Paternalism in Applied Ethics

Shared views regarding the moral respect which is owed to children in family life are used as a guide in determining the moral permissibility of nontherapeutic clinical research procedures involving children. The comparison suggests that it is not appropriate to seek assent from the preadolescent child. The analogy with interventions used in family life is similarly employed to specify the permissible limit of risk to which children may be exposed in nontherapeutic research procedures. The analysis indicates that recent writers misconceive (...) how certain moral principles, such as respect for personal autonomy, require us to act toward children. The results are also used to assess proposed federal regulations on research with children. (shrink)

It is increasingly clear that children's excessive consumption of products high in added sugar causes obesity and obesity-related health problems like type 2 diabetes, cardiovascular disease, and metabolic syndrome. Less clear is how best to address this problem through public health policy. In contrast to policies that might conflict with adult's right to self-determination — for example sugar taxes and soda bans — this article proposes that children's access to products high in added sugars should be restricted in the same (...) way that children's access to tobacco products is restricted. The article first considers how the recommended policy will protect a child's right to an open future while not violating parental rights. The article then explores how the implementation of the recommended policy can help transform the social meaning of sugar and thereby curb the parental supply of added sugar to children — a central cause of obesity. The article also addresses several potential objections. (shrink)

This classic essay on the responsibilities of a doctor was first published in New York in 1769. It remains a perfect gift for a young doctor just starting out or for one who is older and wiser. This classic will be an inspiration to any who read its timeless message.

This is an extremely thorough revision of the leading textbook of bioethics. The authors have made many improvements in style, organization, argument and content. These changes reflect advances in the bioethics literature over the past five years. The most dramatic expansions of the text are in the comprehensiveness with which the authors treat different currents in ethical theory and the greater breadth and depth of their discussion of public policy and public health issues. In every chapter, readers will find new (...) material and refinements of old discussions. This is evident in the many new sections on topics like communitarianism, ethics of care, relationship-based accounts, casuistry, case-based reasoning, principle-based common-morality theories, the justification of assistance in dying, rationing through priorities in the health care budget, and virtues in professional roles. The most extensive revisions are in chapters 1, 2 and 8. (shrink)

This edition represents a thorough-going revision of what has become a classic text in biomedical ethics. Major structural changes mark the revision. The authors have added a new concluding chapter on methods that, along with its companion chapter on moral theory, emphasizes convergence across theories, coherence in moral justification, and the common morality. They have simplified the opening chapter on moral norms which introduces the framework of prima facie moral principles and ways to specify and balance them. Together with the (...) shift of advanced material on theory to the back of the book, this heavily revised introductory chapter will make it easier for the wide range of students entering bioethics courses to use this text. Another important change is the increased emphasis on character and moral agency, drawing the distinction between agents and actions. The sections on truth telling, disclosure of bad news, privacy, conflicts of interest, and research on human subjects have also been throughly reworked. The four core chapters on principles and the chapter on professional-patient relationships retain their familiar structure, but the authors have completely updated their content to reflect developments in philosophical analysis as well as in research, medicine, and health care. Throughout, they have used a number of actual cases to illuminate and to test their theory, method, and framework of principles. (shrink)

Many people feel that respecting a person’s autonomy is not sufficiently important to obligate us to stay out of their affairs in all cases; but the ground for interference may often turn out to be a hunch that the agent cannot really be competent, or cannot really know what her decision implies; for if she were both of these things, surely she would not make such a foolish decision. This paper suggests a justification of paternalism that does not rely on (...) such appeals. I argue that in cases where an agent will undergo a significant alteration in their evaluative outlook – ‘evaluative shift’ – three central, persuasive objections to paternalism lose their force, and offer a prima facie case for paternalism in some of these cases. I then suggest that we can extend this argument to some cases where evaluative alteration is not predictable, but where the risk and harm are both significant. In such cases, paternalism may be justified. (shrink)

Considerations of objective-value freedom and status freedom do impose constraints on policies that restrict access to cigarettes. As to the objective-value freedom, something of value is lost when anti-alcohol policies lead to pub closures interfering with valued life styles, and a similar, though weaker, argument can be made for cigarettes. As to status freedom, non-arbitrariness requires consultation with vulnerable populations to learn what might aid them with smoking cessation.

The Government uses various policy tools to reduce alcohol consumption. There are restrictions on promotions, information campaigns, and pricing policies. These policies do not stand unchallenged. Restrictions on promotions irk business, information campaigns fail to reach the less educated, and pricing policies hurt responsible but poor consumers. So what about Thaler and Sunstein’s Nudge? Nudges keep choices open but change the “choice architecture” so as to help those who would like to drink less, and they do so in ways that (...) constructively engage business. Let us focus on one choice environment here, namely beer consumption in British pubs. (shrink)

In this commentary on Yashar Saghai's article "Salvaging the Concept of Nudge" (JME 2013) I discuss his distinction between a 'prod' (which is 'substantially controlling') and a 'nudge' (which is ‘substantially non-controlling’).

The novelty in Adam Burgess’ paper is that he assesses nudge policies in the context of the shift in the UK government’s approach to risk from the nannying policies of Labour to the nudge policies of the Conservatives. There is a wealth of ideas in this paper. I find it useful to disentangle some of these ideas focusing on the following two questions: 1. In what respects do Labour’s nannying policies and the Conservatives’ nudge policies differ? 2. What is problematic (...) about Labour’s nannying and the Conservatives’ nudge policies? Subsequently I will reflect on how a particular strand of research in the social sciences can be made relevant to designing a more responsible way of dealing with societal risk and show how this approach can evade some of Burgess’ concerns. (shrink)

In their recently published book Nudge (2008) Richard H. Thaler and Cass R. Sunstein (T&S) defend a position labelled as ‘libertarian paternalism’. Their thinking appeals to both the right and the left of the political spectrum, as evidenced by the bedfellows they keep on either side of the Atlantic. In the US, they have advised Barack Obama, while, in the UK, they were welcomed with open arms by the David Cameron's camp (Chakrabortty 2008). I will consider the following questions. What (...) is Nudge? How is it different from social advertisement? Does Nudge induce genuine preference change? Does Nudge build moral character? Is there a moral difference between the use of Nudge as opposed to subliminal images to reach policy objectives? And what are the moral constraints on Nudge? (shrink)

This article defines the nature of paternalistic interventions in psychotherapy and discusses reasons why the client's right to consent to treatment is important. We describe a reasoning process developed by Culver and Gert (1982) that can be used to determine when paternalistic actions are and are not ethically justifiable in mental health practice. We demonstrate how this procedure may be applied to psychotherapy by using a number of case illustrations.

John Kleinig, Paternalism Totowa, NJ: Rowman & Allanheld, 1984, xiii + 242 pp.

Epistemic paternalism is the thesis that a paternalistic interference with an individual's inquiry is justified when it is likely to bring about an epistemic improvement in her. In this article I claim that in order to motivate epistemic paternalism we must first account for the value of epistemic improvements. I propose that the epistemic paternalist has two options: either epistemic improvements are valuable because they contribute to wellbeing, or they are epistemically valuable. I will argue that these options constitute the (...) foundations of a dilemma: either epistemic paternalism collapses into general paternalism, or a distinctive project of justified epistemic paternalism is implausible. (shrink)

Medical practitioners are duty-bound to tell their patients the truth about their medical conditions, along with the risks and benefits of proposed treatments. Some patients, however, would rather not receive medical information. A recent response to this tension has been to argue that that the disclosure of medical information is not optional. As such, patients do not have permission to refuse medical information. In this paper I argue that, depending on the context, the disclosure of medical information can undermine the (...) patient’s ability to exercise her autonomy or have therapeutically detrimental effects. In the light of these insights I go on to develop a context-sensitive approach to medical disclosure. The advantage of this account is that it addresses concerns on both sides of the debate; whilst it acknowledges that patients do not have an exercisable ‘right not to know,’ it allows that in some cases medical information ought to be withheld. (shrink)

This essay introduces and defends a new analysis of prudential value. According to this analysis, what it is for something to be good for you is for that thing to contribute to the appeal or desirability of being in your position. I argue that this proposal fits well with our ways of talking about prudential value and well-being; enables promising analyses of the related concepts of luck, selfishness, self-sacrifice, and paternalism; preserves the relationship between prudential value and the attitudes of (...) concern, love, pity, and envy; and satisfies various other desiderata. I also highlight two ways in which the analysis is informative and can lead to progress in our substantive theorizing about the good life. (shrink)

"A very good book indeed: there is scarcely an issue anyone has thought to raise about the topic which Childress fails to treat with sensitivity and good judgement....Future discussions of paternalism in health care will have to come to terms with the contentions of this book, which must be reckoned the best existing treatment of its subject."--Ethics. "A clear, scholarly and balanced analysis....This is a book I can recommend to physicians, ethicists, students of both fields, and to those most affected--the (...) patients themselves."--Edmund D. Pellegrino, John Carroll Professor of Medicine and Medical Humanities, Georgetown University Medical Center. (shrink)

According to rational will views of paternalism, the wrongmaking feature of paternalism is that paternalists disregard or fail to respect the rational will of the paternalized, in effect substituting their own presumably superior judgments about what ends the paternalized ought to pursue or how they ought to pursue them. Here I defend a version of the rational will view appealing to three rational powers that constitute rational agency, which I call recognition, discrimination, and satisfaction. By appealing to these powers, my (...) version of the rational will view can rank the wrongfulness of paternalistic acts in terms of the extent to which such acts (a) amount to supplanting the paternalized individual’s identity as a rational agent with that of the paternalist, and (b) the degree of mistrust the paternalistic act shows in the paternalized individual’s rational agency. My rational powers account thus provides a more complete account of why paternalism is a powerful, but not decisive or absolute, objection to an act or policy. My rational powers account also provides powerful explanations of why rational suasion deflects charges of paternalism; why consenting to intercessions in one’s rational agency negates paternalism; why we ordinarily believe that strong paternalism is more objectionable than weak paternalism; and why we ordinarily believe that hard paternalism is more objectionable than soft paternalism. (shrink)

Defends Kantian paternalism: Interference with an individual’s liberty for her own sake is justified absent her actual consent only to the extent that such interference stands a reasonable chance of preventing her from exercising her liberty irrationally in light of the rationally chosen ends that constitute her conception of the good. More specifically, interference with an individual’s liberty is permissible only if, by interfering, we stand a reasonable chance of preventing that agent from performing actions she chose due to distorted (...) reasoning and which would result in that agent’s rationally chosen ends not being as fully realized as they would have been had she so acted. -/- Applied to suicide intervention Kantian paternalism implies that such intervention is justified to the extent that it prevents a person from ending her life when, due to distorted reasoning, she engages in suicidal behavior that is at odds with her rationally chosen ends. (shrink)

Joel Feinberg, Harm to Self Oxford: Oxford University Press, 1986, xxiii + 412 pp.

In der Medizin gehören Kinder neben Ausländern, Behinderten und psychiatrisch Erkrankten zu den besonders vulnerablen Patientengruppen. Im Folgenden soll die Frage nach der Würde der Kinder in medizinethischer Hinsicht behandelt werden. Dazu werden drei Thesen erläutert und begründet: (1.) das Prinzip der Menschenwürde kann nicht ganz außer Acht gelassen werden, wenn Kinder als Patienten in medizinethischer Hinsicht thematisiert werden; (2.) das Prinzip der Menschenwürde wird in der Medizinethik nicht schon vollständig durch die medizinethischen Prinzipien der Patientenautonomie und der Fürsorge für (...) die Patienten abgedeckt; (3.) die habituelle und bewusste Achtung der Würde des Menschen bringt immer wieder neue und bisher noch wenig beachtete Aspekte des medizinischen, therapeutischen und pflegerischen Umgangs mit Patienten und Kindern als Patienten ans Licht. Diskussionen über den Gehalt des Prinzips der Menschenwürde gehen nicht nur in der Medizinethik, sondern auch in anderen Bereichen der angewandten Ethik in der Regel von Erwachsenen aus. Erwachsene gelten als die paradigmatischen Subjekte und Objekte der Wahrnehmung, Zuschreibung und Anerkennung von Würde. Meistens denkt man nur an Erwachsene, wenn man darauf besteht, dass die menschliche Würde (1.) vom moralischen und rechtlichen Standpunkt aus grundsätzlich zu achten ist, (2.) unter bestimmten psychologischen, sozialen und politischen Umständen gefährdet ist und (3.) in bestimmten Handlungssituationen mit anderen ethischen Forderungen in Konflikt geraten kann. Bei Erwachsenen ist es relativ leicht, ethische Intuitionen darüber, ob in bestimmten medizinischen Handlungssituationen die Würde eines Menschen verletzt wird, zu formulieren und zu begründen. Denn bei Erwachsenen steht die Würdeverletzung in einem engen Zusammenhang mit der Berücksichtigung verschiedener ethischer Forderungen: (1.) nach Achtung der willentlichen Selbstbestimmung und der normativen Autonomie, (2.) nach Berücksichtigung von persönlichen Lebenszielen und Wertpräferenzen, (3.) nach Bewahrung von mutmaßlichen Lebenschancen (4.) nach Berücksichtigung personaler Bedürfnisse nach Anerkennung, Gegenseitigkeit, Intimität, Integrität, etc. sowie (5.) nach Wahrnehmung und Anerkennung der unverwechselbaren Individualität des Anderen. Die Angemessenheit und Erfüllbarkeit dieser ethischen Forderungen hängt nun aber von soziologischen und psychologischen Gegebenheiten ab, die bei Kindern je nach Altersgruppe und individueller Ausprägung nicht in gleicher Weise gegeben sind. Deswegen soll hier gezeigt werden, welche besondere und zusätzliche Rolle eine medizinethische Erinnerung an die Würde der Kinder im Spannungsfeld zwischen Autonomie und Fürsorge spielen kann. Dabei zeigt sich, dass es gerade die Achtung vor der Würde des Kindes ist, die uns überhaupt erst ermöglicht, das Kind als Kind und damit als ein eigenständiges Subjekt und als ein besonderes menschliches Wesen zu entdecken. (shrink)

Theorists who support the legalisation of active euthanasia usually base their arguments on the principle of autonomy. In their view the wish of a severely ill person not to continue his or her life must be respected. However, some opponents of the legalisation of active euthanasia refer to the principle of autonomy as well. They are concerned that patients may be held responsible for burdening others with the provision of care. Thus family members, physicians or nurses may exert pressure on (...) patients to opt for active euthanasia. In this article it is argued that these worries are justified; the occurrence of social coercion poses a real danger. However, neither the prohibition nor the permission of active euthanasia enables each individual to make an autonomous choice. Comparing the risks involved in both options, legalisation seems to be preferable to maintaining the status quo. (shrink)

Traditionally, most philosophers saw childhood as a state of deficiency and thought that its value was entirely dependent on how successfully it prepares individuals for adulthood. Yet, there are good reasons to think that childhood also has intrinsic value. Children possess certain intrinsically valuable abilities to a higher degree than adults. Moreover, going through a phase when one does not yet have a “self of one’s own,” and experimenting one’s way to a stable self, seems intrinsically valuable. I argue that (...) children can have good lives, on several understandings of well-being – as a pleasurable state, as the satisfaction of simple desires or as the realization of certain objective goods. In reply to the likely objection that only individuals capable of morality can have intrinsic value, I explain why it is plausible that children have sufficient moral agency to be as deserving of respect as adults. (shrink)

I distinguish between three different ideas that have been recently discussed under the heading of 'the intrinsic goods of childhood': that childhood is itself intrinsically valuable, that certain goods are valuable only for children, and that children are being owed other goods than adults. I then briefly defend the claim the childhood is intrinsically good. Most of the chapter is dedicated to the analysis, and rejection, of the claim that certain goods are valuable only for children. This has implications about (...) how a good society should trade off economic productivity on the one hand and goods such as play and unstructured time on the other hand. (shrink)

Drink driving causes great suffering and material destruction. The alcohol interlock promises to eradicate this problem by technological design. Traditional counter-measures to drink driving such as policing and punishment and information campaigns have proven insufficient. Extensive policing is expensive and intrusive. Severe punishment is disproportionate to the risks created in most single cases. If the interlock becomes inexpensive and convenient enough, and if there are no convincing moral objections to the device, it may prove the only feasible as well as (...) the only justifiable solution to the problem of drink driving. A policy of universal alcohol interlocks, in all cars, has been proposed by several political parties in Sweden and is supported by the National Road Administration and the 2006 Alcohol Interlock Commission. This article assesses two possible moral objections to a policy of universal interlocks: (i) that it displaces the responsibility of individual drivers and (ii) that it constitutes a paternalistic interference with drivers. The first objection is found unconvincing, while the second has only limited bite and may be neutralized if paternalism is accepted for the sake of greater net liberty. Given the expected technological development, the proposed policy seems a commendable health promotion measure for the near future. (shrink)

Medical clinicians – doctors, nurses, nurse practitioners etc. – are charged to act for the good of their patients. But not all ways of acting for a patient's good are on par: some are paternalistic; others are not. What does it mean to act paternalistically, both in general and specifically in a medical context? And when, if ever, is it permissible for a clinician to act paternalistically? -/- This paper deals with the first question, with a special focus on paternalism (...) in medicine. While it is easy to give a rough characterization of paternalism (i.e. acting for another's good against that person's will), it is surprisingly difficult to provide a unified account of the myriad of actions that seem to count as paternalistic. After surveying four accounts of paternalism, I argue that two – what I call the authority and beneficence accounts – are the strongest on offer. According to the authority account, a clinician acts paternalistically when, for her patient's good, she usurps his decision-making authority. According to the beneficence account, a clinician acts paternalistically when, for her patient's good, she acts only or overrindingly out of concern for his good. I show how the difference between these accounts matters (in part) for how we should think about the nature of surrogate decision making in medicine. I argue that there are reasons – albeit hardly decisive – to prefer the beneficence account to the authority account. I conclude by considering whether attempts by clinicians to rationally persuade their patients to pursue a particular course of action should be thought of as paternalistic. (shrink)

Medical clinicians – doctors, nurses, nurse practitioners etc. – are charged to act for the good of their patients. But not all ways of acting for a patient's good are on par: some are paternalistic; others are not. What does it mean to act paternalistically, both in general and specifically in a medical context? And when, if ever, is it permissible for a clinician to act paternalistically? In Medical Paternalism Part 1, I answered the first question. This paper answers the (...) second. The place of paternalism in clinical medicine is best understood, I argue, in terms of the potential for conflict between the autonomy principle and the beneficence principle. The first enjoins clinicians to respect the decisions of patients with respect to their (the patients') own care. The second enjoins clinicians to act for the good of their patients. Clinicians act paternalistically, I argue, when they act on the beneficence principle to the exclusion of the autonomy principle. Understanding just what these principles amount to (particularly the autonomy principle) reveals that the autonomy principle defeasibly trumps the beneficence principle and that, as a result, acting paternalistically (at least when it comes to competent patients) is presumptively impermissible. (shrink)

In general, we think that when it comes to the good of another, we respect that person’s will by acting in accordance with what he wills because he wills it. I argue that this is not necessarily true. When it comes to the good of another person, it is possible to disrespect that person’s will while acting in accordance with what he wills because he wills it. Seeing how this is so, I argue, enables us to clarify the distinct roles (...) that the wills of competent and incompetent people should play in third-party deliberations about their welfare. (shrink)

The American Journal of Bioethics, Volume 12, Issue 2, Page 46-48, February 2012.

Sport-related neurotrauma annually affects millions of athletes worldwide. The return-to-play protocol is the dominant strategy adopted by sports leagues and organizations to manage one type of sport-related neurotrauma: concussions. RTPs establish guidelines for when athletes with concussions are to be removed from competition or practice, and when they can return. RTPs are intended to be neuroprotective, and to protect athletes from some of the harms of sport-related concussions, but there is athlete resistance to and noncompliance with RTPs. This prompts consideration (...) of whether RTPs, as employed in adult, professional sports, are paternalistic, and if they are, whether they are objectionably so. If RTPs are uniquely effective at protecting current or future athlete autonomy, they might be justified by paternalism. I conclude that RTPs are paternalistic in their effects, but are not adequately justified, and thus they are objectionable. (shrink)

Traditionally, medical professionals have taken a paternalistic stance towards their patients and have relied on a traditional approach to medical ethics. In recent years, in Britain, however, a new 'managerialism' has developed in the National Health Service (the NHS). This stresses consumerism and greater patient choice and is changing the relationship between doctors and patients. This paper draws out the implications for patients. It describes the ethical characteristics of the two conflicting approaches and argues the need to stress again the (...) view of the patient as an individual person. (shrink)

This paper offers a non-paternalistic justification for prospective research review as providing a credible social assurance that the institutions of scientific advancement respect and affirm the moral equality of all community members and as creating a “market” in which stakeholders working to advance diverse ends also advance the common good.

Is it possible to interfere with individual decision-making while preserving freedom of choice? The purpose of this article is to assess whether ‘libertarian paternalism’, a set of political and ethical principles derived from the observations of behavioural sciences, can form the basis of a viable framework for the ethical analysis of public health interventions. First, the article situates libertarian libertarianism within the broader context of the law and economics movement. The main tenets of the approach are then presented and particular (...) attention is given to its operationalization through the notion of a ‘nudge’. Essentially, a ‘nudge’ consists in an intervention, which aims to suggest one choice over another by gently steering individual choices in welfare-enhancing directions yet without imposing any significant limit on available choices. Finally, the article concludes that, while it fails as an overreaching framework of ethical analysis, libertarian paternalism nonetheless constitutes a valuable addition to the conceptual toolbox of public health ethics. (shrink)

For many, it is far from clear where the prerogatives of parents to educate as they deem appropriate end and the interests of their children, immediate or future, begin. In this article I consider the educational interests of children and argue that children have an interest in their own well-being. Following this, I will examine the interests of parents and consider where the limits of paternalism lie. Finally, I will consider the state's interest in the education of children and discuss (...) a familiar view that argues that we have a central obligation to cultivate good citizens. The article will focus on the tensions which inevitably arise from the sometimes conflicting interests between them. (shrink)

Both for reasons of their own and because of congressionally mandated changes in the Family Education Rights and Privacy Act, many colleges and universities have changed the way they deal with alcohol abuse by their students. One of these changes has been to adopt a policy of “Parental Notification” according to which parents of an underaged student found guilty of consuming alcohol are notified after a first offense. I argue that this is a paternalistic policy in need of justification, and (...) that justifying it is made the more difficult because of barriers to its being successfully pursued. Nonetheless, I suggest that such a policy, if a weak paternalistic one, can be morally justified. (shrink)

Taiwan has a population of 23 million, of which some 500,000 are Aborigines. Recent conflicts over a national biobank as part of Taiwan's biotechnological industrial development, genetic research on Aboriginal origins, and commercialization of research findings involving Aborigines have raised a number of important ethical conflicts. These ethical conflicts involve on one hand, the importance of researchers' duties, and on the other hand, Aboriginal rights. This paper will go in three steps. First, this paper describes the three cases of ethical (...) violations of Aboriginal rights committed by Taiwanese researchers in the course of their scientific duties. After having given an account of ethical conflicts between research duties and Aboriginal rights, the paper addresses larger ethical issues underlying this Taiwanese research context. Finally, the paper considers if stronger ethical regulation could reconcile Aboriginal rights and research duties. (shrink)

The purpose of this empirical study is to investigate the effect of paternalistic leadership (PL) on ethical climate and the moderating role of trust in leader. Convenience sampling is used as a sampling procedure and the data were obtained from 227 Turkish employees. The findings indicated that PL had some effect on ethical climate. Furthermore, partial support was found for the moderating effect of trust in leader on the relationship between PL and ethical climate. The results of the study showed (...) the importance of PL on employees in following company rules and procedures and showing a sense of responsibility and care to customers, community, and others in the organization. (shrink)

This paper scrutinizes the tension between individuals’ rights and paternalism. I will argue that no normative account that includes rights of individuals can justify hard paternalism since the infringement of a right can only be justified with the right or interest of another person, which is never the case in hard paternalism. Justifications of hard paternalistic actions generally include a deviation from the very idea of having rights. The paper first introduces Tom Beauchamp as the most famous contemporary hard paternalist (...) by outlining his moral theory (principlism) and showing why it, as it stands, has to allow for hard paternalism. Secondly, the paper focuses on the notion of rights within principlism. I will employ traditional theories of rights to make sense of rights in principlism. Unfortunately, this attempt fails. In the third part, then, I claim that rights can only be limited with reference to the rights or interests of others. This structure is the very point of rights, it is their bite. I will argue for this claim and show its implications. The most important implication is that not only principlism, but every normative theory that includes rights of individuals, has to abolish hard paternalism. (shrink)

Cass Sunstein and Richard Thaler's proposal that social and legal institutions should steer individuals toward some options and away from others-a stance they dub "libertarian paternalism"-has provoked much high-level discussion in both academic and policy settings. Sunstein and Thaler believe that steering, or "nudging," individuals is easier to justify than the bans or mandates that traditional paternalism involves. -/- This Article considers the connection between libertarian paternalism and the regulation of reproductive choice. I first discuss the use of nudges to (...) discourage women from exercising their right to choose an abortion, or from becoming or remaining pregnant. I then argue that reproductive choice cases illustrate the limitations of libertarian paternalism. Where choices are politicized or intimate, as reproductive choices often are, nudges become not much easier to justify than traditional mandates or prohibitions. Even beyond the context of reproductive choice, it is not obvious how much easier nudges are to justify than bans or mandates. -/- Part I of this Article briefly introduces Sunstein and Thaler's libertarian paternalism. Part II then turns to the context of reproductive choice. Part II.A reviews restrictions on the right to choose an abortion-particularly post-Casey regulations such as waiting periods, requirements that women receive certain types of information, and requirements that women undergo ultrasound-that pitch themselves as steering choice without entirely closing off the right to choose an abortion. This distinction between nudges and prohibitions echoes Sunstein and Thaler's proposals, but works to subordinate women's choices to the judgment of (often male) experts and administrators-hence my term "libertarian patriarchalism." Part II.B reviews efforts to nudge women-particularly teenagers, HIV-positive women, and others thought to be unsuitable mothers-to avoid pregnancy. -/- Part III considers the normative implications of nudging reproductive decisions. In Part III.A, I argue that the political nature of reproductive choices presents a problem for nudges. I do so by considering a parallel with voting rights. Empirical research shows that voters are more likely to choose the candidate listed first on the ballot. Yet we do not empower the administrator in charge of ballot design to choose a default rule that nudges individuals toward the candidate he sincerely believes would promote choosers' welfare. Given the political nature of reproductive choices, a policymaker's attempting to nudge reproductive decisionmaking in the direction he prefers-or indeed in any direction-fails to show adequate respect for the chooser's agency. In Part III.B, I offer an argument that targets the use of nudges in the context of pregnancy. Finally, in Part III.C, I argue that nudges do not merely add choices to an existing menu, but change the substantive choices available to individuals and thereby impose more-than-trivial costs on them. I conclude by exploring the implications of my arguments for nudges more generally. (shrink)

The Australian Productivity Commission and a Joint Select Committee on Gambling Reform have recommended implementation of a mandatory pre-commitment system for electronic gambling. Organizations associated with the gambling industry have protested that such interventions reduce individual rights, and will cause a reduction in revenue which will cost jobs and reduce gaming venue support for local communities. This article is not concerned with the design details or the evidence base of the proposed scheme, but rather with the fundamental criticism that a (...) mandatory pre-commitment policy is an unacceptable interference with the liberty of the individual, and of organizations. It is argued that the concept of paternalism is a useful lens with which to study the interactions between business and society on this issue. It is contended that the benefits of a pre-commitment system to problem gamblers and society are socially and economically significant, and the cost to recreational gamblers, particularly the cost in terms of interference with the liberty of the individual, is minimal. Pre-commitment also requires gambling businesses to act in a more socially responsible manner. It is concluded that the proposed legislation constitutes a paternalistic intervention by government on the interaction between business and society, and that this is justified. (shrink)