What's the smart move for underdogs? Malcolm Gladwell provided an answer in an essay called "How David Beats Goliath: When Underdogs Break the Rules," published in The New Yorker of May 11, 2009. As the title indicates, the smart move is not to play by the powerful players' rules. The big boys by definition are the ones who prospered under the rules, and quite likely they're also the ones who wrote them. So it stands to reason that if the rules remain unchallenged, those who are already doing well under them will continue to do so.
There are limits to the force of this lesson. It may be the smart move to lie, cheat or kill, in a world where powerful people don't need to do those things (that may not be our world, but that's another story) -- but lying, cheating and killing are still moral wrongs. Moreover, the rules may be set up more or less fairly: in a democracy, there is some real chance that insurgent political groups will be able to win power within the rules; and in a well-regulated capitalist state, a new competitor may be able to triumph over established industries (see Microsoft, Google, Apple).
So Gladwell's lesson isn't a mandate for immoral action or for anarchy. But it is a guide to the smart move within those limits. Thus David and Goliath: David brought an unexpected tactic, the slingshot, and an intensity of effort (Gladwell quotes the Bible: "And it happened as the Philistine arose and was drawing near David that David hastened and ran out from the lines toward the Philistine") that overcame Goliath. So also Gladwell's extended lesson on the power of the full-court press in basketball -- it requires a lot of effort but disables stronger opponents. So also guerrilla warfare. Those less-powerful actors who are willing to depart from existing conventions do well, while their counterparts who meet the powerful on the powerful's terms lose.
Why don't more people try the smart, underdog move? Gladwell's answer: "The coaches who came to Louisville [where Rick Pitino's college teams practiced the full court press] sat in the stands and watched that ceaseless activity and despaired. The prospect of playing by David's rules was too daunting. They would rather lose." That sounds like laziness, and that alone may be part of the answer. In many circumstances it is acceptable to be mediocre, and playing by the winner's rules will make weaker teams dependably mediocre.
But Gladwell's own account indicates there's more to it than that. He also writes that "[w]e tell ourselves that skill is the precious resource and effort is the commodity. It's the other way around. Effort can trump ability ... because relentless effort is in fact something rarer than the ability to engage in some finely tuned act of motor coordination." This observation suggests that the weak stay with the approach of the powerful because they believe that the approach of the powerful is actually superior. The weak want to be like the strong. Or, put differently, they envy the strong and believe that by becoming like them they can triumph over them. And they believe this strongly enough to discount evidence that suggests the smart move is to become unlike their competitors -- a feat of reasoning fallibility that appears to be absolutely typical of how people think.
There surely is one other problem. Even if we free ourselves from the tyranny of the conventional, we haven't yet figured out the right unconventional move. Or at least we may not have -- the utility of some moves in some contexts, like the full court press in basketball, may now be perfectly clear if we have eyes to see with. In other settings, however, the smart move (or moves -- of course there may be more than one) may not be easy to discern, and certainly many unconventional moves will turn out to be dumb as well. So the question for law schools that aren't prospering by the current rules is: what's the smart move? I'll work on that in future posts.