Following up on my previous post (“Tactics versus strategy”), I will focus on the meaning of “tactics” in this post. In the world of chess, tactics refer to the specific sequences of one’s moves, such as a “fork,” a chess tactic in which a player positions one of his pieces in such a way as to threaten to capture two or more pieces of his opponent. This insight, that the sequence of one’s moves can decide the overall outcome of a contest, applies to almost every domain in life, including sports, love, and law. In sports, for example, “flopping” is, alas, an all too common tactic (see the humorous video below), especially in sports like soccer and basketball, and in the game of love, winking or offering to buy someone you are attracted to a drink is another common tactic. Here, however, I want to focus on my area of expertise, the law, by presenting two prosaic examples of legal tactics.
In legislation, a common tactic is the so-called “killer amendment” designed to shoot down proposed laws that are supported by a majority of the voters. My colleague and friend Leo Katz has written an excellent paper titled “A theory of loopholes” explaining how this tactic works. In brief, a legislator who opposes a proposed law may often try to insert a provision in the bill that is designed to appeal to the most radical or extreme group of voters, thus killing the bill’s chances to win majority approval. Likewise, in litigation one of the most common tactics is “forum shopping”–the practice of choosing a court that is most likely to provide a judgment in one’s favor. As a result of this tactic, the plaintiff, like the first mover in chess, enjoys a strategic advantage over the defendant, since it is the plaintiff who generally gets to decide in which court to bring his case. Like chess, however, there are some limits to the plaintiff’s first move. In chess, the first mover is only allowed to move his knights or his pawns. Similarly, a plaintiff is required to bring his action in a court located in a State that has some connection to the legal issues being litigated, but since most business and commerce occur across State lines, the plaintiff may often have significant leeway in selecting a forum. Generally speaking, the plaintiff will prefer to bring his action in his home jurisdiction or in a court with a reputation for being “plaintiff-friendly.” If the defendant lives in a different State or is overseas, the defendant will thus have to incur significant travel expenses to defend the case in the plaintiff’s home State.
I now want to conclude this blog post by posing a delicate and difficult philosophical question about the ethics or morality of such tactics. In chess, for example, we praise a player for his astute and beautiful tactics, but oftentimes tactics can appear to be unethical or “dirty,” as in the case of “flopping” in soccer or “killer amendments” in legislation. Moreover, my colleague, friend, and co-author David Orozco has written about a third type of legal tactic, a tactic that we both find repugnant: legal bullying. So, here is my general philosophical question: Is there a principled way of distinguishing between clean and dirty tactics?