Utilizing Game Theory to Inform Justice
Our justice system, both civil and criminal is, first and foremost, an adversarial system. That is, our justice system is premised on the principle that, in essence, justice for all is best served when all parties to a matter are represented by legal counsel whose duty it is to vigorously advance their client's position, within the bounds of proper practice and legal procedure. In this adversarial system there can be only 1 outcome - there is a winner, and a loser.
The ideal of the civil system is that the loss of the losing party is transferred to the winner. Thus for example, the award to the plaintiff for damages suffered as a result of the negligence of the defendant, in theory, “makes good” for that damage, and is paid by the defendant to the plaintiff.
This is the essence of a zero-sum game, as such is contemplated in game theory. The sum of the win for the victor plus the loss for the loser, provides an outcome that equals 0. Thus for example, if the win is $100, the loss on the other side will equal -$100, and the result of $100 + -$100 = 0.
The underlying theory of the zero-sum game is that each participant will strive to maximize their winnings, and minimize their losses, and will make decisions each time it is their “turn” that are intended to achieve that outcome.
But of course the reality, certainly in civil litigation, couldn't be further from the theory. In the vast majority of civil cases, the matter does not go to trial, where the zero-sum game would be in effect. Rather, by far the most usual outcome of civil and commercial litigation is a negotiated or mediated settlement.
A negotiated or mediated settlement is a non-zero-sum game; a game in which the participants can all “win”, at least in some sense. A game in which there are no “losers” again, at least in some sense. The outcome can be negative, though it is far more often positive, for all the players in the game, but it can never by 0.
The ideal of the criminal justice system, on the other hand, even though adversarial in procedure is not something to which, on the face, game theory can be readily applied. In the trial of the state v. the citizen there are, in a very real sense, no winners – there are only losers. The victims, the offenders, the community, even the state – nobody wins.
But just as with the civil justice system, the ideal in the criminal justice system is not what is actually happening and there has been a trend, particularly in the last 25 years, to effectively transform the criminal justice system into a process very much like the zero-sum game.