An Oldie But a Goodie - Rock, Paper Scissors

An Oldie But a Goodie - Rock, Paper Scissors

      Not too long ago, I wrote an article discussing the pros and cons of some atypical dispute resolution mechanisms. Rock Paper Scissors Lizard Spock and Other Innovative Dispute Resolution Mechanisms, 20 J. Passthrough Entities 41 (July/August 2017); HERE IS A LINK to that article.

      Recently, my friend Professor Daniel Kleinberger, retired from MitchellHamlin Law School, stumbled upon and forwarded to me a Kentucky decision in which the utility of rock paper scissors as a mechanism for dispute resolution was discussed (and rejected).

      In Hardin Cty. Sch. v. Foster, 40 S.W.3d 865, 873 (Ky. 2001), the court wrote:

I recognize that, at the trial court level, without stipulating to the material facts, the parties entered into an agreed order stating that “there are no genuine issues of material fact.” Exactly how they reached this conclusion remains a mystery to me, as the only disagreement in this case concerns a fact question. In any event, this Court is not required to engage in make-believe and attempt to resolve this case solely as a question of law because the parties mistook the nature of the issue at the trial court level. While the parties to a case usually may settle the case upon any basis they desire, they cannot, by agreement, bind this Court, or any court, to resolve the issues in a case under a legally impossible standard.  I cannot imagine that this Court would allow the litigants before it to stipulate that a given case be decided by a “best-of-three” match of rock-paper-scissors in the Chambers of the Supreme Court. In my opinion, for this Court to attempt to resolve this matter solely as a legal issue would be every bit as absurd.

     Whether Rock Paper Scissors Lizard Spock would be acceptable is not addressed (but I’m thinking probably not).