L.A. Paul & Cass R. Sunstein
Volume 76, Issue 5, 1517-1538
One way to evaluate various legal interventions in people’s lives is to ask whether they make choosers better off by their own lights, or “as judged by themselves.” This criterion can be understood to borrow from the liberal political tradition insofar as it makes the judgments of choosers authoritative. If lawyers, judges, and policymakers give ultimate authority to choosers, this might be taken as respecting choosers’ own judgments and promoting their welfare (insofar as people are uniquely situated to know whether choices make them better off). But for certain decisions, the “as judged by themselves” criterion is indeterminate. In these situations, which involve life-changing, transformative experiences, the criterion does not offer a unique solution; people might be happy with their choices either way. It is possible that welfarist criteria will resolve the indeterminacy, despite serious questions about incommensurability.