Gamification and Law - 5

To borrow a popular criticism of gamification, a feedback system alone is not a game. It is, however, a potential application of game design principles to a system that employs both seriousness and play to produce tangible benefits. Going back to Greg Lastowka, he identifies three key differences between a legal system and a game:

1) Games are disassociated from life in a way that makes them less serious than ordinary life.
2) Play absorbs players intensely and utterly.
3) Games are not materially productive.

Gamification, if we were to condense it into a form, provides a means for 2) to exist in a system that otherwise does not necessarily have the other two elements. Huizinga’s example of this occurring was the Renaissance and I narrowed it down to something like the art patron model in the previous post. A person is given the freedom to totally absorb themselves in an otherwise productive task. This was possible because the patron environment creates an accelerated feedback system. The artist is paid before the work is completed so they have something to live on and to give them supplies. Nobody yet knows if the work will be any good nor is this payment indicative of that.

Donella H. Meadows, in her great book Thinking in Systems, explains that the information delivered by a feedback loop can only affect future behavior. It can’t deliver the information immediately and so can’t have an impact fast enough to correct behavior that is driving the current feedback. An example she uses would be letting the water out of your bath tub. The water isn’t all gone immediately, it takes time to flow out and you don’t notice until the water is gone. In the patron’s case above, you don’t know if the money is going to lead to a great work of art until it’s too late.



This situation can play out in dramatic ways because people are often making bad decisions based on improperly interpreting feedback. For this reason a system often cannot self-regulate and repair itself, the feedback may take decades to resolve itself and by then it’s too late. On an individual scale this is something as simple as not exercising. On a marketing scale this could be a person failing to use a product properly or not experiencing the full benefits of its use. Gamification would be an attempt at making a system capable of self-regulation because it has good enough feedback to where people can make proper decisions based on their own self-interest. They’ll introduce their own corrective behavior and engage more fully.

Advocates of gamification being used for social change would use this to help people experience immediate benefits for tasks like recycling or exercise where those rewards often take time to play out. You get some bonus points every time or your score competes with other participants. That way, even though recycling itself is not giving positive feedback until many years later, the system can still provide it. Marketers, assuming they actually understand what they’re doing, would be using a similar approach by creating a more coherent feedback when engaging with a product.

Just as a law requires a certain amount of social acceptance to function properly, a gamified system would have to align itself with the individual’s own self-interest. Meadows explains, “The most effective way of dealing with policy resistance is to find a way of aligning the various goals of the subsystems, usually by providing an overarching goal that allows all actors to break out of their bounded rationality.” That bounded perspective simply refers to the limits of our perceptions of any system. The feedback helps prevent the “drift to low performance” problem that occurs because people can misperceive negative feedback and cause the system to go into drift. That is, people are no longer behaving based on what’s going on but rather a misperception. The lower the perceived state of the system, the lower their self-interest propels improvement through corrective action because they don’t think it’s working.



A gamified system will have to be sophisticated and carefully tuned to the individual’s wants while also guiding them to longterm goals. This would be the basic dividing line of the play elements (individual wants) versus the longterm goals (serious elements). The problem is that, as noted above, a feedback system is not a game. It does not have the play element in it because it’s a static system. You need a certain degree of competition, creativity, something generating the play form to allow the absorption aspect we’re trying to maintain.

Which is where the complications begin to arise because like the comparison between a utopian society and a more diverse community in a previous post, a game is not composed of one play standard. For each cultural sphere there will be a unique play sphere that applies. More realistically, a culture can support numerous play spheres of different types and in varying states of solidity. The classic example of this is Richard Bartle’s different types of MUD players. If the play sphere exists independently of the game, then it’s important that one maintain a system that is always adapting to the varying needs of the individual to maintain alignment.

Most legal systems are built around the reality that feedback is often slow to arrive. Laws take a long time to create and then long periods of fine-tuning are expected via the common law. Things simply do not change fast enough to necessitate a legal system that quickly modifies itself and preventing improper reactions to feedback is a virtue in this case. One area where this is changing is environmental law because you need to be able to respond more quickly than a traditional front-end system allows. If a natural disaster occurs in an area that has been protected or a species is put at extreme risk, you may need to change the rules that day, not in four years. This is the topic Barbara Cosen tackles in her work..



I’m going to borrow from J.B. Ruhl’s essay on dynamic system theory for this section. The issue with systems that have random elements is how much space do you allow it to deviate before its fundamental structure and purpose has changed. Sticking with our Renaissance example, certain restrictions are imposed on the artist by the patron like make it classically themed or painting the patron standing next to Jesus, while creative independence is also allowed. Excessive control would be like the Big Bear Plane Company example, where the boss is insisting the plane have a propeller because he likes them. There isn’t any one specific element that corrupts the system, it’s the complex nature of their relationship that creates the dynamic

Resilience is the key test for a dynamic system because it gauges what kind of changes it can handle. Ruhl defines it as, “the capacity of a system to experience shocks while retaining essentially the same function, structure, feedbacks, and therefore identity.” This comes in various forms, with Ruhl outlining ecological resilience as the magnitude of disturbance the system can absorb without changing versus engineering resilience tries to channel and minimize disturbances through design. Ruhl uses the analogy of a bowl and ball with the ball representing an occurrence in a system. Engineered design is a vase: the ball has a limited opening to enter the system and it is tightly channeled into a small area of possible outcomes. Ecological resilience is a large bowl: there is more space for the ball to land but it will roll around and potentially stop in multiple places.

Resilience can be problematic if the system is so stiff that it’s producing results outside the acceptable spectrum of standards. A gamified system would have to be a much looser and employ more adaptive reward structures than a traditional game if it wanted to maintain its play element. Ruhl identifies the five key features of a system contribute to the capacity to endure through surrounding change: 1) define problem, 2) determine goals and objectives for system 3) determination of ecosystem baseline, 4) development of conceptual models, 5) selection of future restoration actions, 6) implementation and management actions, 7) monitoring and ecosystem response, 8) evaluation of restoration efforts and proposals for remedial actions. The goal of this approach is to increase response diversity so that unexpected positive behavior can be rewarded without having to change the entire system. It’s the Renaissance, with all its limitations, but still that possibility that you can do something new and amazing.



You need a lot of authority delegated to an individual or agency for this to work. Administrative systems focus too much on the front end design without making changes on the fly. The Renaissance was able to work because it mainly boiled down to the artistic tastes of one eccentric patron in the exchange. They could be bartered with and changes could be made more easily than if one were dealing with a corporation or committee. Whatever elements of play you were extracting out and relying on to induce absorption from the user would have to be carefully maintained in an environment where the serious aspects are always in flux. Large dynamic changes are going to have be made to a gamification system on the fly, you can’t just change the scoring model every year and expect it to hold together.

Which brings us full circle on this series. The very first post on Gamification and Law began by stressing that the most important game design has to offer law is crowd sourcing techniques. Dynamic legal systems represent that idea by proposing laws that can change quickly and respond to social conditions on the fly. Legal theory, in turn, has a lot of nuanced ideas about how to study and address rule systems once you get outside closed-off play systems. My goal with this series was to cross pollinate a wide range of ideas and disciplines on the subject of gamification, something the public dialogue has sorely been in need of. If gamification is to make much progress, it will be in the hands of people who do not care much for boundaries and other static ways of thinking. As Donell H. Meadows comments, “It is great art to remember that boundaries are of our own making, and that they can and should be reconsidered for each new discussion, problem, or purpose.”

Gamification and Law - 4

If you had to boil down gamification to a single issue, one relevant to academics and marketers alike, it’s how far can you structure an organized system before it stops being play? When does the form finally break and become something else? Ian Bogost, channeling his inner-Lakoff, declares that the whole enterprise is bullshit. Christian McCrea comments that gamifcation just wants, “the glamour of play; the legitimacy of its culture." It stopped being about play the moment they changed the purpose of the system to selling stuff instead of producing play. Lian Amaris counters that even if there is less play than your average game, it hasn’t stopped being play.

This is the juncture at which legal theory has something to offer the debate because lawyers and judges have been fighting about a similar issue. Except we don’t deal with the play form, we deal with the forms of justice or morality and it’s on a much larger scale. To make better laws you have to get at the core of why people obey them in the first place. Do people do it because it’s what the herd does when authority, sometimes with force, tells them to act or do they obey the law because they personally believe the law is correct and good? For gamification, the issue is are they buying your product because of its intrinsic value or are they buying it because it levels up their stats? Because whether you’re marketing toothpaste to kids or organizing a reward program for recycling, you can’t fix it or improve it without understanding the underlying mechanisms at work. As Ronald Dworkin points out in his Introduction to the Philosophy of Law, the problem is not which answer is right but how do you tell the difference?

The best place to start answering that question is by pointing out that you’re going to be disappointed if you’re analyzing a closed-off play system. World of Warcraft’s appeal is diluted when it crosses into the real world because people behave differently around things they take seriously. What works in a pure play environment must be adapted for things like real money, products and marketing to be effective. You need to study systems that incorporate play alongside things people take seriously. Promises to the contrary are indeed, as Bogost points out, bullshit.



Johan Huizinga, whose book Homo Ludens does an excellent job of outlining the play form, identifies the Renaissance as an example of play co-existing with seriousness. He explains, “The spirit of the Renaissance was very far from being frivolous. The game of living in imitation of Antiquity was pursued in holy earnest. Devotion to the ideals of the past in the matter of plastic creation and intellectual discovery was of a violence, depth and purity surpassing anything we can imagine…and yet the whole mental attitude of the Renaissance was one of play.”

Which sounds nice but why don’t we give a literal example. Florence, Italy was able to produce a fantastic art scene because of its patron culture. A person who funded a grand public work of art gained popularity and fame in the city, which gave them political leverage which led to money, power, and all the stuff that comes with it. When Cosimo de ‘ Medici was looking for a way to get famous and gain political leverage, he noticed that the roof of the Dome of Santa Maria del Fiore was unfinished. He hired Filippo Brunelleschi to figure out a new method of creating roofs and had him complete it. Every day, every single Florentine looked up and saw that roof. And they got to see it fully finished because of Cosimo’s patronage. It’s not hard to understand why Cosimo was considered “king in all but name.”

The Renaissance was able to produce grand works of art through the creative force of play because the extreme seriousness of that time period gave room for play to form. Artists could be creative and produce something unique while still adhering to many fiscal and social limitations. Patrons, in turn, gained notoriety and influence because of the advertising. The term Renaissance itself was coined by someone the Medicis hired to describe the hundreds of works of art they created. This is not a new idea, a modern critique comes from an animator complaining about management and writers interfering with the play element with their own draconian measures. That example better shows a culture that does not allow play.

So, going back to Lian Amaris’s point about it doesn’t stop being play because of gamification, he is correct. Play is a kind of form, which is explained more in-depth here or here. It’s not a solid state or a specific list of characteristics but rather a series of relationships and conflicts that criss-cross into a basic, recognizable form when it occurs. Forms can vary in their restrictions and requirements. A law is a strict space in that certain fundamental things must be present. It’s usually written down and does its best to confine people within a single meaning. On the other hand a cultural standard is a much more amorphous and changing form. It’s rarely very clear when something violates a cultural standard, but one can tell when you are very far out of bounds. This idea is covered here.



So following the same format of my original depiction of the relationship between cultural standards and law, above is a representation of play, games, cultural standards and the legal form. Light blue blocks are game spaces, orange circle is what is acceptable within the play form, red is the culture standard, and the purple block is that society’s laws. Two things bear pointing out. First, the play sphere cannot exceed the culture sphere nor does it extend all way out to the border. The space between the two represents the necessary traits of seriousness that must exist. Second, games are not confined to the legal space. I owe this observation to Greg Lastowka and his exceptional book Virtual Justice for pointing this out to me.

Lastowka cites the example of Ray Chapman, who was accidentally killed when an inside fastball struck him on the head during a baseball game. If a person intentionally threw a rock at another person’s head and killed them, that would be a murder conviction. Baseball, however, has its own rules and operates in its own separate sphere of society. As a professional player, Ray Chapman knew there was some risk that an inside fastball might be pitched. The rules of baseball were never broken. As a society, we seem willing to allow arenas of sports and games to persist as a special social setting where separate rules apply. Similar scenarios apply to other major sports like football or hockey that present physical risk: United States law has deemed that the player consents to the risk of harm from another in those games.

Gamification, in terms of the above image, would represent a game that falls between the cultural standards of seriousness and play. It would probably have some grounding in laws (although it doesn’t have to), cross into the realm of play, and extend out into the serious space. This is what the culture of art patrons during the Renaissance would look like or Big Bear’s new business model at the end of the story. Please remember that the above image is just meant to depict the relationships between these forms, it’s not a literal depiction. I’m speaking in terms of visual space and location because it’s easier to understand rather than me blathering about a bunch of abstract ideas.

So the answer to the question of how do you tell the difference between someone buying your product because of their needs versus buying it because you installed gamification rewards is that you don’t. The ideal scenario, as with a legal system, is that you’ve got a little bit of column A and a little bit of Column B. A law is present to clearly define the goals and limits while everything is still within the cultural standards of that group. Gamification would be aiming for something similar by striking a balance between serious objectives and play.

Link to the Conclusion.

Forming a Better Lawyer Game

I once got asked by someone what I thought of the Phoenix Wright games since I’m a practicing lawyer. Truthfully the series never clicked for me despite being a solid adventure game. The way it depicted law and how a lawyer works bothered me immensely. At the time I said it was because it communicated the idea that all I have to do in a lawsuit is click on things and just puzzle it all together. That there was always some way the lawyer could magically fix everything when in reality my job can involve making bad situations just less bad. The design felt wrong to me and it spoiled the rest of the game.

This idea was refreshed in my mind when I saw a great post by Simon Ferrari on Channel 4’s Sweatshop Game. Modeled after the tower defense genre, you put workers on a conveyor belt and try to win the gold medal. The content matches the theme, but the design works to help one appreciate the struggle of sweatshop labor because you realize that it’s always cheaper and easier to just use child labor. Simon Parkin, the game’s designer/writer/producer, explains, “It was one of those rare cases where the mechanics and the message seemed to align neatly, and once we began speaking to experts in the field of sweatshop labor it became clear that there was a huge amount of relevant content that we could bake into the game mechanics.” Ferrari goes on to point out that this is an example of what Ian Bogost calls “tight coupling” between design and content. The two compliment and conform to one another.

This brings us back to the concept of form, which I went on about in Gamification and Law - 3 and I’m going give a more concrete example here. To repeat a few ideas: form = content/design and because of this you identify form by its ‘family resemblance’ to other forms. There is no one specific thing that makes something an FPS, a game like Portal 2 is still an FPS while at the same it’s a puzzler and it’s a story about a woman escaping a giant lab. Alternatively a game like Amnesia is a survival horror game even though it’s nothing like Resident Evil. The concept of a ‘family resemblance’ comes into play because there are just certain things in varying combination that must be there for a game to be like something. At the same time it’s not a concrete list either, new and different combinations can still fall into a familiar form. The form is just that unspecificed, abstract idea of what something is based on its resemblance to other things.



Now when I say something like form = content, it’s important to remember that we’re talking about a multitude of relationships interconnecting. It's a kind of system but instead of working around economics or game design it's abstracted out to any topic. Consider a great post by Matthew Gallant on the dramatic pace of the game Jamestown. Like a play or movie or book, games have dramatic arcs that are traced by the tension of the player. Gallant comments, “If we acknowledge that game mechanics have inherent dramatic arcs that superimpose the authored content, then we can begin to analyze mechanics in terms of their storytelling potential.” The idea being the dramatic bits of the story ought to coincide with the tension in the design, like the final boss also being the villain of the story, etc. It’s taking the conflict of one medium and finding a similar conflict in another, here a visual narrative coupled with the mechanical designs. You’re matching them based on their similarity in form.

Going back to the Phoenix Wright point I began with, the strong reaction I had to the game comes from the disconnect between the design form and the form of practicing law in real life. Consider the trial room mechanics. You read what a witness is saying and spot when they’re lying based on prior detective work. This happens all the time when practicing law. In this regard the narrative of the game is fine and even does a great job of paying homage to a trial. The problem is that there is always a solution to the witnesses in the game. As in, if you just object and say the right things you’ll eventually resolve the case. You’re never trapped. The same is true for the detective work, I just have to find the right clues and everything will be alright. The game design isn’t really creating the same sort of form as the actual practice of law because it has different sorts of conflicts and characteristics.



A game that more accurately represents what it’s like being a lawyer is Magic: The Gathering. Like a real case, you don’t really have a lot of say in what my initial hand is like. You just get whatever problems the client is having that day. If you have shit cards and get land-starved then there’s not a lot you can do to turn the tide. Alternatively if you do well in discovery and the law is on your side then you can make a lot of progress and deliver good results. There’s a stronger element of chance that captures the perspective of being a lawyer while at the same time still retaining enough emphasis on skill. Games of Magic are won or lost on tiny decisions and mistakes. Screw up the timing of a counter and it’ll be too late to play it. Fail to attack one turn and you’ll have lost the opportunity when you can’t quite make the killing blow. Bluff your way into having the player block your creature and you can use a giant growth to finish off their monster.

The problem with Phoenix Wright is that there is nothing left to chance. It’s linear, one need only discern puzzles and you can progress. The form of the design does not really mimic the form of the real thing. As a consequence the form and content don’t really equal out and thus don’t tightly couple.

The final point I’d make is that none of these criticism are really going to matter to anyone except another lawyer. The Phoenix Wright games have a huge fan base and I’m pretty sure if I hadn’t made the horrid mistake of going to law school I’d like the game a lot more. The linear form the game employs may not mimic the real thing, but it does mimic the popular public perception of the lawyer. In fact, if you were to make a lawyer game like Magic: The Gathering, it would probably sell horribly because of how technical it would get. So I’ll conclude by saying that as important as form may be for supporting a game’s content, the perceptions of form need not always derive from the real thing.