articles, we have used insights from the new field of hedonic psychology to analyze central questions in civil and criminal justice, and we now apply those insights to a broader inquiry: how can the law make life better? The leading accounts of human welfare in law, economics, and philosophy are preference-satisfaction - getting what one wants - and objective list approaches - possessing an enumerated set of capabilities. This Article argues against both major views and in favor of a third, defining welfare as subjective well-being. As a result, we advocate the replacement of cost-benefit analysis (CBA, the tool of the preference-based approach) with well-being analysis (WBA). Like its sibling CBA, WBA compares the costs and benefits associated with enacting some law or policy. But while CBA requires monetizing costs and benefits to make them commensurable, WBA simply considers their direct effects on reported well-being. Groundbreaking new research in hedonic psychology makes this possible, and we discuss how it can be accomplished

Hedonic Adaptation and the Settlement of Civil Lawsuits (with J. Bronsteen & J. Masur)

This paper examines the burgeoning psychological literature on happiness and hedonic adaptation (a person\u27s capacity to preserve or recapture her level of happiness by adjusting to changed circumstances), bringing this literature to bear on a previously overlooked aspect of the civil litigation process: the probability of pre-trial settlement. The glacial pace of civil litigation is commonly thought of as a regrettable source of costs to the relevant parties. Even relatively straightforward personal injury lawsuits can last for as long as two years, delaying the arrival of necessary redress to the tort victim and forcing the litigants to expend ever greater quantities of resources. Yet these procedural delays are likely to have salutary effects on the litigation system as well. When an individual first suffers a serious injury, she will likely predict that the injury will greatly diminish her future happiness. However, during the time that it takes her case to reach trial the aggrieved plaintiff is likely to adapt hedonically to her injury - even if that injury is permanent - and within two years will report levels of happiness very close to her pre-injury state. Consequently, the amount of money that the plaintiff believes will fairly compensate her for her injury - will make her whole, in the typical parlance of tort damages - will decrease appreciably. The sum that the plaintiff is willing to accept in settlement will decline accordingly, and the chances of settlement increase - perhaps dramatically. The high costs of prolonged civil litigation are thus likely to be offset substantially by the resources saved as adaptive litigants succeed in settling before trial