Why do people sometimes make choices that are self-defeating? In our recent book, Game Theory and the Transformation of Family Law, Attorney Allan Koritzinsky and Ken Waldron suggest bargaining founded on game theory. But why game theory? Game theory is a branch of mathematics that analyzes how and why people make the choices that they make. Although it had humble beginnings in the study of parlor games, the application of Game Theory has expanded to use in strategic war planning, economics and even a couple of branches of law, earning five game theorists Nobel Prizes. Recently, a couple of authors have included game theory in the study of marriage and divorce. We introduce game theory here because we are going to illustrate applications to family law in subsequent blog postings.
Natural selection favored humans that could make instantaneous calculations of what choices were most likely to have optimal outcomes. Although humans who survived and reproduced, made calculations on how hard, high and at what angle to throw a rock or spear at a moving animal, the formal branch of mathematics that figured out how to make these calculations was not developed until Sir Isaac Newton . Similarly, humans made choice calculations long before game theory was invented, but like calculus, game theory provides mathematical proofs. A game is defined by its parts: players, rules, choices and payoffs. In family law, the players are the divorcing spouses; the rules are law, local rules and legal culture; the choices are with regard to the legal outcomes (proposals and counter-proposals); and the payoffs are the benefits provided to the parties as a result of those outcomes.
Game theory reveals the counterintuitive finding that the traditional family law system is a game best played with competitive, conflictual and dispute-oriented choices/strategies to reach substantially less than optimal outcomes. Anyone familiar with the Prisoners’ Dilemma will understand that a game can be set up so that rational people make self-defeating choices. In the 10 Traps blog postings, we will be analyzing, with game theory, the traditional family law system and revealing how it traps people into making self-defeating choices. Professionals involved in traditional law intuitively know that there is something wrong with the way the system handles families in transition from intact marriage to separation.
In other words, most spouses, especially with children, who file for divorce, enter a family law system that is set up in a way that tricks people into making terrible choices, for themselves and for their children. This is because the family law system is set up to address the interests of the State, not the families going through it. The interests of the State are to distribute marital property, marital income and the control and daily parenting of the children. All three are problematic, but most disturbing is the notion of literally distributing children as though they are property, not human beings being prepared for adult life. That the family law system makes for a messy damaging family experience is not intentional; it is just that the interests of the State are incompatible with the interests of the marriages and the families.
Game theory tells us what is wrong! In this series on the Ten Traps, we describe the traps and then describe how spouses/parents can avoid the negative choices and make choices that make life for themselves and for their children better, not worse. Stay tuned!