When Immediate Responses Fail

Tit-for-tat is a strategy of immediate and proportional responses. Game theorists showed that this strategy often leads to fruitful cooperation. Indeed, many legal regimes resemble a tit-for-tat strategy and benefit from its ability to avoid unnecessary conflicts. But in situations of uncertainty--when actors cannot be sure about the actions of their adversaries--a tit-for-tat strategy would destroy cooperation and lead to continuous clashes.

Because tit-for-tat responds immediately, a single mistake about the intentions of the adversary can lead to retaliation and start an endless string of counterstrikes. When uncertainty prevails, a strategy of many-tits-for-many-tats is optimal. Actors applying this strategy study the actions of their adversaries over multiple rounds without issuing an immediate response. Only when the actor is convinced that the adversary intentionally defects, will the actor issue a disproportionately forceful response.

The laws of war, criminal law, and international sales law all face some situations of uncertainty. This Article argues that each of these legal fields adopts a strategy of many-tits-for-many-tats to address conditions of acute uncertainty.