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The relationship between theory and practice across forms of life 357
4.2 Choice architecture
As Sunstein himself recognised in his ur-text on minimalism – One case at a
time – this jurisprudential approach (of minimalism, not avoidance) only
secures traction because it is parasitic upon a deep and widely shared set of
constitutional norms and (tacit) assumptions held by judges, lawyers and
citizens that determines most legal and ethical questions, and only leaves
difficult, marginal questions undecided. On the necessity, and the
presence, of a solid core (in a well-developed body of law), Sunstein writes:
Anyone who seeks to leave things undecided is likely to accept a wide range of
things, and these constitute a ‘core’ of agreement about constitutional essentials.
In American constitutional law at the turn of the century, a distinctive set of
substantive ideals now form that core. 37
Sunstein still hews to the propositions above. However, in the decade that
followed One case at a time, Sunstein’s project moved away from a ground
clearing Cartesian skepticism with regard to theory. Instead, he has
adopted a consciously experimental approach to social phenomena and to
policy decisions in which ‘space’ or ‘choice’ architects draw on actual data
in order to ‘nudge’ stakeholders in a ‘form of life’ into making more
optimal choices, or generally more objective optimal choices than they
would have made from if not stuck in their existing pre-reflective and
untested default positions. 38
A few examples might help. Markets, though often imperfect, rely
upon limited ‘shared’ information (sometimes no more than price) and
generate substantially more efficient outcomes than centrally-planned
economies. Some open-source software, like Linux, produces incredibly
rich results without any central planning. The web itself – the environment
for Linux – produces both optimal and suboptimal outcomes, depending
on how information is solicited and how further co-operative endeavours
are organised. The best example – with which Thaler and Sunstein open up
their book Nudge – is a ‘bit’ called ‘The cafeteria’:
A friend of yours, Carolyn, is the director of food services for a large city school
system ... [H]undreds of thousands of students eat in her cafeterias everyday.
37 Sunstein (n 34 above) x. See also Sunstein ‘Leaving things undecided’ (1996) 110
Harvard LR 4; Sunstein ‘Incompletely theorised agreements in constitutional law’ John
M Olin Law and Economics Working Paper no 322 (January 2007), available at https://
www.law.uchicago.edu/Lawecon/wkngPprs301–350/322.pdf (accessed 11 October
2007).
38
See C Sunstein Infotopia: How many minds produce knowledge (n 10 above; Thaler &
Sunstein Nudge (n 10 above); C Sunstein Rumours (2010). Bilchitz and Tuovinen make
two critical mistakes when engaging Sunstein’s work. First, they fail to appreciate that
Sunstein’s minimalism requires norms and theories as much as Dworkin’s maximalism
does. Second, they fail to recognise that, despite what Sunstein wrote in 1996/1997,
their differences are not merely of ‘mood’, but of ‘methodology’. Dworkin is an
unabashed rationalist. Sunstein is an empiricist – a social scientist who puts his
hypotheses to the test and only draws conclusions after the results are in.