Torn Between Two Selves: Should Law Care More About Experiencing Selves or Remembering Selves?

Based upon psychological research and neuroscience studies about subjective well-being, 2002 Nobel Laureate in Economics, Daniel Kahneman, poses a riddle about which of these two selves should count: experiencing selves or remembering selves. Our remembered emotions (memories) are usually rosier than our experienced emotions, and people are motivated by their predicted emotions, which tend to coincide with their emotional memories. This Article advocates that law should care more about experiencing selves than remembering selves if and when experiences result in chronic health or stress consequences that either (1) societies care about more than people do (because of externalities, public bads, or public goods) or (2) people also care about, but are unaware of, do not remember, or are unable to act upon (due to self-control problems). This Article analyzes examples of chronic health or stress effects from such experiences as dense and long commutes, unhealthy eating, lack of regular physical exercise, sedentary behavior, and financial/retirement planning.