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358 Chapter 15
Carolyn has formal training in nutrition (a Master’s degree …), and ... is a
creative type who likes to think about things in nontraditional ways. One evening,
over a good bottle of wine, she and her friend Adam, a statistically-oriented
management consultant who has worked with supermarket chains, hatched an
interesting idea. Without changing any menus, they would run experiments in
her schools to determine whether the way the food is displayed and arranged might
influence the choices kids make. Carolyn gave the directors of dozens of school
cafeterias instructions on how to display the food choices. In some schools the
desserts were placed first, in others last, in still others a separate line. In some
schools, the French fries, but in others the carrot sticks, were at eye level. From his
experience in designing supermarket floor plans, Adam suspected that the results
would be dramatic. He was right. Simply by rearranging the cafeteria, Carolyn was
able to increase or decrease the consumption of food items by as much as 25
percent. Carolyn learned a big lesson: School children, like adults, can be
greatly influenced by small changes in context ... Carolyn is ... a choice architect.
A choice architect has the responsibility for organising the context in which people
make choices. 39
Thinness (or minimalism) is, on the new Sunsteinian account, not a virtue
in itself (if it ever truly was). Understanding one’s environment, testing
what works and what does not work in that environment, putting the
positive results of one’s experiments into practice, being a choice architect
– now that is a virtue. Minimalism, in its coarsest form, allows people to fall
back into ‘unhealthy’ default positions: continuing to smoke while pregnant
because no information – on the packet or elsewhere in public – has
suggested that the behaviour could be dangerous and that one could do
otherwise. (Eat carrots to satisfy that oral fixation.) The nudging (or libertarian
paternalism) Thaler and Sunstein describe does not deny individuals their
autonomy. The nudges provide cues that tend to push people in the direction of
‘better’ decisions (from the point of view of the individual and the system as a
whole). Like it or not, judges and other political actors are ‘choice architects’:
they frame the environment within which we citizens operate. It is, therefore,
wrong for any judge to say she is being neutral by being a minimalist. As
Thaler and Sunstein note: ‘There are many parallels between choice
architecture and more traditional forms of architecture. A crucial parallel is that
there is no such thing as a “neutral design.” ... A good building is not merely
attractive; it also works.’ 40 Moreover, being a ‘good choice architect’ is within
the reach of judges and other state actors. As I suggest below, courts that share
responsibility for constitutional interpretation, attempt to extract as much
information from as many stakeholders as possible, and understand that the
norms they set are simply rolling best practices that can be tweaked and
reconceived over time are the kinds of ‘choice architects’ that South Africa’s
constitutional law requires.
Of course, by emphasising rolling best practices and experimentalism,
I do not mean to suggest that all of the normative commitments in South
39
Thaler & Sunstein (n 10 above) 1 - 3.
40 Thaler & Sunstein (n 10 above) 3.