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).
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