Rational Actors and Happy Actors

By Nathaniel Counts

Politics, theoretically at least, is a process designed to enhance the sense of wellbeing of its citizens.  The success of this process, the amount of wellbeing that can be created, is hamstrung by biology – we have basal levels of felt wellbeing that are determined through some amount of nature and nurture, and that are independent of our present circumstances.  Because there is a biological component to it, we may be able to alter an individual’s basal wellbeing before they reach adulthood.  For example, if hypomania, a psychological condition where the individual only experiences the manic part of bipolar disorder, were found to have a definitively genetic etiology, gene therapy could be used on embryos so that they would grow up to experience the constant heightened state of wellbeing associated with the condition (for an interesting article on hypomania and wellbeing, see here).

If we developed this technology and allowed its use, putting aside the ethical issues of access to the technology and using it on embryos who are unable to consent to the procedure, we would face interesting legal issues.  Our world, at present is founded principally on the idea that those that inhabit it are rational actors.  We are finding this to be untrue and slowly some institutional design is beginning to incorporate choice architecture or soft paternalism to combat identifiable biases and bounds to our rationality.  Now imagine that a single person half of the time takes pills to induce hypomania.  Her decision-making will be very different but still rational for her – putting in question initial assumptions about rationality – and she will exhibit different cognitive biases.  How do you design institutions to best protect this person’s interests?

This question matters if we have a population in which half of individuals have been altered to be hypomanic from birth and the other half have not.  Of course we presently face this issue because we live in a society of all different mental states, but as these deviant states are either ignored or viewed as disorders, this becomes an issue most often for the medical field, not for policy-makers (drug laws could be seen as a clear exception, with drugs being banned to prevent possible addiction by those with an increased likelihood for it).  In a world where a psychological condition was an intentional act that represented a majority or sizeable minority of the population, it is more likely that policy-makers would need to take the differences in rationality seriously, potentially leading to the complete abandonment of the rational actor model for anyone, as the irrationality of the original majority becomes more clear through contrast.

So what becomes of our law?  We could not change it, and its application would be based on assumptions we know not to be true, which would have a sense of equality before the law but would provide a real disservice to the altered individuals, who were not considered in the laws’ drafting.  If this answer is dissatisfactory, we are left with two unpleasant possibilities: we could have two sets of laws, one that applies to individuals that have been genetically altered and one for those who have not, or we could ban the alteration to avoid the issue, depriving everyone of an opportunity for a greater sense of wellbeing.


Nathaniel Counts was a Student Fellow during the 2013-2014 academic year. At the time, he was in his third year at Harvard Law School. He was interested in the role of law and lawyers in the treatment of mental health issues, with a focus on behavioral disorders, including intersections with the criminal justice system. He was also interested in the use of a right to health care in human rights lawyering and international development. Nathaniel graduated from Johns Hopkins with a major in biology and a minor in entrepreneurship and management. Prior to law school, he studied creative writing at Bar-Ilan University in Israel. His past research focused on the federal government’s response to marijuana legalization, including recommendations for public health initiatives; he published an article on this subject in the Gonzaga Law Review in 2014.

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