Why Should Lawyers Care About Game Theory or John Nash? Some "Random" Examples Including DEI, Affirmative Action, and Energy Law

             I’ve established that my “problem” (one of them), or life’s work, is disproving the Nobel Laureate John Nash, or at least disproving him in the right environment and in the long run, two important caveats to my work. But why should the legal community care?

            For starters, the entire law and economics movement (aka the “Chicago School”) relies on game theory and game theory affects and rationalizes every aspect of the entire legal system, even if the legal system did predate game theory. To my knowledge, and I’ve done enough appellate legal work to count myself as a generalist in addition to being a specialist, not a single area of law would be untouched were John Nash proved wrong, at least in the right environment and in the long run.

            I’m just going to take an essay I opened at “random”—something which arguably doesn’t even exist, at least not in famed physicist Brian’s Greene’s view, unless one is going to approach math and physics from the perspective of Bayesian statistics and argue time or causality itself is a “noisy system,” meaning humans can predict general trends, such as predicting climate change, but not the weather on any given day of the week, which is why weather forecasters often are wrong – but I digress. I opened a canonical “tome” of law and economics essays and "fatedly" flipped to an article written by Edmund S. Phelps entitled “The Statistical Theory of Racism or Sexism”  that was published in the American Economics Review, which has this actual, in-print quote: 

The employer who seeks to maximize expected profits will discriminate against [B]lacks or women if he believes them to be less qualified, reliable, long-term etc. on average than whites and men, respectively, and if the cost of gaining information about individual applicants is excessive.

Wait, what? Somebody actually put this in print? That’s right, they did—or rather a famous economics journal did, and the article contains equations and game theory to, that’s right, rationalize hiring discrimination. Labor law is not my field, but is highly topical given DT’s blatant attacks on DEI and the Supreme Court’s upside down decision in SFFA v. Harvard, though I fully expect and project there will be multiple Harvard cases in the U.S. Supreme Court. . . might the Supreme Court hold a summer session with all these emergencies piling up; don’t know, it would be unprecedented, but maybe? 

Thus, we (lawyers) can use game theory to assess whether DT and white supremacism and sexism are being influenced by math. Now, DT strikes me, as one would say in Spanish, as “completamente loco” and I mean this in the literal sense (not in the mocking sense, though I am not a doctor and this isn’t a diagnosis) and I highly doubt that DT is relying on game theory to support his racist, sexist, agenda, but presumably Project 2025 got its ideas somewhere, and was advised by folks at Fed Soc who appear, that’s right, right now to be full of “beneficial regret.” But, hey, “beneficial regret” is healthy, as established, and it’s #nottoolate for Fed Soc to change its tune, even if that tune is a “tritone.” (Just kidding, that’s Joe Dimagio inside “baseball” and is just an attempt at existential humor, and the ability to laugh at oneself and take a cute joke is a hallmark of someone who has healthy self-esteem, though I myself used to never ever be able to take a joke or any kind of teasing, though I can now.) 

#NotTooLate, reviewed by my hero Václav Havel, is also the title of one of my favorite books on climate change, and I hope and pray its #NotTooLate for the climate given the energy law implications of John Nash being wrong that could lead to better computer chips and less energy use by companies like Google, though DT and Musk’s alliance is sometimes melting down like the Artic. And the Artic melting down is not funny, it’s tragic, but tragicomedy is a form of humor, and laughter in general is badly needed. For music lovers who hate “tritones,” here’s a seriously beautiful piece of music/activism by Greenpeace and one of my favorite composers to protest the Artic melting down.

            So, yes, game theory is “relevant” for every single area of law and is used by scholars of law and economics to rationalize all of them. I get annoyed when I have to discuss payoffs because in the Chicago School many scholars like Coase did not, and just discussed games, and basically anyone who is anyone at U. Chicago knows game theory and math are central to the rationalization of these types of views, even while younger generations of scholars reject these views, including amazing scholars at Cornell and Yale, like James Grimmelmann and Dan Kahan, so can’t I pretty please just not discuss payoffs even though of course all lawyers love payoffs and most of them don’t study game theory? 

I’ve also heard that the Chicago School is less powerful than it used to be. Tell that to Chicago Law, which is currently ranked #3 in the country by U.S. News & World Reports. Now, rankings are silly, but many people, including prospective students, take them seriously, and rely on them to determine where to go. While many movements such as the LPE project, behavioral law and economics, and critical race theorists all attack and problematize the Chicago School, none of these fields use math, and say Chicago’s main justification is wrong because Chicago actually flat out gets the math wrong, which is what my research does, and why it is hopefully so powerful, and presumably partially why there have been attempts to suppress my speech.

I won’t get into all the blatant attempts to suppress my speech, except to say I’m a truthteller, and someone shockingly did compare me to Galileo. I will say that I do not wish to share Galileo’s fate, even if I would not recant my scholarship and would wish to be burned at the stake like Joan of Arc rather than recant, unless of course someone actually proves me or my scholarship wrong on the merits, in which case I would, of course, “timely,” i.e., immediately, and publicly retract anything wrong and obviously recant.  If people think I boast, please don’t. Someone I really respect literally compared me to Galileo to my face, and I blushed bright red and nearly feinted. I do not think of myself as anything like Galileo, but I am also sincere that I’d give my life for my beliefs as an idealist whose scholarship stands for MLK, and MLK was shot.

            In my view, using math and physics to speak truth to power is the best way to do it. While there are different schools of time and almost everything else in physics as I previously explained, and that includes quantum mechanics (which is consistent with multiverses, and of course the simulation hypothesis, that I left out above to explain what “random” means), in general math and physics do have “right” and “wrong” answers, and that’s what big prizes are for, and how "inn"ovation works, and John Nash being wrong would unquestionably be a “big” finding.  

-Cortelyou C. Kenney (9/9/25, 8:29 am PT)