4 Ways Law School’s Zero-Sum Mentality Creates Unethical Lawyers

4 Ways Law School’s Zero-Sum Mentality Creates Unethical Lawyers

Each of these game-like features of law school conditions students to ‘play the game’ rather than act in the interest of others.
Benjamin R. Dierker
By

Many law students graduate thinking they are neutral entities ready to enter the legal world with an idealistic optimism about being ethical lawyers. In reality, many are already primed for unethical behavior.

Of course, some truly do emerge as honest attorneys, but almost all have taken a turn with some form of questionable behavior. Law school is a training ground for unethical behavior, because it functions like a game.

Most board games have four characteristics that separate them from reality. There is a small and clear set of rules. They are zero-sum. Outcomes are exclusive and there can only be one winner. Finally, board games have low stakes.

Law school is much closer to a board game than many realize, and this leads to very similar behavior. Studies have suggested what experience confirms, that in games like Monopoly, players grow increasingly cynical, selfish, and uncooperative as they advance. Interpersonal relations between players become strained, and small disparities are ripe for exploitation. These may sound like the predatory practices of well-established greasy lawyers, but the seed is planted as early as the first year of law school. Here are four ways that happens.

1. Clear Rules

Every board game comes with a rule sheet. In most cases, the rules are simple enough to understand and limited in scope. Law school has a similar set of rules, either in the form of a handbook, orientation ethics pledge, or the syllabi. Whereas the real world has a complex web of millions of social, legal, and professional rules and procedures, board games and law school operate within more limited frameworks.

In board games, any action not barred by the rules is acceptable. Players have an incentive to push the boundaries and maximize their turn. If one can get away with something, it is strategically optimal to do it.

This small and clear set of rules encourages loopholing, fanciful interpretation, and arguing. If this sounds like law school, it should. Clear rules prohibiting one action but not another will lead to students skirting the boundary and engaging in the non-prohibited activity, even if it is implied by the rule. A student who does not run all the way to the boundary of the rule is disadvantaging himself.

2. Zero Sum

If Player A claims a space in a game, it means Player B cannot have it. Games have limited resources, and if one player hoards them, it necessarily reduces what others can have. In law school, grades are determined on a fixed bell curve. There are a limited number of As, and when they are claimed, no one else in the class can get them. Real estate on the curve isn’t just a benefit to one student, it is a detriment to others.

Whereas in the real world a rich man having money does not preclude a poor man from building wealth, in a game, for one player to be rich, another must be poor. Law school curves operate under the same scheme. For one student to get an A, another must get a C.

In gaming, this framework creates resentment and ruthless competition. If players are competing for the only existing resources, they will fight tooth and nail. It does not matter how hard they try or how well they know the rules, what matters is how they wind up at the end. With curved grading, it doesn’t matter how hard a student studies or how much she knows, it only matters how well she does compared to her classmates. It is natural to enviously compete with peers, not remind them about deadlines, withhold relevant information, or even engage in sabotage.

3. One Winner

When conditions are zero sum with direct competition, only one player can win. There are few games with win-win outcomes. It is far more likely that the board goes flying across the room halfway through a game than that multiple competitive players smile and cooperate through to the end.

In the classroom, the mandatory curve means that only a limited number of students can have exceptional grades, even if everyone had exceptional knowledge. In class ranking, only the top students will have a shot at interviews with prestigious firms. And in moot court, only one party can win.

While negotiation and dispute resolution are also featured in law school, the adversarial system is more deeply ingrained in the student experience. In court, only one party can win, and that means the other party loses. In the real world, negotiations, settlements, and counseling provide at least somewhat more favorable options, but law school feels distinctly more like Risk than reality when it comes to winner taking all.

4. Low Stakes

The feature that most effectively encourages competitive aggression in board games is that the stakes are low. Even though the acclaim of winning may bring great utility, the knowledge that one’s worst behavior will not really harm anyone gives rise to sometimes toxic competition. In Monopoly, bankruptcy and jail are vexing setbacks, while financial success is only equal to a proportional bragging right. Obviously in real life, predatory behavior that wrongfully bankrupts a person or sends them to jail has real, tangible, and meaningful effects.

Law school does not feel like the real world. Students do not represent real clients and do not answer to real judges. Assignments are hypothetical, and grades do not cause real harm. Students may have incentive to cheat, lie, or be indifferent to outcomes when the result does not matter in the end.

Low stakes may justify a tiny bit of cheating, which a student may say was a one-time thing. The low stakes of law school make this seem like it won’t affect the future, but really, the seal has been broken, and when the stakes are higher, the temptation is greater, and the slope has been greased.

An out-of-school example may be overbilling once, but promising to pay back the client with free time. But the time starts to add up, and pretty soon it is impossible to pay back. Soon after that, overbilling is just a habit.

Each of these game-like features of law school conditions students to “play the game” rather than act in the interest of others. Whereas the only value in a board game is winning, the legal profession is meant to value advocacy, counsel, collaboration, equality, and ultimately justice. It is not clear that limited rules, curve grading, adversarial education, and focus on low-stakes hypotheticals helps instill the values of justice any more than the sole value of victory.

The smallest ethical dilemmas in law school will grow into much higher stakes issues in the real world. In school, students have time to reflect and decide on issues, but in practice, decisions may be quick judgment calls. In a game, the call is easy: win at all costs. In law school, the answer is similar: win for yourself, win for your grade, win for the client.

Not many games help instill the values of advocacy, counsel, or justice. If snap decisions in practice are influenced by how lawyers acted in law school, let’s hope they didn’t just play the game for themselves.

Benjamin Dierker is a law student at the Antonin Scalia Law School at George Mason University. He holds a master's degree in public administration and a bachelor's degree in economics, both from Texas A&M University. He is a Christian and a Texan and loves to talk about both.

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