On first appearance litigation seems quite clearly to be a finite game as James Carse uses the term in Finite and Infinite Games: A Vision of Life as Play and Possibility (1986). Litigation seems to fit perfectly Carse's first rule of finite games; they are "played for the purpose of winning." [3]. Litigation, like other finite games "come to a definite end"with the declaration of winners and losers. [3]. But there is a catch: in finite games the determination of winners and losers must be agreed upon by the participants following the rules of the finite game. (The rules for determining winners and losers must be known before a finite game begins.) In litigation, we want to believe that when the courts declare a winner and loser that the parties must follow the courts' declaration and that they do so because the rules of the game were known in advance. If judges have the final say, determine winners & losers, then litigation seems, clearly, to be a finite game. But judges, while significant players in the law litigation game, may not have the ultimate power to decide winners and losers, at least if viewed from a long range perspective. The parties themselves must agree to outcomes. For example, it is not at all uncommon, for the "losing" party in a law suit to declare victory. The losing party may decide they have won even when the judge has clearly (and at times not so clearly) ruled against them. A "losing" party can claim partial victory, or even a moral victory, and when the lose has been more decisive, the party proudly boast that the unfavorable ruling will be appealed. And on the day that a decision is decided by the Supreme Court (in the rare instances in which litigation reaches that level), there are news conferences on the steps of the Supreme Court building and the party which failed to secure a favorable ruling does not admit defeat but more often promises to fight on in other venues.

When the status of winners and losers is challenged, or when there is no clear, undisputed winner and loser, then litigation seems to place the parties in limbo--having failed at a finite game, yet eschewing an infinite game. While they may not be in litigation "for the purpose of continuing the play" [3], but rather to finally resolve, once and for all, a contested issue, they may have unwittingly, whatever their intentions as to the finite game they wish to play, have become players in an infinite game. The problem of course is that no player can be involuntarily drafted to play in either a finite or infinite game against his will.

While the parties to a lawsuit may set out to play a finite game, or so this is their cover story, they are exposed as players to a game less finite than assumed. There are procedural hearings and motions, pretrial investigation and discovery (depositions and interrogatories), pretrial preparation, trial, post-trial motions and hearings, and then the case works its way through the appellate process. A party who sets out to resolve a dispute quickly and efficiently–i.e., play a finite game–is introduced to a system of procedural rules and ascending levels of appeal that look more appealing to infinite players than finite players. Even when one party is best served by law played as a finite game, the opposing party challenges the play, and treat the finite game as an infinite one. (Consider for example the effort of tobacco companies to insure that they would simply never accede to an adverse ruling and would litigate until plaintiffs wore themselves out without any money to show for their efforts.) And even in cases in which both parties have a vested interest in finite play, the lawyers who represent them may turn out to be consummate infinite players and have trouble playing the more bounded finite game. (Remember, infinite players can play finite games.) Since players ultimately chose whether they will play finite or infinite games, neither the lawyers or the law can force the parties who seek to make use of the law, choose one and not the other. Indeed, the law cannot even force litigants to play a finite game. "There is no finite game unless the players freely choose to play it. No one can play who is force to play." [4]

Some lawyers claim they play "for the purpose of winning." [3]. But when we watch them litigate--that is, play--we begin to realize they play for the purpose of "continuing the play." They adopt the rhetoric of finite game players because this is what their clients want to hear, but participate in finite games solely for the purpose of making it possible to play and play and play. We take up finite games as necessary but with the knowledge that the real game, the game that really matters, and the one in which the status of winners and losers is always ambiguous, is the infinite game. Consider for example the judge. Judges on an appellate court engage in argument with each other about the winner and loser in the particular case--a finite game--knowing there is still another day of argument, and another, and still another, days stretching into the future so far as the judge continues to sit on the bench. Or consider the judge described by Duncan Kennedy in "Freedom and Constraint in Adjudication: A Critical Phenomenology" [36 J. Legal Educ. 518 (1986)] who has given us a portrait of a judge who plays an infinite game, and more importantly, the judge knows it and doesn't try to convince himself otherwise. [Kennedy's account of how judge's decide cases is nothing short of brilliant and is, perhaps, the best account of the "inner work" of judging that we have ever had.]

Both litigants and lawyers are known to act, talk, and believe that they are by necessity, role, and the nature of law, actors in finite games. [Justice Clarence Thomas is a prominent spokesperson for the notion that the only legitimate game for a judge is in finite games. Whether Justice Thomas lives up to his pronouncements is another matter.] But when viewed from the perspective of a world in which everyone choose to play either finite or infinite games, or neither, we must conclude that Justice Thomas misunderstands the nature of the games he plays. Remember: "There is no finite game unless the players freely choose to play it. No one can play who is forced to play." [4]. "Fields of play simply do not impose themselves on us. Therefore, all the limitations of finite play are self-limitations." [12]. A lawyer may play a finite game but it cannot be so by necessity, or predetermined role, or dictated by law. Consequently, it appears lawyers and judges who talk the finite game rhetoric are mistaken about games and about the particular game they have decided to play. First, we may be playing, acting, gaming, even when we contend we are not. Second, we may, when we admit to the game, for various reasons, have a vested interest in having the game called by one name rather than another. [Again, Justice Thomas seems to be an instructive case.] And finally, we may simply be mistaken about the existential nature of the game we play. It seems rather sad, but still possible, that I have limited myself (and been by some means induce to "choose") a finite game when there are infinite games being played all around me.

Consider, for example, the way we deal with marriage, and the possibility that it might tell us something about the way we deal with our lives as lawyers. We enter marriage with the great hope that we have taken up an infinite game. But then we learn to see it as a finite game. Playing on seems unthinkable. The marriage game now consists of winners and losers, or as we are learning, more losers than winners. Both spouses lose when continuing play ceases, even if one of them becomes better off in settling out their loses. And in those marriages where there is children, the spouses often learn that the divorce game ends nothing, but is another part of the continuing play. Divorce, as viewed by law, creates winners and losers (denying it all the while) and translates continuing play of an infinite game into a finite game.

Another example of the way we mistake the games we play can be found in law school. A fair number of law students come to law school with an idea that the study of law makes it possible to become infinite game players. But what they find in law school is a finite game, a world of winners and losers, a hierarchy of ranked players who play to compete and win, and who are taught law as a finite game. The desire to be an infinite player and to learn law as an infinite game seems out of place and the dream is held in abeyance while the finite game(s) of law school are played.

In both the legal profession and legal education, there are those who disdain the notion of law and lawyering as infinite game. In this view, law dictates a finite game and no amount of dreaming or wishing will have it otherwise. We're given a finite game--a sow's ear--and can call it a silk purse if we choose, but for many players it's a sow's ear. The game is determined, or so we are told, by the game we are given. The given game of law is finite. But then we're reminded of how easy it is to mischaracterize and misjudge the games we play. That is, we set out with infinite games in mind and become finite game players, or we play finite games while fantasizing that we belong in a better game. And we need to frequently remind ourselves, that no litigant, lawyer, or judge can be forced to play a finite game. A finite game proceeds only upon agreement of the parties. In Plato's Socratic dialogues (Protagoras and Gorgias) we see the tension created over just this point–how is the game to proceed. Socrates tells his interlocutors their conversation will proceed only by way of agreement. No one can be forced to carry on a Socratic dialogue. Continued play, in this case dialogue, requires agreement. Socrates can talk only with those who chose to converse with him and who agreed to participate in the conversation. Conversation is an infinite game.

Basically then, it's a mistake and a violation of the rules of finite and infinite games to claim to play a finite game and then claim you have no choice in the matter. We choose finite games; they cannot be forced upon us. "It is an invariable principle of all play, finite and infinite, that whoever plays, plays freely." [4]. "[N]o one can engage us competitively unless we fully cooperate, unless we join the game and join it to win." [37]

Finite games have precise beginnings and endings. [4]. If you assume the game is a finite one, yet, learn that the game doesn't seem to have an end, you may have gotten the nature of the game wrong. Indeed, you may learn that what you thought was the beginning of the game, was only a signal that a new level of play has started. You may assume that you play to win, when playing to play is what you are actually doing. For example, legal education seems, on first appearance to be a finite game. It has a distinct, clear, and precise beginning and end. And law schools take proud in encouraging the identification of winners and losers. But there are problems with this idea that law school is a finite game. A finite game is measured by finite time, it cannot go on forever, we must know not only how it ends (with winners and losers) but when it will end. Legal education is presented within the bounds of finite time but is lived and played in infinite time. It seems, or so students tell us, to go on and on; it is difficult to keep the end in sight. There is always yet another test to take, paper to write, argument or case to prepare. It feels, in the way students experience time, to be an infinite game.

One might, with knowledge that finite games have clear beginnings and endings, begin to imagine legal education as an infinite game. When does one's legal education begin? We do not really introduce law students to the notion of radical adversarialism in legal education so much as we hone and sharpen impulses and ideologies (individualism, legal liberalism, capitalism, competiviteness, dversarialism) they bring with them to law school. Adversarialism is part and parcel of our culture before it is anything we study in law school. We are a litigious society, and lawyers make it more so.

A legal education may begin, not with law school, but with a father or mother, or aunt or uncle who happened to be a lawyer. It seems eminently clear in To Kill a Mockingbird that Jem and Scout Finch began their legal education at the hands of their father Atticus Finch. It seems quite unimaginable that if and when either Scout or Jem end up in law school that they will not carry an impression and an image of Atticus with them. And for those of us without lawyers in the family, there are now lawyers on television and in films, and it is an unusual week when we do not have a lawyer protagonist in a best-selling novel that finds its way onto the New York Times list of best sellers. [As I write this essay, September 20, 1992, John Grisham's The Firm is the No. 1 paperback bestseller in the country and has been on the best seller list for some thirty-four weeks. A Time to Kill, also by Grisham, is second on the paperback bestseller list and has been on the list for 23 weeks. The Pelican Brief, Grisham most recent book is 2nd on the New York Times Book Review hardcover best seller list and has been on the list for twenty-eight weeks.) (New York Times Book Review, September 20, 1992, pp. 52, 50].

Does our education--as lawyers--about law begin in law school? In some high schools students are offered courses on law. They may be assigned roles as lawyers, judges, and litigants, and participate in a moot court trial. Or they may present arguments assuming the role of lawyers in an appellate court. When does the legal education of such a student begin?

And is it really the case that a student's legal education comes to an end that balmy spring day in May when the 3rd year of law school is completed and graduation is at hand? When does one's education as a lawyer end? Most lawyers find that their formal legal education to be incomplete, partial, imperfect; some angrily assert that their legal education was totally inadequate preparation for the work they were asked to do as lawyers. For lawyers, education does not end with law school, for if it did, they, and their clients, would be in serious trouble. Indeed, some lawyers claim they did not really learn anything about law until they took up the practice of law.

While some lawyers, determined to play finite games, are all to willing to confer finality on the end of legal education, others continue to learn, and find in their law practice an opportunity to become perpetual students. And even for those lawyers who seek to play finite games, the bar demands "continuing education" (conveying the notion that education knows no end).

It seems clear that some students do not approach legal education as a finite game. Some students reject the law school finite game notion of law professors that what they learned before they came to law school is irrelevant or a hinderance to learning law. The students suspects (or knows) that there is more (or less) to the law game than they are being taught. (Law teachers can, at times, be rather inept, even at conveying the basics elements of law and the fundamental skills which lie at the heart of our craft.) This student prizes her education, the education acquired from good teachers, her family, and the education she has made for herself from the books she reads. For this student, legal education cannot be said to begin with law school. "Infinite players cannot say when their game began, nor do they care. They do not care for the reason that their game is not bounded by time."

And if legal education does not begin the day you start law school, there is a logic to assuming that it does not end the day you graduate. There are worst fates than to imagine oneself a perpetual student, always learning, experiencing the rush and exhilaration of making yourself of student of what the world has to teach. Education is the kind of play one might imagine as a game whose purpose is continued play rather than training for play in a finite game played to win, a game that will come to an end as soon as winners and losers are declared. For some students legal education is an infinite game.
There is, of course, a possibility a student might be an infinite player and simply play law school as a definite game. "[F]inite games can be played within an infinite game. . . . Infinite players regard their wins and losses in whatever finite games they play as but moments in continuing play." [8]. [See also, p. 18]. (While a finite game may be played within an infinite game, an infinite game cannot be played within a finite game.) [8]

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