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Choice architecture

Editorial Obiter

Sometimes, there are phrases that make you roll your eyes.

Then, there are others that have a way of slinking their way into your daily vocabulary. 

One of the ones that has captured my interest of late is the idea of choice architecture — a not-so-new idea that became popularized in the book Nudge, by professor Cass Sunstein of Harvard Law School and economist Richard Thaler of the University of Chicago. The reason the term has caught my interest is an idea — what if by each case, each legal argument and each ruling we were establishing “the new normal” or baseline of what Canadian people (or Canadian companies) could expect? 

How can lawyers improve each person’s (or organization’s) decision-making abilities for themselves? 

Take the story in this edition of Law Times on the conditions of Indigenous offenders who are incarcerated. The numbers are sobering — and embarrassing. The gaps are abundantly clear. 

Lawyers serving clients who will come into contact with the justice system have a crucial role in helping articulate the very real consequences that exist as a result of a correctional system that is woefully inadequate in addressing inmates’ needs. 

Or, looking at a vastly different realm in corporate/commercial law, competition litigator Nikiforos Iatrou says lowering the threshold of evidence to add defendants and pushing diligence later into the process might not be the most just and expeditious way to resolve class action conflicts given the influx of class action suits. 

“My read on this case [Mancinelli v. Royal Bank of Canada] is that it aligns with a trend — with an unfortunate trend — of consistently lowering the bar for plaintiffs’ lawyers in these kinds of class actions,” Iatrou says.

If Iatrou is correct, is this not building a new baseline in the law, with potentially harmful effects?

Choice architecture may just be a fancy way of expressing the idea that one decision can have an altering effect on others that follow — not a new concept for lawyers. The goal is connecting one’s own work, and one’s own cases, to the overall picture.

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