Alan Wertheimer

(1942 - 2015)

Policy makers are understandably interested—for both political and moral reasons—in following Thaler and Sunstein's recommendation to use ‘choice architecture’ , or other ‘nudges’, to promote desirable behaviour in ways that are allegedly compatible with personal freedom.1 Yashar Saghai's intricate analysis shows that simply maintaining the target's choice-set is insufficient to preserve the target's freedom when the nudge bypasses the target's deliberative capacities—as it is specifically designed to do.2 In his friendly amendment to Thaler and Sunstein's project, Saghai advances a more robust account of nudges in which fewer policies would count as nudges, but those that do count as nudges would be less troublesome. In this commentary, I briefly discuss several issues raised by Saghai's project, some of which go beyond the topic of nudges. How important is definitional salvaging? If a ‘substantially controlling’ influence were more efficacious in promoting healthy behaviours, we would have a trade-off between the efficacy of a policy and its compatibility with freedom. Saghai states that an influence can be morally permissible even if it is ‘substantially controlling’ and, therefore, does not qualify as a nudge. So even on Saghai's definitional project it is not clear how much work it does in distinguishing the morally permissible from the morally impermissible. The …

As Sarah Conly notes in the précis of her important new book, there is considerable evidence that human beings are prone to make decisions that do not advance their own ends.1 Whereas some have argued for forms of libertarian paternalism such as ‘nudges,’2 ,3 Conly defends a more expansive use of straightforwardly coercive paternalism beyond such uncontroversial policies such as seat belt laws and requiring prescriptions for drugs. We should seriously consider banning trans fats and large portions in restaurants and a total ban on cigarettes.I am largely sympathetic with Conly's project although it is doubtful that preventing people from harming themselves is ‘equally’ permissible with preventing people from harming others. It need only be permissible enough. I am also sympathetic with an underlying thesis of Conly's book, namely, that the justifiability of policies turns largely on empirical considerations of costs and benefits rather than appeals to abstract moral principles. But a commentator's job is not to praise or express sympathy. And so I do.First, Conly's book focuses on coercive paternalism by the state. She does not discuss paternalistic interventions that are not coercive or undertaken by individuals. And these are a central concern in medical ethics. Is it …

When does a woman give valid consent to sexual relations? When does her consent render it morally or legally permissible for a man to have sexual relations with her? Why is sexual consent generally regarded as an issue about female consent? And what is the moral significance of consent? These are some of the questions discussed in this important book, which will appeal to a wide readership in philosophy, law, and the social sciences. Alan Wertheimer develops a theory of consent to sexual relations that applies to both law and morality in the light of the psychology of sexual relations, the psychology of perpetrators, and the psychology of the victims. He considers a wide variety of difficult cases such as coercion, fraud, retardation, and intoxication. We can all agree that 'no' means 'no'. This book suggests that the difficult question is whether 'yes' means 'yes'.

The right to withdraw from participation in research is recognized in virtually all national and international guidelines for research on human subjects. It is therefore surprising that there has been little justification for that right in the literature. We argue that the right to withdraw should protect research participants from information imbalance, inability to hedge, inherent uncertainty, and untoward bodily invasion, and it serves to bolster public trust in the research enterprise. Although this argument is not radical, it provides a useful way to determine how the right should be applied in various cases.

This article considers the principles that underlie the claim that some contracts are unconscionable and that such contracts should not be enforceable. It argues that it is much more difficult to explain unconscionability than is often supposed, particularly in cases where the contract is mutually advantageous or Pareto superior. Among other things, the article considers whether unconscionability is a defect in process or result, whether the gains in an unconscionable contract are disproportionate, whether there is a strong link between the use of standard forms and unconscionability, and whether the principle of inequality of bargaining power can account for unconscionability. After rejecting several standard explanations of unconscionability, I consider several alternative ways in which it might be explained.

Payment to recruit research subjects is a common practice but raises ethical concerns relating to the potential for coercion or undue influence. We conducted the first national study of IRB members and human subjects protection professionals to explore attitudes as to whether and why payment of research participants constitutes coercion or undue influence. Upon critical evaluation of the cogency of ethical concerns regarding payment, as reflected in our survey results, we found expansive or inconsistent views about coercion and undue influence that may interfere with valuable research. In particular, respondents appear to believe that coercion and undue influence lie on a continuum; by contrast, we argue that they are wholly distinct: whereas undue influence is a cognitive distortion relating to assessment of risks and benefits, coercion is a threat of harm. Because payment is an offer, rather than a threat, payment is never coercive

The intentional punishment of the innocent is ordinarily claimed to be a special problem for utilitarian theories of punishment. The unintentional punishment of the innocent is a problem for any theory of punishment which holds that the guilty should be punished. This paper examines the criteria that are relevant to a determination of the appropriate probability of punishment mistakes for a society, and argues that this is the kind of moral problem for which utilitarian judgments, as opposed to considerations of justice, are most appropriate. To illustrate some of the trade-offs involved, the paper employs some hypothetical data.

What I call ‘the standard view’ claims that IRBs should not regard financial payment as a benefit to subjects for the purpose of risk/benefit assessment. Although the standard view is universally accepted, there is little defense of that view in the canonical documents of research ethics or the scholarly literature. This paper claims that insofar as IRBs should be concerned with the interests and autonomy of research subjects, they should reject the standard view and adopt ‘the incorporation view.’ The incorporation view is more consistent with the underlying soft-paternalist justification for risk-benefit assessment and demonstrates respect for the autonomy of prospective subjects. Adoption of the standard view precludes protocols that advance the interests of subjects, investigators, and society. After considering several objections to the argument, I consider several arguments for the standard view that do not appeal to the interests and autonomy of research subjects

It is widely assumed that it is ethical to conduct research with human subjects only if the research has social value. There are two standard arguments for this view. The allocation argument claims that public funds should not be devoted to research that lacks social value. The exploitation avoidance argument claims that subjects are exploited if research has no social value. The primary purpose of this article is to argue that these arguments do not succeed. The allocation argument has little relevance to commercial research. Social value is not necessary to avoid exploitation if subjects benefit from participation. Although the standard arguments for a social value requirement do not succeed, that view might be justified in a different way. It might be justified by appeal to the importance of social trust or the integrity of physician investigators. It is possible but doubtful that these arguments succeed

When does a woman give valid consent to sexual relations? When does her consent render it morally or legally permissible for a man to have sexual relations with her? Why is sexual consent generally regarded as an issue about female consent? And what is the moral significance of consent? These are some of the questions discussed in this important book, which will appeal to a wide readership in philosophy, law, and the social sciences. Alan Wertheimer develops a theory of consent to sexual relations that applies to both law and morality in the light of the psychology of sexual relations, the psychology of perpetrators, and the psychology of the victims. He considers a wide variety of difficult cases such as coercion, fraud, retardation, and intoxication. We can all agree that 'no' means 'no'. This book suggests that the difficult question is whether 'yes' means 'yes'.