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Publication Date

12-31-2025

Abstract

In civil litigation, strategy is everywhere. Some of it is explicitly envisioned by rules of procedure, but other forms of strategy rely more on clever exploitation of gaps in the rules, sometimes through trickery, surprise, or psychological mind games. The role strategy plays in civil litigation is underexamined, which raises two concerns: first, this lack of attention entrenches strategy by default as a procedural value in competition with accuracy, efficiency, and other procedural values. Second, it amplifies the disadvantages experienced by unrepresented litigants. This Article builds on earlier work to examine how courts shape the space that litigants have for strategic behavior, in service of an inquiry into how that space ought to be shaped.

Battles over the meaning and rightful place of strategy in civil litigation tend to play out in the arena of “gamesmanship,” a term courts use with increasing frequency to refer to behavior in the gray zone between the clearly allowed and the clearly disallowed. Strategic behavior in this realm is often unregulated by rules, only weakly governed by norms, and subject to significant judicial discretion. Judicial decisions in cases involving gamesmanship frequently expose tensions between respect for zealous advocacy and concerns about fairness and accuracy.

This Article makes two contributions to our understanding of the role of strategic behavior in civil litigation. First, it examines the meaning of “gamesmanship” in a litigation context and proposes a categorization of gamesmanlike litigation behavior. Second, it applies this categorization in describing how courts use the term “gamesmanship” and surveys and theorizes how they treat behavior they have thus labeled. I argue that the concept functions as three distinct analytical tools: (1) as an aspect of purposive statutory analysis; (2) as a canon of construction; and (3) as an implied mental-state element. The Article concludes by imagining a different approach, more deliberate in delineating the role of “strategy space” in civil litigation and cognizant of the concerns that gamesmanlike behavior can raise.

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