Peter H. Huang Harold E. Kohn Chair Professor of Law James ...

Emotional Impact Analysis
Zerbe’s approach deals effectively and thoroughly with several arguments against policy makers
taking into account moral sentiments. 246 A particular concern with including moral sentiments is double
counting. 247 Another concern with including moral sentiments is an invariance claim that non-
paternalistic altruistic moral sentiments are unimportant because they simply reinforce those decisions
that would be made in their absence. 248 Zerbe finds that arguments against policy makers taking into
account moral sentiments are incorrect or unpersuasive. Although Zerbe’s approach focuses on moral
sentiments, Zerbe notes that moral sentiments can include immoral sentiments, where people feel such
negative affect as anger, envy, hatred, jealousy, or vengeance towards others.
B. Amoral Sentiments
Upon a moment’s reflection, it becomes clear that Zerbe’s moral sentiments are paradigmatic
examples of what this Article has termed positive emotional impacts. Emotional impacts can arise from
ethical or income distributional concerns. 249 But emotional impacts do not have to be moral sentiments or
immoral sentiments, because emotions do not have to arise from a moral or immoral source. For
example, in a sample of 909 employed women, commuting to and from their work produced the lowest
levels of retrospective well-being out of a list of 19 activities. 250 In other words, stress from daily
commuting is bona fide affective cost which can be quite large, 251 but not a moral sentiment or an
immoral sentiment. Commuters may feel anger towards their fellow commuters for clogging up roads,
245
See e.g., CHRISTOPHER D. STONE. SHOULD TREES HAVE LEGAL STANDING AND OTHER ESSAYS ON LAW, MORALS
AND THE ENVIRONMENT (1996).
246
See generally Paul R. Milgrom, Is Sympathy an Economic Value? Philosophy, Economics and the Contingent
Valuation Method, in CONTINGENT VALUATION: A CRITICAL ASSESSMENT 417 (Jerry Hausman ed., 1993); Paul R.
Milgrom, Cost-benefit Analysis, Bounded Rationality and the Contingent Valuation Method, Stanford Center for
Economic Policy Research Publication No. 316 (1992) (unpublished manuscript); and Sidney G. Winter, A Simple
Remark on the Second Optimality Theorem of Welfare Economics, 1 J. ECON. THEORY 99 (1969).
247
Peter A. Diamond & Jerry A. Hausman, Contingent Valuation: Is Some Number Better Than No Number?, J.
ECON. PERSP ., Autumn 1994, at 45, 55 (voicing this double counting concern); and Kenneth E. McConnell, Does
Altruism Undermine Existence Value?, 32 J. ENVTL. ECON. & MGMT. 22, 23, 29 (1997) (refining this concern
properly to just non-paternalistic altruism).
248
McConnell, supra note 247, at 27 (stating this invariance claim).
249
CAROL GRAHAM & STEFANO PETTINATO, HAPPINESS & HARDSHIP: OPPORTUNITY AND INSECURITY IN NEW
MARKET ECONOMIES (2002).
250
Daniel Kahneman et al., A Survey Method for Characterizing Daily Life Experience: The Day Reconstruction
Method, 306 SCI. 1776, 1777 tbl.1, 1779 fig.3 (2004).
40