Cass R. Sunstein (Harvard Law School; Harvard University - Harvard Kennedy School (HKS)) & L. A. Paul (Yale University) have posted Freedom, Transformative Experiences, Law, and Testimony on SSRN. Here is the abstract:
One way to evaluate various legal interventions in people's lives is to ask whether they make choosers better off, "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. For lawyers, judges, and policymakers to give ultimate authority to choosers might be taken to respect their own judgments and to promote 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, involving life-changing, transformative experiences, the criterion does not offer a unique solution; people might be happy either way. It is possible that welfarist criteria will resolve the indeterminacy, despite serious questions about incommensurability.
