Reading Assignment: "The Gamesman," in Michael Maccoby, The Gamesman: The New Corporate Leaders 89-108 (New York: Bantam Books, 1978) (1976); James P. Carse, Finite and Infinite Games 3-19, 25-33 (New York: Ballantine Books, 1986)

(1) Lawyers frequently refer to law as a "game." [See e.g., Seymour Wishman, Confessions of a Criminal Lawyer 15 (New York: Penguin Books, 1982)]

(i) Is law a game? If so, what kind? What are the rules of the law game? Does law consist of more than one game? What kind of games do lawyers play?

(ii) Does the legal profession have anything like the gamesman described by Michael Maccoby in The Gamesman (1976)? [Maccoby, on the "gamesman"] [Positive & negative features of the gamesman]

(iii) What moral significance, if any, lies in the use of the game metaphor to describe one's sense of what it means to be a lawyer, or a law student, or perhaps even life itself?

(iv) Following Carse, is lawyering a finite or infinite game? [Note: You should sketch out carefully the basic rules of finite and infinite games presented by Carse (pp. 3-33) before you attempt to answer this question.] [Carse's Definition of Finite and Infinite Games]

(2) Is legal education a game? If so, what kind of game is it? Are there different games with different rules being played in law school? Using Carse's conception of finite and infinite games, is law school a finite or infinite game?

(3) Games may be serious, even lethal, but they are also a matter of play. Erik Erikson, in his Harvard Godkin Lectures, suggests three possible meanings for play. [Erik Erikson, Toys and Reasons 17, 18 (1977)]. The first meaning of play "means to test the leeway allowed by given limits. . . . [S]urpassing mere repetition or habituation. . . ." Play is also used in the sense of "deceptions and pretenses, which deny rather than transcend reality. . . ." Finally, we speak of playing a role forced upon us by what we "consider inescapable reality." In what sense do lawyers engage in play in the various ways described by Erikson?

(4) Games require rules that provide a framework of reference and meaning. To the extent that law students "must come to understand or sense something of the logic and symmetry of a system of rules," they often become rule-oriented players of the law game. Stuart Scheingold contends that the attraction of the law game lies in the "intellectual and even aesthetic satisfaction in coming to understand the internal logic of the system and real gratification in working out dependable doctrines which reconcile apparent contradictions among rules." [See Stuart Scheingold, The Politics of Right 157 (1974)]

(4) In what sense is a lawyer's sense of professionalism a defining of the rules (and/or nature) of the game? Is gamesmanship in the world of games an equivalent to professionalism in the world of lawyers?

Erik Erickson defines gamesmanship as "passion and restraint, discipline and originality. . . . It is in gamesmanship that man is most human in the sense of an acceptance of his adversary as equally human: As one side enjoys an ambiguous victory without usurpation, and clear-cut defeat without annihilation, an equilibrium of skill and chance is maintained." [Erik Erikson, Toys and Reason 72 (1977)]

1. For still another perspective on lawyers and games, see Allan C. Hutchinson, Playing the Game, 17 Dalhousie L. J. 263 (1994).

2. Robert S. DeRopp, in The Master Game: Pathways to Higher Consciousness Beyond the Drug Experience 12-13 (New York: Delta Book, 1968) offers the following observation on the kinds of games we play:

[W]e can divide life into object games and meta-games. Object games can be thought of as games played for the attainment of material things, primarily money and the objects which money can buy. Meta-games are played for intangibles such as knowledge or the "salvation of the soul." In our culture object games predominate. In earlier cultures meta-games predominated. To the players of meta-games, object games have always seemed shallow and futile, an attitude summarizcd in the Gospel saying: "What shall it profit a man if he gain the whole world and lose his own soul?" To the players of object games, meta-games seem fuzzy and ill-defined, involving nebulous concepts like beauty, truth or salvation. The whole human population of the earth can be divided into two groups, meta-game players and object-game players, the Prosperos and the Calibans. The two have never understood one another and it is safe to predict that they never will. They are, psychologically speaking, different species of man and their conflicts throughout the ages have added greatly to the sum of human misery.

The aim of the Master Game is "attainment of full consciousness or real awakening."[19]

[T]he Master game is played entirely in the inner world, a vast and complex territory about which men know very little. The aim of the game is true awakening, full development of the powers latent in man. The game can be played only by people whose observations of themsleves and others have led them to a certain conclusion, namely, that a man's ordinary state of consciousness, his so-called waking state, is not the highest level of consciousness of which he is capable. In fact this state is so far from real awakening that it could appropriately be called a form of somnambulism, a condition of "waking sleep." [21]

On master games, I highly recommend Hermann Hesse's novel, The Glass Bead Game (New York: Henry Holt, 1990).

3. On law as play, see: Barbara Stark, The Practice of Law as Play, 30 Ga. L. Rev. 1005 (1996).

4. On play in legal scholarship, see: J.M. Balkin, The Footnote, 83 Nw. U.L. Rev. 275 (1988).

Dealing With this Game Called Life Nomic: A Game of Self-Amendment (Professor Peter Suber, Philosophy Department, Earlham College)

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