PRIVACY JURISPRUDENCE AND THE APARTHEID
OF THE CLOSET, 1946-1961
WILLIAM N. ESKRIDGE, JR.*
INTRODUCTION ........................................................................................................
I. TERROR: THE STRAIGHT-THREATENING CLOSET ...............................................
A. Criminal Law: Hunting the Homosexual...................................................
1. Laws to Suppress and Erase the Sex Pervert ......................................
2. Flushing Out the Homosexual: Spies, Decoy Cops, Raids...................
3. Anti-Homosexual Panics and Manias .................................................
B. Employment Law: Subversion, Blackmail, and Immorality in
Government Service....................................................................................
1. Supermania: The Creation of Federal Anti-Homosexual Exclusions,
1947-1952 .............................................................................................
2. The Federal Witch Hunts, 1953-1961 ..................................................
3. Witch Hunts at the State Level ............................................................
C. State Suppression of Homosexual Association and Expression ................
1. Surveillance and Harassment .............................................................
2. Censorship of Homophile Media ..........................................................
3. Closing Down Homosexual Socialization ............................................
II. SURVIVAL: THE MUTUALLY PROTECTIVE CLOSET..............................................
A. Substantive Privacy (Criminal and Military)............................................
1. Legislative Policy: Refocusing State Criminal Law ............................
2. Judicial Policy: The Rule of Lenity......................................................
3. Military Policy: The Crittenden Reevaluation.....................................
B. Procedural Privacy (Criminal)...................................................................
1. Due Process Protections for the Homosexual Defendant .....................
2. Judicial Monitoring of Police Tactics ..................................................
3. Evidentiary Rules.................................................................................
C. Substantive and Procedural Privacy (Civil) ..............................................
III. RESISTANCE: THE GAY-THREATENING CLOSET .................................................
A. Freedom of Association (The Homophile Organizations and Bar Cases)..
B. Freedom of Expression and Press (Homophile Publications and Obscenity)
C. Equal Treatment (The New Wave of Employment Cases) .........................
CONCLUSION: THE DISCOURSES OF PRIVACY AND EQUALITY .....................................
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INTRODUCTION
The sacking of Sumner Welles was a harbinger. A cold, brilliant
patrician, Welles was a schoolmate and lifetime chum of President
Franklin D. Roosevelt.1 Roosevelt appointed Welles Under Secretary
of State, a position from which Welles essentially controlled United
* Professor of Law, Georgetown University Law Center. This Article is the published version of the Mason Ladd Lecture, delivered at the Florida State University College of Law on April 1, 1996. I am grateful to Ann McGinley and Jeff Stempel for comments on the lecture and later drafts of this Article. I also thank the law library staff at
the Florida State University College of Law for assisting me with locating many Florida
sources, and the staff of the Florida Department of State, Division of Archives, for facilitating my use of the Johns Committee papers, series 1486.
1. See IRWIN F. GELLMAN, SECRET AFFAIRS: FRANKLIN ROOSEVELT, CORDELL HULL,
AND SUMNER WELLES 60 (1995).
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States foreign policy.2 In 1941, FBI Director J. Edgar Hoover supplied Roosevelt with information pertaining to Welles’s homosexual
activities,3 but Roosevelt was unfazed. Armed with complaints that
Welles had solicited sex from black railroad porters, U.S. Ambassador to France William Bullitt argued to the President that
the maintenance of Welles in public office was a menace to the
country since he was subject to blackmail by foreign powers
[which] had used crimes of this kind to get men in their power; and
that . . . a terrible public scandal might arise at any time which
would undermine the confidence of the country in him, the President.4
According to Bullitt, Secretary of State Cordell Hull “considered
Welles worse than a murderer,” and “morale in the Department of
State and the Foreign Service was being ruined by the knowledge
that a man of the character of Welles was in control of all appointments and transfers.”5 On the eve of war with Hitler, it was imperative to rid the State Department of “criminals” like Sumner Welles,
argued Bullitt.6 Roosevelt, fully aware of Welles’ sexual crimes,
nonetheless refused to believe that any newspaper would publish
such a scandal.7 Only after Bullitt supplied Republican Senator
Ralph O. Brewster of Maine with information pertaining to Welles’s
notorious homosexual activities, and Brewster threatened to launch
a Senate probe,8 did Roosevelt ask Welles for his resignation.9
The firing of Welles, whom Bullitt described as Roosevelt’s
“Achilles Heel,”10 reflected the emergence of the closet as the residing
place for homosexuals. Roosevelt and Welles assumed that Welles
could lead a “double life”—that Sumner Welles the criminal was segregable from Sumner Welles the friend and public servant—as long
as his homosexuality remained closeted in secrecy. Prior to the
1940s, same-sex intimacy was literally unspeakable, as the homosexual and society conspired to keep the matter secret. By the 1940s,
however, the edges separating the two halves of the double life were
eroding, as greater numbers of homosexuals transgressed the lines
separating public and private spheres and more heterosexuals became curious about the secret life, either to condemn it, to explore it,
2. See id. at 130-31; see also David K. Johnson, “Homosexual Citizens”: Washington’s
Gay Community Confronts the Civil Service, WASH. HIST., Fall-Winter 1994-95, at 50.
3. See GELLMAN, supra note 1, at 236-37.
4. FOR THE PRESIDENT: PERSONAL AND SECRET, CORRESPONDENCE BETWEEN
FRANKLIN D. ROOSEVELT AND WILLIAM C. BULLITT 513 (Orville H. Bullitt ed., 1972).
5. Id.
6. Id. at 513-14.
7. See id. at 513.
8. See id.
9. See id. at 514-16.
10. Id. at 515.
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705
or both. The erosion required the homosexual to decide whether to
openly admit homosexuality or to keep the private life closeted and
separate from the public one for fear that exposure of the former
could destroy the latter.
While the closet has become the classic metaphor for homosexual
secrecy,11 it is of surprisingly recent origin, not gaining currency until after World War II. The earliest reference I have found is in John
Burns’ 1949 Lucifer with a Book , whose characters “come out of the
cloister” and into the life.12 Thus, the idea of coming out of the cloister began as a metaphor for a homosexual’s entry into the underground gay subculture, not unlike the “coming out” of a debutante
into society.13 The 1950s invoked the closet as the place where private skeletons and personal secrets are hidden. 14 By the 1960s some
gay people were using “coming out” as an expression for the homosexual’s sharing her or his own private skeleton in the closet with
straight people. Whereas homosexuals confronted the possibility of
coming out of the closet, some heterosexuals were obsessed with
casting them out. To fight against “homosexual recruiting of youth,”
Florida’s Legislative Investigation Committee wrote in 1964, “the
closet door must be thrown open and the light of public understanding cast upon homosexuality.”15
These references (there are many others) illustrate not only how
slowly the vocabulary of the closet was worked out, but also how the
closet can be either protective or threatening.16 For the homosexual, it
could be an embracing even if temporary cocoon, or it could be a
scary prison. For heterosexuals, the closet likewise could have two
different kinds of meanings, either a place where skeletons are se11. See EVE KOSOFSKY SEDGWICK, EPISTEMOLOGY OF THE CLOSET (1990); Robert
Dawidoff, In My Father’s House Are Many Closets, in CHRISTOPHER STREET, Apr. 1989, at
28-41.
12. ROGER AUSTEN, PLAYING THE GAME: THE HOMOSEXUAL NOVEL IN AMERICA 110
(1977) (quoting John Burns discussing Lucifer with a Book). The central character, Guy
Hudson, is a boys’ school instructor of intense but ambiguous sexuality. The only clue to
his preferences is a lewd Renaissance print of a man having sex with another man and a
woman. This print is stored in Hudson’s dormitory closet. See JOHN HORNE BURNS,
LUCIFER WITH A BOOK 105-06 (1949). Other characters make homosexual advances to
Hudson by seeking to bring the print out of the closet. See, e.g., id. at 132-33.
13. See GORE VIDAL, THE CITY AND THE PILLAR 154 (rev. ed. 1965). “I’ve been invited
to a faggot party,” matinee idol Ronald Shaw told Jim Willard. “I’ll take you. It can be
your coming-out party in New York.” Id.
14. See Marlin Prentiss, Are Homosexuals Security Risks?, ONE, Dec. 1955, at 4.
Prentiss explained the ironies of denying homosexuals security clearances: “for where
among us breathes there a man—or woman—who does not have his own personal Achilles
heel—his own private skeleton in the closet?” Id.
15. FLA. LEGIS. INVESTIGATION COMM., HOMOSEXUALITY AND CITIZENSHIP IN FLORIDA
14 (1964) (available at Fla. Dep’t of State, Div. of Archives, ser. 1486, carton 1, Tallahassee, Fla.).
16. See Kenji Yoshino, Suspect Symbols: The Literary Argument for Heightened Scrutiny for Gays, 96 COLUM. L. REV. 1753, 1794-1802 (1996).
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cluded from view so that they do not disturb household harmony or,
more sinisterly, a place within the home where lurk creatures who
could break out and wreak havoc. Providing a spatial analogue to
Bullitt’s Achilles heel metaphor, Kenji Yoshino likens the Trojan
Horse to such a closet.17 The theme of this Article is how post-World
War II American law helped create the closet and how the closet’s
meaning evolved—from threatening to protective for heterosexuals
at the same time it was changing from protective to threatening for
homosexuals.
The closet took form as a response to three legal conundrums in
the 1940s and 1950s: the increasing use of sexual orientation as an
important regulatory category, which contributed to an obsessional
discourse about minority sexual orientation; the insistence of legal
republicans to command state apparatus to hunt down and destroy
deviant minorities, especially homosexuals, countered by the insistence of legal libertarians that homosexuals should be left alone; and
the conflicting desires of homosexuals to hide behind traditional libertarian barricades while at the same time becoming more inclined
to make their presence known in republican public culture. People of
minority sexual orientations hid in the closet for reasons of both terror (to avoid annihilation) and social accommodation (to pay the
price of toleration). But whereas homosexuals before 1940 were reflexively willing to segregate their double lives and keep their gay
one a secret, those after World War II were more ambivalent about
the segregation, and some openly violated it. Conversely, heterosexuals before World War II were generally willing to let secret homosexual lives pass unnoticed, but after the war found the secret
lives more threatening and sought to expose them. The idea of the
closet, therefore, is not just the idea that homosexuality must be secret; that was entailed in the double life. What is distinctive about
the political economy of the closet is that both homosexuals and heterosexuals regarded the secrecy with ambivalence. All of us were attracted both to the idea of keeping homosexuality hidden and to the
opposite idea that the closet door must be thrown open and homosexuality exposed to view and discussion.
The object of this Article is to explore the legal regulation of samesex intimacy between 1946 and 1961 from the perspective of the
closet. Although the Article seeks to explore national phenomena,
much of its narrative will focus on Florida as a microcosm of the
larger story.18 Part I traces in detail the regulatory moves made by
17. See generally Kenji Yoshino, The Trojan Horse and AIDS (Feb. 1996) (Yale Law
School essay, on file with author) (drawing from Monique Wittig, The Trojan Horse, in
ESSAYS ON WOMAN (Lucy Gelber & Romaeus Leuven eds., Freda Mary Oben trans., 1987)).
18. I focus on Florida partly because its anti-homosexual terror is so well documented; the Johns Committee papers are available at the Florida Archives. I also focus on
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APARTHEID OF THE CLOSET
707
an America fearful, as Bullitt and Hoover were, of these skeletons in
its closet, seemingly determined not only to deny homosexuals any
public space, but also to pry them out of their closets and erase them.
Part II explores the failure of this regulatory effort, thwarted in part
by doctors, prosecutors, and trial judges who worked from the premises of privacy jurisprudence and offered the mutually protective
closet as a compromise: we won’t ask about your sexuality, you don’t
tell us about it. Both witch-hunters like Joe McCarthy (Part I) and
tolerant liberals like Learned Hand (Part II) contributed in the
1950s to an apartheid of the closet . This was a regime in which homosexuals were segregated from civilized society, not physically, but
psychically and morally. So long as they confined their expressions
and actions to a mutually protective closet, homosexuals were
promised a regime of “separate but equal” toleration from the liberals and legal protection from the witch hunters.
Just as racial apartheid was an unstable regime, however, so too
was the apartheid of the closet, as I explore in Part III. From conventional society’s point of view, there were always those who viewed
the closet as threatening, containing predatory enemies. From the
homophile point of view, the closet was always a confinement—really
a badge of inferiority—as well as a refuge, and straight society’s tendency to pry open the closet door left the homosexual with the worst
of both worlds: neither privacy nor integrity. The never-ending masquerade of the closet made it impossible for the homosexual to have
integrity, and yielded a self-fulfilling prophecy whereby homosexuals
were persecuted, in part, because they were untrustworthy and susceptible to blackmail, precisely the charges leveled against Sumner
Welles by Bullitt.
Law contributed critically to the failure of the mutually protective
closet. While the efforts of the witch hunters certainly contributed to
the persuasiveness of liberals’ mutually protective closet, they also
destabilized it by their episodic successes, which came irregularly
and unexpectedly. Also, appellate judges typically acquiesced in the
terror when push came to shove, making the mutually protective
closet less credible. Not least important, the ability of the witch
hunters to “out” people created a class of citizens who were already
excluded from the mutually protective closet and therefore inclined
to be critical and destabilizing. In short, the privacy jurisprudence of
Florida partly because it is so diverse—being a southern state that even in the 1950s had
big (Dade County and Miami/Miami Beach) and medium-sized metropolitan areas (Hillsborough County and Tampa) as well as rural areas (northern part of the state). Nestled in
traditionalist rural upstate are two university communities, Florida State University and
the University of Florida. Because they had noticeable homosexual populations surrounded by traditionalist peoples, the university towns and the metropolitan areas became situses of homosexual/traditionalist culture clashes.
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the 1950s gave homosexuals a security that they soon questioned,
and extracted from them a dishonesty that became increasingly intolerable.
The success of free speech jurisprudence in the 1950s was also destabilizing to the mutually protective closet. Developed in response
to the state’s effort to suppress political and civil rights dissidents
(namely, Communists and African-Americans), free speech jurisprudence became a means by which sexual and gender dissidents (such
as homosexuals and cross-dressers) could claim public space for
themselves. The American free speech tradition then being created
was in favor of robust debate, and in the sexual sphere that debate
helped create a homosexual “minority.” Homophile publications,
from the Kinsey reports to lesbian pulp romances, were the first evidence many gay people had that they were not accidental monsters.
Homophile suppression, from the armed forces’ exclusion of homosexuals to censorship campaigns, helped make sexual deviance sexy
to untold numbers of Americans whose homoerotic impulses were
stirred and sometimes awakened by the orgasmic hysteria of the
witch hunters.
I. TERROR: THE STRAIGHT-THREATENING CLOSET
Following World War II, conventional society sought to eliminate
homosexuality in the United States. Earlier, popular consciousness
had designated the homosexual a focal point for American anxieties
about sex, feminism, and gender.19 In the mainstream imagination,
the homosexual stereotypes of the mannish dyke and the effeminate
fairy combined unspeakable sexual perversion and transgression of
gender roles with moral and psychological degeneracy. Some people
believed homosexuals ascertainable by stigmas such as derangement, gender-crossing manner or attire, or physical deformity. Some
psychiatrists diagnosed homosexuals as “sociopathic” or “psychopathic” personalities and deemed them incapable of controlling their
sexuality. The concept of the predatory homosexual crystallized as
an idée fixe of the homosexual as beyond self-control and thus an assured child molester. The 1930s witnessed a homosexual panic in
many urbanized states that had sizable homosexual subcultures,
particularly New York, California, New Jersey, Pennsylvania,
Michigan, and Ohio. World War II interrupted this panic but laid the
foundation for its subsequent intensification. 20
19. See William N. Eskridge, Jr., Law and the Construction of the Homosexual:
American Regulation of Same-Sex Intimacy, 1880-1946, 82 IOWA L. REV. (forthcoming
1997); Estelle Freedman, “Uncontrolled Desires”: The Response to the Sexual Psychopath,
1920-1960, 74 J. AM. HIST. 83, 85-86 (1987).
20. See generally ALLAN BÉRUBÉ, COMING OUT UNDER FIRE (1992) (discussing gay
American soldiers in World War II); JOHN D’EMILIO, SEXUAL POLITICS, SEXUAL
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709
The War created unprecedented economic opportunities for
women, including large-scale service in the military, and threw men
as well as women into same-sex settings for extended periods. With
the absence of male companions on the homefront, women formed
close, and sometimes erotic, relationships with one another. Servicemen likewise turned to one another for sexual companionship.
Thus, World War II facilitated the abandonment of traditional gender and sex roles previously considered sacrosanct, and fueled the
postwar expansion of homosexual urban subcultures. Although
aware of the deviation, the state frequently looked the other way or
handled situations with leniency. After the war, however, both society and the state responded more harshly. Reacting to a period of
sexual experimentation and gender bending, America renormalized
with a vengeance. Government reaffirmed and protected traditional
gender roles and severely stigmatized deviance from heterosexuality.
The postwar baby boom confirmed societal subscription to traditional heterosexual roles and helped erase memories of wartime aberrations. Many attracted to the same sex retreated to what soon
came to be known as the closet, sometimes even marrying a member
of the opposite sex. Thus, for the homosexual, the postwar closet
could serve as a potential refuge.
The state destabilized the potential equilibrium whereby homosexuals would hide in the closet in exchange for society’s promise not
to open the door. Many anti-homosexual Americans, including closeted homosexuals,21 viewed the closet as a Trojan Horse whose secluded occupants were a fifth column threatening to destroy the
United States, morally and politically. As Florida’s Legislative Investigation Committee wrote in 1964, “if we don’t stand up and start
fighting, we are going to lose these battles in a very real war of morality.”22 The anti-homosexuals mobilized the forces of state power in
the 1950s to “throw open” the “closet door” (as the Committee put it)
and to destroy homosexuality before it destroyed the country. Homosexual panic thus paralleled Communist panic, and the two intermixed, during which charges of homosexuality were confused with or
COMMUNITIES: THE MAKING OF A HOMOSEXUAL MINORITY IN THE UNITED STATES, 19401970 (1983) (discussing the history of homosexuality in American Society); George
Chauncey, Jr., The Postwar Sex Crime Panic, in TRUE STORIES FROM THE AMERICAN PAST
160 (William Graebner ed., 1993) (discussing the “sex crime panic” that occurred after
World War II).
21. See, e.g., DAVID M. OSHINSKY, A CONSPIRACY SO IMMENSE: THE WORLD OF JOE
MCCARTHY 310-11, 328-29 (1983) (reactionary Senator McCarthy, long a bachelor, rumored to be homosexual); NICHOLAS VON HOFFMAN, CITIZEN COHN (1988) (McCarthy’s
chief counsel Roy Cohn was a closeted homosexual); ANTHONY SUMMERS, OFFICIAL AND
CONFIDENTIAL: THE SECRET LIFE OF J. EDGAR HOOVER (1993) (FBI Director Hoover was a
cross-dresser and possible homosexual; his only emotionally intimate relationship was
with his longtime companion Clyde Tolson).
22. FLA. LEGIS. INVESTIGATION COMM., supra note 15, at 13.
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even dominated charges of political subversion. Even more than the
despised Communists, homosexuals were like the “pod people” in
Don Siegel’s 1950s movie The Invasion of the Body Snatchers : they
were weird aliens who could pass as humans and whose goal was to
prey on Americans and turn them into pod people. Even more than
conquest by an external enemy, the American nightmare of the
1950s was conquest from within—a nation of pod people (homosexuals) who had taken over the bodies of real people (heterosexuals). As
a consequence of that fear, the homosexual’s closet became her
prison, a place where she was forced to be but which could be invaded at any time by state officers who could erase her at their
whim.
This systematic regulation operated differently on women than on
men. Although lesbians were increasingly subjected to criminal arrests in the 1950s, most criminal laws were largely enforced against
male homosexuals, for they socialized more publicly and engaged in
more open sexual solicitations. An exception to this generalization
were laws against cross-dressing, which were used as an excuse for
police to harass butch lesbians. Also, lesbians, like gay men, suffered
when their bars and social spaces were harassed by raiding vice
squads or the liquor regulatory gendarmerie. Although they were
less likely to be arrested, the collateral civil consequences of arrest
operated more severely on lesbians, who were more vulnerable to
loss of jobs or even children because of sexual allegations. Women
employed in the military were most severely harmed by the armed
forces’ homosexual exclusion because it interacted with and reinforced male personnel’s hostility toward women who performed traditionally male occupations. The suppression of homosexual ideas
and culture affected both men and women, but also may have had a
disproportionate effect on straight as well as lesbian women because
it deprived women of important feminist ideas, literature, and role
models.
A. Criminal Law: Hunting the Homosexual
A comprehensive criminal regime for regulating sexual intimacy
was in place well before World War II.23 Nineteenth-century state laws
prohibiting sodomy, public lewdness, and indecency were readily applicable to same-sex intimacy, and every state had such statutes by
1946. Most states and municipalities also had anti-prostitution laws
23. See infra Appendix 2A. This chart displays the rich array of state felonies, state
misdemeanors, and municipal offenses regulating citizens of San Francisco, California, in
1950. Although this list is longer than those facing residents of states and cities with less
sexual diversity than California and San Francisco, it reflects the comprehensive manner
in which state and local governments regulated sexuality in the postwar period.
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APARTHEID OF THE CLOSET
711
that prohibited lewd vagrancy, disorderly conduct, or sexual solicitation. These laws were applied to homosexuals and were sometimes
updated to target rather than simply include sexual deviants. Additionally, many municipalities and a few states such as New York and
California prohibited cross-dressing. Such laws were deployed
against butch lesbians and female impersonators who appeared in
public.
With soldiers (mostly men) and civilians (mostly women) thrust
into homosocial environments with intense emotional bonding,
World War II created unprecedented opportunities for same-sex intimacy.24 Many Americans, exposed to homosexual intimacy during
the war, flocked to urban subcultures that existed before the war but
flourished afterwards. The increased prominence of gay subcultures
developed as America was renormalizing around the breadwinnerhusband/housekeeper-wife-based family, and an anti-homosexual
reaction ensued that lasted half a generation. Continuing a trend
pronounced before World War II, criminal regulation focused on the
sexual psychopath and child molester; the homosexual epitomized
both demons. Reacting against the temporary aberrations tolerated
during World War II, the criminal law aggressively hunted the homosexual. In many jurisdictions where homosexual subcultures had
been prominent before the war, elaborate bureaucracies and vice
squads carried out ambitious efforts to suppress homosexuality more
systematically. In many jurisdictions where such subcultures had
not been prominent until after the war, anti-homosexual “witch
hunts” allowed communities to act out their synergistic concerns
with children’s sexuality, sexual deviation, and male aggression.
1. Laws to Suppress and Erase the Sex Per vert
In the mid-twentieth century, the District of Columbia (District)
possessed a schizophrenic character: on the one hand it had a longstanding and thriving gay subculture, but on the other it was a
sleepy southern city whose subculture could not compare with that of
New York or Los Angeles. At war’s end, the District regulated sexual
perversion by criminalizing public indecent exposure, “inviting” persons for immoral purposes, and public disorderly conduct. 25 Police
arrested or detained scores of men each year for sexual overtures
pursuant to these statutes and for common-law sodomy, yet the
postwar Congress, and many state legislatures, found this degree of
24. See D’EMILIO, supra note 20, at 24-25.
25. D.C. CODE ANN. § 22-2701 (1940) (inviting for purposes of public prostitution); see
also id. § 22-1107 (unlawful assembly, profane and indecent language); id. § 22-1112 (indecent exposure); cf. S. REP. NO. 1377 (1948), reprinted in 1948 U.S.C.C.A.N. 1714, 171516 (summarizing pre-1948 D.C. law).
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regulation insufficient. The congressional response reflected similar
moves by state legislatures all over the country. All these bodies
were awakened to the threat of homosexuals to the nation’s perceived security.
To begin with, sexual offense laws had holes that Congress
plugged after the war. Unlike the states, the District had no law
prohibiting anal or oral sex. Originally, the District police used their
common-law authority to arrest men on sodomy charges, but in 1948
Congress enacted the Miller Act26 to remedy problems with the common law. The impetus for the Miller Act was not concern for just
sodomy, but child molestation. Estelle Freedman has documented
the course of the nation’s mania concerning child molestation, which
commenced in the 1930s and reemerged with a vengeance after
World War II.27 Characteristically, FBI Director J. Edgar Hoover
fanned much of the hysteria. In his article, How Safe Is Your Daug hter?, Hoover observed that “[t]he most rapidly increasing type of
crime is that perpetrated by degenerate sex offenders.” 28 He continued, chillingly: “Should wild beasts break out of circus cages, a whole
city would be mobilized instantly. But depraved human beings, more
savage than beasts, are permitted to rove America almost at will.” 29
The press fanned these flames, and although stories like Hoover’s
pointed to molestation of girls, “girl-molesting sex pervert” melded in
the popular imagination with “boy-molesting sex pervert.” Consequently, police attention focused disproportionately on homosexual
men even when victims of sex crimes were girls. 30
Consistent with these concerns, the Miller Act’s new sodomy provision carried a higher penalty—incarceration up to twenty rather
than ten years—if the sodomy victim was younger than sixteen years
of age.31 In addition, the statute created new crimes of indecent exposure to children of either sex younger than age sixteen and “indecent liberties” with such children.32 These changes reflected the
heightened fear that homosexual adults turned children into homo26. Ch. 428, 62 Stat. 346 (1948).
27. See Freedman, supra note 19; see also Chauncey, supra note 20.
28. J. Edgar Hoover, How Safe Is Your Daughter?, AM. MAGAZINE, July 1947, at 32.
29. Id.
30. See Freedman, supra note 19, at 94. The article discusses this 1946 letter from
one homosexual man to another after a child murder in Chicago:
I suppose you read about the kidnapping and killing of the little girl in Chicago—I noticed tonight that they “thought” (in their damn self-righteous way)
that perhaps a pervert had done it and they rounded up all the females [effeminate homosexuals]—they blame us for everything and incidentally it is
more in the limelight everyday—why they don’t round us all up and kill us I
don’t know.
Id.
31. See Miller Act § 101, 62 Stat. at 346 (repealed 1995).
32. Id. §§ 101, 103, 62 Stat. at 346, 347 (repealed 1995).
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APARTHEID OF THE CLOSET
713
sexuals not only by sodomizing them, but also by taking other sexual
liberties with them. Following Congress’ lead, many states similarly
revised their sodomy laws to impose more significant penalties on
homosexuals who committed sodomy or other “lewd” conduct with
minors.33 From the 1940s through the early 1960s, no fewer than
twelve states enacted statutes criminalizing the taking of indecent
liberties or engaging in lewd behavior with children under specified
ages.34 In 1943, Florida designated it a felony to fondle a girl younger
than age fourteen “in a lewd, lascivious or indecent manner,” 35 and
in 1951 (at the apex of the anti-homosexual terror), expanded the
felony to include the lewd fondling of a boy under age fourteen. 36
Like the Miller Act, Florida’s child molestation statutes reflected not
only a concern that children’s sexuality be protected, but also the
belief that sexual corruption could occur beyond vaginal, anal, and
oral intercourse.
The biggest perceived failure of sex offender laws was that the
states had no comprehensive plan to deal with the offender after his
arrest. Usually perpetrators paid a fine or served a short jail sentence. Before World War II, Illinois, Michigan, Minnesota, and California enacted special laws for treatment of “sexual psychopaths,”
which the Supreme Court provisionally upheld in 1940. 37 The Miller
Act’s Title II included a “sexual psychopath” provision, essentially
adapted from the Minnesota statute.38 Under this law, a U.S. Attorney’s office could bring a proceeding against a person believed to be a
sexual psychopath, which was defined as
a person, not insane, who by a course of repeated misconduct in
sexual matters has evidenced such lack of power to control his or
her sexual impulses as to be dangerous to other persons because
33. See, e.g., CAL. PENAL CODE § 288 (West 1956) (repealed 1976) (authorizing a life
sentence for any defendant who performs anal or oral sex with children under the age of
14).
34. Arizona, Delaware, Georgia, Idaho, Illinois, Kentucky, Louisiana, Minnesota,
Missouri, North Carolina, Texas, and Washington. Typical of these was an enactment by
the Texas Legislature:
[W]hoever shall use his mouth on the sexual parts of another human being for
the purpose of having carnal copulation, or who shall voluntarily permit the
use of his own sexual parts in a lewd or lascivious manner by any minor, . . .
shall be confined in the penitentiary or not less than two (2) nor more than fifteen (15) years.
Act effective Aug. 9, 1943, ch. 112, § 1, 1943 Tex. Gen. Laws 194, 194 (West) (repealed
1983).
35. Act effective June 10, 1943, ch. 21974, § 1, 1943 Fla. Laws 583, 583-84 (current
version at FLA. STAT. § 800.04 (1995)) .
36. See Act effective May 11, 1951, ch. 26580, § 1, 1951 Fla. Laws 234, 234.
37. See Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270, 277 (1940) (upholding Minnesota’s law against “psychopathic personalities”). For a list of these and
other sexual psychopath statutes enacted by 1961, see infra Appendix 4.
38. See Miller Act, ch. 428, §§ 201-208, 62 Stat. 346, 347-50 (1948).
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FLORIDA STATE UNIVERSITY LAW REVIEW
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he or she is likely to attack or otherwise inflict injury, loss, pain, or
other evil on the objects of his or her desire.39
If determined to be a sexual psychopath, “the court shall commit him
or her to an institution to be confined there until . . . an appropriate
supervisory official finds that he or she has sufficiently recovered so
as to not be dangerous to other persons.”40 If originally charged with
a crime, the defendant then faced criminal proceedings upon discharge.
Statutes regulating or just studying sexual offenders constituted
a national craze after World War II. Eleven states established legislative study commissions to evaluate existing laws applicable to sex
offenders and to suggest statutory changes.41 Reports from California, Illinois, New Jersey, and New York pessimistically suggested
that these statutes did not contribute anything to the war against
child molestation.42 This caused the anti-homosexual craze to subside. Nonetheless, by the late 1950s, laws providing indeterminate
sentences and psychiatric treatment for sex offenders had been
adopted in the District and twenty-seven states, including all the urbanized jurisdictions of the East and West Coasts and the Midwest. 43
The District’s statute represented others with few exceptions. Only
five jurisdictions followed Congress in allowing such proceedings to
be brought without a pending criminal charge, while most required
39. D.C. CODE ANN. § 22-3503(1) (1948).
40. Id. § 22-3508.
41. See CAL. DEP’T OF MENTAL HYGIENE, FINAL REPORT ON CALIFORNIA SEXUAL
DEVIATION RESEARCH (1954); FLA. LEGIS. INVESTIGATION COMM., supra note 15; ILL.
COMM’N ON SEX OFFENDERS, REPORT OF THE ILLINOIS COMMISSION ON SEX OFFENDERS TO
THE 68TH GENERAL ASSEMBLY OF THE STATE OF ILLINOIS (1953); GOV.’S STUDY COMM’N ON
THE DEVIATED CRIMINAL SEX OFFENDER, REPORT (Mich. 1951); MINN. LEGIS. INTERIM
COMM’N ON PUB. WELFARE LAWS, SEX PSYCHOPATH LAWS REPORT (1959); INTERIM COMM’N
OF THE STATE OF NEW HAMPSHIRE TO STUDY THE CAUSE AND PREVENTION OF SERIOUS SEX
CRIMES, REPORT (1949); PAUL W. TAPPAN, N.J. COMM’N ON THE HABITUAL SEX OFFENDER,
THE HABITUAL SEX OFFENDER: REPORT AND RECOMMENDATIONS OF THE COMMISSION ON
THE HABITUAL SEX OFFENDER (1953); BERNARD C. GLUECK, RESEARCH PROJECT FOR THE
STUDY AND TREATMENT OF PERSONS CONVICTED OF CRIMES INVOLVING SEXUAL
ABERRATIONS, FINAL REPORT (1955) (New York) [hereinafter N.Y. RESEARCH PROJECT];
OR. LEGIS. INTERIM COMM. TO STUDY SEX CRIME PREVENTION, REPORT (1956); JOINT STATE
GOV’T COMM’N TO THE GEN. ASSEMBLY OF THE COMMONW. OF PA., SEX OFFENDERS: A
REPORT OF THE JOINT STATE GOVERNMENT COMMISSION TO THE GENERAL ASSEMBLY OF THE
COMMONWEALTH OF PENNSYLVANIA (1951); COMM’N TO STUDY SEX OFFENSES TO THE GOV.
AND THE GEN. ASSEMBLY OF VA., THE SEX OFFENDER AND THE CRIMINAL LAW (1951) (all on
file with author).
42. See CAL. DEP’T OF MENTAL HYGIENE, supra note 41; ILL. COMM’N ON SEX
OFFENDER, supra note 41; N.J. COMM’N ON THE HABITUAL SEX OFFENDER, supra note 41;
N.Y. RESEARCH PROJECT, supra note 41.
43. See infra Appendix 4; Karl M. Bowman & Bernice Engle, Synopses of Special Sex
Psychopath Laws—United States, in CAL. DEP’T OF MENTAL HYGIENE, supra note 41, at
41; Alan A. Swanson, Sexual Psychopath Statutes: Summary and Analysis, 21 CRIM. L.
COMMENTS AND ABSTRACTS 215 (1960).
1997]
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715
conviction of a sex offense.44 Few jurisdictions provided as many procedural guarantees as Congress.45 Although the child molestation
panic operated to justify sexual psychopath laws, and states like
Florida limited their statutes to sex crimes involving children, 46 the
District and other states did not so limit their laws. 47 In practice,
these laws were typically applied to relatively minor criminals, not
rapists or child molesters. Paul Tappan, author of the celebrated
New Jersey Report and Recommendations of the Commission on the
Habitual Sex Offender , found that the first adjudications of sexual
psychopaths involved crimes such as solitary but public masturbation, the following of a white woman by a person of color, and the
passing of bad checks by a passive homosexual. 48 Almost half of the
first 100 sexual psychopaths adjudicated in New Jersey were convicted of lewdness (homosexual overtures), sodomy, and fellatio.49
Whereas sodomy and other criminal laws aspired to keep homosexuals in the closet, the sexual psychopath laws aspired to force
homosexuals out in order to eradicate them. The earlier laws discouraged “latent” homosexuals from acting on their “homosexual
tendencies” and brought the “overt” homosexual into the criminal
justice system. But the sexual psychopath laws assured that overt,
and sometimes even latent, homosexuals would be separated from
society until they were “cured.” Over the dissents of experts such as
Dr. Alfred Kinsey, some doctors reassured the authors of such statutes that homosexuals could be cured through methods such as psychotherapy, aversion therapy (electric shocks delivered to the brain),
pharmacological shock (induced vomiting when exposed to homoerotic images), injection of hormones, cerebral lobotomies, and castration.50 Except for castration, these methods were deployed, irregularly, in American hospitals for treatment of homosexuals involuntarily committed by their families or the state. 51
44. See infra Appendix 4. Sixteen statutes required that the offender be convicted of
some crime or of a specific sex crime before holding a sexual psychopath hearing. See id.
Seven statutes required that the offender be charged with some crime or a specific sex
crime. See id.
45. See Swanson, supra note 43, at 217-18. Most jurisdictions did not permit the defendant to opt for a jury trial or guarantee the defendant counsel or other assurances of
criminal process. See id. Some jurisdictions did not even conduct a judicial hearing and
committed people simply on the basis of medical affidavits. See id.
46. See FLA. STAT. § 800.04 (1949) (targeting defendants convicted of sodomy (the
“crime against nature”), lewdness, rape, and attempts to commit those crimes when children are the victims).
47. See infra Appendix 4.
48. See TAPPAN, supra note 41, at 28-29.
49. See id.
50. See JONATHAN KATZ, GAY AMERICAN HISTORY: LESBIANS AND GAY MEN IN THE
U.S.A. 134-207 (1976) (containing copies of graphic original documents and descriptions of
anti-homosexual medical procedures and treatment).
51. See id.
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The most famous of the treatment institutions was California’s
Atascadero State Hospital, which opened in 1954. 52 About sixty percent of the inmate population were sex offenders, including many
convicted of consensual adult sodomy or oral copulation. At the beginning, the institution was relatively relaxed, even if ineffective in
“curing” those incarcerated there. Key to the institution was controlling inmates resistant to treatment or authority. Doctors performed a
steady but small stream of lobotomies, which Dr. Walter Freeman
testified helped patients lose “their fear and hate and become noticeably friendly.”53 The main treatment, which Atascadero pioneered, involved the drug succinylchloride (Anectine), a “muscle relaxant which makes the victim unable to breathe. He feels like he’s
dying. And while he lies there unable to breathe, but fully conscious,
the ‘therapist’ tells him that unless he’s a good boy, and quits jerking
off in the shower, or whatever, he will die.”54 This drug was used continually at Atascadero until 1969, when a visiting law student raised
a scandal about its use. Some inmates were incarcerated here for
only a short time, others for decades.
Registration statutes operated as another widely deployed strategy for exposing the homosexual. Like many other municipalities,
Los Angeles required “convicted persons” remaining in the city for
more than five days to register with the chief of police. 55 Registration
required convicted persons to provide details of their crimes and all
relevant information as to their whereabouts while in Los Angeles. 56
Later, Los Angeles required the registration of all sex criminals, including those convicted of consensual anal or oral sex and lewd vagrancy, a misdemeanor.57 This requirement greatly expanded the
ambit of registration because each year hundreds of people were
charged with lewd vagrancy. In 1947, California enacted a statewide
registration for sex offenders patterned after the Los Angeles Municipal Registration Law.58 In 1951 and 1952, Congress considered
52. The account that follows is drawn from exposes of Atascadero in the early 1970s.
See John LaStala, Atascadero: Dachau for Queers?, THE ADVOCATE, Apr. 26, 1972, at 11,
13 (LaStala was an inmate in 1955); Rob Cole, Inside Atascadero IV: Life, Liberty, and the
Pursuit of Treatment, THE ADVOCATE, Oct. 11, 1972, at 5.
53. LaStala, supra note 52, at 11 (quoting Dr. Walter Freedman).
54. Id. at 13.
55. See LOS ANGELES, CAL., CODE ch. V, § 52.39(a) (1955).
56. See id. A convicted person who changed residences was required to notify the
chief of police. See id. § 52.40.
57. See id. § 52.38(d). This section also provided that one was a “convicted person” if
after 1945 the person was “convicted in any place other than the State of California of any
offense which, if committed in this State, would have been punishable” under the lewd vagrancy law. Id.; see also CAL. PENAL CODE § 647(5) (1955) (lewd vagrancy law).
58. See Act effective Sept. 19, 1947, ch. 1124, 1947 Cal. Stat. 256.2 (codified as
amended at CAL. PENAL CODE § 290 (West Supp. 1996)). The 1947 registration law was
amended in 1949 and 1950 to target an expanded array of sex offenders, including those
convicted of lewd vagrancy.
1997]
APARTHEID OF THE CLOSET
717
bills requiring the national registration of sex offenders but failed to
enact them.59 The use of registration in California and other jurisdictions heightened the consequences of being out of the closet: public
notoriety and perpetual wardship under the baleful eyes of the police.
Even after the Miller Act, the District’s laws effectively regulated
only public and not private same-sex intimacy. In 1953, in a move
that reflected a more fearful understanding of the closet, Congress
rewrote the District’s indecent exposure law to make it unlawful “to
make any obscene or indecent exposure of his or her person, or to
make any lewd, obscene, or indecent sexual proposal, or to commit
any other lewd, obscene, or indecent act in the District of Columbia.”60 Congress intended to assure criminal prosecution of homosexual acts anywhere in the District by removing the public place requirement for indecency, lewdness, or lewd sexual solicitation. 61 By
1961, twenty-one states had removed public place requirements from
their lewdness or indecency statutes.62 As a result, it became a crime
throughout most of the United States not only to engage in consensual sodomy in a private place, but also to suggest or propose such
an idea. Many asked, how did the state expect to enforce laws
against private same-sex intimacy?
2. Flushing Out the Homosexual: Spies, Decoy Cops, Raids
Most crimes come to the attention of the criminal justice system
through complaints by victims, but homosexual intercourse, like
prostitution, is often a crime without a complainant. For laws
against consensual same-sex intimacy to be enforced, the state must
effectively, as well as formally, become the complainant. When the
intimacy is not displayed in public view, the state can choose to take
affirmative and aggressive measures to observe the homosexual acts.
New York City’s private anti-prostitution groups, assisted by its municipal police force, became the model for proactive state enforcement. Before World War II, these groups had concentrated on luring
homosexuals into compromising propositions in toilets, parks, and
theaters. Other cities acted similarly.
59. See Are You or Have You Ever Been a Homosexual? ONE, Apr. 1953, at 5-8.
60. Act of June 29, 1953, ch. 159, § 202(a)(1), 67 Stat. 90, 92 (codified at D.C. CODE
ANN. § 22-1112(a) (1996)).
61. See H.R. REP. NO. 82-538, at 19 (1951); H.R. REP. NO. 83-514, at 4 (1953); see also
99 CONG. REC. 6207 (1953).
62. Those states were Alabama, Arizona, Arkansas, Connecticut, Delaware, Florida,
Hawaii, Kentucky, Maine, Massachusetts, Michigan, New Hampshire, New Jersey, New
Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Rhode Island, South Carolina,
and Wyoming. See Note, Private Consensual Homosexual Behavior: The Crime and Its Enforcement, 70 YALE L.J. 623, 635 app. (1960) (listing statutes).
718
FLORIDA STATE UNIVERSITY LAW REVIEW
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The period after World War II, therefore, did not innovate aggressive police tactics but did much to regularize and modernize them.
Regulation came in most cities through the creation or reconfiguration of police department vice or morals squads. Vice squads consisted of officers committed to ferreting out sex crimes, and their
productivity was measured by the number of prostitutes and homosexuals arrested. For example, in 1949, Philadelphia created its
morals squad, and in its first year of operation, sodomy or solicitation of sodomy comprised almost sixty percent of the squad’s arrests.63 The exact operation of vice squads varied from city to city.
Vice squads in larger cities frequently consisted of dozens of officers
that formed several divisions within police departments. Usually,
these cities had more resources to spend on police in general and
thus expressed greater alarm at the marked increase in open homosexuality. In smaller cities, vice operations were carried out through
smaller clusters of officers.64
Anal or oral sex represented the most serious felonies for which a
homosexual might be charged.65 These charges typically involved a
complainant when the intercourse resulted from force, intoxication,
or relations between an adult and a minor. 66 Conversely, consensual
adult intercourse often generated no complainant, or the complainant was a police officer, and so the police relied on their own observation.67 Police regularly surveyed public cruising areas frequented
63. See BUREAU OF POLICE, CITY OF PHILADELPHIA, ANNUAL REPORT 31 (1950) (listing
514 total arrests, including 287 arrests for sodomy or solicitation, 49 for rape and indecent
assault, 31 for public indecency, and 28 for crimes with minors); cf. LOS ANGELES POLICE
DEP’T, 1952 ANNUAL REPORT 33 (listing 10,321 total arrests for 1952, including 1689 for
“sex perversion” and 2087 for prostitution).
64. See Dal McIntire, Tangents, ONE, Feb. 1956, at 12. Portland’s “Buster Squad,” for
example, specialized in breaking up “rings” of men having sex with boys.
65. See Jon J. Gallo et al., The Consenting Adult Homosexual and the Law: An Empirical Study of Enforcement and Administration in Los Angeles County, 13 UCLA L. REV.
643 (1966) (studying Los Angeles County arrests and prosecutions). This article is considered to be the most detailed study of police enforcement techniques during this period.
66. See infra Appendix 1B.
67. See, e.g., People v. Spaulding, 254 P. 614, 615 (Cal. Dist. Ct. App. 1927) (“[M]erely
engaging in a scheme for the purpose of detecting, exposing, and punishing crime does not
constitute one an accomplice.”). Decoys were inappropriate for enforcing the serious felonies, because the law required penetration. Hence, the officer would not be able to obtain
evidence without becoming an accomplice in the forbidden act, i.e., inserting his penis in
the defendant or receiving the defendant’s penis in him.
Consider the following arrest and complaint figures for sex crimes in New York City for
1958-1966, compiled from the New York City Police Department’s annual reports:
Arrests (Complaints)
Arrests (Complaints)
Arrests (Complaints)
Non-Rape Sex Felonies
Sex Misdemeanors
Sex Offenses/Degenerates
1958
419 (468)
2103 (2693)
1142 (776)
1959
475 (494)
2206 (2845)
937 (642)
1960
436 (476)
2341 (2829)
714 (483)
1961
443 (468)
2313 (2800)
790 (567)
1962
425 (447)
2464 (2838)
775 (563)
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APARTHEID OF THE CLOSET
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by men: bars, restrooms, subways, parking lots, steambaths, and
beaches.68 In the larger cities, officers maintained stakeouts to view
intercourse from hidden observation posts. 69 Two police officers typically huddled in or above a toilet booth and watched oral intercourse
by men in adjoining booths.70 Later, police escaped the stench of the
latrine through use of surveillance cameras. Furtive observation of
public restrooms—or tearooms as they were called by denizens—had
been New York City’s standard sodomy enforcement technique since
the turn of the century. As the century wore on, many cities engaged
in similar practices. Modest-sized cities as diverse as Palo Alto, California; Oklahoma City, Oklahoma; and Ann Arbor, Michigan netted
scores of “perverts” by staking out public restrooms.71
A more complicated modus operandi involved police observation
of suspicious conduct between two men. Upon observance of suspicious conduct, the police followed and spied on the men until they
observed illegal activity. In one case, Officers Grimm and Beaudry of
the San Diego vice squad observed Eldridge Rhodes, a black man
suspected of propositioning servicemen, walking with Thomas Earl,
a white man.72 The police followed the suspects to a hotel. When the
men went inside a room, the police listened outside until they heard
the sounds of kissing and a squeaking bed. Grimm then peeked
through an opening allegedly left by the cracked door and witnessed
the men naked and embracing on the bed. Assisted by a hand-hold
from Beaudry, Grimm then looked through the glass transom above
the door. Beaudry used a stool to observe. Grimm witnessed the
commission of a felony, oral sex. The officers intrepidly broke into
1963
430 (NA)
2332 (NA)
892 (NA)
1964
433 (434)
2266 (2288)
760 (669)
1965
440 (456)
2256 (2834)
799 (749)
1966
425 (517)
2275 (3856)
363 (402)
“Non-Rape Sex Felonies” included forcible sodomy and sodomy with a minor; “Sex Misdemeanors” included consensual sodomy; “Sex Offenses/Degenerates” included homosexual
overtures only. Note that there were usually many more “degeneracy” arrests than complainants.
68. See Gallo et al., supra note 65, at 707 n.138. This study examined 493 felony arrests against men having sex in the following locales: public restrooms, 274; vehicles, 108;
private residences, 24; jail, 18; public parks, 17; steambaths, 15; public beaches, 11; other
or unknown, 26. See id.
69. See id. at 707-09.
70. See id.
71. See Dal McIntire, Tangents, ONE, Apr.-May 1956, at 14 (noting that a Palo Alto
police stakeout of a depot restroom netted 23 men, including seven Stanford students and
a teacher, and charged eight with felony sex perversion, or oral sex); Dal McIntire, Tangents, ONE, Feb. 1958, at 18 (describing an Oklahoma City stakeout of a Lincoln Park Zoo
restroom that netted four men charged with committing a crime against nature, and six
with unidentified charges); Dal McIntire, Tangents, ONE, May 1960, at 19-20 (discussing
an Ann Arbor police six-month stakeout of University of Michigan restrooms resulting in
26 arrests, including 14 students and a professor).
72. See People v. Earl, 31 Cal. Rptr. 76, 77 (Dist. Ct. App. 1963).
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the room and arrested Rhodes and Earl for violation of California’s
oral copulation law. The defendants were convicted in a nonjury trial
and certified as sexual psychopaths; as such they were committed for
indeterminate sentences at Atascadero State Hospital.
Less serious sex crimes (usually misdemeanors) such as attempted sodomy, solicitation, indecent liberties with a child, indecent exposure, lewd conduct, and disorderly sexual conduct were
sometimes discovered through spying and observation, but typically
required more direct police involvement through a decoy. 73 Generally, reasonably attractive policemen operated as decoys and loitered
at a homosexual hangout to arrest men who proffered explicit passes
such as verbal invitations or fondling of the decoy’s genitals. 74 Decoys
frequently operated as the sole method for enforcement of the most
popular anti-homosexual misdemeanor laws, such as California’s
lewd vagrancy law, New York’s disorderly conduct law, and the District’s lewd solicitation law.75
Defendants repeatedly complained that decoys behaved provocatively and misrepresented the precise language of the conversation. 76
Lawyer Frank Wood, who defended many accused homosexuals in
California, described the “usual practices”:
[S]omeone will strike up a casual conversation with you and then
try to get you to say one of the magic words—maybe a nice old Anglo-Saxon word—or some word which we all know pertains in one
manner or another to sex. All you have to do is say the magic word
and that someone who struck up the conversation will be transformed into a vice officer and his brother officer will startlingly appear from nowhere and swear that with his excellent pair of ears
he was able to overhear everything that went on.77
Sometimes the vice officers were willing to forget the “magic words”
in return for cash, but usually the words meant an overnight trip to
jail, followed by a plea agreement. In California, for example, defendants usually agreed to plead to simple indecency to avoid conviction
of lewd vagrancy, which triggered California’s registration requirements.78
Sometimes decoys acted aggressively. Dale Jennings of Los Angeles claimed that he was followed by “a big, rough looking charac73. See Abraham Goldstein, The State and the Accused: Balance of Advantage in
Criminal Procedure, 69 YALE L.J. 1149, 1163-65 (1960); Richard C. Donnelly, Judicial
Control of Informants, Spies, Stool Pigeons, and Agent Provocateurs, 60 YALE L.J. 1091,
1093 (1951); Harold Jacobs, Note, Decoy Enforcement of Homosexual Laws, 112 U. PA. L.
REV. 259, 259-60 (1963).
74. See Jacobs, supra note 73, at 259-60.
75. See id.
76. See, e.g., JESS STEARN, THE SIXTH MAN 168 (1961).
77. Frank C. Wood, Jr., The Homosexual and the Police, ONE, May 1963, at 21.
78. See id. at 21-22.
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APARTHEID OF THE CLOSET
721
ter” who tried to strike up a conversation with him. 79 Jennings stated
that he feared robbery and thus tried to shake the man, but to no
avail.80 The man forced his way into Jennings’ apartment and proceeded to undress.81 According to Jennings’ account, the thug insisted that Jennings sit with him and urged Jennings to let his hair
down and relax.82 The thug said he’d been in the Navy and “all us
guys played around.”83 The account continued:
I told him repeatedly that he had the wrong guy; he got angrier
each time I said it. At last he grabbed my hand and tried to force it
down the front of his trousers. I jumped up and away. Then there
was the badge and he was snapping the handcuffs on . . . .84
It is difficult to determine how much of Jennings’ account is representative of police behavior, or is even truthful. Nonetheless, a jury
that had no reason to be sympathetic believed Jennings’ story. 85
Similarly, fact-finders determined that Pittsburgh’s vice squad entrapped and framed many victims in order to shake money out of
them.86
Police used the “jump raid” as a third tactic. Employed against
houses of prostitution earlier in the century, in the postwar period
police used the raid to disrupt homosexual socialization, usually in
clubs and bars and sometimes in baths or parks. Raids in New York,
San Francisco, and Los Angeles—the most popular homosexual cities—received the most publicity, but smaller urban centers used the
jump raid because it proved less expensive than stakeouts and decoy
operations. If decoy use was painstaking retail enforcement of antihomosexual misdemeanor laws, the jump raid was by comparison
cheaper wholesale enforcement. Unfortunately for the police, raids
usually did not generate felony or even misdemeanor convictions, because the patrons could not be caught having sex or soliciting sex.
Instead, police usually charged homosexuals with broadly phrased
municipal offenses or state misdemeanors such as disorderly conduct
or lewdness, offenses that could mean virtually anything.87
By the 1950s, police were deploying the jump raid to arrest or
harass larger numbers of homosexuals then had been the case before
79. Dale Jennings, To Be Accused Is to Be Guilty, ONE, Jan. 1953, at 11-12.
80. See id. at 12.
81. See id.
82. See id.
83. Id.
84. Id.
85. See id. at 13.
86. See Dal McIntire, Tangents, ONE, Sept. 1955, at 9.
87. See Dal McIntire, Tangents, ONE, Aug. 1955, at 11. Police arrested San Francisco’s “Bunny” Breckenridge, a cross-dressing and probably transsexual man, in a sweep
of the Sea Cow bar in 1955. A magistrate dismissed the vagrancy charge perhaps because
Breckenridge was a multi-millionaire. See id.
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World War II. A 1955 raid of the Pepper Hill Club in Baltimore resulted in 162 arrests for disorderly conduct based on observations of
same-sex hugging and kissing.88 A raid on Hazel’s Bar near Redwood
City, California, resulted in ninety arrests (seventy-seven men, ten
women, and three teens) on vagrancy charges and one arrest—bar
owner Helen Nickola—for permitting lewd dancing without a license.89 A 1960 raid on the Tay-Bush Cafe in San Francisco resulted
in 103 arrests (eighty-nine men and fourteen women) for same-sex
dancing and for disorderly conduct.90
The threat of police raids and surveillance kept most gay people
away from homosexual hangouts and thus made such large arrests
unusual. Miami’s “E” Club raid on April 15, 1960, demonstrates the
more typical scenario:
About 35 people were scattered around the U-shaped bar—the
usual grand piano that doubles as a table—and the long booths
that run from one end of the room to the other.
. . . One bartender had just finished saying to the other, as they
both met at the cash register to ring up their sales, “Gee I hope
business doesn’t drop off now that the season is over,” when a man
in a black suit walked in and stood near the door. Quickly five others moved to strategic positions around the bar. It happened so
fast that no one really took notice. Once the men were scattered
around the bar, the “leader” said over the voice of Mr. [Johnny]
Mathis, “OK, all drinks off the bar. Everyone here is under arrest.”
Several quiet curses were heard, and someone with bleached hair
said to a friend, “Damn, not only is my life ruined, but the whole
evening is spoiled.” It was the last joke of the evening; the “E” club
had just been raided.91
Police arrested the patrons for disorderly conduct “for being in a
place frequented by homosexuals,”92 a fact established by the following intelligence: “Habitués of the place were reported to embrace
each other, wear tight-fitting women’s pants, and bleach their
hair.”93 Police released the patrons for $250 bond and the owner for
$750 bond, and the Miami News published a feature story on the
raid that contained their names.94 Reporter Walter Tucker, Jr., explained that “the public should know who these people are.” 95
The Tampa, Florida, vice squad’s June 1957 raid on Jimmie
White’s Tavern illustrates several additional features of the jump
88.
89.
90.
91.
92.
93.
94.
95.
See Dal McIntire, Tangents, ONE, Dec. 1955, at 12.
See Dal McIntire, Tangents, ONE, Apr.-May 1956, at 14.
See Dal McIntire et al., Tangents, ONE, Dec. 1961, at 16.
Charles K. Robinson, The Raid, ONE, July 1960, at 26.
Id.
Id.
See id.
Id. at 27.
1997]
APARTHEID OF THE CLOSET
723
raid.96 Police arrested twelve women patrons for “mannish” dress. 97
While police used spies and decoys almost exclusively against homosexual men, they used the raid against lesbians as well. Lesbian
bars and clubs existed before World War II in cities as different as
Buffalo and New York City, and they became more common after the
war. Because lesbians did not often engage in public sex in these establishments, and because the police had insufficient female officers
to act as decoys, the police found it difficult to use felony and misdemeanor charges against lesbians. Instead, police relied upon the
more general disorderly conduct and vagrancy prohibitions found in
most state codes and municipal ordinances. Light penalties such as
fines and short detentions often found enforcement only in municipal
rather than state courts. Such minimal penalties, which triggered
neither a right to a jury trial nor much judicial oversight, made such
ordinances the perfect instruments for harassing lesbians.
Another legal justification for harassing lesbians was laws criminalizing the wearing of attire not of one’s sex. Dozens of municipalities had ordinances making cross-dressing a criminal offense. 98 New
York and California had statutes making it illegal to appear publicly
in a “disguise” or “masquerade.”99 Although not targeted toward
cross-dressing, police regularly used these statutes to harass or arrest cross dressers. New York reportedly followed a “three-piece”
rule: a woman in trousers would not be charged under the disguise
statute as long as she wore three pieces of women’s clothing. 100
Cross-dressing laws applied to men as well. Detroit targeted only
men,101 but the same ordinance made it unlawful for women as well
as men to use public restrooms designated for the opposite sex. 102
The city of Miami made cross-dressing a regulatory fetish. A 1952
ordinance forbade “female impersonators,” and a 1956 ordinance
made it a crime for anyone to appear in a “dress not customarily
worn by his or her sex.” (These and other Miami ordinances of the
period are reproduced in Appendix 5 to this Article.)
96. See Dal McIntire, Tangents: Trouble in Tampa, ONE, Oct.-Nov. 1957, at 18-19.
97. Id. at 19.
98. I have copies of cross-dressing ordinances from places such as Cedar Rapids,
Iowa; Charleston, West Virginia; Cheyenne, Wyoming; Chicago, Illinois; Columbia, Missouri; Dallas, Texas; Denver, Colorado; Detroit, Michigan; Houston, Texas, and many others. See Eskridge, supra note 19, app. 6 (listing references). Miami’s ordinance, excerpted
infra Appendix 5, is typical of municipal cross-dressing laws.
99. See, e.g., People v. Gillespi, 202 N.E.2d 565, 565 (N.Y. 1964) (finding the defendant guilty of the statute for wearing women’s clothes and makeup).
100. See generally Nan D. Hunter, Gender Disguise and the Law (1990) (unpublished
draft, on file with author).
101. See DETROIT, MICH., CODE § 39-1-35 (1944) (deeming it illegal “for any member of
the male sex to appear in or upon any street . . . or other public way or place or in, upon or
about any private premises frequented by or open to the public in the dress of the opposite sex”).
102. See id. § 39-1-61.
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In the 1950s, lesbians, gay men, and gender benders were at the
mercy of the state if they sought to express their sexual or genderrole preferences. Virtually anything they did was against the law:
consensual homosexual intercourse violated sodomy laws, which
were serious felonies everywhere but New York and punishable by
many years in prison or a mental institution; friendly invitations to
engage in intercourse violated state laws making it a crime to attempt a felony as well as state and municipal solicitation laws;
dancing, kissing, or even holding hands with someone of the same
sex was considered by police to violate misdemeanor laws regulating
private or public lewdness, indecency, or disorderly conduct; crossdressing violated the law of two states and dozens of municipalities.
For an example of the comprehensive regulatory regime barricading
the homosexual in the 1950s, consult Appendix 2A of this Article,
which lists the criminal laws and ordinances applicable to people in
San Francisco in 1950. A similar exercise, generating a shorter list,
could be accomplished for residents of all the major cities in the
United States in the 1950s.
Not only was any kind of expressive conduct illegal, but there was
also a tangible danger of being arrested for conduct that was consensual and even private. Solicitation for an intimate encounter led to
arrest if the person solicited were a decoy cop. Intercourse led to arrest if police were watching through a peephole, from an adjoining
stall, or through a vent. Kissing, handholding, and cross-dressing led
to arrest if undercover police were watching or raided the establishment. Because anything one did could be discovered and made the
basis for arrest, and because many people valued these means of expression a lot, the city was in the position of determining ex ante,
rather than ex post, how much sex crime it would have. By investing
a great deal of money in vice squads and turning them loose on ridiculously easy-to-catch homosexuals, the city could assure itself of
tons of arrests for sex crimes. By investing less, the city could assure
less sex crime. In short, the level of arrests for homosexual conduct
was substantially endogenous to local political and cultural processes. It is worth exploring how those processes operated for the
half-generation after World War II.
3. Anti-Homosexual Panics and Manias
Vice squad campaigns against homosexuals yielded an unprecedented number of arrests. The years 1946 through 1961 represented
the high point for enforcement of both sodomy and disorderly conduct and degeneracy prohibitions in New York City. Annual sodomy
arrests regularly exceeded 200, and degeneracy arraignments exceeded 3000 for several years before declining to between 1000 and
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2000 for most of the 1950s.103 A similar pattern was characteristic of
San Francisco and Los Angeles, both of which had a big postwar increase; San Francisco showed another big spike in 1960-61. 104 The
District of Columbia’s 1970 arrest figures topped 1950s numbers,
which were much higher than those from the 1930s, a pattern present in many southern cities.105
In understanding the sodomy-arrest data, one should consider
that most prosecutions stemmed from arrests for sex between an
adult male and a male or female child. Approximately one-fifth involved male-female sex, usually coerced by the male. I estimate that
approximately twenty to twenty-five percent of prosecutions arose
from consensual same-sex adult intimacy.106 Even discounted, the
array of felony arrests for consensual same-sex intimacy is impressive. The figures greatly increase when arrests for lewd vagrancy
(California), indecent exposure (Baltimore and other jurisdictions),
and disorderly conduct (New York City and most other jurisdictions)
are included. I estimate that the number of homosexuals arrested for
sexual misdemeanors and offenses was on average about twenty
times the number arrested for sexual felonies. 107 Given such a multiplier, it appears that each year law enforcement officials arrested
tens of thousands of Americans and accosted many others for expressions of same-sex intimacy toward people believed to be inter103. See infra Appendices 1A, 1C.
104. See infra Appendix 1A.
105. See infra Appendix 1A.
106. The suggestion for these numbers originated from my analysis of District sodomy
complaints, recounted in Appendix 1A. Sodomy arrests, for which I have no numbers,
would yield lower figures for sex with minors or with women. To roughly determine
whether this suggestion could be generalized, I read all the cases reported by the West
National Reporter System under the category “Sodomy” for the years 1946 to 1969. The
results were:
Man-Man (W-W)
Man-Woman
Man-Boy
Man-Girl
Total
93 (2)
72
121
57
Calif.
23 (0)
30
22
9
Because this sample is skewed by appellate court selection bias and the vagaries of the
West reporting system, I cannot determine absolute percentages. I do conclude, however,
that during this period consenting same-sex couples did not account for most sodomy arrests.
107. For 1950s New York City, yearly arrests for sodomy ranged between 100 and 200
(Appendix 1A) while arrests for degeneracy were typically 10 to 20 times those figures
(Appendix 1C). The San Francisco record of sex offense arrests between 1945 to 1950 suggests a multiplier of up to 20. See Appendix 2B.
The UCLA study also found that 439 cases in the Los Angeles County Superior Court
for a three-year period (1962-64), or 146 cases per year, alleged violations of the state sodomy and oral perversion statutes. See Gallo et al., supra note 65, at 799. The study found
that Los Angeles processed 2994 defendants in the Los Angeles Municipal Courts between
May 1964 and April 1965, against whom the state alleged misdemeanors for lewd vagrancy, public indecency, and obscenity. Taking into account that the 439 cases involved
more than 439 defendants and that the sodomy/oral perversion sample involved a larger
county-wide jurisdiction, the conclusion is that 20 charges for homosexual solicitation or
expression exist for every charge of homosexual anal or oral sex.
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ested partners. Officers arrested much smaller numbers, proportionally, of heterosexual men for raping, abusing, molesting, or harassing women, and those arrested were much less likely to be prosecuted, convicted, or to serve jail time than those accused of consensual same-sex intimacy.108
The large number of arrests during this period were a direct reflection of society’s fear of the homosexual—the extent to which the
polity saw the closet as straight-threatening and determined to open
the door and cast out its dangerous inhabitants. The aggregate figures do not reflect another feature of this grande peur, namely, the
way in which a single event would spontaneously spur an antihomosexual panic or (if over a longer period of time) mania in a locality or state. Consider a few examples. During the summer of 1959,
when police found the body of twelve-year-old Merrill Bodenheimer
in an icebox, Houston, Texas, whipped itself into the greatest “sexfiend hunt” in its history.109 The police first focused on a man previously convicted of molesting girls (society believed all child molesters, including those assaulting girls, to be homosexuals). They then
arrested seven African-American males, ages thirteen to seventeen,
and extracted confessions that they had sexually abused and then
killed the white boy. Some of the accused immediately recanted,
stating that the confessions had been beaten out of them, and four of
the defendants had witnesses placing them far from the assault at
the time that it occurred. The decedent’s mother slowed the Houston
panic by writing an open letter denouncing the hate-filled rhetoric of
the witch hunters: “People who are oppressed and deprived by society hit back. Finding my son’s murderer will not keep alive some
child who now lives—more murderers will be bred by the conditions
which bred his murder.”110 The Houston panic reveals how anxiety
about homosexuality, pedophilia, sexual violence, and interracial
sexuality could interact combustibly.
The most famous, and least likely, location for an antihomosexual panic that in turn triggered a longer-run mania was
Boise, Idaho.111 On October 31, 1955, a panic began with the arrest of
108. See Ralph Slovenko & Cyril Phillips, Psychosexuality and the Criminal Law, 15
VAND. L. REV. 797, 800 n.9 (1962) (noting that in 1960 New Orleans, 27% of the rape cases
were prosecuted compared to 60% of the crime-against-nature cases; none of the rape
cases resulted in convictions, while 20% of the crime against nature cases did bring convictions). The New York City degenerate incarceration rate towered 30 times above that
for defendants convicted in the Magistrates’ Courts for other offenses. See infra Appendix
1C. Although only episodic data exists, the incarceration rate appears to have been higher
than any other sex offender charges with offenses rather than misdemeanors or felonies.
109. Dal McIntire, Tangents, ONE, Apr. 1960, at 15.
110. Id.
111. See JOHN GERASSI, THE BOYS OF BOISE: FUROR, VICE, AND FOLLY IN AN AMERICAN
CITY 4 (1966); see also Larsen v. State, 337 P.2d 1 (Idaho 1959).
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three blue-collar men for “unnatural” relations with several boys
who, according to Ada County probation officer Emery Bess, comprised a “homosexual ring” of as many as 100 boys. 112 Although apparent from the beginning that the situation involved not simply
boys but experienced male prostitutes, the community nonetheless
whipped itself into a child-protection frenzy, resulting in an aggressively investigated and prosecuted scandal. The court sentenced one
defendant to life in prison after he pled guilty to sodomy and lewd
conduct with a minor. Another defendant, who cooperated with the
prosecutor by identifying other homosexuals and boy prostitutes, got
a suspended sentence. In November and December, the police arrested more homosexuals, some of them prominent citizens. Mayor
Russ Edelfsen later said that 1472 people were interviewed in connection with the homosexual prosecutions.113
By the time the mania ended in early 1957, there had been tragic
consequences for virtually all concerned. At least fourteen men pled
guilty to charges of sodomy or lewd behavior, and juries convicted
one and acquitted at least two.114 Eight received punitive sentences
of between five years and life in prison, and at least one of the probationers ended up serving seven years in prison. 115 A number of closeted homosexuals quietly decamped. Even the boys of Boise suffered
from the panic. William H. Baker, one of the hustlers whose sworn
statements triggered the scandal, killed his father six weeks later
and a jury convicted him of manslaughter. 116 His ten-year sentence
for patricide equaled the sentence received by one of the original
homosexual defendants, a clothing store clerk.
From 1952 through 1964, several manias swept Florida, which
featured a unique intrastate combination of urban-cosmopolitan areas such as Miami and Dade County and a heavily rural culture in
North Florida, along with intermediate locales such as Tampa, Tallahassee, and Gainesville. Because Miami and Miami Beach featured the largest and most diverse metropolitan areas, and thus
harbored more radical subcultures, anti-homosexual hysteria originated in these cities.
In late 1953, Miami Beach Police Chief Romeo Shephard responded to complaints that the beach had become a hangout for men
who behaved in a feminine manner, sported “girlish” hairstyles, and
“pranced around” in droves wearing “Bikini-type” swimsuits. 117
112.
113.
114.
115.
116.
117.
16.
GERASSI, supra note 111, at 2.
See id. at 126.
See id.
See Dal McIntire, Tangents, ONE, Jan. 1956, at 12.
See GERASSI, supra note 111, at xvi-xvii.
Bureau of Public Information, Miami Junks the Constitution, ONE, Jan. 1954, at
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Shephard hauled such persons into the police station for questioning:
We had no charges we could book them on, but it’s just a question
of cleaning up a bad situation and letting undesirables know
they’re not wanted here. . . . We intend to continue to harass those
men who affect female mannerisms in public places and let them
know in no uncertain terms that they are unwelcome on Miami
Beach.118
Simultaneously, Crime Commission of Greater Miami Operating Director Daniel Sullivan stated that those naturally prone to molesting
and torturing children consisted of “sex perverts and degenerates.” 119
Because such people congregated in Miami area gay bars, Sullivan
urged their closing. He added that such bars served as breeding
grounds for crime: “In one bar two young service men met a man
who, they said, made immoral advances to them. They beat him up
and threw him into the bay where he drowned. And in one bar practically next door, a bartender was murdered in his apartment by a
bar patron.”120 In other words, homosexuals were to be tracked down
and expelled from the area because their existence impelled heterosexuals to kill them.
Unlike other cities, the anti-homosexual mania in Miami resulted
in new laws as well as police crackdowns. Councilman Bernard
Frank sponsored an ordinance in 1952 that made it illegal for “female impersonators” to perform in Miami. 121 In 1953, he inveighed
against “degenerate bars and hangouts” and wrote a letter urging
Chief of Police Walter Headley to remove all “sex degenerates and
female impersonators” from the city entirely. 122 Headley apparently
thought the idea imprudent and without legal basis. 123 One, a homophile magazine, praised Headley and the city for taking a rule-of-law
perspective regarding the witch hunt.124 That praise was thrown
back in their pragmatic faces by the Miami newspapers, which
claimed that “Powder Puff Lane Has Become Equivalent of Old Red
Light District” and “Is Greater Miami in Danger of Becoming a Favorite Gathering Spot for Homosexuals and Sexual Psychopaths?” 125
Mayor Abe Aronovitz, who had earlier advocated toleration for homosexuals and first gained public notoriety for treating people of
118. Id. at 19.
119. Id.
120. Id. at 18.
121. Id. at 18-19.
122. Id.
123. See Lyn Pedersen, Miami Hurricane, ONE, Nov. 1954, at 6 (quoting Headley: “If I
ran all the homosexuals out of town, members of some of the best families would lead the
parade.”).
124. See Bureau of Public Information, supra note 117, at 20.
125. Id. at 5 (discussing Miami Herald articles).
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color with respect, joined the attack on Headley in a dramatic radio
address calling for the closing of all gay bars. 126 In the next two
years, Mayor Aronovitz proposed and procured ordinances making it
illegal for lesbians and homosexuals to congregate or to be served alcoholic beverages,127 and to cross-dress or engage in any other kind of
lewd behavior.128
In August 1954, Police Chief Shephard led an assault on the effeminate men on Miami Beach, netting thirty-five bathers and
booking six for disorderly conduct.129 That same night, Dade County
Sheriff Tom Kelly and forty-four deputies raided eleven Miami and
Miami Beach bars, detaining fifty-three patrons and arresting nineteen, including one “fighting barmaid” who police charged with
“striking a deputy and interfering with the raiders.” 130 Acting Governor Charlie Johns, a law-and-order politician from rural upstate,
criticized Kelly for being excessively tolerant of homosexuals and, in
September, appointed Morey Rayman, a member of the state boxing
commission, to “coordinate the Miami campaign against perverts.” 131
In that same month, chastened Miami City Manager E.A. Evans directed an all-out police harassment of bars catering to homosexuals.132 Their patrons scared away by repeated raids, most of the bars
in Miami and Miami Beach went out of business by the end of the
month.133
The fury of 1954’s “Miami Hurricane,” as the homophile press
dubbed it, abated, only to resurface, first in the 1956 campaign for
Dade County Sheriff, then in a smaller witch hunt in Tampa during
1957-58, and finally in a statewide witch hunt from 1958 through
1964.134 The 1956 dirty campaign for Dade County Sheriff featured
charges by challenger Reubin Clein that incumbent Tom Kelly fostered racial integration, beat his wife, and had engaged in regular
homosexual acts since age thirteen.135 As reporter Lyn Pedersen described it:
It is of course ironic that “Clean-out-the-perverts” Kelly should be
charged with repeated homosexual acts, considering how little reason homosexuals have to “claim” him. Several readers have written
One . . . about Kelly’s alleged well-known gay adventurings, and
126. See id. at 8.
127. See MIAMI, FLA., ORDINANCE § 51-35 (1954) (codified at MIAMI, FLA., CODE § 4-13
(1957)); see also infra Appendix 5.
128. See MIAMI, FLA., ORDINANCE § 55-21 (1956) (codified at MIAMI, FLA., CODE § 4318 (1957)); see also infra Appendix 5.
129. See Pedersen, supra note 123, at 6.
130. Id.
131. Id.
132. See id.
133. See id.
134. See Dal McIntire, Tangents, ONE, Aug. 1961, at 24.
135. See Lyn Pedersen, Miami’s New Type of Witch Hunt, ONE, Apr.-May 1956, at 6.
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about alleged “protection payments” by gay bars, but we had let it
pass. . . . It does go to show how hard it is to tell the witches from
the witch hunters.136
Notwithstanding the smear, Dade County reelected Kelly.
Tampa’s vice squad became increasingly active in 1957. Tampa’s
mayor and city representatives considered enacting an ordinance
against “perverts,” but the city’s vice squad behaved as though being
lesbian was already illegal.137 The raid on Jimmie White’s Tavern,
discussed above, functioned as the opening salvo in the anti-vice
campaign and took eight officers to arrest twelve women for “mannish” garb.138 Although he conceded to the media that the police
might not have had evidence of lawbreaking and that the arrested
women would be released, police Captain Howell Ryals announced,
“[W]e’re going to keep after them until we run them out of town.” 139
The next raid, on Funghie’s Tavern, resulted in one arrest, again for
cross-dressing (even though this was not a crime in Tampa as it was
in Miami and Miami Beach).140 “If you’re a woman, you ought to
dress like one,” the police lectured one lesbian. 141 Officer Guy Woolweaver complained that “perverts” had relocated to Tampa after
fleeing the Miami crackdown and vowed to force them to another locale.142 The Knotty Pine Bar experienced the next raid with fifteen
men and women arrested, but police released them at the stationhouse when it appeared they had committed no crime. 143 So it continued in Tampa throughout the summer of 1957.
Notwithstanding these local vice efforts, more serious action in
Tampa grew out of the investigation of sexual perversion at the
Southwestern Florida Tuberculosis Hospital by the Hillsborough
County Sheriff ’s Office and, then, by a special state legislative investigation committee.144 In 1960-61, alerted to the possibility of rings of
homosexuals in Tampa and surrounding Hillsborough County,
Sheriff Blackburn and forty-five deputies used two-way mirrors,
movie cameras, and a taping system to film and tape sex perversions
occurring in the restrooms of a North Tampa shopping center. 145 In
June 1961, in the early morning, Blackburn’s deputies swept the city
136. Id. at 7.
137. Dal McIntire, Tangents, ONE, Oct.-Nov. 1957, at 19.
138. Id. at 19.
139. Id.
140. See id.
141. Id.
142. Id.
143. See id.
144. See Deposition of [name blackened out], Special Investigator, Twelfth Judicial
Circuit, by Mark R. Hawes, Chief Counsel, Fla. Legis. Investigation Comm. 4 (Feb. 6,
1959) (available at Fla. Dep’t of State, Div. of Archives, ser. 1486, carton 7, Tallahassee,
Fla).
145. See Dal McIntire, Tangents, ONE, Aug. 1961, at 24-25.
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APARTHEID OF THE CLOSET
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to arrest the thirty persons whose perversions had been taped. 146 Police arrested a public school principal, a medical doctor, and a former
air force officer, among others, and the press duly printed their
names and addresses.147 Sheriff Blackburn proclaimed this the largest “morals crackdown” in the history of Florida and boasted that
there would be 100 more arrests as a result of continuing investigations.148 In copycat style, Tampa Chief of Police Neil Brown ordered
city vice police to haul forty-eight persons in for questioning, based
upon their being spotted in “known homosexual hangouts.” 149 He and
his staff compiled a master list of homosexuals from mug books and
surveillance reports since 1955.150 At the end of June 1961, State Attorney Paul Johnson warned Tampa parents of the growing danger
from “perverts.”151 Breathlessly reported by the media, Johnson reported that “investigations have shown this problem to be even more
widespread than we first anticipated. We have arrested at least 130
persons for crimes against nature and lewd and lascivious acts in the
last 90 days,” and most admitted their guilt.152
Coming full circle, Miami returned to full-scale witch-hunting. In
November 1960, the U.S. Post Office and the Broward County Sheriff ’s Office raided the home of a twenty-two-year-old Fort Lauderdale
male prostitute.153 The deputy sheriffs found hundreds of lewd photographs, mostly of minors, as well as the young man’s diary. 154 The
diary indicated that the man acted as the center of a network of rich
Dade County “queens,” hustlers, and models for lewd photographs
that the man took on his Polaroid. Models, usually aged fourteen to
nineteen, included construction workers, sailors, high school and
college students, bag boys, stock boys, bellhops, hitchhikers, and
other hustlers. The man cooperated with the authorities, as did several youths involved in his ring of models and call boys. A sheriff ’s
report described the main targets of the rapidly expanding investigation as “producers who are aggressive homosexuals, and who are
146. See id. at 24.
147. See id. at 24-25.
148. See id.
149. Id. at 25.
150. See id.
151. Id.
152. Id.
153. Memorandum from Dade County Sheriff’s Office, Opening Case No. 71821 C
(Nov. 1960) (available at Fla. Dep’t of State, Div. of Archives, ser. 1486, carton 13, Tallahassee, Fla.) [hereinafter Dade County Sheriff’s Memorandum]; officials created a redacted form of the diary consisting of 24 pages of single-spaced typescript. See Redacted
Diary, Jan.-Nov. 1960 (available at Fla. Dep’t of State, Div. of Archives, ser. 1436, carton
13, Tallahassee, Fla.).
154. See Dade County Sheriff’s Memorandum, supra note 153, at 3.
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FLORIDA STATE UNIVERSITY LAW REVIEW
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inducing young juveniles to pose and then to commit, or allow the
subjects to commit unnatural sex acts upon them.” 155
Dade County law enforcement officers compiled dozens of names
of men suspected of patronizing either the call-boy or the pornography services, including restaurant and bar owners, school teachers,
doctors and attorneys, municipal officials, a former disc jockey, and
male pimps.156 They became frustrated, however, because
most of the influential gays are usually wealthy, and for that reason it is very difficult to make a case against them because the
people with whom they associate are usually equally wealthy or
are hustlers, young boys who are queer, and some who are not,
who live on nothing else but what they can obtain from these gay
people who are wealthy . . . [and therefore were not inclined to] cut
off the hand that feeds them.157
Working with the state police, the state Beverage Department, and
Florida’s Legislative Investigation Committee, Sheriff Kelly and his
men gathered the names of 150 boys involved in “homosexual rings”
and several of the adult ring leaders,158 several hundred names of local consumers of child pornography, and 13,000 names of pornography consumers elsewhere in the United States and the world. Police
made several arrests, but the state did not bring most of the major
operators to justice.
Rather than hauling in the big fish, the police contented themselves with the small fry. In January 1961, the Miami Beach Police
Department raided the usual homosexual hangouts but brought in a
pitifully puny haul: two people, one for wearing female attire and
one for lewd and lascivious behavior (oral sex). 159 Miami Police Chief
Headley assigned eleven decoy cops to make themselves “approachable” to homosexuals and arrested a few propositioners, but no one
who could be considered a homosexual “ring leader.” 160 Ironically,
Miami and Dade County law enforcement officers finally found homosexual activity that might be considered a public menace—public
prostitution and pornography involving minors—yet ended up
hunting the same female impersonators they had been targeting
155. Id.
156. See id.
157. Id. at 7.
158. See Memorandum from R.J. Strickland, Chief Investigator, Fla. Legis. Investigation Comm., to William G. O’Neill, Chairman, Fla. Legis. Investigation Comm. (May 30,
1961) (available at Fla. Dep’t of State, Div. of Archives, ser. 1486, carton 1, Tallahassee,
Fla.); Memorandum from T.A. Buchanan, Chief, Detective Division, Dade County Metro
Dep’t of Pub. Safety, to Thomas J. Kelly, Sheriff, Dade County Metro Dep’t of Pub. Safety
(June 3, 1961) (available at Fla. Dep’t of State, Div. of Archives, ser. 1486, carton 1, Tallahassee, Fla.).
159. See Dade County Sheriff’s Memorandum, supra note 153, at 3.
160. Dal McIntire et al., supra note 90, at 7.
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APARTHEID OF THE CLOSET
733
since 1952. The Florida Legislative Investigation Committee, dubbed
the “Johns Committee” after its Chair, Senator Charlie Johns, 161 who
had returned to the state senate after his stint as governor, coordinated their activities along with those of the Hillsborough County
Sheriff ’s Department and the Tampa police. Under the auspices of
the Johns Committee, the local anti-homosexual manias in Miami
and Tampa became part of a comprehensive statewide mania described in the next sections.
B. Employment Law: Subversion, Blackmail, and Immorality in
Government Service
The local panics and manias described above must be understood
in the context of the national “supermania” that was directed against
homosexuals, commencing in 1947 and operating through the 1950s.
Unlike state and local governments, the federal government is not
charged with the enforcement of criminal laws regulating sexual deviance, with the important exception of criminal laws applicable to
the U.S. armed forces. Thus, the national anti-homosexual backlash
received expression mainly through civil remedies such as exclusion
from civil service employment, military service, and immigration or
citizenship. State and local governments followed and sometimes anticipated the national lead in such exclusions, but the federal government remained the undisputed champion of the anti-homosexual
witch hunt. The same cultural anxiety about gender and sexual deviance that fueled local bar raids, sodomy and lewd vagrancy arrests,
and vice squad operations, fueled the national witch hunts designed
to purge the civil services and military of “homosexuals and perverts.” The same return-to-normalcy attitude prevailed with a
vengeance at the national level because the federal government had
much vaster resources it was willing to invest. Not only did the federal government exclude homosexuals from the employment forum,
but it also searched for and destroyed homosexual lives through an
often relentless federal persecutorocracy consisting of the FBI, the
Civil Service Commission, and the Defense Department.162
1. Supermania: The Creation of Federal Anti-Homosexual
Exclusions, 1947-1952
Not until mobilization for World War II did the United States begin to think systematically about homosexuality in government
service. Since 1920, sodomy had been a military crime, and men
were episodically separated from the service for sodomy or attempted
161. Dem., Starke, 1936-53; 1955-68.
162. See discussion infra Part I.B.1-2.
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sodomy under section eight, or less than honorable “blue” discharges.163 As mobilization for war approached, the military’s psychiatric advisers believed that the homosexual should be more systematically prevented from entering the armed forces. 164 In 1942, the
War Department developed rough guidelines and procedures for excluding homosexuals from military service and, during the war, negotiated the separation of several thousand homosexuals through
blue discharges.165
At the height of the war, War Department policy softened, based
upon expert opinions and the need for personnel. In a 1943 memorandum, the Surgeon General posited that homosexuality should be
dealt with as a medical rather than purely criminal matter and
made the following recommendations:
Overt cases of homosexuality in the Army have presented a serious problem in disposition when discovered. It has been agreed by
many enlightened authorities that consideration should be given to
the adoption of a procedure dealing with homosexuals which is
more nearly in accord with accepted neuropsychiatric knowledge
rather than with the generally prevailing practice of looking upon
homosexuality as falling entirely within the purview of criminal
law. . . . It is well known . . . that some individuals do not develop
beyond a homosexual level. Further, it is known that under suitable conditions many persons considered normal may revert to a
homosexual level and may engage in homosexual practices. Of
these groups, some will seek out others of a like make-up while a
few, like the rapist, will, if necessary, resort to violence to compel
submissions to their demands. In the case of this latter small
group, penal treatment is clearly indicated; the rights of others are
so clearly violated that no other course can be tolerated. Homosexual activities, accompanied by coercion of a mental or physical nature, and those . . . directed towards minors, are proper subjects for
penal treatment, provided that the defendant is found to be legally
responsible. In the case of homosexuals who engage in their chosen
sexual activities with those of like taste who, far from resisting,
may seek such gratification, the violation of individual rights is
rather remote. It is, however, recognized that a known homosexual
in an organization may seriously impair the morale of the organization.166
Responding to the Surgeon General’s memo and (more important)
to the need for military personnel, War Department Circular No. 3,
163. BÉRUBÉ, supra note 20, at 139.
164. See id.
165. See id. at 147.
166. U.S. Army Surgeon General, Disposition of Overt Cases of Homosexuality, in
ARMY MEDICAL BULLETIN NUMBER 66, at 83 (1943). Army Regulation 615-368 codified this
philosophy in 1945. See U.S. WAR DEP’T, ARMY REG. NO. 615-368, Enlisted Men: Discharge—Undesirable Traits of Character 1-4 (Mar. 7, 1945) (amended Apr. 10, 1945).
1997]
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issued in 1944, recommended separation rather than court martial
even for the “true or confirmed homosexual” not deemed “reclaim[able].”167 For the “reclaimable” homosexual with misconduct
not aggravated by independent offenses such as rape, the policy required hospitalization and treatment.168 Procedures required that
the homosexual deemed unreclaimable be discharged dishonorably
or by courtmartial.169 If requested “[t]he offender who is deemed reclaimable and whose misconduct does not involve additional acts
punishable by court martial will be hospitalized, and, depending
upon the results of treatment, will be either restored to duty, separated from the service, or tried by court martial.” 170 An April 1945
amendment added:
The mere confession by an individual to a psychiatrist that he possesses homosexual tendencies will not in itself constitute sufficient
cause for discharge under these regulations. In such cases the individual concerned . . . will be hospitalized and, depending upon
the results of the observation and treatment, will be either restored to duty or separated from the service.171
Under the foregoing regulatory regime, few service personnel were
separated from the armed forces in the last year of the war.
In the spring of 1944, the War Department Inspector General
conducted an investigation of the Women’s Army Corps (WAC)
training camp.172 This investigation became the most prominent
armed forces investigation into homosexuality during the war. Mrs.
Josephine Churchill triggered the investigation by writing a letter to
complain that Fort Oglethorpe is “full of homosexuals and sex maniacs,” one of whom had molested her twenty-year-old daughter. 173
Mrs. Churchill threatened to “reveal the scandal to the world” if remedial steps were not immediately taken.174 The investigation by
Lieutenant Colonel Birge Holt and Captain Ruby Herman followed
the nonpunitive, rehabilitative policy of the Surgeon General’s
memorandum and Circular No. 3, both of which their report quoted.
The report concluded that despite Mrs. Churchill’s charges, Fort
167. U.S. WAR DEP’T, CIRCULAR NUMBER 3: HOMOSEXUALS (1943), quoted in BÉRUBÉ,
supra note 20, at 142.
168. See id.
169. See U.S. Army Surgeon General, supra note 166.
170. U.S. WAR DEP’T, supra note 166, at ¶ 2.b.1-2.
171. Id. ¶ 2.b.2½.
172. See Memorandum from Birge Holt, Lieutenant Colonel, U.S. War Dep’t, and
Ruby E. Herman, Captain, U.S. War Dep’t, to the Acting Inspector General (July 29, 1944)
(available at Nat’l Archives, Record Group 159 [Office of Army Inspector General], file
333.9 [3rd WAC Training Center]) [hereinafter Holt & Herman Memorandum].
173. Letter from Mrs. Josephine Churchill to Commanding General, Judge Advocate,
War Dep’t (May 12, 1944), reprinted in Holt & Herman Memorandum, supra note 172,
app.
174. Id.
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Oglethorpe did not overflow with “homosexuals and sex maniacs,”
but that several female couples did engage in homosexual affairs. 175
They recommended treatment for five of the women and separation
for one.176
During the transition from the wartime to the peacetime military,
the Adjutant General’s Office of the War Department directed that
Circular No. 3 and its codification in Army Regulation 615-368 continue in force, with a couple of lenient variations. Enlisted personnel
and officers discharged because of homosexual tendencies rendering
them completely “inadaptable” were to be given honorable, rather
than blue, discharges unless they had committed a sexual offense. 177
Once the war ended, however, the pressure for military personnel
eased, and the temptation existed to enforce the homosexual exclusion more rigorously. During the postwar occupation of Europe, General Dwight D. Eisenhower heard rumors of lesbian activity among
the WACs.178 He reportedly asked his staff associate, WAC Sergeant
Johnnie Phelps, to conduct an investigation and to obtain a list of
suspected lesbians, who would then be separated. 179 Phelps, who
greatly respected Eisenhower, recalls that she agreed to conduct the
investigation but told him that discharging all the lesbians would
clean out the battalion of its most industrious and decorated personnel and officers.180 She added, “and the first name on the list will be
mine.”181 Eisenhower’s secretary corrected her: “If the General
pleases, Sergeant Phelps will have to be second on the list. I’m going
to type it. My name will be first.”182 By Phelps’ later account, a
stunned Eisenhower shook his head and said, “Forget the order.”183
The Phelps incident illustrates the transition from the mild and
therapeutic homosexual exclusionary policy during the war to a progressively more aggressive one after the war as America was renormalizing. The election of 1946 marked a sharp shift to the right in
American politics, a triumph of localism over internationalism, rural
values over urban ones. Its impact on the federal government’s policy
toward homosexuals was immediate. While testifying before a Senate
175. See Holt & Herman Memorandum, supra note 172, at 33-34.
176. See id.
177. Memorandum from Major General Edward F. Witsell, Acting Adjutant General,
U.S. War Dep’t, to Commanding Officers Having General Court-Martial Jurisdiction (Oct.
31, 1945); see also U.S. WAR DEP’T, CIRCULAR NUMBER 85 (Mar. 23, 1946) (confirming
same policy); U.S. ARMY, ARMY REG. 615-368 ¶ 3 (May 14, 1947) (representing one codified
form of the policy).
178. See Before Stonewall: The Making of a Lesbian and Gay Community (PBS television production, 1984) (containing a video interview with Sergeant Phelps).
179. See id.
180. See id.
181. Id.
182. Id.
183. Id.
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APARTHEID OF THE CLOSET
737
Appropriations subcommittee in 1947, just as the sex-crime panic
swept the country, the subcommittee gave Secretary of State and
former Army Chief of Staff George Marshall a memorandum admonishing him about “the extensive employment in highly classified
positions, of admitted homosexuals, who are historically known to be
security risks.”184 Washington insiders understood this to be a
cloaked reference to Sumner Welles. Led by Senator Kenneth
Wherry, Nebraska’s “merry mortician,” the Republicans on the subcommittee hectored the Truman Administration to cleanse the government. Thus, at precisely the same time and for the same reason
that officials began the anti-Communist witch hunt, a federal antihomosexual hunt began as well. As a result of this pressure, the
Truman Administration adopted the loyalty-security program to
weed out Communists and then started looking for homosexuals in
earnest. Between 1947 and 1950, the administration investigated
574 cases of “sex perversion” in civil government; most of the investigation subjects were discharged or resigned. 185 During the same period, 3245 personnel were separated from the military at triple the
percentage-of-personnel discharge rate during World War II. 186 Contrary to the 1945-46 policy, the discharges were generally less than
honorable, thereby depriving these personnel veteran’s benefits and
exposing them to discrimination in the private sector.
A Defense Department memorandum of October 11, 1949, drafted
a stricter policy for homosexual separation. 187 The new policy made
mandatory the prompt separation of all “known homosexuals.” 188
Confirmed homosexuals fell into three groups: Class I, those who engaged in coercive sex or sex with minors, were to be courtmartialed;189 Class II, those who engaged in “one or more homosexual acts” or proposals or attempts “to perform an act of homosexuality,” were to be court-martialed or allowed to resign under less than
honorable conditions;190 and Class III, those who “only exhibit, pro184. Johnson, supra note 2, at 49.
185. See infra Appendix 3.
186. See BÉRUBÉ, supra note 20, at 262, 354 n.14. The absolute per annum numbers
were higher during the war, but the numbers as a percentage of total troop strength were
higher after the war because the armed forces downsized dramatically. The rate of discharge fell during the Korean War, when once more the armed forces sacrificed the antihomosexual policy to needs for troop strength.
187. See Memorandum from Dep’t of Defense to Sec’ys of Army, Navy, & Air Force 1
(Oct. 11, 1949) [hereinafter DOD Memorandum], reprinted in REPORT OF THE BOARD
APPOINTED TO PREPARE AND SUBMIT RECOMMENDATIONS TO THE SECRETARY OF THE NAVY
FOR THE REVISION OF POLICIES, PROCEDURES AND DIRECTIVES DEALING WITH
HOMOSEXUALS app. 5 (1957) [hereinafter CRITTENDEN REPORT]; Louis J. West & Albert J.
Glass, Sexual Behavior and the Military Law, in SEXUAL BEHAVIOR AND THE LAW 250, 256
(Ralph Slovenko ed., 1965).
188. DOD Memorandum, supra note 187, at 1.
189. See id.
190. Id. at 2.
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fess, or admit homosexual tendencies”191 but had not engaged in forbidden conduct, were to be retained or discharged (honorably or generally) depending upon the recommendation of a personnel board. 192
On February 28, 1950, Under Secretary of State John Peurifoy
testified that since 1947, ninety-one State Department employees,
almost all of them homosexuals, had been dismissed for “moral turpitude.”193 Republican Senators Joseph McCarthy of Wisconsin and
Styles Bridges of New Hampshire criticized the Truman Administration for tolerating subversion too long. Senator W.R. Jenner cracked
that Truman’s Fair Deal was more of a “fairy deal” for the American
people.194 Journalists openly discussed the Sumner Welles legacy.
When Lieutenant Roy E. Blick of the District vice squad testified before another Senate appropriations panel on April 1, 1950, that there
were 5000 homosexuals working for the government in the District—
a figure Lieutenant Blick essentially pulled out of the air—Senator
Wherry, now floor leader of the Senate GOP, called for a full-fledged
Senate investigation.195 National Republican Party Chairman Guy
Gabrielson sent several thousand Republican party workers a
newsletter, alerting them to the new “homosexual angle” in Washington: “[S]exual perverts . . . have infiltrated our Government in recent years,” he warned, and then stated they were perhaps “as dangerous as the actual Communists.”196 Eager to fend off Republican
charges, the Truman Administration stepped up its investigations.
Between January 1, 1947, and April 1, 1950, the government investigated 192 employees for sexual perversion.197 Over the next seven
months, 382 more employees underwent government scrutiny. 198
Most were fired or resigned from their jobs. 199
The Senate authorized the investigation demanded by Wherry,
which produced a full-dress report of a subcommittee chaired by
North Carolina Senator Clyde Hoey.200 The report described the case
against permitting “homosexuals and other sex perverts” 201 in the
federal government.202 The report argued that “[t]he social stigma
191. Id.
192. See id. at 2-3.
193. Johnson, supra note 2, at 47.
194. Id. at 50.
195. See id. at 49; NEIL MILLER, OUT OF THE PAST: GAY AND LESBIAN HISTORY FROM
1869 TO THE PRESENT 274-75 (1995).
196. Miller, supra note 195, at 259 (quoting Gabrielson newsletter).
197. See SUBCOMM. ON INVESTIGATIONS OF THE SEN. COMM. ON EXPENDITURES IN THE
EXEC. DEP’TS, INTERIM REPORT: EMPLOYMENT OF HOMOSEXUALS AND OTHER SEX PERVERTS
IN GOVERNMENT 8 (1950) [hereinafter EMPLOYMENT OF HOMOSEXUALS IN GOVERNMENT].
198. See id.
199. See infra Appendix 3.
200. See EMPLOYMENT OF HOMOSEXUALS IN GOVERNMENT, supra note 197, at 1.
201. Id.
202. See id. at 3-8.
1997]
APARTHEID OF THE CLOSET
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attached to sex perversion is so great that many perverts go to great
lengths to conceal their perverted tendencies . . . [making them easy
prey for] gangs of blackmailers.”203 Also, “those who engage in overt
acts of perversion lack the emotional stability of normal persons,”
and “indulgence in acts of sex perversion weakens the moral fiber of
an individual to a degree that he is not suitable for a position of responsibility.”204 Finally:
[P]erverts will frequently attempt to entice normal individuals to
engage in perverted practices. This is particularly true in the case
of young and impressionable people who might come under the influence of a pervert. . . . One homosexual can pollute an entire office. Another point to be considered . . . is his tendency to gather
other perverts about him.205
The subcommittee approvingly reported the progress that had
been made against this menace.206 It held up the armed forces’ largescale purge of homosexuals as the model and urged civilian agencies
to follow suit,207 which they did. The United States Civil Service
Commission’s regulation barring from federal employment people
who engage in “immoral conduct” secretly interpreted this to include
“homosexuality or other types of sex perversion” as “sufficient
grounds for denying appointment to a Government position or for the
removal of a person from the Federal service.” 208 To enforce this policy, the Civil Service Commission began checking fingerprints of job
applicants against FBI files of arrests across the country. Between
1947 and 1950, the federal government denied employment to 1700
applicants because they had “a record of homosexuality or other sex
perversion.”209 Because many homosexuals began government service
employment before 1947, federal departments and agencies conducted their own search-and-expel missions. Between 1947 and
1950, agencies investigated 574 suspected homosexuals, the large
203. Id. at 3.
204. Id. at 4.
205. Id.
206. See id. at 1.
207. See id. at 8.
208. Letter from James E. Hatcher, Chief, Investigations Division, U.S. Civil Service
Commission, to Donald W. Cory (May 3, 1951), reprinted in DONALD W. CORY, THE
HOMOSEXUAL IN AMERICA 269 (Arno Press 1975) (1958); see also Memorandum from D.J.
Brennan, Jr., to W.C. Sullivan, Re: Mattachine Society of Washington (Dec. 24, 1963) (on
file with author) (quoting the Director of the Bureau of Personnel Investigation: “Persons
about whom there is evidence that they have engaged in or solicited others to engage in
homosexual or sexually perverted acts with them without evidence of rehabilitation are
not suitable for Federal employment.”).
209. EMPLOYMENT OF HOMOSEXUALS IN GOVERNMENT, supra note 197, at 9. The most
sensitive agencies—the FBI, the Atomic Energy Commission, and the State Department—
subjected applicants to complete personal history investigations. See id.
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majority of them resigning or being dismissed from government
service.210
The subcommittee expressed satisfaction with these procedures
but objected to the failure of some agencies to hunt down and expose
every homosexual. The subcommittee rejected the
false premise that what a Government employee did outside of the
office on his own time, particularly if his actions did not involve his
fellow employees or his work, was his own business. That conclusion
may be true with regard to the normal behavior of employees in
most types of Government work, but it does not apply to sex perversion or any other types of criminal activity or similar misconduct.211
The federal government did not allow heterosexuals “to adopt a
head-in-the-sand attitude toward the problem of sex perversion.” 212
Instead, it expected agencies to investigate any and every complaint
as aggressively as possible. Beginning in 1950, the FBI began comparing morals arrests from everywhere in the country against lists of
government employees.213 In short, the subcommittee rejected the
closet as either a refuge for the homosexual or an accommodation to
heterosexuals. Instead, the closet came to be seen as threatening,
rather than protective, to heterosexual society.
At the same time the Hoey Subcommittee studied ways to purge
homosexuals from inside the government, a subcommittee of the
Senate Judiciary Committee drafted a law to keep homosexuals outside of the country. The Immigration Act of 1917 214 excluded immigrants who had been convicted, or admitted conduct amounting to,
crimes of “moral turpitude,” and the Immigration and Naturalization
Service (INS) interpreted this provision to exclude noncitizens who
were convicted of sodomy, gross indecency, or open and gross lewdness.215 The 1917 statute also excluded noncitizens who were diagnosed with “constitutional psychopathic inferiority,” 216 a medical
phrase often used by the Public Health Service (PHS) and INS to exclude sexual deviates. In the 1940s, the INS regularly and increasingly used this as a basis for excluding people from entry into this
country.217
210. See infra Appendix 3.
211. EMPLOYMENT OF HOMOSEXUALS IN GOVERNMENT, supra note 197, at 10.
212. Id.
213. See id. at 13.
214. Ch. 29, 39 Stat. 874 (1917).
215. See, e.g., In re J—, 2 I. & N. Dec. 533 (Board of Immigration Appeals, April 2,
1946) (deportation for conviction under Massachusetts’ “unnatural and lascivious act”
law); In re Z—, 2 I. & N. Dec. 316 (Board of Immigration Appeals, June 9, 1945) (exclusion
for conviction under Canada’s gross indecency law).
216. Immigration Act of 1917 § 3, 39 Stat. at 875.
217. See, e.g., In the Matter of V—, 2 I. & N. Dec. 127 (Board of Immigration Appeals,
July 22, 1944) (excluding a 35-year-old Canadian citizen who wished to join the U.S.
1997]
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741
In 1950, the immigration subcommittee headed by Nevada Senator Patrick McCarran developed a comprehensive redraft of the immigration law.218 The McCarran bill focused on excluding Communists, anarchists, and other “subversives.”219 Reflecting the heightened
fears that homosexuals, perhaps seen as sexual anarchists, were subversive in similar ways as political anarchists, the McCarran bill
would have excluded all “persons afflicted with psychopathic personality, or who are homosexuals or sex perverts.” 220 Upon the assurance
of the PHS that the term “psychopathic personality” was broad
enough to “specify such types of pathologic behavior as homosexuality or sexual perversion,” the Senate and House Judiciary Committees settled for an exclusion of “persons afflicted with psychopathic
personality.”221 The McCarran-Walter Act of 1952 included this exclusion as section 212(a)(4).222 The PHS and INS not only interpreted
section 212(a)(4) to exclude homosexuals entering after 1952, but also
read prior law as reflecting an intent to exclude homosexuals.223
The McCarran-Walter Act’s exclusion of persons afflicted with
psychopathic personality depended upon the PHS’s ability to diagnose such a condition. Like army doctors during World War II, PHS
doctors during the 1950s and 1960s showed little aptitude for such
diagnoses, and so the only aliens so excluded under this category, as
under the “crime of moral turpitude” category which the McCarran
Act retained, were people with an arrest record for homosexual offenses. These included not just felonious sodomy, but also misdemeanors such as lewd vagrancy (California), disorderly conductdegeneracy (New York), solicitation, and indecent exposure. As indicated above, this period witnessed sharp increases in arrests for all
these crimes, and therefore increased opportunities for deporting
homosexual aliens. Typical was the case of Roberto Flores-Rodriguez,
an immigrant from Cuba who was deported after he was convicted in
Army); In the Matter of M—, 2 I. & N. Dec. 694 (Board of Immigration Appeals, July 24,
1946) (deporting a 45-year-old female native of the United Kingdom).
218. See S. 2550, 82d Cong. (1952).
219. See id. § 241(a)(6).
220. Id.
221. H.R. 1365, 82d Cong., reprinted in 1952 U.S.C.C.A.N. 1653, 1701; see also S. REP.
NO. 1137, at 9 (1950):
The provision of S. 716 . . . which specifically excluded homosexuals and sex
perverts as a separate excludable class does not appear in the instant bill. The
Public Health Service has advised that the provision for the exclusion of aliens
afflicted with psychopathic personality or a mental defect which appears in the
instant bill is sufficiently broad to provide for the exclusion of homosexuals
and sex perverts. This change of nomenclature is not to be construed in any
way as modifying the intent to exclude all aliens who are sexual deviates.
222. See McCarran-Walter Act, Pub. L. No. 414, § 212(a)(4), 66 Stat. 163, 182 (1952)
(amended 1990).
223. See In re La Rochelle, 11 I. & N. Dec. 436 (Board of Immigration Appeals, Dec. 1,
1965).
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New York City of disorderly conduct-degeneracy for soliciting sex in
a public restroom. Even though he was only convicted of an “offense”
(less serious than a misdemeanor), the government in 1956 deported
him under both the “crimes of moral turpitude” and “constitutional
psychopathic inferiority” prongs of the 1917 statute.224
2. The Federal Witch Hunts, 1953-1961
After the Hoey Subcommittee issued its report, the investigations,
resignations, and dismissals accelerated, such that the antihomosexual witch hunt overwhelmed the anti-Communist witch
hunt in importance. Between 1947 and April 1, 1950, an average of
five homosexuals were dismissed from the civil service each month;
the average went up to sixty per month between April and November
and remained at double-digit monthly levels through 1955. 225 The
Eisenhower Administration prepared to act at least as aggressively
as the Truman Administration. In April 1953, Eisenhower issued an
executive order adding “sexual perversion” as a ground for investigation under the federal loyalty-security program, 226 which was designed in the Truman Administration to weed out subversives from
government.227 During the next two years, more than 800 federal
employees resigned or were terminated because they had “files contain[ing] information indicating sex perversion.” 228 That information
was often very tenuous. For example, in 1956, the Department of
Labor fired Bruce Scott from a job that he had held for seventeen
years after charging him with perversion. 229 The charge was based on
a 1947 arrest—not conviction—for loitering in Lafayette Park, a
well-known cruising area for men.230
The rate of expulsion abated in the later years of the Eisenhower
Administration. However, Eisenhower’s Executive Order 10,865231
presented the occasion for fresh homosexual exclusions. Replacing
earlier policies that had been invalidated by the Supreme Court for
procedural reasons,232 the 1960 directive established the Industrial
224. See generally United States v. Flores-Rodriguez, 237 F.2d 405 (2d Cir. 1956).
225. See D’EMILIO, supra note 20, at 44.
226. Exec. Order No. 10,450, 3 C.F.R. 936, 938 (1953).
227. See 3 C.F.R. § 8(a)(1)(iii) (1953) (authorizing investigations to dig up “[a]ny criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct, habitual use of intoxicants to excess, drug addiction, or sexual perversion” . . . on the part of federal government employees).
228. Johnson, supra note 2, at 53.
229. See id. at 60.
230. See Scott v. Macy, 349 F.2d 182 (D.C. Cir. 1965). Scott’s arrest was part of the
U.S. Park Police’s 1947-48 “Pervert Elimination Campaign,” during which 543 men were
questioned and fingerprinted, and 76 arrested. See Johnson, supra note 2, at 52.
231. 25 Fed. Reg. 1583 (1960).
232. See Greene v. McElroy, 360 U.S. 474, 508 (1959) (invalidating executive security
clearance procedures as an unconstitutional usurpation of legislative power).
1997]
APARTHEID OF THE CLOSET
743
Security Program to protect against security breaches by private sector employees working on sensitive government defense contracts.
This was one manner in which federal government anti-homosexual
policy spilled over into the private sector.233 Other spillover effects
resulted from the federal government’s willingness to share police
records and grounds for discharge with private employers. Thus, a
person discharged from a federal agency as a homosexual or sex pervert often found himself or herself blacklisted by private employers
as well. In 1957, administrators dismissed Dr. Franklin Kameny, a
Harvard-trained astronomer, from his job with the U.S. Army Map
Division based upon a prior morals arrest. 234 Because of the 1953 executive order, he was unemployable by federal agencies; because of
the 1960 executive order, he was unemployable by private firms. Security clearances were legally necessary for scientific work. Thus,
Kameny almost starved to death as he sought to adjust to a life
without his chosen career.235
The atmosphere of the 1950s District would have horrified FDR
and Sumner Welles. Not only did the government hunt down homosexuals, but the press and demagogic politicians did, too. The press,
liberal and conservative alike, smeared opponents with the taint of
perversion. Muckraking liberal Drew Pearson had a thick file on Joe
McCarthy’s alleged homosexuality, and journalist Hank Greenspun
wrote an article alleging that McCarthy was homosexual. 236 Senatorial critics of McCarthy openly referred to the bachelor status of the
senator and his two oddball aides, Roy Cohn and David Schine.237 Joseph Welch, the counsel for the Army in the Army-McCarthy hearings, humiliated Cohn with public references to him as a “pixie.” 238
Cohn, who was homosexual, not only denied the charge, but also aggressively used it against others he disliked. 239 Through Senator
Bridges, Cohn is believed to have threatened Senator Lester Hunt,
an anti-McCarthy Democrat from Wyoming, with publicity about his
233. See Johnson, supra note 2, at 48. Private sector employees working on sensitive
contracts were required to have security clearances, which were routinely denied to, or
revoked from, homosexuals. See U.S. DEP’T OF DEFENSE, DEPARTMENT OF DEFENSE
DIRECTIVE NO. 5220.6 § VI.P (1966) (prohibiting “[a]ny criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct, habitual use of intoxicants to excess, drug addiction, [or] sexual perversion” by employees having clearances).
234. See Johnson, supra note 2, at 52-53.
235. See id.
236. See OSHINSKY, supra note 21, at 310 (1983) (quoting Drew Pearson’s file: “Joe
McCarthy is a bachelor of 43 years. . . . He seldom dates girls and if he does he laughingly
describes it as window dressing. It is common talk among homosexuals in Milwaukee who
rendezvous at the White Horse Inn that Senator Joe McCarthy has often engaged in homosexual activities.”). In 1953, McCarthy married his assistant, Jean Kerr. See id. at 32829.
237. See id. at 451-52.
238. MILLER, supra note 195, at 270.
239. See id.
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son’s arrest in Washington on a lewdness charge unless Hunt declined to run for reelection.240 Hunt withdrew from the race and,
eleven days later, shot himself in his Senate office.241
The military’s anti-homosexual campaign, spurred by the 1949
Defense Department memorandum, paralleled the civil service crusade.242 Reflecting the intense popular interest in talking about and
vilifying homosexuality, the Navy recommended that service personnel be given three anti-homosexual indoctrination lectures; one
by an officer, another by a doctor, and a third by a chaplain. 243 Lectures emphasized that homosexuality was a pathological and contagious mental disease, and that homosexuals equaled sexual psychopaths who preyed upon “normal” people. Women were warned
that:
A single act, or an association, may brand a woman as a sexual
pervert. . . .
By her conduct a Navy woman may ruin her chances for a
happy marriage. Friends should be chosen with great care. . . .
Homosexuals dread detection, social ostracism, and legal prosecution. If a woman gets entangled in homosexuality and is given
an undesirable discharge or a dishonorable discharge from the
Navy, she finds herself cut off from acceptable relationships with
men and the companionship of normal women. She also finds it difficult to explain to her family and to her friends just why she is no
longer in the Naval service. . . .244
Similarly, the Navy warned that “deterioration and destruction of
character and integrity are the end results of homosexuality. Even
such gross crimes as robbery, suicide and murder often grow out of
homosexuality.”245 Officials told men as well as women that homosexuals would use insidious methods, such as friendship and drink,
to lure the heterosexual into homosexuality, and emphasized to men
that homosexuality subjected them to blackmail. 246 Service personnel
240. See id. at 271.
241. See id.
242. See LILLIAN FADERMAN, ODD GIRLS AND TWILIGHT LOVERS: A HISTORY OF LESBIAN
LIFE IN TWENTIETH-CENTURY AMERICA 150-55 (1991); COLIN J. WILLIAMS & MARTIN S.
WEINBERG, HOMOSEXUALS AND THE MILITARY: A STUDY OF LESS THAN HONORABLE
DISCHARGE 46-53 (1971); Allan Bérubé & John D’Emilio, The Military and Lesbians During the McCarthy Years, in THE LESBIAN ISSUE: ESSAYS FROM SIGNS 279, 290-95 (Estelle
Freedman et al. eds., 1985).
243. See Proposed Modifications to Recruit Training Curriculum 2, in CRITTENDEN
REPORT, supra note 187, app. 21.
244. Chaplain’s Presentation (WAVE Recruits) 2, in CRITTENDEN REPORT, supra note
187, app. 23.
245. Id. at 3.
246. See Chaplain’s Presentation (Male Recruits) 1-2, in CRITTENDEN REPORT, supra
note 187, app. 23; id. at 863.
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APARTHEID OF THE CLOSET
745
were cautioned to police their same-sex friendships and to report
friends they believed to be homosexual.247
The 1949 Department of Defense memorandum mandated a policy of separating all “known homosexuals” from the armed forces. 248
This policy forced thousands of homosexuals into a deep closet that
the government constantly tried to invade. The implementing Army
regulation noted:
It is the duty of every member of the military service to report to
his commanding officer any facts which may come to his attention
concerning overt acts of homosexuality. Commanding officers receiving information indicating that a person has homosexual tendencies or has engaged in an act of homosexuality shall inquire
thoroughly and comprehensively . . . .249
Like its civilian counterparts in the FBI and local police forces, the
armed forces engaged in large-scale witch hunts conducted by special
investigative units analogous to vice squads. An early witch hunt
was that conducted by the Office of Special Investigation to track
down lesbians at the Kessler Air Force Base in Biloxi, Mississippi. 250
The investigator reportedly promised suspected lesbians general discharges if they confessed and cooperated in the investigation by
naming sexual partners and other confirmed homosexuals. Eleven
women were drummed out of the military with undesirable discharges, contrary to the promises. Twenty women at Lackland Air
Force Base and several at Wright-Patterson were similarly kicked
out. The women thus separated lost their chosen career and faced
discrimination in the private job market because of the stigma of an
undesirable discharge and the reason for it. Two women reportedly
committed suicide.251
Even a single premilitary experience could be the basis for a discharge. Officials repeatedly questioned personnel, seeking clues that
might ultimately result in their expulsion from the closet. One former WAC recalls that officials subjected her group of 250 women to
questions such as “Have you ever thought of making love to a
woman?”252 The WAC, an experienced lesbian, knew how to answer
such an inquiry, but many of the younger, less experienced women,
247. See Indoctrination of Male Recruits on Subject of Homosexuality 5, in
CRITTENDEN REPORT, supra note 187, app. 23.
248. DOD Memorandum, supra note 187, at 1.
249. U.S. ARMY, ARMY REG. 600-443 ¶ 5 (1950).
250. See D’EMILIO, supra note 20, at 45 (drawing from a letter from one of the women
interrogated); Allan Bérubé & John D’Emilio, The Military and Lesbians during the
McCarthy Years, 9 SIGNS 759, 770-74 (1984) (reprinting letters from women expelled as a
result of the witch hunts at Kessler and Lackland).
251. See D’EMILIO, supra note 20, at 46.
252. FADERMAN, supra note 242, at 153 (citing Jackie Cursi, Leaping Lesbians,
LESBIAN ETHICS, Fall 1986, at 81-83).
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many probable heterosexuals, answered honestly and received expulsion.253
However, even experienced homosexuals had difficulty evading
undercover military investigators. Investigators spied on homosexual bars and other hangouts and infiltrated women’s softball teams
under the assumption that lesbians would be disproportionately represented in an athletic sport. Notably, once military investigators
had evidence, or simply accusations, against one homosexual, they
could threaten that person with court martial and unfavorable publicity if he or she did not “name names.” 254 Once one person gave
names, others often rushed forward, lest they receive the sucker’s
payoff. These tactics allowed officials to discharge 500 women from a
Tokyo WAC base under less-than-honorable conditions. 255
Surprisingly, the tangible results of this massive investment did
not rise to the level one might expect. Between 1950 and 1965, the
Navy cashiered an average of more than 1000 enlisted personnel per
year as Class II and III homosexuals, about forty percent of the
Navy’s total undesirable discharges for those years. 256 The Institute
of Sex Research’s Colin Williams and Martin Weinberg roughly estimate that the armed forces separated between 2000 and 3000 personnel each year for that period.257 An internal Navy study, the Crittenden Report of 1957, reported annual separations for homosexual
charges at 1.9 per thousand for the Navy, 1.3 for the Air Force, 0.8
for the Army, and 1.6 for the Marines.258 The rate of discharge was
much higher for women than for men. 259 Not included are statistics
depicting the number of personnel who left the armed forces before
the investigations reached them or upon the slightest pressure from
investigators. Thus, the number of victims of the military’s antihomosexual campaign is higher than statistics state. There is no
comprehensive compilation of the actual number of destroyed careers and shattered lives that resulted from this federal campaign.
3. Witch Hunts at the State Level
At the same time the armed forces and other federal government
branches initiated witch hunts, state and local governments took
similar actions, either independently or following the federal lead. The
case of Miriam Van Waters, the superintendent of the Massachusetts
253. See id.
254. See id.
255. See id. at 154.
256. See WILLIAMS & WEINBERG, supra note 242, at 52.
257. See id. at 46-53.
258. See CRITTENDEN REPORT, supra note 187, at 51-52 (“There are probably many
homosexuals in the service that are never discovered.”)
259. See id. at 40, 51.
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Reformatory for Women, became one of the first significant statelevel cases.260 In 1947, Van Waters experienced media and political
attacks for treating inmates too leniently, tolerating lesbian relationships within the reformatory, and retaining lesbians as officers
in positions of authority.261 The State Commissioner of Corrections
dismissed her for these and other reasons in January 1949. 262 To
make his case, the Commissioner scoured the institution’s records
for descriptions of the “doll racket” and of intimacy between
women.263 Many targeted Van Waters’ deputy, Margaret O’Keefe, as
the leader of the doll racket because of her “mannish” dress and a
two-decades-old prostitution charge. Replying candidly that women
did form close relationships at the reformatory and that female
friendships were a good way to rehabilitate lost women, Van Waters
was a sitting duck in the new climate where toleration of discreet
homosexuality was anathema.264
The federal witch hunt that began in 1950 paralleled analogous
witch hunts at the state level, the two most energetic being in Florida and California. Beginning in 1956, Florida authorized a series of
“legislative investigation committees” to expose subversion in the
state. Originally targeting Communists, the ACLU, and the NAACP,
the Florida Legislative Investigation Committee—the Johns Committee—made homosexuality an ancillary target at first. When the
Johns Committee hit legal roadblocks and lawsuits in its civil
rights and Communism investigations, however, homosexuality became its main target. An account of the Committee’s dynamic investigation of homosexuals in Florida is a microcosm of the antihomosexual terror of the postwar period. It started in 1957. During
May and June of that year, the Hillsborough County Sheriff ’s Office
investigated homosexual activity at the Southwest Florida Tuberculosis Hospital in Tampa.265 While officials did not succeed in pinning
down the main target, the hospital’s Medical Director, 266 when
pressing hospital employees to name other homosexuals in exchange for escaping criminal prosecution, the Sheriff ’s Office
learned that the dean of boys at Tampa’s Plant High School was also
a homosexual.267
260. See ESTELLE FREEDMAN, MATERNAL JUSTICE: MIRIAM VAN WATERS AND THE
FEMALE REFORM TRADITION 291 (1996).
261. See id. at 267-73.
262. See id. at 278.
263. Id.
264. See id.
265. See Deposition, supra note 144.
266. See id. at 5-6. The Sheriff’s Office claimed to have evidence of the Medical Director’s homosexual acts with 16 different boys and men in Tampa. See id. The Medical Director ultimately resigned and moved out of state. See id. at 6.
267. See id. at 4.
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With that knowledge, the Sheriff ’s Office and the Hillsborough
County School Board cooperated in a two-month investigation during
mid-1957. The investigator started with a list of suspected homosexuals and expanded the list by getting the “admitted homosexuals”
to name other names, by staking out lesbian and gay bars in Tampa
(Knotty Pine for men, Jimmie White’s for women), and by cultivating
informers for new leads.268 Pursuing a tip, Deputy Bob Cash led an
expedition to Anna Maria Island, where fifty-four female school
teachers had obtained a weekend apartment and were observed in
lesbian activities.269 By the end of the investigation, the Sheriff ’s Office had names of eight to ten admitted lesbian teachers, fifteen to
seventeen homosexual male teachers, and twenty-five to thirty others named by the confirmed homosexuals as also being gay. 270 The
investigation ceased when school resumed in the fall of 1957. The
chief investigator was told he only uncovered approximately ten percent of the homosexuals in the Hillsborough County school system. 271
Based on claims that Hillsborough County public school teachers
had been initiated into homosexuality while attending the University
of Florida and Florida State University, the Johns Committee, led by
chief investigator R.J. Strickland, investigated UF from 1958-60 and
FSU from 1959-61. The Committee’s 1959 report set forth a factual basis for finding a state emergency that justified extensive investigation:
1. The existence of homosexual practices among faculty members
and students in our public educational system is an established
fact, the extent of which is, to the Committee, absolutely appalling.
....
4. The practicing homosexual is, almost entirely, the product of
environment and practice. . . . In other words, homosexuals are
made by training, rather than born.
5. The greatest danger of a homosexual is his or her recruitment
of other people into such practices.
6. A surprisingly large percentage of young people are subject to
be influenced into homosexual practices if thrown into contact with
homosexuals who desire to recruit them. . . . Some of the State’s
instructional personnel at the higher educational level have been
and are recruiting young people into homosexual practices and
these young people have been and are becoming teachers in the
public school system of Florida, and some of them are recruiting
teen-age students into homosexual practices.272
268.
269.
270.
271.
272.
See id.
See id. at 10.
See id. at 11.
See id. at 12.
FLA. LEGIS. INVESTIGATION COMM., REPORT OF THE FLORIDA LEGISLATIVE
INVESTIGATION COMMITTEE TO THE 1959 SESSION OF THE LEGISLATURE 4-5 (1959) (available at Fla. Dep’t of State, Div. of Archives, ser. 1486, carton 1, Tallahassee, Fla.).
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In its final report, the committee stated:
The homosexual’s goal and part of his satisfaction is to “bring over”
the young person, to hook him for homosexuality.
Whether it be with youth or older individuals, homosexuality is
unique among the sexual assaults considered by our laws in that
the person affected by the practicing homosexual is first a victim,
then an accomplice, and finally himself a perpetrator of homosexual acts.273
Inspired by this view of the world, the Johns Committee conducted a roving investigation of homosexuals in public education.
The investigators shared the names of suspected homosexuals with
local authorities and used the information and local resources to extract confessions, details, and more names from the suspects. 274 In
return for assurances against criminal prosecution, many of the suspects resigned or were terminated.275 The Committee also fed names
to the Florida Board of Education and pressured it to revoke teachers’ certificates. Although the Board dragged its feet, the Legislature
pressed it with a 1959 statute authorizing certificate revocation for
“moral turpitude”276 and a 1961 statute setting forth expedited procedures for revocation.277 Near the end of its rolling tenure, the Johns
Committee summarized the tangible fruits of its investigations by
noting that since 1959, sixty-four public school teachers’ teaching
certificates had been revoked, with eighty-three additional revocations pending.278 The Johns Committee pressed state agencies to
seek out and discharge homosexuals, and served as a clearinghouse
for gathering and distributing names of known or suspected homosexuals to federal as well as state agencies. The Committee informally reported in 1964 that thirty-seven federal employees were removed because of its efforts; fourteen state employees faced removal
proceedings.279 According to the University of Florida’s records, sixteen students (fourteen men and two women) were suspended or
withdrew from the university, and twenty-five students (nine men
273. FLA. LEGIS. INVESTIGATION COMM., supra note 15, at 10.
274. See generally id.
275. See generally id.
276. Act effective July 1, 1959, ch. 59-404, § 1, 1959 Fla. Laws 1377, 1377 (current
version at FLA. STAT. § 231.28 (1995)).
277. See Act effective June 22, 1961, ch. 61-396, § 2, 1961 Fla. Laws 754, 754 (current
version at FLA. STAT. § 231.28 (1995)) (not requiring an investigation prior to revocation).
278. See FLA. LEGIS. INVESTIGATION COMM., supra note 15, at 13. According to an internal file memo, prepared later, 71 public school teachers lost their certificates (63 cases
pending), and 14 university professors were fired (19 cases pending).
279. See FLA. LEGIS. INVESTIGATION COMM., REVOCATION MEMORANDUM (1964) (available at Fla. Dep’t of State, Div. of Archives, ser. 1486, carton 1, Tallahassee, Fla.).
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and sixteen women) were placed on academic probation as a result of
the Committee exposing their homosexual activities.280
The intangible effects of the investigations can only be imagined.
Teachers, students, and state employees fell under suspicion when
spotted at places investigators considered homosexual hangouts or
when named by other suspected homosexuals. Once suspected, investigators subjected suspects to closed-door questioning about the
suspects’ sexuality, almost always without a lawyer present. For
many of those questioned, the experience proved demeaning as well
as terrifying. One woman from Tampa wrote the Committee objecting to the
vulgar questioning, abuse and undignified treatment . . . of anyone
suspected or vaguely connected with homosexuality.
Must I be stripped of my privacy and all the pride and dignity
that I enjoy as an American, simply because some element in my
environment, some incident in my childhood, or some faulty parental relationship has produced an individual who chooses to love
one of the same sex?281
My account of Florida’s witch hunt is unusually rich in detail, not
only because the Johns Committee kept such extensive records, but
also because Florida probably invested more resources into its witch
hunt than any other state. Maintaining an apartheid of the closet
seemed not as pressing elsewhere. Other southern states, as well as
the sparsely populated states of the plains and the western mountains, did not have homosexual subcultures prominent enough to
raise alarms. However, their representatives in Washington, D.C.,
such as Clyde Hoey (North Carolina), Kenneth Wherry (Nebraska),
and Pat McCarran (Nevada) played key roles in legislating against
homosexuality on the national level. Urbanized states in the east
and the midwest had prominent homosexual subcultures that were
anathema to mainstream society. However, the regulators there
probably felt that it would be excessively expensive to eradicate subcultures entirely, as Florida sought to do. Florida’s only rival was
California, which was similar in its geographical and cultural heterogeneity. Like Florida, California possessed urban enclaves with
prominent homosexual subcultures situated near rural and suburban areas featuring more conventional lifestyles.
Similar to Florida and most states, California’s public agencies
and school boards would not hire and would terminate employees
280. See Memorandum from William A. Tanner, Security Officer, University of Florida, to Dr. Gordon W. Blackwell, President, University of Florida 19-20 (Jan. 31, 1961)
(available at Fla. Dep’t of State, Div. of Archives, ser. 1486, carton 1, Tallahassee, Fla.).
281. FLA. LEGIS. INVESTIGATION COMM., supra note 15, at 8. The author signed the letter, “Just a Girl of 24.” Id.
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who engaged in “immoral conduct.”282 California’s Board of Education also refused to issue or would revoke teaching certificates for
immoral conduct.283 Typically, authorities interpreted “immoral conduct” to include acts of same-sex intimacy. Thus, an employee of the
state convicted of sodomy or oral copulation could expect to lose his
or her teaching certificate and job. Reflecting the widespread view of
the closet as straight-threatening, California expanded the bases for
revoking teaching certificates to include any conviction for specified
sex crimes, including lewd vagrancy and loitering at a public toilet,
both misdemeanors, as well as sodomy and oral copulation, both
felonies.284 California vigorously applied the statutes to exclude homosexuals from public employment.
The leading case construing the 1952 amendments was Sarac v.
State Board of Education .285 Authorities arrested Thomas Sarac, Jr.,
a secondary school teacher, under the lewd vagrancy misdemeanor
statute for soliciting sex from a decoy cop on the beach. He pled
guilty to a lesser charge of indecent conduct violating a municipal
ordinance.286 The California appeals court upheld the revocation of
Sarac’s teaching certificate based upon this offense and rejected his
argument that there was no connection between a minor morals
charge and his fitness to teach:
In view of [Sarac’s] statutory duty as a teacher to “endeavor to impress upon the minds of the pupils the principles of morality” and
his necessarily close association with children in the discharge of
his professional duties as a teacher, there is to our minds an obvious rational connection between his homosexual conduct [and the
revocation of his teaching certificate].287
Sarac reflects the aggressiveness with which California monitored
sexual conduct of teachers. Administrators reported convictions or
guilty pleas for any kind of sexual offense to state agencies, including the California Board of Education, so that appropriate civil penalties could be imposed. Thereafter, California required applicants
for teaching credentials to furnish their fingerprints so that the
Board of Education could check them against national and state fin282. E.g., CAL. EDUC. CODE § 24306(a) (West 1954) (addressing state college employees); CAL. GOV’T CODE § 19572(l) (West 1954) (addressing all state civil service workers).
283. See CAL. EDUC. CODE §§ 13202, 13209 (West 1960).
284. See Act effective July 2, 1952, ch. 25, § 5, 1952 Cal. Stat. 389, 390 (current version at CAL. EDUC. CODE § 44436 (West 1996)) (depriving teachers of their certificates if
convicted of sex crimes); id. § 2, 1952 Cal. Stat. at 390 (current version at CAL. EDUC. CODE
§ 44010 (West 1996)) (specifying the sex crimes triggering the penalty in section 44346).
285. 57 Cal. Rptr. 69 (Dist. Ct. App. 1957).
286. See id. at 71.
287. Id. at 72-73. Adding insult to injury, the court stated: “Homosexual behavior has
long been contrary and abhorrent to the social mores and moral standards of the people of
California as it has been since antiquity to those of many other peoples.” Id. at 72.
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gerprint records of convicted criminals. 288 The same 1951 law required the State Bureau of Criminal Identification and Investigation
to furnish the Board of Education with “all information pertaining to
any applicant of whom there is a record in its office.”289
In addition to regulating teachers, most states also denied or revoked professional licenses due to homosexuality. In California,
“gross immorality” served as a statutory basis for state disciplinary
action against doctors, dentists, pharmacists, funeral directors, embalmers, and guardians.290 The most common basis for revoking a
professional license or certificate in California was conviction of a
“crime involving moral turpitude.”291 In the 1950s, any misdemeanor
or felony conviction involving homosexual activity sufficed as a crime
involving moral turpitude.292 In a leading case, California disbarred
attorney Arthur Boyd in 1955 because he pled guilty to a misdemeanor charge of lewd vagrancy.293 The California State Bar Association argued that even such a minor charge produced sufficient
evidence of “depravity” and behavior contrary to custom. 294 A medical
doctor reportedly lost his license because he pled guilty to a misdemeanor charge of public indecency, a crime that did not require registration under California’s sex offender law.295
Generally, state bar associations, unlike school boards, did not actively seek out evidence of homosexuality during this period. Florida’s disbarment of Ronald Kay in 1966 presented an interesting
twist on this rule.296 Based upon his conviction of indecent exposure
under a Fort Lauderdale ordinance, Kay was disbarred, in part because the indecency was homosexual in nature. 297 The Board of Governors of The Florida Bar then added: “In addition to [Kay’s] homosexual activity, the referee found a lack of candor and serious conflicts
in [Kay’s] testimony at the criminal and disciplinary hearings.”298
There is little doubt that Kay did prevaricate. His case reflects the
288. See Act effective Sept. 22, 1951, ch. 1482, § 1, 1951 Cal. Stat. 3459, 3459 (current
version at CAL. EDUC. CODE § 44341(a) (West 1996)).
289. Id. (current version at CAL. EDUC. CODE § 44341(c) (West 1996))
290. CAL. BUS. & PROF. CODE § 1680(e) (West 1975) (dentists); id. § 2361(d) (doctors);
id. § 3105 (optometrists); id. § 4356 (pharmacists); id. § 7698 (funeral directors and embalmers); CAL. PROB. CODE § 1580(4) (West 1954) (guardians).
291. E.g., CAL. BUS. & PROF. CODE § 1000-10(b) (West 1954) (chiropractors); id. § 1679
(dentists); id. § 2383 (doctors); id. § 2660(b) (physical therapists); id. § 3107 (optometrists);
id. § 4354 (pharmacists); id. § 6775 (engineers).
292. See, e.g., United States v. Flores-Rodriguez, 237 F.2d 405, 409 (2d Cir. 1956) (loitering about a public toilet soliciting men for sex is a “crime [of] moral turpitude” for immigration law purposes).
293. See In re Boyd, 307 P.2d 625, 625 (Cal. 1957).
294. See id.
295. See Wood, supra note 77, at 21-22.
296. See Florida Bar v. Kay, 232 So. 2d 378, 379 (Fla. 1970).
297. See id.
298. Id.
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dilemma the closet presented to gay people: honesty about one’s homosexuality meant social death, but lying was dishonest and justified additional legal censure. The impressive array of state regulations and inquiries brigading sexual orientation forced the homosexual to talk, but he or she faced destruction by speaking.
C. State Suppression of Homosexual Association and Expression
Evidence of a homosexual subculture, embodied in educational
organizations, homophile or homoerotic literature, and bars and social clubs, also alarmed homophobic America. Censors and spies
monitored and harassed this subculture. Consistent with the 1950s
apartheid of the closet, state censors sought to suppress public displays of homosexuality, and homosexuals themselves cooperated.
Early homophile organizations, such as the Mattachine Society and
the Daughters of Bilitis, operated under mysterious names having
no visible connection to homosexuality. Most members of those societies knew each other only by pseudonyms. Their publications spoke
cautiously about homosexuality, rarely affirming it as a normal condition and mostly begging for toleration. Their most systematic theoretician, Edward Sagarin, wrote under the pen name Donald Webster Cory. Homoerotica was also closeted. A deviance gendarmerie
sought to flush out, intimidate, and ultimately destroy networks of
information and support that might attract new “recruits” to homosexuality by infiltrating the homosexual underground and harassing
its denizens.
Mark this irony of the closet as it was configured in the 1950s.
Alarmed that homosexual subcultures posed a challenge to gender
and sexual orthodoxy during a period of renormalization, mainstream America sought to suppress homosexual expression in any
form (solicitation, intercourse, socialization, stories). However, the
acts of state suppression of homosexual expression were in practice
acts instigating such expression.299 The developments traced above
reflected an intensification of discourse about homosexuality that
contributed to the formation of the closet as a phenomenon where
straight society insisted on constant interrogation about a topic that
had been socially taboo earlier in the century. Suspected homosexuals were lured into conversations with state actors, including decoy
cops, army shrinks, military commanders and investigators, the FBI,
PHS doctors and INS agents, federal civil service and security clearance officials, local and state boards of education, state bar associations and other professional review boards, censors, customs officials,
299. This paradox is inspired by 1 MICHEL FOUCAULT, THE HISTORY OF SEXUALITY
(Robert Hurley trans., 1978). See the discussion of Foucault in chapter three of WILLIAM
N. ESKRIDGE, JR. & NAN D. HUNTER, SEXUALITY, GENDER, AND THE LAW (1997).
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and alcoholic beverage control boards and their undercover agents.
These conversations themselves often intensified people’s perception
of their perverse sexual feelings.
1. Surveillance and Harassment
Starting no later than 1937, FBI Director J. Edgar Hoover maintained private files containing reports about the homosexuality of
prominent people.300 One of the files contained 160 pages from 194142 investigative reports dealing with the sexual adventures of Sumner Welles.301 Hoover may have been the leak precipitating Welles’
resignation in 1943.302 Another eighty-five-page file compiled between May 20 and June 27, 1942, reported that Senator David
Walsh, the chair of the Senate Naval Investigations Committee, frequented a house of male prostitution “where homosexuals engaged in
espionage activity visited.”303 The file did not mention that the U.S.
Navy was working with the House to entrap foreign or double
agents. Several files suggested that the FBI Director himself was
“queer.”304
After World War II, the FBI became a national clearinghouse for
information about homosexuals.305 The Hoey Subcommittee criticized
the Civil Service Commission for not knowing that 457 of the “perverts” arrested in D.C. between 1947 and 1950 were federal employees, who should have been fired.306 In April 1950, the District’s police
department turned over all its perversion arrest records to the FBI.
The subcommittee charged the FBI to serve as a clearinghouse for
this information and then to channel it to the Civil Service Commission.307 The FBI aggressively attacked this duty and expanded its
charge to include surveillance of homosexuals, their organizations,
and their political activity, as well as investigations of people associating with known homosexuals.308
Once FBI agents gathered the information, the FBI used it in
various ways not mentioned in the Hoey Subcommittee report, including leaks to local officials and employers and interrogation to pry
out the names of other homosexuals. In a remarkable statement
300. See JONATHAN NED KATZ, GAY/LESBIAN ALMANAC: A NEW DOCUMENTARY 530-31
(1983). The FBI partially declassified and released these files, albeit with names deleted,
under the Freedom of Information Act. See id. at 530.
301. See id.
302. See id.
303. Id. at 530-31.
304. Id. at 531.
305. See J. Edgar Hoover, Role of the FBI in the Federal Employee Security Program,
49 NW. U. L. REV. 333, 336 (1954).
306. See EMPLOYMENT OF HOMOSEXUALS IN GOVERNMENT, supra note 197, at 12-13.
307. See Hoover, supra note 305, at 335.
308. See id. at 336.
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made to the ACLU, a person identified only as “B.D.H.” described
how the FBI pursued him for more than a decade after the University of Illinois expelled him for making a pass at a fellow student. 309
FBI agents followed B.D.H. from job to job, informing employers and
colleagues of his homosexuality and thereby making working conditions impossible.310 When an injury impelled B.D.H. to seek job retraining, the Illinois Division of Vocational Rehabilitation refused to
train him because of his sexual orientation. 311 FBI agents repeatedly
pressed him to name other homosexuals.312
The FBI showed even more interest in the activities of groups. In
1951, Harry Hay and a small circle of friends, some of whom had
served in the military, formed a secret homophile society known as
The Mattachine Foundation.313 As the circle expanded, it incorporated under California law on April 27, 1953, and changed its name
to the Mattachine Society the following month.314 In January 1953,
the first mass circulation homophile journal, One, was published by
members of the Mattachine, albeit in a separate organizational
form.315 The Society itself published the Mattachine Review starting
in 1955.316 Although there were some women in the Mattachine, Del
Martin and Phyllis Lyon formed the Daughters of Bilitis, a separate
organization, in the autumn of 1955.317 Beginning in October 1956,
the Daughters published The Ladder “with the vague idea that
something should be done about the problems of Lesbians, both
within their group and with the public.” 318
The FBI initiated an internal security investigation into the Mattachine Society in the spring of 1953 and started a more open-ended
file on the Daughters of Bilitis in the summer of 1959.319 Although
Hay and other Mattachine members had been Communist Party
members or sympathizers before the war, by December 1953, the
FBI recognized the Mattachine as completely “law-abiding.”320 The
309. See D’EMILIO, supra note 20, at 47.
310. See id.
311. See id.
312. See id.
313. See id. at 61-62.
314. See id. at 63-73; STUART TIMMONS, THE TROUBLE WITH HARRY HAY, FOUNDER OF
THE MODERN GAY MOVEMENT, 129-53 (1990).
315. See D’EMILIO, supra note 20, at 72-73.
316. See id. at 89.
317. See id. at 102.
318. THE LADDER, Oct. 1956, at 2.
319. The discussion that follows is drawn from the FBI Freedom of Information Act
files on the Mattachine Society (Files 100-403320 (Headquarters), 100-4588 (Los Angeles),
100-132065 (New York), 100-37394 (San Francisco), 100-33796 (Washington, D.C.)) and
the Daughters of Bilitis (File 94-843).
320. Memorandum from FBI Los Angeles Office to FBI Headquarters 6 (Dec. 31, 1953)
(reporting that the goals of the Society were “to accomplish these aims in a law-abiding
manner. Homosexuals are not seeking to overthrow or destroy any of society’s existing
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FBI never suspected the Daughters of Bilitis of being internal security threats. Yet FBI agents infiltrated both organizations, archived
their declarations and publications, reported their meetings and activities, recruited informants, compiled lists of members, and speculated on their influence and future activities.
The FBI’s internal documents do not reveal how it deployed surveillance information, but they do reveal the details of the Bureau’s
most direct interaction with the homophile organizations. The November 1955 issue of One contained an article by David L. Freeman,
entitled How Much Do You Know About the Homosexual Male?
Freeman alleged that “Tory” homosexuals, or deeply closeted insiders, worked for Time and Newsweek magazines, served in the diplomatic corps, and “occupied key positions with oil companies or the
FBI.”321 This phrase came to the attention of FBI Director J. Edgar
Hoover and his associate Clyde Tolson in January 1956. According to
FBI records, Tolson responded, “I think we should take this crowd on
and make them ‘put up or shut up.’ ” 322 Hoover concurred.323 On
January 27, the FBI instructed its Los Angeles office to locate Freeman and determine, among other things, precisely which FBI
authorities he had in mind.324 On January 31 and February 2, FBI
agents visited One’s offices in search of Freeman, who was nowhere
to be found.325 The sole occupant of the office, Dorr Legg, refused to
identify Freeman or the FBI officials suspected of being homosexual.326 The FBI agents told Legg that “the FBI would not tolerate any
such baseless allegations in [One] or any other publication.”327 Freeman was not located, and the Los Angeles office requested further
directions.
FBI Headquarters responded with an ambitious plan of action. It
directed the Los Angeles Office to:
1. Open an investigation on [Legg] and to develop any further
derogatory information concerning him and to determine the extent of his association with [Freeman].
institutions, laws or mores, but to be assimilated as constructive, valuable and responsible
citizens.”). The agent in charge closed the FBI “internal security” file on Mattachine because there was clearly no subversive activity going on.
321. David L. Freeman, How Much Do You Know About the Homosexual Male, ONE,
Nov. 1955, at 15.
322. Memorandum from Special Agent M.A. Jones to Mr. Nichols, FBI Headquarters 1
(Feb. 10, 1956) [hereinafter Jones Memorandum].
323. See id.
324. See Air-Telegram from J. Edgar Hoover, Director, FBI, to FBI Los Angeles Office
1 (Jan. 27, 1956). There were rumors throughout Hoover’s career of a liaison between him
and Tolson.
325. See Jones Memorandum, supra note 322, at 1.
326. See id.
327. Air-Telegram from Special Agent Malone, FBI Headquarters, to FBI Los Angeles
Office 3 (Feb. 2, 1956).
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2. Conduct background investigation regarding [unknown] and
develop further information regarding “One” and One, Inc. Determine how magazine is financed and if it’s properly registered to do
business in California.
3. Contact postal authorities concerning the mailability of “One”
and obtain pertinent information in possession of Post Office.
4. Consideration should also be given to referring the November,
1955 issue of “One” to Department [of Justice] for its opinion concerning the [criminal] obscenity of this issue.328
Apparently, the FBI’s standard operating procedure involved focusing its attention on an enemy of the people and then devoting its
substantial investigative resources to digging up “derogatory information” for strategic use. Its network of federal and state officials
could then be instructed to apply other kinds of legal sanctions or
pressure against the enemy. Although the Bureau never discovered
the identity of Freeman (he was the pen name for Chuck Rowland),
it did notify the employers of others who wrote for One, Mattachine
Review, and The Ladder—with the expectation that the homophiles
would lose their jobs.329
2. Censorship of Homophile Media
Both federal and state law criminalized the promulgation of “obscene” publications.330 The Tariff Act of 1930, enforced by the Customs Service, prohibited the importation from abroad of such publications.331 The Comstock Act of 1873 prohibited the Post Office from
handling “[e]very obscene, lewd, lascivious, indecent, filthy, or vile
article.”332 These laws were all in effect before World War II, but the
postwar anti-homosexual terror stimulated official use of these laws
as another criminal sanction against homosexuals. None of these
statutes defined what they meant by “obscene,” but the social consensus in the 1940s was that any positive discussion of homosexuality
could be considered “obscene.” This understanding chilled the development of a homophile press. The earliest continuously promulgated
328. Jones Memorandum, supra note 322, at 1a-b.
329. See RODGER STREITMATTER, UNSPEAKABLE: THE RISE OF THE GAY AND LESBIAN
PRESS IN AMERICA 32 (1995). The homophiles apparently kept their jobs, notwithstanding
the FBI’s efforts.
330. See, e.g., CAL. PENAL CODE § 311 (West 1955); N.Y. PENAL LAW § 1141 (McKinney
1944). These were the most widely invoked criminal obscenity statutes.
331. See Smoot-Hawley Tariff Act of 1930, ch. 497, § 305(a), 46 Stat. 590, 688 (codified
as amended at 19 U.S.C. § 1305(a) (1994)); see also JAMES C.N. PAUL & MURRAY SCHWARTZ,
FEDERAL CENSORSHIP: OBSCENITY IN THE MAIL 55-63 (1961).
332. Comstock Act of 1873, ch. 258, § 2, 17 Stat. 598 (current version at 18 U.S.C. § 1461
(1994)); see also HEYWOOD BROUN & MARGARET LEECH, ANTHONY COMSTOCK: ROUNDSMAN
OF THE LORD 128-144 (describing Comstock’s service in Congress) (1927); ROBERT W.
HANEY, COMSTOCKERY IN AMERICA: PATTERNS OF CENSORSHIP AND CONTROL 34-35 (1974);
PAUL & SCHWARTZ, supra note 331, at 22-24.
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homophile journal was Vice Versa, a mimeo produced by “Lisa Ben”
(an anagram for “Lesbian”) in Los Angeles between June 1947 and
February 1948.333 The journal included short stories, articles about
police violence against lesbians and raids on lesbian bars, and essays
on issues such as same-sex marriage. Each issue was distributed to
friends and acquaintances, who passed them on to others. According
to the editor, “I had no idea how daring or dangerous this was. I used
to mail them blithely out from the place where I worked, until somebody said, ‘Don’t you know you could get into trouble for mailing
this?’ ”334 Lisa Ben was more cautious after that warning, never
sending issues through the mail and discontinuing the publication
when she lost her private office where she had typed earlier issues
without fear of detection.
Perhaps fearful of censorship, gay authors during this period either closeted homosexuality through indirect references, as Tennessee Williams did in A Streetcar Named Desire and John Burns did in
Lucifer with a Book , or depicted homosexual characters as destructive sex maniacs, as Gore Vidal did in The City and the Pillar . Notwithstanding these fears, a homophile literature and press did develop in the early 1950s. At that point, state and federal censors
were faced with the decision whether to put up or shut up. The censors accomplished something of both, as they sporadically sought to
suppress important gay work.
In the case of Allen Ginsberg’s frankly (homo)sexual publication,
Howl and Other Poems ,335 suppression occurred at both the federal
and state level.336 In 1956, Howl’s first printing passed the Customs
Service in New York, and Lawrence Ferlinghetti’s City Lights bookstore offered it for sale. In San Francisco, however, Collector of Customs Chester McPhee confiscated Howl’s second printing. “The
words and the sense of the writing is obscene,” said McPhee. “You
wouldn’t want your children to come across it.” 337 Ferlinghetti thereupon printed a domestic edition of the work and offered it for sale. In
June, Captain William Hanrahan of the Juvenile Division of the San
Francisco Police Department seized all copies of Howl and arrested
Ferlinghetti and his sales clerk, Shigeyoshi Murao, for selling the
obscene works of Howl and William Margolis’ The Miscellaneous
Man.338
333. See STREITMATTER, supra note 329, at 1-16 (describing the history of Vice Versa).
334. Id. at 5 (quoting interview with Lisa Ben).
335. ALLEN GINSBERG, HOWL: ORIGINAL DRAFT FACSIMILE ETC. (Barry Miles ed.,
1986).
336. See Dal McIntire, Tangents, ONE, May 1957, at 11-12; HANEY, supra note 332, at
34-45.
337. Lawrence Ferlinghetti, Horn on Howl, EVERGREEN REVIEW, Dec. 1957, at 145, reprinted in GINSBERG, supra note 335, at 169-70.
338. See id.
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Other artistic works censored because of their homosexual themes
included the eighteenth-century bawdy novel The Memoirs of a
Woman of Pleasure (Fanny Hill) , which was banned in Boston but
permitted in New York; Vin Packer’s Spring Fire (1952) and Fay
Adams’ Appointment in Paris (1952), which were effectively blacklisted by local censors because of their sympathetic depiction of lesbian romance; and William Talsman’s saucy story of gay New Orleans, The Gaudy Image (1958), which was seized by the Customs
Service and never made available in the United States. 339 Dreadful
books such as Simon Eisner’s Naked Storm (1952) and Fletcher
Flora’s Strange Sisters 340 (1954) received a free ticket from the censors because their lurid depictions of sexual violence were antilesbian.
Censors also targeted homosexual erotica, which barely existed in
the 1950s. Herman Womack published a series of male physique
magazines, MANual, Trim, and Grecian Guild Pictorial .341 The
magazines contained photographs of attractive, usually seminude
male models, who posed with their buttocks exposed, their legs
spread, their pubic hair showing, or the suggestion of an erect penis
under a sheer cover.342 The models sometimes appeared in pairs, in
leather garb, or with swords and other long, pointed objects to emphasize homoerotic possibilities.343 On May 25, 1960, the Alexandria,
Virginia, Postmaster seized 405 copies of the magazines pursuant to
the Comstock Act.344 Finding that the magazines appealed only to
the prurient interest of “sexual deviates” and had no literary or other
merit, the Judicial Officer of the Post Office determined that the
books were “non-mailable.”345
An even odder instance of postal censorship involved One. In
April 1954, Senator Alexander Wiley, Joe McCarthy’s ally and colleague from Wisconsin, wrote the Postmaster General protesting the
willingness of the Post Office to carry a magazine “devoted to the
achievement of sexual perversion.”346 He maintained that its “lewd”
and “obscene” contents were inconsistent with President Eisenhower’s
339. For more detailed accounts of lesbian and gay novels and their occasional censorship, see JEANNETTE H. FOSTER, SEX VARIANT WOMEN IN LITERATURE (1956); AUSTEN, supra note 12, at 153.
340. Strange Sisters opens with the knifing of a man by a girl having variant tendencies because she was seduced by an older woman.
341. See Manual Enter., Inc. v. Day, 370 U.S. 478, 489 n.13 (1962). The account that
follows is taken from the briefs and the Court’s opinion.
342. See id. at 489 n.13.
343. See id.
344. See id. at 481.
345. Id. However, the United States Supreme Court found that these magazines
should not have been suppressed by the Post Office. See id. at 495.
346. Letter from Senator Alexander Wiley to Arthur Summerfield, Postmaster General (Apr. 28, 1954).
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anti-homosexual internal security program. 347 In response to this
pressure, Los Angeles Postmaster Otto Oleson sent a copy of each issue of One to the central Post Office for evaluation as lewd or obscene under the Comstock Act.348 The Post Office determined that
the October 1954 issue was obscene and lewd, based upon three articles within the issue: (1) Sappho Remembered , a story of a lesbian’s
affection for a twenty-year-old “girl” who gives up her boyfriend to
live with the lesbian, was considered obscene because it was “lustfully stimulating to the average homosexual reader”; (2) Lord Samuel and Lord Montagu, a poem about homosexual toilet cruising on
the part of several British peers, was considered obscene because of
“filthy words” within it; and (3) an advertisement for The Circle, a
magazine containing homosexual pulp romance stories, was thought
to lead the reader to obscene material.349 Based on these findings, the
Post Office determined the issue to be “non-mailable” and returned
all copies to the sender in December 1954. 350 Pursuant to a 1950
statute, the Post Office also had the power to impound mail flowing
to any person found to be using the mails to provide information
about any “obscene” thing.351 The Department of Justice also had
authority to seek criminal prosecution of persons who mailed obscene publications through the mails.352 Neither of these latter powers were utilized against One. Issues following the October 1954 edition were allowed to circulate, pending One’s legal challenge to the
censorship.
Movies in the postwar period contained few explicit references to
homosexuality, partly because of the voluntary Motion Pictures Code
adopted by the industry in 1934. Particular Application II.4 provided
that “[s]ex perversion or any inference to it is forbidden.” 353 To obtain
the Code imprimatur necessary for national distribution of a movie,
the producers had to satisfy the Code censors that their movie did
not refer to sex perversion.354 This often required a negotiating proc347. See id.
348. See One, Inc. v. Olesen, 241 F.2d 772, 773 (1957) (holding that the Post Office’s
determination that One was not mailable was not arbitrary and capricious), rev’d per curiam, 355 U.S. 371 (1958).
349. Id. at 774.
350. Id. at 773.
351. Act of Aug. 16, 1950, ch. 721, 64 Stat. 451 (current version at 39 U.S.C. § 3006
(1994)). In 1956, Congress confirmed that the Post Office had the authority to invoke this
impoundment power, albeit for just 20 days, without a hearing or an order from the
courts. See Act of July 27, 1956, Pub. L. No. 821, ch. 755, 70 Stat. 699.
352. See Comstock Act of 1873 § 2, 18 U.S.C. § 1461 (1994).
353. Motion Picture Producers and Distributors of America, Inc., A Code to Govern the
Making of Motion and Talking Pictures, (June 13, 1934) [hereinafter MPPDA Code], reprinted in MORRIS L. ERNST & ALEXANDER LINDEY, THE CENSOR MARCHES ON 317 (1940).
Application II.3 specified that “Seduction or Rape” . . . “should never be more than suggested, and only when essential for the plot.” MPPDA Code, supra.
354. See ERNST & LINDEY, supra note 353, at 86.
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ess in which movies were cut or rewritten to satisfy censors. 355 The
Tennessee Williams plays brought to the silver screen in the late
1950s—Cat on a Hot Tin Roof , A Streetcar Named Desire , and Suddenly Last Summer —bristled with homosexuality, which was required to be closeted for the films to receive Code approval. 356
Still, the state censor played a key role in discouraging mention of
homosexuality in movies. The Customs Service monitored foreign
films and freely impounded sexually oriented movies such as 491, a
Swedish film that included explicit scenes of homosexual fantasies and
man-boy sex. Foreign and domestic films willing to seek distribution
without Code imprimatur were also subject to state and municipal
censorship. Like many other cities, Los Angeles, required theaters to
obtain municipal licenses in order to show films357 and prohibited
movies depicting “any immoral, indecent, lewd, lascivious or unlawful
act, suggestion, business or purpose.”358 Like some states, New York
required moviemakers to obtain a license from the Department of
Education and prohibited licenses for movies that were “obscene, indecent, immoral,” and the like.359 In 1954, responding to a U.S. Supreme
Court decision requiring better notice as to what was allowed, New
York defined a film as “immoral” if “the dominant purpose or effect of
which is erotic or pornographic; or which portrays acts of sexual immorality, perversion, or lewdness, or which expressly or impliedly presents such acts as desirable, acceptable or proper patterns of behavior.”360 Laws like this one provided a third level of censorship, behind
the Motion Pictures Code and federal Customs Service.
3. Closing Down Homosexual Socialization
Federal as well as state and local officers conducted antihomosexual surveillance and censorship, but state and local governments alone suppressed homosexual socialization. Bars and
restaurants served as the main public places for same-sex socialization. These were critical locations for the formation of homosexual subcultures, especially for lesbians, who had fewer locations for
socialization than gay men. Lesbian-friendly bars and restaurants
nurtured the 1940s and 1950s “butch-fem” lesbian subculture.361
355. See id. at 89.
356. See VITO RUSSO, THE CELLULOID CLOSET: HOMOSEXUALITY IN THE MOVIES 115-18
(rev. ed. 1985).
357. See LOS ANGELES, CAL., CODE § 23.15 (1946).
358. Id. § 41.13(a). The ordinance authorized the police to seize any motion picture
violating subsection (a). See id. § 41.13(b).
359. N.Y. EDUC. LAW § 122 (1921) (repealed 1983).
360. Act effective April 12, 1954, ch. 620, § 1, 1954 N.Y. Laws 1494, 1494 (repealed
1983).
361. See ELIZABETH LAPOVSKY KENNEDY & MADELINE D. DAVIS, BOOTS OF LEATHER,
SLIPPERS OF GOLD: THE HISTORY OF A LESBIAN COMMUNITY 70-76 (1993).
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Big cities had several lesbian bars, as well as bars entertaining
mixed crowds of lesbians and gay men, or gays and tolerant
straights, as did many medium-sized cities such as Buffalo and
Tampa.362
The state’s primary response to these institutions was harassment through occasional police raids. Police raids, especially when
newspapers printed the names of those detained, were particularly
effective in communities with small lesbian and gay populations. A
more powerful regulatory weapon emerged after the repeal of Prohibition in 1933. Rather than prohibiting liquor, the state became the
vendor or the licenser of liquor sales in bars, taverns, hotel, and
other establishments. In most states, liquor licensing statutes or
agency regulations required that licensees be of “good moral character” and that licensed establishments not permit “disorderly” behavior on the premises.363 Violation of these conditions meant that a
liquor license—and hence the establishment’s main source of income—could be suspended or revoked by the liquor commission or
alcoholic beverage control board. New York’s Alcoholic Beverage
Control Law of 1934 required that “[n]o person licensed to sell alcoholic beverages shall suffer or permit any gambling on the licensed
premises, or suffer or permit such premises to become disorderly.” 364
The State Liquor Authority (SLA) interpreted “disorderly” in pari
materia with the state disorderly conduct statute, which specifically
applied to anyone who “loiter[ed] about any public place soliciting
men for the purpose of committing a crime against nature or other
lewdness.”365 Not only did the SLA suspend or revoke liquor licenses
to establishments that catered to homosexuals, but from the 1930s
onward, SLA undercover investigators also visited and revisited establishments to compile a record of same-sex dancing, kissing, and
solicitation, including solicitation of undercover agents. 366 With fewer
investigators, New Jersey’s Division of Alcoholic Beverage Control
more episodically disciplined homosexual establishments pursuant
to its Rule Four, adopted in 1934, which provided that no licensee can
allow in the premises “any known criminals, gangsters, racketeers,
362. See id.
363. E.g., Act effective May 27, 1935, ch. 16774, § 1, 1935 Fla. Laws 21, 22 (current
version at FLA. STAT. § 561.29 (1995 & Supp. 1996)) (license can be revoked for “permitting disorderly conduct”); Texas Liquor Control Act, ch. 467, § 12(e), 1935 Tex. Gen. Laws
1795, 1801 (current version at TEX. ALCO. BEV. CODE ANN. § 61.71(a)(11) (West 1995))
(revocation if licensee allows conduct that is “lewd, immoral or offensive to public decency”
or if licensee is convicted of a felony); Alcoholic Beverage Control Act, ch. 94, § 25(a), 1934
Va. Acts 100, 114 (current version at VA. CODE ANN. § 4.1-225(1) (Michie 1996)) (license
can be revoked for inappropriate behavior by owner or on premises).
364. N.Y. ALCO. BEV. CONT. LAW § 106(6) (McKinney 1934).
365. N.Y. PENAL LAW § 722(8) (McKinney 1952) (amended 1965).
366. See GEORGE CHAUNCEY, GAY NEW YORK: GENDER, URBAN CULTURE, AND THE
MAKEUP OF THE GAY MALE WORLD, 1890-1940, at 331-51 (1994).
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pick-pockets, swindlers, confidence men, prostitutes, female impersonators, or other persons of ill repute.”367
Other states and municipalities announced policies of suppressing gay bars after World War II. The prevailing policy was like New
Jersey’s Rule Four: bars where homosexuals and gender benders
congregated were in peril of losing their liquor licenses. In 1948, the
Michigan Liquor Control Commission issued Administrative Rule
436-3, which conditioned liquor licenses to bars, taverns, and cocktail lounges upon their refusing to serve liquor to homosexuals. 368
Virginia amended its liquor code in 1956 to permit license suspension of bars that become “a meeting place or rendezvous for users of
narcotics, drunks, homosexuals, prostitutes, pimps, panderers, gamblers, and habitual law violators.”369 As amended in 1949, Texas’s
liquor control act prohibited “solicitations of persons for immoral or
sexual purposes or relations.”370 There was even similar regulation at
the local level. In 1954, Miami adopted an ordinance making it unlawful for a licensed establishment to employ, serve, or allow to congregate “homosexuals, lesbians, or perverts.”371
The most ambitious regulatory effort existed in California. In
1934, California adopted its alcoholic beverage control (ABC) law,
which made it a misdemeanor for a licensed premise to be a “disorderly house” or a place “in which people abide or to which resort for
purposes which are injurious to the public morals, health, convenience, or safety.”372 Such a misdemeanor could also justify the ABC
Department’s revocation of the premises’ liquor license, 373 as would
any finding that “the continuance of a license would be contrary to
public welfare and morals.”374 Following the standard enforcement
techniques, these general “morals” rules were applied to close gay
bars, often for no reason other than serving drinks to a homosexual
clientele in the presence of undercover ABC agents. Pearl Kershaw,
367. One Eleven Wines & Liquors, Inc. v. Division of Alcoholic Beverage Control, 235
A.2d 12, 14 (N.J. 1967) (quoting N.J. Alco. Bev. Cont. Div. R. 4); see also id. (discussing In
re M. Potter, Inc., N.J. A.B.C. Bulletin 474, Item 1 (Alco. Bev. Cont. Comm’r Aug. 7, 1941)
(suspending liquor license because “effeminate” men danced and kissed one another on
the premises)).
368. See BÉRUBÉ, supra note 20, at 356 n.31.
369. Act of March 30, 1956, ch. 521, § 1, 1956 Va. Acts 749, 749 (current version at VA.
CODE ANN. § 4.1-225(1)(h) (Michie 1996)).
370. Act effective Oct. 4, 1949, ch. 543, § 1, 1949 Tex. Gen. Laws 1011, 1011 (current
version at TEX. ALCO. BEV. CODE ANN. § 104.01(7) (West 1995)). The Texas law also prohibited the premises from “[p]ermitting entertainment, performances, shows, or acts that
are lewd or vulgar.” Id. (current version at TEX. ALCO. BEV. CODE ANN. § 104.01(6) (West
1995)).
371. MIAMI, FLA., CODE § 51-35 (1954), reprinted infra Appendix 5.
372. Alcoholic Beverage Control Act, ch. 330, § 58, 1935 Cal. Stat. 1123 (current version at CAL. BUS. & PROF. CODE § 25601 (West 1996)).
373. See id. § 40 (current version at CAL. BUS. & PROF. CODE § 24200(d) (West 1996)).
374. Id. (current version at CAL. BUS. & PROF. CODE § 24200(a) (West 1996)).
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to take one celebrated example, ran a bar in Oakland that catered to
a mixed clientele.375 Two undercover Oakland police officers and
seven undercover ABC investigators visited her bar on fourteen different occasions in April, May, and November 1955. 376 They reported
dirty dancing by female-female and male-male couples, fondling and
caressing by male-female as well as same-sex couples, and the display of marriage rings by a male couple.377 One undercover investigator reported that a man rubbed his buttocks and loins. 378 Based upon
this sharp-eyed police testimony, the ABC Department revoked Kershaw’s liquor license.379
The most celebrated investigations involved the Black Cat Bar,
near North Beach in the San Francisco Bay area. 380 Allen Ginsberg described the Black Cat as “maybe the greatest gay bar in
America . . . . Everybody went there, heterosexual and homosexual.
It was lit up, there was a honky-tonk piano; it was enormous. All the
gay screaming queens would come, the heterosexual gray flannel
suit types, longshoremen. All the poets went there.” 381 Other observers credited its unique atmosphere to the performances by José Sarria, an over-the-top gay waiter who regaled Sunday afternoon crowds
with his campy rendition of the opera Carmen.382 Sol Stoumen, the
owner of the bar, spent most of his adult life and much of the bar’s
profits fighting the ABC Department in court. His first big license
revocation case grew out of an undercover investigation in 1949,
which, not surprisingly, yielded evidence that the bar was a homosexual hangout. After the courts overturned the revocation for not
complying with statutory criteria, the California Legislature in 1955
amended the ABC law to require license revocation
[w]here the portion of the premises of the licensee upon which the
activities permitted by the license are conducted are a resort for
illegal possessors or users of narcotics, prostitutes, pimps, panderers, or sexual perverts. In addition to any other legally competent
evidence, the character of the premises may be proved by the general
reputation of the premises in a community as a resort for illegal
375. See Kershaw v. Department of Alcohol Beverage Control, 318 P.2d 494, 496 (Cal.
Dist. Ct. App. 1957).
376. See id.
377. See id.
378. See id.
379. See id. at 498.
380. See Stoumen v. Reilly, 234 P.2d 969 (Cal. 1951) (en banc) (holding that evidence
was insufficient to support revocation of the license); D’EMILIO, supra note 20, at 186-88.
381. ALLEN GINSBERG, GAY SUNSHINE INTERVIEW WITH ALLEN YOUNG 33 (Allen Young
& Karla Jay eds., 1974); see also D’EMILIO, supra note 20, at 186-188; HENRY EVANS,
BOHEMIAN SAN FRANCISCO 16 (1955) (generally describing the Black Cat as a formerly
good drinking establishment gone “to hell” because “the new owner encouraged the
fruit[s]” to patronize it).
382. See D’EMILIO, supra note 20, at 187-88.
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possessors or users of narcotics, prostitutes, pimps, panderers, or
sexual perverts.383
This statute codified regulatory policies followed in New York and
New Jersey before World War II and in other jurisdictions after the
War. With extensive evidence of males kissing and caressing other
males and of lewd propositions made by patrons to undercover investigators, the Department again revoked the Black Cat’s license in
1957.
The 1955 law served as the most explicit legal notation for a nationwide war against homosexual bars. In 1954, Miami began enforcing an ordinance making it
unlawful for an owner, manager, operator or employee of a business licensed to sell intoxicating beverages to knowingly employ in
such business a homosexual person, lesbian of pervert as the same
are commonly accepted and understood. It shall likewise be unlawful for an owner, operator, manager or employee of a business licensed to sell intoxicating beverages to knowingly sell to, serve to
or allow consumption of alcoholic beverages by a homosexual person, lesbian or pervert, as the same are commonly accepted and
understood, or to knowingly allow two or more persons who are
homosexuals, lesbians or perverts to congregate or remain in his
place of business.384
Miami claimed the ordinance to be justified “to prevent the congregation at liquor establishments of persons likely to prey upon the
public by attempting to recruit other persons for acts which have
been declared illegal.”385 Through police harassment as well as liquor
board pressure, all of the Miami and Miami Beach lesbian and gay
bars went out of business in the late 1950s. Similarly, the municipal
police, county sheriff, and state liquor regulators worked to close
many of the Tampa bars, especially the lesbian bars, in the middle of
the decade.
Like Florida and California, other jurisdictions became more aggressive in policing gay bars in the 1950s and early 1960s. New Jersey’s ABC Division stepped up its enforcement activities and proceeded under Rule Five, as amended in 1950, to require licensees to
police their premises against “any lewdness, immoral activity, or
foul, filthy or obscene language or conduct, or any brawl, act of violence, disturbance, or unnecessary noise.” 386 Officials invoked Rule
Five against licensees who allowed homosexuals to congregate in
383. Act effective Sept. 7, 1955, ch. 1217, § 1, 1955 Cal. Stat. 2230, 2230 (repealed
1963).
384. MIAMI, FLA., CODE § 51-35 (1954), reprinted infra Appendix 5.
385. Inman v. City of Miami, 197 So. 2d 50, 52 (Fla. 3rd DCA 1967).
386. One Eleven Wines & Liquors, Inc. v. Division of Alcoholic Beverage Control, 235
A.2d 12, 14 (N.J. 1967) (quoting N.J. Alco. Bev. Cont. Div. R. 5).
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their establishments, while the Division disciplined them because
the assembly of homosexuals in any public space constituted a
“threat to the safety and morals of the public.” 387
Liquor regulators all over the country followed this policy of closing down bars simply because they were “havens for deviates,” as the
New Jersey ABC Division stated.388 This regulatory activism created
an extortion racket in which homosexual bars could remain open by
bribing or paying protection money to corrupt ABC inspectors and
local police.389 Homosexual bars also consequently had short lives,
albeit with possibilities for reincarnation. In 1960, the New York
SLA closed thirty gay bars in New York City, but new ones replaced
them almost overnight.390 In 1961-1962, the California ABC Department closed twenty-four bars in San Francisco, but twenty-five remained open, including the Black Cat, still fighting for the last of its
proverbial nine lives.391
II. SURVIVAL: THE MUTUALLY PROTECTIVE CLOSET
The anti-homosexual terror in the United States from 1947 to
1961 was a chilling echo of the anti-homosexual terror in Nazi Germany from 1933 to 1945.392 Consider the parallels:
• In 1933, Chancellor Adolf Hitler declared “homosexuals” to be an
enemy of the state because of their threat to German youth, public morals, and national reproductivity.393 In 1950, the U.S. Congress declared “homosexuals and other sex perverts” to be an enemy of the state because of their threat to American youth, public morals, and national security. President Dwight Eisenhower
made a similar declaration soon after he took office in 1953. 394
• Also in 1933, the Prussian Minister of the Interior ordered the
closing of homosexual houses and bars and banned obscene publications.395 American law had banned obscene publications since
387. Id. (quoting In re Louise G. Mack, N.J. A.B.C. Bulletin 1088, Item 2 (Alco. Bev.
Cont. Comm’r Nov. 2, 1955)).
388. Id. (quoting In re Polka Club, Inc., N.J. A.B.C. Bulletin 1045, Item 6 (Alco. Bev.
Cont. Comm’r Dec. 27, 1954)).
389. See, e.g., KENNEDY & DAVIS, supra note 361, at 74-75 (noting there were virtually
no raids of the Buffalo lesbian bars of the 1950s because “[p]olice payoffs seemed to have
been an institutionalized aspect of Buffalo vice”).
390. See Hall Call, Why Perpetuate This Barbarism?, THE MATTACHINE REVIEW, June
1960, at 14.
391. See SUSAN STRYKER & JIM VAN BUSKIRK, GAY BY THE BAY: A HISTORY OF QUEER
CULTURE IN THE SAN FRANCISCO BAY AREA 31 (1996).
392. See generally HIDDEN HOLOCAUST? GAY AND LESBIAN PERSECUTION IN GERMANY
1933-45 (Gunter Grau ed. & Patrick Camiller trans., Fitzray Dearborn 1995); RICHARD
PLANT, THE PINK TRIANGLE: THE NAZI WAR AGAINST HOMOSEXUALS (1986).
393. See generally PLANT supra note 392, at 1.
394. See supra note 226 and accompanying text.
395. See HIDDEN HOLOCAUST, supra note 392, at 27-31.
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the nineteenth century, a ban readily applied to homoerotic publications; most of the states prohibited bars where homosexuals
congregated once the states started regulating liquor licenses after the repeal of Prohibition in 1933.396
In 1934, the Prussian Minister of the Interior directed the preventive detention of habitual sex criminals convicted of molesting
children.397 In 1948, following the lead of Illinois and California,
and anticipating laws in other large states, Congress directed
the preventive detention of sexual psychopaths in the nation’s
capital, including people not even charged with a crime. Other
states, including Florida, followed the more lenient Nazi policy
of indefinite detention only for people convicted of sex offenses.398
In 1935, German expanded its sodomy law to make it a crime for
a man to commit any kind of “sex offense” with another man, including mutual masturbation and fondling, not simply oral and
anal sex;399 the new law introduced higher penalties for same-sex
intimacy with a minor.400 Sodomy laws did not include women.401
In 1953, Congress expanded the District’s public indecency law
to include private fondling and solicitation. 402 Similar developments occurred at the state level. Virtually all sodomy laws applied to women.
In 1936, Heinrich Himmler’s secret directive on combating homosexuality established a police bureau to “ensure uniform guidelines for central registration” of homosexual offenses. 403 In 1951,
California adopted a similar registration requirement, and other
states followed. National registration of “known” homosexuals
came close to congressional adoption in 1951 and 1952. 404
In 1936, the German Criminal Police established special units
for detecting and flushing out homosexuals. By the late 1930s,
homosexuals tended to be arrested in groups, as a result of
raids.405 The total number of prosecutions rose after 1936, and
sentences of those convicted tended to be longer. 406 Most American cities established special vice squads for detecting and flushing out prostitutes and homosexuals; by the 1950s, homosexuals
396.
397.
398.
399.
400.
401.
402.
403.
404.
405.
406.
See supra Part I.C.2-3.
See HIDDEN HOLOCAUST, supra note 392, at 36-37.
See supra Part I.A.1.
HIDDEN HOLOCAUST, supra note 392, at 64-67.
See id.
See id. at 64-67, 71-80.
See supra notes 60-61 and accompanying text.
HIDDEN HOLOCAUST, supra note 392, at 88-91.
See supra note 59 and accompanying text.
See HIDDEN HOLOCAUST, supra note 392, at 88, 132-33.
See id. at 131-32, 151-60.
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tended to be arrested in groups as a result of raids. The total
number of prosecutions rose after 1950, and the sentences of
those convicted tended to be longer.407
In 1936, the Reich Office for the Combating of Homosexuality
and Abortion began acting as a clearinghouse for homosexual
files.408 In the 1940s, the FBI informally collected information on
homosexuals, and after 1950, it did so systematically. Like the
Reich Office, the FBI shared the information with other enforcement agencies and with the Civil Service and even private employers.409
In 1937-1938, the Prussian Minister of the Interior decreed loitering in specified places for sexual contact to be illegal, and decoy police officers enforced this and other preventive detention
measures.410 The use of vagrancy/loitering laws and decoy cops to
terrorize homosexuals had been routine in New York and California since the 1920s and became routine in the District of Columbia, Philadelphia, Miami, Baltimore, and other cities after
1946.411
In 1942-1944, the Wehrmacht High Command and the Luftwaffe
Medical Corps developed guidelines for the special handling of
homosexuality in the armed forces. The regulations sharply distinguished between offenders engaging in homosexuality because
of “predisposition,” who were expelled, and those “who basically
have healthy sexual feelings” and were therefore allowed to serve
in the armed forces.412 In 1942-1944, the United States Defense
Department developed similar guidelines; after 1946, the American guidelines were more exclusionary than those of the
Wehrmacht and Luftwaffe.413
Beginning in 1937, the Reich sentenced a fraction of its homosexual offenders to concentration camps, where they were subjected to medical experiments and treatments, primarily castration.414 Beginning in 1935, but not in earnest until 1948, American jurisdictions sentenced a fraction of their homosexual offenders to hospitals or special prison wards, where they were subjected to medical experiments and treatments, primarily electrical shock and injections of hormones and drugs. 415
407. See supra Part I.A.2.
408. See HIDDEN HOLOCAUST, supra note 392, at 88-91, 109-10.
409. See supra notes 208-10, 231-35 and accompanying text.
410. See HIDDEN HOLOCAUST, supra note 392, at 138-150. However, Heinrich Himmler
did not approve of police officer entrapment of homosexuals. See id. at 150.
411. See supra Part I.A.2.
412. HIDDEN HOLOCAUST, supra note 392, at 166-67.
413. See supra Part I.B.1.
414. See HIDDEN HOLOCAUST, supra note 392, at 264-65, 272-92.
415. See generally KATZ, supra note 50.
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The main substantive difference between Nazi law and American
law was that the Nazis imposed harsher penalties for homosexuality:
frequently death by decree or by service in concentration camps. 416
Otherwise, the regulatory regimes appear much the same on paper.
Indeed, the Nazi regime sometimes appears more lenient.
Discovering so many points of substantive similarity between
Nazi law and U.S. law shocked me. In retrospect, the regimes seem
distinct mainly because the anti-homosexual terror in America failed
to destroy the homosexual subculture, although it did succeed at destroying many individual lives. On the other hand, the antihomosexual Nazis eradicated the thriving German homosexual subculture.
The Kinsey reports on male and female sexuality revealed that
laws prohibiting homosexual activity were honored only in the
breach.417 For every homosexual arrest, there were tens of thousands
of unarrested homosexual acts. State study commissions reported
that sexual psychopath laws received erratic, or nonexistent, enforcement.418 The witch hunts expelling gays from military and civil
service positions were relatively more effective, but only for brief periods of time. The large majority of homosexuals were able to retain
their jobs in either the military or civilian service. 419 Lesbian and gay
bars dropped like flies in the face of ABC or police harassment, but
like the mythical Hydra, every bar that closed was replaced by two
more. Notwithstanding censors, homosexual literature flourished after World War II like wildflowers in Tuscany, yielding some truly
distinguished authors (Tennessee Williams, Carson McCullers, and
William Inge) and an explosion of lesbian pulp romances that
swamped the country and made authors like Ann Bannon famous.420
Why did the American terror fail? The anti-homosexual campaign
was vulnerable on pragmatic grounds, for it would have been grossly
416. See HIDDEN HOLOCAUST, supra note 392, at 192-99, 264-92.
417. See ALFRED C. KINSEY ET AL., SEXUAL BEHAVIOR IN THE HUMAN MALE 659-66
(1948); ALFRED C. KINSEY ET AL., SEXUAL BEHAVIOR IN THE HUMAN FEMALE 484-87 (1953).
418. See TAPPAN, supra note 41, at 34-35 (discussing failure of states to enforce laws
or to enforce laws infrequently). Tappan found the laws of Illinois, Massachusetts, Michigan, New Hampshire, Washington, and Wisconsin substantially “innovative.” Even in
California, the District, and New Jersey, where the laws yielded double-digit cases each
year, observers reported the laws “ineffectual” and “inadequate.” Id.
419. See CRITTENDEN REPORT, supra note 187, at 4. The Crittenden Report found that
there was “some indication that the homosexuals disclosed [in military investigations]
represents only a very small proportion of homosexuals in the Navy.” Id. The report
summarized two studies of homosexual men who served in the armed forces: in one study,
45 of 52 men served without incident and only two were discharged for homosexuality;
five were discharged for other reasons. In the other study, 118 of 132 men served without
incident and only four were discharged because of homosexuality; 10 were discharged for
other reasons. See id.; see also WILLIAMS & WEINBERG, supra note 242, at 46-53.
420. See FOSTER, supra note 339, at 25; Gene Damon, The Lesbian Paperback,
TANGENTS, June, 1966, at 4-7.
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expensive to carry out properly, and it rested upon questionable and
sometimes unfounded ideas. The sexual psychopath laws were neglected in part because states were not willing to spend big money on
psychiatric treatment for sex offenders. Also, the terror generated its
own opposition. The hysteria and fear upon which the terror built
were not attractive in the long term to sensible Americans. More important, the campaign’s obsessive focus on sexual orientation minorities generated a strong sense of shared identity among gay people, as
well as anger at their persecution and a determination by few to do
something about it. Ironically, the American anti-homosexual terror
helped create a homosexual rights movement. On the other hand, the
Nazis successfully crushed the German homophile movement that had
flourished before 1933. This movement came close to repealing Germany’s sodomy law in 1929. Why did the American anti-homosexual
movement fail, while the Nazi-driven German version succeeded?
In my view, two additional factors reinforced the pragmatic problems that doomed the anti-homosexual campaign in the United States.
One was America’s constitutional structure, which is decentralized
and libertarian. Erasing a minority group is unusually difficult in
the United States, for it requires a sustained level of institutional
cooperation: for a national campaign, the President and both houses
of Congress must all enact laws, which then must be upheld and vigorously enforced in federal courts and agencies. States must also
agree to enforce the laws and to legislate in their own jurisdictions.
Unless there is strong consensus about a goal, such as the desire to
win World War II, the decentralized American system tends to act
slowly and run out of steam. A totalitarian state can more easily accomplish such erasure than can the lumbering and deliberative
United States. Also, specific constitutional and legal traditions in this
country afford several avenues of escape for Americans faced with a
substantial penalty, such as plea bargaining, acquittal by a jury, or
leniency imposed by a judge. Decentralization and libertarian tradition also offered critics of the terror many different avenues of affirmative resistance, such as lobbying legislatures, pressuring administrators, persuading judges or juries, or mobilizing public opinion.
These structural features of American government would have
been of less significance had the anti-homosexual terror not been
criticized by heterosexuals as well as homophiles. In researching this
Article, I was most surprised to discover that the 1950s witnessed a
shift toward greater tolerance in American intellectual and scientific
discourse about homosexuality. Expert medical opinion all but abandoned the “scientific,” as opposed to moralistic, premises of state
regulation, i.e., that homosexuals are psychopaths, recruit young
people, and are socially dangerous. Dr. Alfred Kinsey and Dr. Evelyn
Hooker are the experts usually associated with the rejection of these
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stereotypes, but the bulk of the medical establishment supported
their findings and views.421 The doctors who continued to advance
theories of sick homosexuals (Dr. Edmund Bergler and Dr. Irwin
Bieber) received disproportionate press attention, but the center of
expert gravity shifted toward the Kinsey-Hooker position in the
1950s. The shift was not limited to medical experts. The more discourse there was about homosexuality, paradoxically, the more normalized it became. As the state “outed” (to use the recent term) thousands of homosexuals, more Americans realized that they knew
somebody who was gay, and that realization had subtle effects on attitudes. That shift in attitudes did not mean that tolerant Americans
felt homosexuality was “good.” It only meant that homosexuality
came to be less demonized. A mutually protective closet supplanted
the straight-threatening closet for these Americans.
The foregoing features—the practical problems with antihomosexual programs, their intellectual vulnerability, and the usefulness of constitutional decentralization and the rule of law—decisively affected the organization and strategies of homosexuals seeking to survive the terror. All of these features have a libertarian element, protecting the individual against state invasion of a socially
defined private realm of freedom. The privacy idea, therefore, became a common ground for homosexuals and moderate homophobes
(i.e., people who were revolted by homosexuality but were relatively
tolerant). The privacy idea also informs the mutually protective
closet: homosexuals reside discreetly in the closet, and heterosexuals
do not open the door.
For the most part, homophile leaders and their groups (the Mattachine Society, the Daughters of Bilitis) seized upon the privacy
idea. Specifically, the homophile leaders of the 1950s emphasized
their legal privacy rights and de-emphasized their legal equality
rights. Thus, their embrace of the protective closet marginalized
more radical approaches. Although former Communist Harry Hay
was the founder and early guiding force of the Mattachine Society,
the homophile movement soon rejected his Marxist framework of
militant resistance. Also marginalized was the much tamer minority-rights approach of Donald Webster Cory. In The Homosexual in
America, Cory argued—remarkably so in 1951—that homosexuals
were a minority group worthy of equal rights like those afforded ethnic and racial minorities.422 The homophile movement did not necessarily disagree, but instead emphasized assimilative strategies for
homosexuals and appealed to moderate homophobes for grudging
421. See supra note 41 (noting California (Dr. Karl Bowman), Illinois (Dr. Charles
Bowman), New Jersey (Professor Paul Tappan), and New York (Dr. Bernard Glueck)
study commission experts supporting Kinsey and Hooker theories).
422. See CORY, supra note 208, at 300.
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tolerance on the ground that the homosexual, as opposed to the rapist and child molester, did no one any harm.
Although the homophile movement was later criticized for its assimilative embrace of the protective closet, this might have been the
most practical course of action in an intensely anti-homosexual society. Judges, the most important audience for homophile resistance,
were as anti-homosexual as any other group in the 1950s. However,
judges have traditionally been open to libertarian arguments and,
particularly during this period, attracted to “neutral” rights-based
arguments. In the 1950s and early 1960s, the Warren Court expanded procedural rights as a way of impeding racist and antiCommunist witch hunts. The rights developed in the race and political subversion cases were applicable to anti-homosexual cases so
long as judges were modestly tolerant or neutral, traits that many
possessed.
The interplay between homosexuals’ reliance on privacy as the
primary defense against the anti-homosexual terror and moderate
homophobes’ willingness to create a space for the nonpublic homosexual was important to the creation of the closet as a concept distinct from the double life. Like the double life, the closet involved secrecy. Unlike the double life, the closet involved secrecy about a matter Americans were increasingly interested in discussing and homosexuals were increasingly weary of hiding. The double-edged nature
of homosexuality rendered the closet an attractive compromise during the 1950s, and it contributed to the short-term survival of homosexual subcultures. On the other hand, the privacy of the mutually
protective closet was a problematic strategy for long-term survival.
The dispersion of power in our country offered as many opportunities
for official harassment by extreme homophobes as it offered avenues
of escape from incarceration for homosexuals. While the antihomosexual police officer can later be kept in check by the closetrespecting judge or prosecutor, the judge or prosecutor is limited in
her or his ability to stop the police officer from engaging in harassment in the first place.
In Los Angeles, to take the best documented example, the police
were eager to arrest gay men, even though prosecutors were willing
to plea bargain felonies into misdemeanors and lewd vagrancy
charges (for which registration was required and teacher’s certificates and professional licenses could be revoked) into public indecency charges (with few if any collateral consequences). 423 From the
homophile point of view, it was good that gay people did not go to
423. See Gallo et al., supra note 65, at 783 (noting that less than one percent of those
charged with sodomy and sex perversion felonies ultimately received felony dispositions or
sentences).
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jail, but unacceptable that they were arrested in the first place. More
important, the libertarian presumption was malleable, and its malleability undermined the possibility of the closet’s security as a hiding place.
A. Substantive Privacy (Criminal and Mil itary)
Chapter four of John Stuart Mill’s On Liberty is the inspiration of
a substantive understanding of legal privacy: neither the community
nor the state has any business telling a person how to make private
decisions in his or her life unless the person’s actions harm others or
the community at large through public action. Under Mill’s libertarian philosophy, the community cannot forbid you to do something
simply because it offends other people. This conception of substantive privacy served as a baseline for criticizing the highly intrusive
state campaign against homosexuals because it provided arguments
for toleration that did not concede that homosexuality was in any
way good or benign. This idea picked up a lot of support in the 1950s,
but its application by a fearful judiciary and legal intelligentsia diluted the conception of substantive privacy to the point of absurdity.
1. Legislative Policy: Refocusing State Criminal Law
Substantive privacy had its most powerful articulation in criminal code reform commissions. Following Paul Tappan’s suggestions
in New Jersey’s report on sex offenders, the Illinois Commission on
Sex Offenders, chaired by Professor Francis Allen of Northwestern
University Law School and advised by Dr. Charles Bowman, constructed its 1953 report around the “distinction . . . between sexual
deviates whose conduct in the community offends morals (e.g., homosexuals, exhibitionists), and dangerous, aggressive offenders whose
behavior is a community threat (e.g., rapists, child molesters).” 424
Like Tappan and the New Jersey Commission, the Illinois Commission urged regulatory action to focus on (1) “repetitive compulsive
acts” (peeping toms), (2) “forced relations,” and (3) relations involving an adult and a minor.425 The implication of both reports, as well
as those in California and New York, was that consensual same-sex
intimacy in private places was essentially not the concern of the
law.426
424. ILL. COMM’N ON SEX OFFENDERS, supra note 41, at 10-11.
425. Id. at 8-9.
426. See generally NEW JERSEY COMM’N ON THE HABITUAL SEX OFFENDER, supra note
41; ILL. COMM’N ON SEX OFFENDERS, supra note 41; CAL. DEP’T OF MENTAL HYGIENE, supra note 41; N.Y. RESEARCH PROJECT, supra note 41.
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Following the Illinois and New Jersey sex offender commissions,
the American Law Institute (ALI) narrowly voted in May 1955 to decriminalize consensual sodomy in a tentative draft of its proposed
Model Penal Code.427 The ALI reasoned that “[n]o harm to the secular interests of the community is involved in atypical [sic] sex practice in private between consenting adult partners. This area of private morals is the distinctive concern of spiritual authorities.” 428 The
drafters explicitly invoked Mill’s notion of the “protection to which
every individual is entitled against state interference in his personal
affairs when he is not hurting others.”429 Criminalizing such practices sapped valuable police resources, fueled blackmail rings, and
individual privacy through government interference.
Two years later, the United Kingdom’s Wolfenden Report repeatedly expressed its members’ disgust with homosexuality, yet the Report recommended that “homosexual behavior between consenting
adults in private should no longer be a criminal offense.” 430 The philosophy of the report was Millian from the outset:
What acts ought to be punished by the State? . . . In this field, its
function, as we see it, is to preserve public order and decency, to
protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of
others, particularly those who are specially vulnerable because
they are young, weak in body or mind, inexperienced, or in a state
of special physical, official or economic dependence.
It is not, in our view, the function of law to intervene in the private lives of citizens, or to seek to enforce any particular pattern of
behavior, further than is necessary to carry out the purposes we
have outlined. . . .431
Both the Wolfenden Report and the Model Penal Code recommended that homosexual solicitation, sex with minors—defined by
427. See MODEL PENAL CODE § 207.5 (Tentative Draft No. 4, 1955) (decriminalizing
fornication, adultery, and other sexual crimes not involving violence or children); see also
Louis Henkin, Morals and the Constitution: The Sin of Obscenity, 63 COLUM. L. REV. 391
(1963). Judge John Parker of the Fourth Circuit, the jurist whose nomination to the Supreme Court in 1930 was defeated because of his anti-civil rights and anti-union views,
vigorously opposed the move. The critical voice in favor of the proposal was Judge Learned
Hand of the Second Circuit, the most distinguished jurist in the nation. See generally
GERALD GUNTHER, LEARNED HAND: THE MAN AND THE JUDGE (1994).
428. MODEL PENAL CODE § 207.5 commentary at 277-78 (Tentative Draft No. 4, 1955).
429. Id. at 278.; see also id. § 207.1 commentary at 207:
The Code does not attempt to use the power of the state to enforce purely moral
or religious standards. . . . Such matters are best left to religious, educational and
other social influences. . . . [I]t must be recognized, as a practical matter, that in a
heterogeneous community such as ours, different individuals and groups have
widely divergent views of the seriousness of various moral derelictions.
430. COMMITTEE ON HOMOSEXUAL OFFENSES AND PROSTITUTION, UNITED KINGDOM,
THE WOLFENDEN REPORT 48 (Am. ed. 1963).
431. Id. at 23-24.
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the Wolfenden Report as people under the age of twenty-one—and
any kind of public indecency should remain criminal. 432 In the positivist tradition separating law and morals, these reformers were decidedly anti-homosexual but willing to set aside a private space—the
mutually protective closet—where homosexuals could exist without
state harassment.433
These suggestions stimulated a robust debate but virtually no
formal action in the 1950s. New York came closest to codifying these
suggestions when, in 1950, it followed the suggestions of its own
study commission and reduced consensual sodomy to a misdemeanor.434 In 1961, Illinois adopted the Model Penal Code, including
its allowance of consensual sodomy,435 but only after its committee of
prestigious lawyers bought off opposition from the Roman Catholic
Church by narrowing the Code’s defenses to abortion. 436 The lack of
receptivity to the Model Penal Code demonstrated how slowly would
be legislative progress toward the mutually protective closet. Traditionalists who viewed homosexuals as predatory child molesters,
subversives, and psychopaths incapable of controlling their emotions
and sexual urges would not be persuaded by such privacy arguments, for in their minds homosexuality always ran the risk of public
nuisance. While such thinking was substantially discredited among
intellectuals in 1961, it retained a hold on the larger culture. Even
its diminished constituency was sufficient to defeat efforts to change
the law; under our system, it is much easier to resist changes in the
law you oppose than to obtain the changes in the law you desire.
What I consider to be a representative glimpse into the privacy
debate among policymakers is afforded by the minutes of the advisory committee appointed to draft a revision in Florida’s sex laws. 437
The advisory committee immediately divided into two groups, a
group consisting of academics and psychiatrists, who favored the
Model Penal Code approach just adopted in Illinois, and a group
consisting of law enforcement officers and judges, who opposed any
Illinois-style deregulation. Dr. Walter Stokes, the main speaker for
432. See id. at 48-55; MODEL PENAL CODE § 207.4 commentary at 277-81 (Tentative
Draft No. 4, 1955).
433. See H.L.A. HART, LAW, LIBERTY, AND MORALITY (1963) (responding to Patrick
Devlin’s The Enforcement of Morals (1959), which responded to the Wolfenden Report).
434. See Act of Apr. 11, 1950, ch. 525, § 15, 1950 N.Y. Laws 1271, 1278-79 (current
version at N.Y. PENAL LAW § 130.38 (McKinney 1996)).
435. See Act of July 28, 1961, § 35-1, 1961 Ill. Laws 1983, 2044 (repealed 1984).
436. See Letter from Dr. Charles Bowman, Professor of Law, University of Illinois, to
[name blackened out] (June 15, 1964) (available at Fla. Dep’t of State, Div. of Archives,
ser. 1486, carton 2, Tallahassee, Fla.).
437. The account that follows is taken from Minutes of the Advisory Committee to the
Florida Legislative Investigation Committee, June 29-30, 1964 (available at Fla. Dep’t of
State, Div. of Archives, ser. 1486, carton 1, folder 15, Tallahassee, Fla.), as well as followup correspondence. Appendix 6 to this Article reproduces these minutes.
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the former group, argued that “the homosexual who engages in homosexual activities exclusively with other homosexuals in private
presents no harm or danger to society,” and others on his side
pointed to the disadvantages of retaining laws against consensual
sex, which were enforced arbitrarily and opened law-abiding citizens
to blackmail.438 Judge John Rudd, the main speaker for the other
side, objected that “to ignore consenting adults in private would certainly be to condone their actions and before long the problem would
be out of control.” He pointed to the federal government’s exclusion
of homosexuals from any position as evidence that homosexuals are
“security risks” and “defectors” who could not be trusted. 439 Law enforcement officer Duane Barker was the most adamant opponent of
deregulation. “I think that if we take adult, consenting homosexual
relationships out of the criminal category, then we’re going to increase our homosexual population in the State of Florida to the point
where no child will be safe anywhere, anytime.” 440 The advisory
committee could agree on no proposal for deregulating consensual
sodomy in Florida.
Moreover, the moderates favoring the Model Penal Code were encoding an odd and restrictive understanding of privacy and the
closet. The Model Penal Code criminalized solicitation of “deviate
sexual relations” (but not “nondeviate” sexual relations) if the solicitor loitered in a public place.441 Thus, one could have consensual homosexual intercourse in private, but only as long as the partner materialized from a nonpublic place. Unless the solicitation were a true
public nuisance, which was not a requirement of the Code, it is difficult to see how the solicitation was materially less private than the
consummation.442 To procure enactment of the Code in Illinois, the
sponsors were willing to prohibit any kind of public displays of affection between people of the same sex.
438. Id. at 8; see also id. at 9 (Dr. Kapchan: “ours is supposed to be a free society, and he
felt it to be immoral to invade the privacy of human beings if they are in no way encroaching
on the rights of another human being”); id. (Dr. Davis arguing there is no public purpose to
outlawing “private” conduct, as opposed to “public indecency”); Letter from Dr. Jack Kapchan, Assoc. Professor, University of Miami, to John Evans, Staff Director, Fla. Legis. Investigation Comm., July 7, 1964 (available at the Fla. Dep’t of State, Div. of Archives, ser. 1486,
carton 2, folder 3, Tallahassee, Fla.) (systematic statement of the medical-social science perspective favoring deregulation of consensual private intimacy but agreeing to regulate “homosexual behavior as deviant” so long as heterosexual fornication is deregulated).
439. Advisory Committee Minutes, supra note 437, at 7, 8 (paraphrase of Judge
Rudd’s remarks).
440. Letter from J. Duane Barker to John Evans, Staff Director, Fla. Legis. Investigation
Comm., July 13, 1964; see also Advisory Committee Minutes, supra note 437, at 8 (same position in meeting, that homosexuals will “go out looking for children,” to recruit them).
441. MODEL PENAL CODE § 207.5(4) (Tentative Draft No. 4, 1955).
442. See id. Because of the possibility that sexual intercourse can transmit venereal
disease, there would seem to be at least as much public risk from the “private” conduct as
from the “public” conduct.
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I should hypothesize that the discourse of privacy would have affected the enforcement of sodomy and other laws used to detain homosexuals. Judge Lamar Winegart, Jr., observed during the 1964
Florida advisory committee discussions that “as a practical matter, if
a couple engaged in sexual relations are actually in the privacy of
their room, then they never come to the attention of law enforcement
officers anyway.”443 This hypothesis receives substantial support
from the data. Sodomy arrest information for New York City and Los
Angeles support the hypothesis: by 1961, homosexuals arrested for
sodomy and sex perversion in those cities were usually the result of a
citizen complaint objecting to public sex or sex with a minor, or the
result of police observations of quasi-public (toilet, park) intercourse.444 The data for the District in Appendix 1B do not support the
hypothesis, at least insofar as they suggest the persistence of noncomplainant arrests for sex with an adult into the 1960s and 1970s.
This pattern may be more characteristic of southern and smaller cities. I should guess that cities in the Northeast and on the West Coast
and Great Lakes followed the pattern of New York and Los Angeles.
2. Judicial Policy: The Rule of Lenity
A bedrock precept of Anglo-American jurisprudence, the rule of
lenity posits that requisites for applying a criminal sanction must be
rigorously enforced and that ambiguities in criminal laws must be
resolved in favor of defendants. Homosexual defendants were typically middle-class men with resources to retain counsel and strong
incentives to avoid criminal prosecutions and to overturn convictions
of serious crimes. Before the homophile community started organizing in the 1950s, individual homosexuals and their attorneys fought
guerrilla operations against legislative and police broadening of antihomosexual criminal laws. These defendants had some (albeit unsystematic) success because the new laws clashed with traditional ruleof-law values, and because some judges, mainly at the trial level,
were willing to enforce those values.
Even at the height of the anti-homosexual terror, judges were
sometimes willing to narrow sodomy laws on the ground that they
did not provide sufficient notice of illegality to sexual deviants. Oral
sex, easily the most popular form of same-sex intimacy, remained incompletely regulated in states as different as New Mexico and New
Jersey because of narrowing interpretations by state courts. 445 In
443. Advisory Committee Minutes, supra note 437, at 5 (paraphrase of Judge Winegart’s comment).
444. See supra note 67 (New York); Gallo et al., supra note 65, at 718 (Los Angeles).
445. See, e.g., People v. Schmitt, 267 N.W. 741, 741 (Mich. 1936) (holding that the
state’s sodomy law does not include cunnilingus); Bennett v. Abram, 253 P.2d 316, 316
(N.M. 1953) (holding that the sodomy law does not include oral sex); State v. Morrison, 96
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1939, the Georgia Supreme Court interpreted its sodomy law to be
inapplicable to oral sex between two women.446 The court reaffirmed
this holding in 1963.447 In 1961, New York’s Court of Appeals interpreted its sodomy law to criminalize only active and not passive fellatio.448
On the other hand, decisions like these were exceptional. The
large majority of rule-of-lenity arguments were rejected, even when
the state law only prohibited the “infamous crime against nature,”
because such laws had an established judicial and popular meaning.
In the few cases where the rule of lenity narrowed sodomy statutes,
legislatures were willing to override them, as did New York in 1962
and Georgia in 1969. Also, so many different state criminal laws
were applicable to homosexual activity that the state could simply
shift from a narrowly construed law to a broader one if it truly desired to harass, arrest, or prosecute a defendant. The New York
Court of Appeals, for example, helpfully reminded the state that the
adult fellator could be prosecuted as an aider or abetter of the minor’s sodomitic crime.449
Appellate courts in the 1950s did little to narrow the application
of sodomy laws. Most of the narrowing of sodomy laws came through
more informal application of the rule of lenity by trial judges and
prosecutors. In the District of Columbia, most sodomy prosecutions
were against men who had sex with minors or forcible sex with adult
women.450 Although the District is the only jurisdiction for which I
have data about complaints, anecdotal evidence suggests that this
was the prevailing prosecutorial policy, and one that most trial
judges encouraged. Additionally, prosecutors were willing to accept
misdemeanor pleas in many of those cases, at least by the early
1960s. The UCLA Study found that forty percent of the sodomy and
oral copulation defendants were able to plead down to lewd vagrancy
or, in the large majority of cases, public indecency. 451 Trial judges
A.2d 723, 724 (N.J. 1953) (stating the sodomy law does not include oral sex); see also State
v. Evans, 245 P.2d 788, 789 (Idaho 1953) (interpreting child molestation statute to permit
judge to set maximum sentence at less than the statutory life sentence); State v. Vallery,
34 So. 2d 329, 331 (La. 1948) (refusing to enforce law prohibiting “any immoral act” on a
juvenile).
446. See Thompson v. Aldredge, 200 S.E. 799, 800 (Ga. 1939).
447. See Riley v. Garrett, 133 S.E.2d 367, 368 (Ga. 1963) (discussing male-female cunnilingus while reaffirming and applying Thompson). But see Fine v. State, 14 So. 2d 408,
410 (Fla. 1943) (applying crime against nature statute to male-female cunnilingus involving an adult and child); State v. Townsend, 71 A.2d 517, 518 (Me. 1950) (broadening
crime against nature statute beyond “sodomy or any other bestial and unnatural copulation”).
448. See People v. Randall, 214 N.Y.S.2d 417, 422-23 (N.Y. 1961).
449. See id. at 423-24.
450. See infra Appendix 1B.
451. See Gallo et al., supra note 65, at 770-75.
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accepted and often insisted upon public indecency as the maximum
penalty because that misdemeanor carried no further legal disabilities. A conviction of oral copulation or lewd vagrancy required registration and revocation of professional licenses, while a conviction for
public indecency did not.
Because of problems of proof, sodomy laws were less popular in
policing homosexuals than solicitation, vagrancy, and disorderly
conduct laws targeting homosexual overtures. The rule of lenity
sometimes circumscribed the usefulness of these laws, as is best exemplified by cases from Washington, D.C. and New York City. Lower
court judges affirmatively resisted police and legislative efforts to
criminalize homosexuals as a status group and enforced overt act requirements found in the statutes. As amended in 1923 to override
narrow lower court constructions, section 722(8) of New York’s penal
law made it a crime when a person, “with intent to provoke a breach
of the peace, or whereby a breach of the peace may be occasioned, . . .
[f]requents or loiters about any public place soliciting men for the
purpose of committing a crime against nature or other lewdness.” 452
As early as 1947, New York City magistrates complained of the “increasing tendency to employ section 722 whenever it is determined a
person should be arrested,”453 and the magistrates in the 1950s repeatedly rejected prosecutions that did not prove intended or probable breaches of the peace and active solicitation of sodomy.
At 2:00 a.m. on March 21, 1958, Benito Feliciano approached undercover patrolman Joseph Curry at 10 St. Marks Place, directly in
front of a turkish bath known as a hangout for gay men. Placing his
cupped hand on the genitals of Patrolman Curry, Feliciano offered to
perform oral sex. His arrest under section 722 was overturned by the
Magistrate’s Court, which followed precedents requiring proof of intended or actual breach of the peace.454 Also following earlier cases
that overturned disorderly conduct convictions of homosexuals,
Magistrate Charles Solomon questioned whether defendant’s conduct satisfied the “frequents or loiters” requirement of the disorderly
conduct law.455 His opinion further noted that the district attorney
had petitioned the New York Legislature to broaden the law to cover
“any person who, in any public place, invites or solicits another to
engage in or to participate with him in committing a crime against
nature or an act of lewdness or indecency.” 456 The Legislature failed
to enact that law, but even under this broader law some magistrates
would have been reluctant to sustain convictions. In other cases,
452.
453.
454.
455.
456.
N.Y. PENAL LAW § 722(8) (McKinney 1923) (amended 1965).
People v. Swald, 73 N.Y.S.2d 399, 400 (Magis. Ct. 1947).
See People v. Feliciano, 173 N.Y.S.2d 123, 124 (Magis. Ct. 1958).
See id. at 125.
Id. at 126.
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magistrates required concrete entreaties rather than winks and nods
to establish solicitation.457
Throughout this period, New York City’s magistrates conducted a
guerrilla war against broad application of New York’s disorderly
conduct law. As Magistrate Solomon put it, “The statute is not aimed
at sex deviation as such—‘degeneracy.’ . . . No conviction can be justified unless the facts fit into the statute. We may not predicate guilt
on the basis of personal aversion, revulsion, or detestation. Justice
under law is objective and impersonal.”458 Even from a homophobic
perspective, it would be hard to find fault with that philosophy and
the particular reasoning. The New York Court of Appeals ultimately
rejected these arguments, however. In People v. Lopez,459 the court
upheld a disorderly conduct conviction for simple homosexual solicitation.460 Three dissenting judges would have followed the lower
courts in requiring a breach of the peace, as the penal statute by its
plain language required.
In People v. Hale,461 the New York Court of Appeals reversed a
New York Supreme Court decision that overturned the conviction of
Kenneth Hale for soliciting an undercover cop. Hale had been arrested under the state’s vagrancy statute, which prohibited loitering
“for the purpose of inducing, enticing or procuring another to commit
lewdness, fornication, unlawful sexual intercourse or any other indecent act.”462 Against a dissenting judge’s objection that the statute
was aimed at loitering pimps and prostitutes, the court held that “it
applies equally to loitering homosexuals.”463 Four years later, the
same court applied another subsection of the vagrancy law to crossdressing homosexuals.464 In all these cases, the eminent New York
Court of Appeals was showing no “lenity” to homosexual defendants,
for it was extending broad, ambiguous statutes to criminalize harmless conduct. Inverting the rule of lenity, Lopez deleted an explicit
statutory requirement to convict the defendant.
In the District of Columbia, Associate Judge Andrew Hood of the
Municipal Court of Appeals conducted an almost single-handed
campaign to narrow the application of local statutes used to prosecute homosexuals. In Dyson v. United States ,465 the defendant was
convicted of assault when he fondled the genitals of a decoy cop with
457. See People v. McCormack, 169 N.Y.S.2d 139, 141-42 (Ct. Spec. Sess. 1957); People
v. Burnes, 178 N.Y.S.2d 746, 749-50 (Ct. Spec. Sess. 1958).
458. Feliciano, 173 N.Y.S.2d at 126.
459. 164 N.E.2d 720 (N.Y. 1959).
460. See id. at 721; see also People v. Liebenthal, 155 N.E. 2d 871, 871-72 (N.Y. 1959).
461. 168 N.E.2d 518 (N.Y. 1960).
462. Id. at 519 (quoting N.Y. CRIM. PROC. LAW § 887(4)(c) (McKinney 1960)).
463. Id.
464. See People v. Gillespi, 202 N.E.2d 565, 565 (N.Y. 1964).
465. 97 A.2d 135, 136 (D.C. 1953).
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whom he was engaged in casual conversation late at night. 466 Analogizing the unwelcome touching of an undercover cop to rape, the
court of appeals affirmed the conviction.467 Dissenting, Judge Hood
interpreted the assault statute to exclude touching to which the victim consented.468 He objected to the rape analogy, because the officer’s
conduct welcomed rather than discouraged fondling.469 Most of all,
Judge Hood objected to the witch-hunt nature of the prosecution.
Dyson “was charged with assault and convicted on proof of homosexuality.”470 In McDermett v. United States ,471 however, the court accepted
Judge Hood’s narrowing interpretation of the assault statute.472
The court’s narrowing construction of the District’s general assault statute still left the police free to prosecute the same conduct
under two statutes that had been broadened in 1953. One law made
it a crime to “entice” another person “for the purpose of prostitution
or any other immoral or lewd purpose,” and the other made it illegal
“to make any lewd, obscene, or indecent sexual proposal, or to commit any other lewd, obscene, or indecent act in the District of Columbia.”473 For reasons obscure to me, only the latter was subjected
to a narrowing interpretation by the courts. Tipped off by the local
probation department, Officer Arscott of the morals squad telephoned Carl Rittenour; representing himself as down and out, the officer asked if he could stay with Rittenour.474 After he followed Rittenour to the kitchen, Rittenour fondled the officer and invited him to
have sex, whereupon the officer arrested Rittenour.475 On appeal,
Judge Hood conceded the broad phrasing of the 1953 solicitation law,
but held that it “was not designed or intended to apply to an act
committed in privacy in the presence of a single and consenting person.”476 Judge Hood relied on the common law’s animus against
criminalizing private conduct and against status crimes.
3. Military Policy: The Crittenden Reevaluation
In 1956, the Navy appointed Captain S.H. Crittenden, Jr., to chair
a board to evaluate Navy policy regarding homosexuals. Captain
466. See id. at 136.
467. See id. at 138.
468. See id. at 138 (Hood, J., dissenting).
469. See id.
470. Id. at 139. This was in response to the prosecutor’s argument: “There is good reason to prosecute these cases. All the security agencies of the United States immediately
fire these people as weak security risks.” Id. at 138-39.
471. 98 A.2d 287, 289 (D.C. 1953).
472. See id. at 289; see also Guarro v. United States, 237 F.2d 578, 581 (D.C. Cir. 1956).
473. D.C. CODE § 2701 (1953) (enticing); id. § 22-1112 (indecent proposal/lewd act).
474. See Rittenour v. District of Columbia, 163 A.2d 558, 559 (D.C. 1960).
475. See id.
476. Id.
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Crittenden’s report, delivered on March 15, 1957 (after the height of
the witch hunting), is the most thorough snapshot of military policy
in that era, for it thoroughly researched the policies in the different
services and sought to understand the operation of the policies. 477
The report and its appendices also reflect the importance of the privacy concept in military setting.
Like most of the state sex offender study commission reports, the
Crittenden Report subjected “fallacies concerning homosexuality” to
fact-based analysis.478 It found no evidence to believe that homosexuals were per se security risks (rejecting the Hoey Subcommittee
findings on that point) or were unacceptable for military service. 479
The Board was also remarkably well aware of shifting medical and
legal opinion. It consulted leading medical experts, such as Dr. Francis Braceland, president of the American Psychiatric Association and
psychiatric consultant to the Navy’s Surgeon General, and Dr.
Manfred Guttmacher, chief medical officer of the Baltimore Supreme
Bench. The medical experts were uniformly supportive of the homosexual’s privacy rights even in the military setting. The Board
expressed due sympathy for these views but, in something of a
volte-face, recognized “the necessity within the naval service to adhere to the general policy of non-acceptance of the homosexual offender.”480
Although the Board did not reject the general policy of excluding
homosexuals, it did press other ways the armed forces could accommodate the privacy idea. Reflecting the unanimous view of medical
experts, the Board criticized the Navy’s written policy requiring doctors to report confessions of homosexual tendencies or acts to their
commanding officers. It noted that many medical officers exercised
their professional discretion to withhold such information and recommended that this practice “be tacitly recognized as permissible.” 481
Moreover, the Board was sensitive to the effect of a less than honorable discharge on the service person’s job opportunities and
community reputation, especially given the government-wide
promulgation of the reason for discharge under the Eisenhower
Administration’s policies. The Board recommended that personnel
separated for homosexual tendencies (Class III) be given the discharge
477. See generally CRITTENDEN REPORT, supra note 187.
478. CRITTENDEN REPORT, supra note 187, at 5-6.
479. See id. at 5-6, 46. While the report rejected the idea that homosexuality was a
mental disease, it did accept the idea that it was a symptom of “organic brain disease” or
other mental problems. Id. at 7. While the report found that “a homosexual is not necessarily more of a security risk, per se, than other transgressors of moral and criminal
codes,” it recognized that “homosexual activity, as in the case of promiscuous heterosexual
activity, [raises] serious security considerations.” Id. at 46.
480. Id. at 55.
481. Id. at 20.
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otherwise warranted by the person’s service record, usually honorable.482
The Board’s most interesting discussion involved the treatment of
service persons who committed a single, allegedly isolated, act of
same-sex intimacy. The report recommended that the Navy follow
the Army and Air Force policies of allowing personnel to remain in
service if they could persuade the government that they were not
“confirmed homosexuals.”483 This “queen for a day” exception to the
homosexual exclusion illustrates how the privacy idea helped create
an apartheid of the closet. The homosexual in the Navy could have
an active sex life because, according to the Crittenden Report, few
active homosexuals were actually apprehended by the deviance gendarmerie. But within the Navy, the homosexual needed to be completely in the closet, even for the staff psychiatrist, who, perhaps,
had a duty to report any confession of homosexual tendencies. However, if apprehended, the homosexual could avoid a discharge by persuading the officials that he or she was actually heterosexual.
The Crittenden Report’s well-intentioned recommendations,
which reflected relatively progressive views for the era, nonetheless
featured the worst aspects of the mutually protective closet. The report pandered to existing social disapproval of homosexuality, insisted upon an increasing degree of psychiatric discourse, and then
allowed the ostensible heterosexual the “queen for a day” escape
hatch. The result: institutionalized dishonesty.
B. Procedural Privacy (Criminal)
In the 1950s, procedural privacy rights augmented whatever effect substantive privacy rights had on homosexual survival. While
substantive privacy limited the state’s ability to regulate personal
conduct, procedural privacy required the state to follow specified
procedures before it could regulate. Unlike substantive privacy,
which in the 1950s was mainly a legislative concern, procedural privacy was primarily a judicial concern.
1. Due Process Protections for the Homosexual Defendant
Almost half of the assurances in the Bill of Rights involve criminal procedure: the right to be free of unreasonable searches and seizures,484 to avoid self-incrimination,485 to fair bail,486 to counsel and to
482. See id. at 24-26. The Board also recognized that the Navy ought to retain the
power to discharge dishonorably, lest someone should attempt to invoke the homosexuality exclusion to escape mandatory military service. See id.
483. Id. app. 3 at 434.
484. See U.S. CONST. amend. IV.
485. See id. amend. V.
486. See id. amend. VIII.
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trial by jury, 487 and to be free of cruel and unusual punishment. 488
Most state constitutions provide similar rights, and the U.S. Supreme Court has held that some of the criminal procedure rules of
the Bill of Rights are directly applicable to the states through the
Due Process Clause of the Fourteenth Amendment. 489 In the 1950s,
the U.S. Supreme Court and the California Supreme Court vigorously elaborated upon the rights of accused criminals. This had a
pervasive effect on people accused of serious homosexual offenses
and probably contributed to declines in anti-homosexual vice enforcement by 1961.
Because homosexuals who had any kind of social life could be arrested at any time (the bars, parks, and tearooms were heavily policed), it was important for them to know their legal rights. The
January 1954 issue of One contained a one-page statement of “Your
Rights in Case of Arrest”:
1. If an officer tries to arrest you, he should have a warrant
unless a misdemeanor (minor violation) or a felony (serious offense) has been committed in his presence, or he has reasonable
grounds to believe the person being arrested is guilty.
2. If he has no warrant, ask what the basis of arrest is. If it is
not explained in No. 1 above, go along but under protest made before a witness if possible. DO NOT RESIST PHYSICALLY.
3. GIVE NO INFORMATION. You may, but do not have to,
give your name and address. Do NOT talk to any policeman.
Q: “Why did you commit this crime?”
A: “I’m not guilty and I’d like to speak to my attorney,
please.”
Q: “How long have you been a lewd vagrant?”
A: “I’m not guilty, and I’d like to see my lawyer before making
a statement.”
Q: “Have you been arrested for this before?”
A: “I’m not guilty and my attorney would rather I speak thru
him.”
Q: “Nice day, isn’t it?”
A: “I’m sorry but I’d like a lawyer’s advice before making a
statement.”
4. Deny all accusatory statements by arresting lawyers officers
with, “I am not guilty and I’d like to contact a lawyer.” Otherwise,
your silence before witnesses can be construed in court as assent.
5. If an officer insists on taking you to jail, ask when you are
booked (registered) what the charges against you are.
6. Insist on using a telephone to contact your lawyer or family.
487. See id. amend. VI.
488. See id. amend. VIII.
489. See, e.g., Mapp v. Ohio, 367 U.S. 643, 655 (1961) (recognizing the extension of due
process to all constitutionally unreasonable federal or state searches).
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7. DO NOT SIGN ANYTHING. Take numbers of arresting
men.
8. You have a right to be released on bail for most offenses.
Have your attorney make the arrangements. Or you may ask for a
bail bond broker. For a fee, he will post (deposit with the police)
amount needed for your release.
9. Under no circumstances have the police a right to manhandle, beat or terrorize you. REPORT ALL SUCH INCIDENTS.
10. If you do not have an attorney by the time you are required
to plead guilty or not guilty, remember this:
a. You are entitled to a copy of the charges made against you.
b. You are entitled to have a lawyer. Ask for a postponement
until you get legal representation.
11. PLEAD NOT GUILTY.
12. Ask for a trial by jury unless your lawyer advises otherwise.
13. You are not required to testify against yourself in any trial
or hearing.
14. If you are questioned by a member of the FBI, you are not
required to answer. Immediately consult an attorney so that your
rights may be adequately protected.490
Many defendants, however, could not afford attorneys or were too
embarrassed by the arrest to contact an attorney. Without counsel,
such defendants were prone to confess to police or to plead guilty to
spurious charges. One Dade County, Florida, judge reportedly made
this comment regarding homosexuals swept up in bar raids: “I’ve
seen too many cases in my court where the prosecution is ready to
drop charges, but some damned fool pleads guilty, so I’m forced to
fine or sentence the man.”491 The rights listed in One were supplemented by judicial decisions creating new rights and procedures in
the 1950s and early 1960s.
2. Judicial Monitoring of Police Tactics
At a March 12, 1952, meeting of the fledgling Mattachine Foundation, Dale Jennings recounted his arrest by an undercover cop who
had followed him home from a public toilet, virtually forced his way
into Jennings’ apartment and then made the arrest for lewd vagrancy.492 With Harry Hay’s encouragement, Jennings decided to
fight the arrest. The Mattachine endorsed this course of action and
established the Citizens’ Committee to Outlaw Entrapment to raise
money and public consciousness.493 In its pamphlet, An Anonymous
490. Your Rights in Case of Arrest, ONE, Jan. 1954, at 14; see also Alison Hunter, ONE,
Mar. 1961, at 4-5. In the 1960s, San Francisco’s Society for Individual Rights and theMattachine Society of Washington printed similar lists on pocket-sized cards.
491. Charles K. Robinson, The Raid, ONE, July 1960, at 26.
492. See Jennings, supra note 79, at 10-13; see also supra text accompanying notes 7985.
493. The account that follows is taken from Jennings, supra note 79, at 13.
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Call to Arms, the Committee laid out the abuses engaged in by decoy
cops, including blackmail and perjured convictions. Two fundraising
events secured $1500, enough to retain a good attorney, George
Shibley. At trial, the defense admitted that Jennings was homosexual but denied that he had engaged in any prohibited conduct. Shibley argued that the police officer lied and caught him in an apparent
contradiction. The jury deliberated for forty hours and deadlocked
when one juror said he would vote a homosexual guilty “until Hell
froze over.” The judge dismissed the charges.
The Jennings case was significant in several respects. It strongly
reinforced the Mattachine’s interest in rights discourse and established the group as the focal point for homosexual resistance in
Southern California. In the mid-1950s, chapters formed in San
Francisco, Washington, and Denver serving similar functions in
these communities. Moreover, the case illustrated the abuses inherent in law enforcement by decoy cops and their trickery, which was
troubling to mainstream lawyers and judges. 494 This focus on police
misconduct served as a bridge between homosexual rights and mainstream tolerance.
Entrapment could be an attractive defense to lewd vagrancy or
solicitation prosecutions insofar as it focused attention on police conduct and away from disapproved homosexuality. This tended to be
the approach followed by California judges, who asked, “Was the
conduct of the law enforcement agent likely to induce a normally
law-abiding person to commit the offense?”495 As the Jennings case
illustrates, entrapment sometimes served as a viable defense in California, although vice squads predictably responded by requiring
their decoys to wait for suspects to make an overt act. 496 Most other
jurisdictions and the federal government, however, focused on a requirement that the defendant establish that he had no predisposition to commit the crime.497 This approach shifted attention back to
the defendant. The prosecution then refocused the case on the defendant’s “homosexual tendencies” or prior sex offense convictions. 498
Consequently, entrapment was a limited defense in most jurisdictions.
The conservative federal entrapment rule bound the District of
Columbia courts, but the U.S. Court of Appeals for the D.C. Circuit
494. See Donnelly, supra note 73, at 1091.
495. E.g., People v. Barraza, 591 P.2d 947, 955 (Cal. 1979) (elaborating upon People v.
Perez, 401 P.2d 934 (Cal. 1965)); see also MODEL PENAL CODE § 2.13(1) (1962).
496. See Gallo et al., supra note 65, at 701-07.
497. See, e.g., Sherman v. United States, 356 U.S. 369, 372 (1958); Sorrells v. United
States, 287 U.S. 435, 442 (1932).
498. See Donnelly, supra note 73, at 1102. Some courts rejected the use of prior convictions. See, e.g., Sherman, 356 U.S. at 375. Other courts rejected testimony on general
reputation. See, e.g., United States v. Collier, 313 F.2d 157, 159-60 (7th Cir. 1963).
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devised another evidentiary rule to regulate the risk of abusive tactics. In Kelly v. United States ,499 Judge E. Barrett Prettyman overturned the conviction of an analyst for the Public Health Service for
soliciting sex from an undercover police officer. 500 The officer was the
only witness to the alleged solicitation.501 Judge Prettyman observed
that the ability of a police officer to ruin the personal and professional life of a man merely by alleging a homosexual proposition ran
the risk of abuse, i.e., blackmail, as well as mistaken impressions. 502
To manage these risks, the court imposed procedural protections for
defendants in undercover cop cases: the testimony of a single witness
to homosexual solicitations should be received “with great caution;”
the defendant ought to be able to introduce evidence of good character; and, ordinarily, trial judges in the District ought to “require corroboration of the circumstances surrounding the parties” and their
interaction.503 In 1956, the court extended the Kelly rule to homosexual assault (fondling) cases.504
Kelly was potentially a milestone decision for curtailing entrapment by decoy cops, but its rule was rejected in most other jurisdictions.505 Generally, judges and juries in the District continued to convict homosexuals based upon nothing more than the decoy’s evidence, and the municipal court of appeals repeatedly affirmed. 506
One of the Kelly safeguards proved to be double-edged, in that encouraging defendants to introduce character evidence exposed the
secrets in the closet. Kelly’s own conviction was overturned in part
because his coworkers were willing to vouch for his good character,
i.e., heterosexuality, and he plausibly claimed that he was walking
through the park after a date with a woman. 507 In other cases, girlfriends or even wives served as character witnesses. 508 But once the
defendant’s character was invoked, the prosecution could usually
impeach it by introducing evidence of prior homosexual acts. In
499. 194 F.2d 150 (D.C. Cir. 1952).
500. See id. at 155.
501. See id. at 151.
502. See id. at 153-54.
503. Id. at 154-55. Kelly overruled decisions of the Municipal Court of Appeals that
had allowed such convictions, such as Brenke v. United States, 78 A.2d 677 (D.C. 1951).
504. See Guarro v. United States, 237 F.2d 578, 580 (D.C. Cir. 1956).
505. See, e.g., King v. United States, 90 A.2d 229, 231-32 (D.C. 1952).
506. See Berneau v. United States, 188 A.2d 301, 302 (D.C. 1963) (holding Kelly inapplicable to transvestite prostitute’s solicitation of decoy cop). The court required little
more than corroboration that the decoy and defendant were both present at the alleged
time and place. See id. at 302; see also Reed v. United States, 93 A.2d 568, 569-70 (D.C.
1953) (involving an officer’s testimony that was uncorroborated except as to time and
place); King, 90 A.2d at 231 (D.C. 1952); Bicksler v. United States, 90 A.2d 233, 234-35
(D.C. 1952).
507. See Kelly, 194 F.2d at 152.
508. See, e.g., King, 90 A.2d at 230 (upholding conviction despite character testimony).
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Dyson v. United States ,509 the municipal court of appeals upheld the
trial court’s consideration of the defendant’s admission of prior homosexual acts, over Judge Hood’s objection that this undermined the
Kelly rule.
The most important procedural defense developed specifically in
California involved police surveillance of public toilets. In 1962, the
California Supreme Court held that covert spying into enclosed public stalls invaded “the personal right of privacy to the person occupying the stall,” inconsistent with the person’s Fourth Amendment
right to be free of unreasonable search and seizure. 510 By extending
the protective closet to include “water closets,” the court was empowering homosexual cruisers vis à vis spying police.
3. Evidentiary Rules
Jurists such as Justice Carter in California, Judges Hood and
Prettyman in the District of Columbia, and Magistrate Solomon in
New York admonished prosecutors for trying to gain convictions on
the basis of defendants’ homosexual status rather than their conduct. The principle that status ought not be a crime was unevenly
applied in urbanized jurisdictions with large homosexual subcultures and substantial vice squads.511
In 1946, just before the panic began, the Oklahoma Court of
Criminal Appeals overturned the crime-against-nature conviction of
the Reverend Kenneth Cole, accused of sodomizing a fourteen yearold-boy in his congregation.512 The court found the boy to be a consenting accomplice—an inference derived because the boy attended
church the next day and failed to complain immediately. 513 The court
required his testimony to be corroborated; however, it was not. 514
Five years later, the same court upheld the conviction of Cleveland
Doss Woody for committing an unnatural act upon a fifteen-yearold boy.515 As in Cole, there was no evidence of coercion against the
boy, yet the court refused to apply the accomplice rule because the
509. 97 A.2d 135 (D.C. 1953).
510. Bielecki v. Superior Court, 371 P.2d 288, 299 (Cal. 1962). The decision was rejected in Smayda v. United States, 352 F.2d 251 (9th Cir. 1965).
511. See Robinson v. California, 370 U.S. 660, 666 (U.S. 1962) (reversing a conviction
essentially for the status of being a drug addict).
512. See Cole v. State, 175 P.2d 376, 380 (Okla. Crim. App. 1946). Reverend Cole was
convicted of sodomy in Cole v. State, 179 P.2d 176 (Okla. Crim. App. 1947).
513. See Cole, 175 P.2d at 379.
514. See id. at 378-79. The requirement that accomplice testimony be corroborated
was the old common-law rule, which was often codified by statute, for rape as well as sodomy cases. The conviction was reversed for lack of corroboration. See id. at 380.
515. See Woody v. State, 238 P.2d 367, 373 (Okla. Crim. App. 1951).
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defendant had failed to request it in a jury instruction. 516 Judge John
Powell justified the relaxed proof requirement by observing that:
[a]t any rate, perversion is sufficiently prevelent [sic] that the
moral forces of our State and Nation should ‘view with alarm’ and
become greatly concerned. . . . And while this class of case here
presented is shocking, and a consideration and treatment of the
facts and issues is approached with revulsion, courts, as well as officers, parents and the moral forces of this State and Nation, must
not shirk the onerous task involved in such problems, if a Sodom
and Gomorrah is to be forestalled.517
Later, Judge Powell and his colleagues delivered another sermon on
the threat to moral standards posed by “perverts” and again ignored
the accomplice rule.518
The tendency of many courts to allow prosecutors to put the defendant’s sexual orientation on trial is best illustrated by the evidentiary rules applied in such cases. The leading decision was that of
the Arizona Supreme Court in State v. McDaniel.519 The mother of a
fourteen-year-old boy charged that Winston McDaniel, a high school
teacher, performed fellatio on the boy while transporting him home
one evening.520 In addition to the testimony of the boy, the state introduced evidence that McDaniel was homosexual. 521 The appeals
court readily allowed the arresting officer to testify that, in casual conversation after the arrest, McDaniel admitted seeking medical help
and receiving shots to cure “his proclivity or desires for having unnatural sex acts with persons of the same sex as he.”522 The court held
that the admission was not subject to the rules governing admissibility
516. See id. at 373.
517. Id. at 371.
518. See Berryman v. State, 283 P.2d 558, 566 (Okla. Crim. App. 1955) (upholding a
five-year sentence for apparently consensual oral sex between an adult and a 15-year-old
boy). The court observed:
In recent months there has been an increase in the number of cases called to
our attention which involve homosexuals and other sex deviators. . . . “Exposure to the sex deviate may have a decisive and harmful effect upon a child’s
development of a normal sex life as an adult. Despite their differences of opinion, students of homosexuality seem to agree that exposure during adolescence
may be the precipitating factor in the adult development of the homosexual or
the Lesbian. The law must make it possible to take effective action against
twisted adults who use children and minors as sexual objects.”
See id. at 565 n.1 (quoting MORRIS PLOSCOWE, SEX AND THE LAW (1951)). The only leniency shown by the court was Judge Powell’s vote to reduce the prison sentence from five
to four years. His appeal for a shorter sentence was based upon “the duty of the State to
attempt the rehabilitation of sex perverts in view of the demoralization and moral decay
brought about by such persons” and the judge’s fear that “perverts” such as Berryman
would “prey” on young boys in prison. Id. at 566 (Powell, J., on rehearing).
519. 298 P.2d 798 (Ariz. 1956).
520. See id. at 799.
521. See id. at 800-01.
522. Id.
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of confessions.523 However, the court was more cautious than most
other courts of the 1950s, which routinely admitted confessions by
homosexual suspects to their arresting officers. 524
The McDaniel court further permitted the testimony of three
youths who said that McDaniel had solicited oral sex from them
prior to the charged incident.525 Judge Nicholas Udall upheld the
evidence on the ground that it was introduced only to show the defendant’s modus operandi and not his commission of other felonies. 526
Relying on Kelly, Judge Udall reasoned that:
Certain crimes today are recognized as stemming from a specific
emotional propensity for sexual aberration. The fact that in the
near past one has given way to unnatural proclivities has a direct
bearing upon the ultimate issue whether in the case being tried he
is guilty of a particular unnatural act of passion. The importance of
establishing this fact far outweighs the prejudicial possibility that
the jury might convict for general rather than specific criminality.527
McDaniel reflected the majority rule that most state courts allowed prior homosexual acts, whether the basis of an arrest or conviction, to be introduced to prove defendant’s modus operandi or,
simply, his propensity to commit such crimes. 528 The Kansas Supreme Court allowed the state to introduce “physical culture literature” and pictures of “unnatural sexual intercourse” to show defendant’s “disposition” to commit the crime of sodomy. 529 The Ohio Court
of Appeals held that “any act of the defendant, which . . . tends to
show a course of lascivious conduct, degeneracy and sexual perversion is admissible” to show his “character and moral disposition.”530
523. See id. at 801.
524. See, e.g., State v. Kehm, 103 A.2d 781, 782 (Del. Super. Ct. 1954) (admitting confession of defendants after high-speed chase). In Dyson, for example, the admissibility of
the defendant’s confession was considered too obvious to justify an extended discussion.
See Dyson v. United States, 97 A.2d 135, 135 (D.C. 1953).
525. See 298 P.2d at 801-02. The traditional Anglo-American rule is that evidence of
prior crimes is inadmissible on the ground that its relevance to the probability that defendant committed the charged crime is outweighed by its likely prejudice to the defendant
as a “bad person.” See CHARLES T. MCCORMICK, HANDBOOK ON THE LAW OF EVIDENCE 327
(1954); Herman L. Trautman, Logical or Legal Relevancy—A Conflict in Theory, 5 VAND.
L. REV. 385, 408-09 (1952).
526. See McDaniel, 298 P.2d at 802.
527. Id.
528. See State v. Huntington, 80 N.W.2d 744, 748-49 (Iowa 1957) (holding proof of
prior acts are admissible); Willett v. State, 584 P.2d 684, 685 (Nev. 1978) (specifically
adopting the McDaniel Rule); State v. Desilets, 73 A.2d 800, 802 (N.H. 1950) (finding a
prior act was admissible to show a plan).
529. State v. Fletcher, 256 P.2d 847, 848-49 (Kan. 1953) (holding that the trial court
did not err in permitting admission of advertising material and sexual photographs for the
limited purpose of proving the defendant’s disposition).
530. State v. Shively, 176 N.E.2d 436, 439 (Ohio Ct. App. 1960) (following State v.
Jackson, 81 N.E.2d 546, 548 (Ohio Ct. App. 1948)).
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Some judges—notably those in California—were more reluctant
to allow such evidence. In People v. Giani,531 the court affirmed the
reversal of a conviction because the prosecutor asked the defendant
if he was homosexual in order to demonstrate a propensity to violate
the oral copulation law.532 The court reasoned that such inquiries
would come close to indicting “an entire segment of the population”
and asked if an admission from the defendant that he was heterosexual would be admissible evidence in a rape case. 533 In other
states, the main debate was whether defendants could introduce expert evidence that they were not homosexual. In People v. Jones,534
the Supreme Court of California ruled that the trial judge committed
prejudicial error when he refused to allow the defendant to present
psychiatric evidence establishing that he was not a “sexual deviate.”535 The New Jersey Supreme Court rejected such evidence as excessively speculative but required judges to allow spouses and family
to attest to defendants’ heterosexuality.536 The leading Pennsylvania
case rejected both approaches with the view that “many admitted
sodomists are also given to the more normal and accepted methods of
sexual expression.”537
A defendant accused of same-sex intimacy could usually offer
proof that he was heterosexual. The U.S. Court of Military Appeals
held that the defendant was entitled to bring in evidence of good
character, for that tended to disprove the sodomy charge. 538 The
court ruled that it was prejudicial error for the legal officer not to
give the following instruction to the court martial panel: “The Court
is instructed that . . . an established reputation of good character
would alone create a reasonable doubt, although without it the other
evidence would be convincing” that the defendant had committed
sodomy.539
C. Substantive and Procedural Privacy (Civil)
The specific substantive and procedural privacy rights discussed
in the foregoing sections were largely inapplicable in the civil setting, where the government was normally depriving the homosexual
of employment, security clearances, and job opportunities. However,
the core concepts of due process were fully applicable. Procedurally,
531.
532.
533.
534.
535.
536.
537.
538.
539.
302 P.2d 813 (Cal. Dist. Ct. App. 1956).
See id. at 813.
Id. at 815.
266 P.2d 38 (Cal. 1954).
Id. at 43.
See State v. Sinnott, 132 A.2d 302, 309-10 (N.J. 1957).
Commonwealth v. Tacconelli, 45 Pa. D. & C.2d 654, 659 (Crim. Ct. 1968).
See United States v. Phillips, 11 C.M.R 137, 142 (C.M.A. 1953).
Id. at 141.
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FLORIDA STATE UNIVERSITY LAW REVIEW
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the state had to give the individual notice and a meaningful right to
be heard before it could deprive her of important governmental benefits. Substantively, the decision thus rendered could not be arbitrary
or inconsistent with legal requirements. These due process precepts
had little bite for homosexuals in the 1950s, though.
Before the anti-homosexual terror began in earnest, it was often
possible for apparent lesbians and gay men to protect their jobs,
even if at a price. Miriam Van Waters, for example, appealed to the
Governor of Massachusetts to preserve her job as superintendent of
the Reformatory for Women in 1948, and in March 1949, a panel appointed by the Governor recommended she be retained. 540 Estelle
Freedman believes that Van Waters was saved, in part, by society’s
confusion about the existence or nature of lesbianism. 541 Although
her Harvard-trained lawyer denied any homosexuality at the prison,
Van Waters sidestepped such questions by insisting that her duty
was to help rehabilitate the women (her success was astounding)
and that the psychiatrists should deal with any sexual relationships.542 Van Waters’ own bonds with women were lasting and loving, and her unwillingness to save her job and good name by denouncing homosexuality at the prison was admirable in 1948-49. In
1957, just before Van Waters was to retire, the Boston newspapers
rekindled the old charges of perversion. 543 A legislative committee
reported that “aggressive homosexuals and belligerent nonconformists” engaged in “unnatural acts” and “indoctrinated the new
admissions,” unchecked by the administration. 544 In October 1957,
after twenty-five years of service, Margaret O’Keefe, Van Waters’
deputy and friend during the 1948-49 witch hunt and her designated
successor, resigned under pressure.545
If Van Waters survived the purge in 1949, others like O’Keefe did
not in the 1950s. Unlike Van Waters, most survivors relied on the
deep closet—daily performances of heterosexuality—to keep their
jobs. It is striking how few relied on the law to protect themselves
from being fired or arbitrarily losing professional licenses. The U.S.
Supreme Court held that government employees enjoyed some constitutional assurance of fair treatment546 and in the 1950s regularly
540. See FREEDMAN, supra note 260, at 272-73.
541. See id.
542. See id. at 285.
543. See id. at 335-36.
544. Id.
545. See id. at 337.
546. See United Pub. Workers v. Mitchell, 330 U.S. 75, 102-03 (1947); see also Joint
Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 185 (1951) (finding that a hearing
is required before an organization can be designated as “subversive”). “The fact that one
may not have a legal right to get or keep a government post does not mean that he can be
adjudged ineligible illegally.” Id. at 185 (Jackson, J., concurring).
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overturned state employment policies aimed at political dissenters. 547
In 1958, the Court held that courts had jurisdiction to review military administrative discharges.548 In 1957, the Court recognized
state interest in “good character” requirements for the bar but held
that “it is equally important that the State not exercise this power in
an arbitrary or discriminatory manner nor in such [a] way as to impinge on the freedom of political expression or association.” 549 These
principles were more neutrally applied to “political deviants” than
they were applied to “sexual deviants” in the 1950s.
In government employment, “sex perverts” had few legal protections. President Eisenhower’s 1953 executive order, for example, forbade judicial review of personnel decisions, a posture the Supreme
Court did nothing to challenge.550 Military separations were governed by administrative procedures, which were, in the large majority of cases, short-circuited by pressuring the suspected homosexual
to resign. The protective closet gave such threats enormous persuasive power. Even if the suspect wanted to fight the discharge administratively or in court, there were usually no lawyers willing to
help.
In 1951, in response to an Air Force member’s petition for assistance, the ACLU advised that she seek medical treatment in order to
“abandon homosexual relations.”551 In 1957, the ACLU’s National
Board of Directors issued a similar opinion, stating that
“[h]omosexuality is a valid consideration in evaluating the security
risk factor in sensitive positions. . . . It is not within the province of
the Union to evaluate the social validity of the laws aimed at the
suppression or elimination of homosexuals.” 552
A handful of accused homosexuals instituted legal challenges.
The case of Corporal Fannie Mae Clackum demonstrates how removed from normal legal procedures the military could become in
the 1950s. Clackum, a reservist in the Women in the Air Force
547. See Shelton v. Tucker, 364 U.S. 479, 490 (1960) (invalidating state statute requiring teachers to disclose organizational affiliations); Schware v. Board of Bar Exam’rs
of New Mexico, 353 U.S. 232, 247 (1957) (holding that the state denied a political dissenter due process by denying him the opportunity to qualify for the bar); Slochower v.
Board of Higher Educ., 350 U.S. 551, 559 (1956) (holding the discharge of an employee for
invoking her Fifth Amendment rights was a violation of due process). But see Lerner v.
Casey, 357 U.S. 468, 478-79 (1958) (retreating from the position that an employee discharge for invoking a Fifth Amendment right was a violation of due process). See Wieman
v. Updegraff, 344 U.S. 183, 189 (1952) (striking down loyalty oath for state employees as a
violation of due process); Garner v. Board of Public Works, 341 U.S. 716, 720-24 (1951)
(reviewing but upholding municipal policy against employing political revolutionaries).
548. Harmon v. Brucker, 355 U.S. 579, 581-82 (1958).
549. Konigsberg v. State Bar of Cal., 353 U.S. 252, 273 (1957).
550. See Exec. Order No. 10,450, 3 C.F.R. 936, 938 (1953).
551. Bérubé & D’Emilio, supra note 242, at 291.
552. The ACLU resolution is reprinted in ACLU Position on Homosexuality,
MATTACHINE REV., Mar., 1957, at 7.
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(WAF), was repeatedly interviewed in 1951 about homosexuality and
was given an opportunity to resign.553 Having no clue as to the
charges against her, Clackum demanded a court-martial so she could
confront the charges.554 The Air Force dishonorably discharged her in
January 1952, still without informing her of the precise basis beyond
alleged homosexuality.555 It did so pursuant to regulations in which
the Air Force reserved the power to issue a dishonorable discharge
when lacking sufficient evidence to support a court-martial. 556 Although Corporal Clackum received a hearing on administrative appeal, the tribunal upheld her discharge based upon secret, hearsayridden affidavits that Clackum never saw until long after her case
was pending in court.557 Unlike thousands of other women and men
drummed out of the military on such charges, Clackum sued. In sustaining her claim, the Court of Claims held the discharge invalid because it accomplished “without any semblance of an opportunity to
know what the evidence against her was, or to face her accusers in a
trial or hearing.”558
Most of the legal protections theoretically available were not accessed by civilian federal employees until the ACLU—notwithstanding its endorsement of the policy against homosexuals in government—started taking these cases in the late 1950s. In 1961, the
Mattachine Society of Washington was founded. While Clackum
rested upon the procedural dimension of due process protection, a
few other litigants pressed the substantive dimension, by which government could not penalize employees without objective and defensible reasons.
William Lyman Dew was an Air Force veteran who worked as a
file clerk with the CIA.559 To obtain a security clearance, he took a lie
detector test that revealed that in 1950 he had engaged in at least
four “unnatural sex acts” with males, some of them for money, when
he was eighteen or nineteen years old.560 Under pressure, he resigned from the CIA but later rejoined the government as an air traffic controller.561 When the Civil Aeronautics Authority learned of his
admission to the CIA, it terminated his employment. 562 Dew denied
he was homosexual and introduced expert psychiatric evidence that
553. See Clackum v. United States, 296 F.2d 226, 226 (Ct. Cl. 1960).
554. See id. at 226.
555. See id. at 227.
556. See id. at 227.
557. See id. at 229.
558. Id.
559. See Dew v. Halaby, 317 F.2d 582, 582 (D.C. Cir. 1963), cert. dismissed, 379 U.S.
951 (1964).
560. Id. at 582.
561. See id.
562. See id.
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he did not have “homosexual personality disorder.” 563 Dew also introduced evidence that he was happily married and had two children.564 Notwithstanding these trophies of heterosexuality, Dew was
discharged in 1960. The D.C. Circuit denied his appeal. 565 The majority deferred to the administrative hearing officer, who had found
that anybody who commits acts “repugnant to . . . decency and morality” would undermine “the efficiency of [the service],” the criterion
for federal employment separation.566 Judge J. Skelly Wright dissented. He emphasized that “Dew is normal in all respects” and that
there was no rational connection between adolescent sexual experimentation and Dew’s ability to be an air traffic controller, a “job
which he badly needs to support his wife and two children.” 567 Although the court upheld Dew’s dismissal, the agency reversed itself
and promptly restored Dew to his former position after the Supreme
Court granted review in the case.568
Clackum and Dew, the first reported cases in which accused homosexuals won their jobs back, were themselves evidence of the
power of the closet. William Dew presented himself as a wronged
heterosexual, and Fannie Mae Clackum secluded her sexuality behind procedural veils. Like entrapment and unlawful search defenses in criminal cases, the due process argument in employment
cases deployed classic libertarian technique: shift focus from the
shameful substance (homosexuality) to neutral procedure (state misbehavior). The libertarian strategy not only paralleled the protective
closet but also helped create it by offering homophile groups and
moderate homophobes a common ground. It appeared that homosexuals would be left alone if they did not rock the boat.
III. RESISTANCE: THE GAY-THREATENING CLOSET
By 1961, the outlines of a mutually protective closet were in place.
Doctors and most legal experts advocated a “don’t ask, don’t tell” approach, in which discreet homosexuals would be left alone by the police and the civil service, with criminal and civil sanctions limited to
homosexuals who violated third-party rights through public solicitation or indecent exposure, sex by force or with a minor, and lewdness
on the job and in public spaces. This was a position congenial to the
authors of the leading state sex offender studies in the early 1950s,
563.
564.
565.
566.
567.
568.
(1964).
Id. at 583.
See id. at 583 n.3.
See id. at 589.
Id. at 587 n.10.
Id. at 591 (Wright, J., dissenting).
See Dew v. Halaby, 379 U.S. 904 (1964), cert. dismissed per stip., 379 U.S. 951
796
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including Professor Francis Allen and Dr. Charles Bowman (Illinois),
Dr. Karl Bowman (California), Dr. Bernard Glueck (New York), and
Paul Tappan (New Jersey); the American Law Institute and its most
distinguished member, Judge Learned Hand; Justice Jesse Carter
(California), Judges Barrett Prettyman and Andrew Hood (D.C.),
Magistrate Charles Solomon (New York), and probably Chief Justice
of the United States Earl Warren; Admiral R.H. Crittenden, as well
as the Fort Oglethrope, Georgia investigators, Lieutenant Colonel
Birge Holt and Captain Ruby Herman; journalists like John Gerassi,
who chronicled the “Boys of Boise” scandal, and Jess Stearn, who
authored a best-seller on the gay underground; Governors Pat Brown
of California and Nelson Rockefeller of New York; and Drs. Walter
Stokes and Paul Kapchan of the panel of experts advising Florida’s
Johns Committee. Their willingness to afford people substantial privacy in their personal sexual affairs was a position that would have
appealed to Miriam Van Waters and Margaret O’Keefe in Massachusetts, Eldridge Rhodes and Thomas Earl in San Diego, Dale
Jennings and his Mattachine colleagues in Los Angeles, the women
patronizing Jimmie White’s Tavern in Tampa, the mother of Merrill
Bodenheimer in Houston, WAC Sergeant Johnnie Phelps and WAF
Corporal Fannie Mae Clackum, William Lyman Dew of Washington,
D.C., teachers like Thomas Sarac and attorneys like Arthur Boyd in
California, Senators David Walsh and Lester Hunt, and bar owners
Pearl Kershaw, Helen Nickola, and Sol Stoumen.
While the outlines of such an accommodation were clear and
probably in the interest of a nation tired of talk about deviation, the
mutually protective closet was only partly in place by 1961. An important barrier was the continuing even if reduced influence of people who considered the gay closet threatening to larger society—
Senator Charlie Johns and his allies in Florida; FBI Director J.
Edgar Hoover and his intimate friend and professional deputy Clyde
Tolson; the hundreds of anonymous censors in the Customs Service,
Post Office, and state obscenity boards; San Francisco’s gay-bashing
Captain William Hanrahan and Mayor George Christopher; Senators Styles Bridges, Alexander Wiley, and George Smathers, McCarthyites still in the Senate in 1961; thousands of vicious police officers
who beat, raped, and blackmailed homosexuals across the United
States; and President Dwight Eisenhower and his crusading Postmaster General, Arthur Summerfield. Like-thinking people and
their constituencies not only stood as an impediment to legal reform
along the lines of the Model Penal Code and the Crittenden Report,
but also ensured the instability of the mutually protective closet. Because some in power were willing to attack and hurt homosexuals,
the closet could never be a secure hiding place for gay people. Living
in the closet not only sacrificed the gay person’s integrity, but did so
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without much assurance that straight society would respect the
closet’s private boundaries.
By 1961, lesbians and gay men were increasingly aware of the
closet’s high emotional costs and angry about its porous boundaries.
More of them were choosing to “discard the mask,” the term used in
the late 1950s for what we today would call “coming out of the
closet.”569 A 1959 article in the Village Voice explained why “so many
fairies [have] come out in the open” after years of “cring[ing] behind
a mask of fear.”570 According to the interlocutor, “Homosexuals have
submitted too weakly until now to judgments from above. . . . Many
of us are no longer willing to put up with this degrading of our personalities,” specifically, job discrimination, exclusion from the armed
forces and government service, sham marriages. 571 “Merely to live,
we must assert ourselves as homosexuals,” and “accept it or not, we
will force our way into open society and you will have to acknowledge
us.”572
The anger and an insistence on personal integrity were direct
consequences of government witch-hunting policies. Indeed, many of
the people who asserted themselves as gay were “cast out of the
closet” (the Johns Committee’s phrase) by state authorities. A teenager arrested for solicitation, a housewife rounded up in a bar raid, a
civil servant fired for tearoom loitering, or a WAC separated for suspicions of lesbianism were unmasked, outed by the government. For
many of those outed, the only healthy choice was to defy the closet
and associate oneself with other gay people. The early leaders of the
Mattachine Society of Washington (MSW), founded in 1961, were
Frank Kameny and Bruce Scott, both former civil servants whose arrests for solicitation had led to their firing and to the derailment of
their first career choices. Angered by their treatment, they fell back
on gay activism. Firing Kameny was a particularly bad mistake, for
he hectored federal anti-gay policies for the next generation, and
even today shows no signs of letting up.
Playwright James Barr (a pseudonym for James Fugaté) was negotiated out of the Navy when it discovered that he was the author of
two works dealing with homosexuality. Like the FBI, the Post Office,
and the Civil Service Commission, the Navy played a cat-and-mouse
game of interrogation with Barr until he agreed to separate. The
Navy did not actually out Barr, but its process of gay-bashing led
him to an increasing identification with fellow gay people:
569. E.g., Bob Bishop, Discard the Mask, MATTACHINE REV., Apr., 1958, at 14-16, 2124.
570. Seymour Krim, Revolt of the Homosexual, reprinted in MATTACHINE REV., May,
1959, at 4.
571. Id. at 5, 9.
572. Id.
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FLORIDA STATE UNIVERSITY LAW REVIEW
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For the first time in my life it was not a completely personal issue
with me. Whether I wanted to do so or not, in defending myself I
was forced to defend the rights and concepts of a group numbering
hundreds of thousands. . . . [F]or me, homosexuality was at last a
part of a progressing society.573
Although this epiphany did not occur for many people in the 1950s, it
was the beginning of a philosophy that saw the closet as threatening
to gay people.
The vicious yet sporadic persecution of the anti-homosexual terror
collaborated with the incomplete and inconsistent protection of privacy jurisprudence to make the closet problematic as a rational
strategy for gay people. In the half-generation after World War II,
law contributed to a conceptual shift from viewing the closet as a desirable refuge against witch hunters and social opprobrium to viewing it as an undesirable prison created by the lies one felt compelled
to offer.574 Law also contributed to the closet’s deconstruction by creating spaces for gay people to form and insist upon a public culture
in which they could express themselves and resist social pressure. In
the early 1960s, law contributed to fresh voices in the homophile
movement who believed that gays should insist upon public equality
rather than closeted privacy.
Before World War II, the Supreme Court recognized core rights of
political association and expression protected by the First Amendment575 and suggested that the Equal Protection Clause could be invoked by “discrete and insular minorities” penalized by a political
process infected by “prejudice.”576 These core rights were obviously
most important for political dissenters and despised minorities, for
they were the ones most likely to be suppressed by the body politic.
However, decisions by the Court during and just after World War II
did little to advance these ideals. In the Japanese curfew and internment cases, the Court held that the government needed the
strongest justifications for penalizing people because of race, but
573. James (Barr) Fugaté, Release from the Navy Under Honorable Conditions,
MATTACHINE REV., May/June, 1955, at 6, 42.
574. The conceptual shift links up with the linguistic shift noted in the Introduction.
The homosexual who “came out of the cloister” in the 1940s did so privately, first to him
or herself and then to others in the subculture. The homosexual who “came out of the
closet” in the 1960s did so publicly, to the conventional community.
575. See DeJonge v. Oregon, 299 U.S. 353, 364-65 (1937) (holding that a peaceful assembly for lawful discussion is protected by the First and Fourteenth amendments);
Herndon v. Lowry, 301 U.S. 242, 258-59 (1937) (preventing the state from abridging the
freedom of speech and assembly by striking down a statute that penalized assembly);
Stromberg v. California, 283 U.S. 359, 369 (1931) (declaring a state statute unconstitutional because of vagueness that could result in punishment of innocent persons displaying a red flag); Fiske v. Kansas, 274 U.S. 380, 386 (1927) (holding that a state statute was
an unlawful exercise of police power because it punished persons for lawful acts).
576. United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938).
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deferred to the unsubstantiated military judgment that JapaneseAmericans were a security risk justifying restrictions on their liberty.577 In 1951, the Court upheld the Smith Act, which made the
Communist Party and its activities illegal, upon finding that the
party’s revolutionary goals posed a sufficient danger to the polity as
to justify the suppression of free speech.578
The Warren Court expanded First Amendment and Equal Protection Clause parameters. In 1957, the Court overturned the convictions of fourteen Communist Party leaders on the ground that much
of the evidence against them involved advocacy of abstract ideas,
which was strongly protected by the First Amendment, and not concrete illegal action.579 The Warren Court’s most aggressive activism
involved the civil rights of African-Americans, starting with Brown
v. Board of Education 580 in which the Court refused to defer to traditional prejudice. In NAACP v. Alabama ,581 the Court recognized the
right to free association. Overturning Alabama’s subpoena of the
NAACP’s membership lists, the Court held that the First Amendment protects people’s right “to pursue their lawful private interests
privately and to associate freely with others in so doing.” 582 The
Court reiterated that right in Gibson v. Florida Legislative Investig ation Committee,583 which protected the Miami branch of the NAACP
from identifying its members to Florida’s Johns Committee.
Similar to the privacy cases, gay people and homophile groups did
not win most of the free expression cases during the 1950s. Nonetheless, the principles in those cases gave gay people a fair amount
of breathing room that facilitated the growth of lesbian and gay subcultures and, more important, political cooperation. Like Communists, homosexuals could advocate unpopular ideas and could band
together for that purpose. As a federal appellate judge stated: “Even
homosexuals and reprobates who prey upon their hapless condition
are entitled to find refuge in [the Constitution’s] dictates. Freedom of
association is one of them. Freedom of expression is another.” 584 For
gay people, the most important contribution of the free expression
577. See Korematsu v. United States, 323 U.S. 214, 223 (1944); Hirabayashi v. United
States, 320 U.S. 81, 112 (1943).
578. See Dennis v. United States, 341 U.S. 494, 516 (1951).
579. See Yates v. United States, 354 U.S. 298, 303, 313-14 (1957), overruled on other
grounds by Burks v. United States, 437 U.S. 1, 10 (1978); Scales v. United States, 367
U.S. 203 (1961); Noto v. United States, 367 U.S. 290, 297 (1961); Norman Dorsen, The
Second Mr. Justice Harlan: A Constitutional Conservative, 44 N.Y.U. L. REV. 249, 263-65
(1969).
580. 347 U.S. 483 (1954).
581. 357 U.S. 449 (1958).
582. Id. at 466.
583. 372 U.S. 539, 543 (U.S. 1963).
584. United States v. Zuideveld, 316 F.2d 873, 883 (7th Cir. 1963) (Swygert, J., dissenting).
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and equal protection jurisprudence was that it served as a complement or a counterpoint to the confining privacy jurisprudence.
A. Freedom of Association (The Homophile Organizations and Bar
Cases)
The Daughters of Bilitis and the Mattachine Society tailored their
goals precisely around First Amendment protection. The Mattachine
described itself as “a group of persons interested in doing research,
education, and conducting social action for the benefit of the variant
minority and, in turn, for the benefit of society as a whole.” 585 Its
mission statement emphasized that it intended “to accomplish this
program in a law-abiding manner. The Society is not seeking to overthrow or destroy any of society’s existing institutions, laws or mores,
but to aid the assimilation of variants as constructive, valuable and
responsible citizens.”586 The Society specifically denounced public
sex, sex with minors, and coercive intercourse. Even the extremely
homophobic FBI was able to conclude, after a six-month investigation, that the Mattachine Society was not an illegal subversive organization like the Communist Party (nor even a Communist front,
as the Director suspected).
The Daughters of Bilitis were so safe under the First Amendment
(or under stereotypes about women’s organizations) that the FBI
never opened an investigation of them. Their goals were “to enlighten the public about the Lesbian and to teach them that we
aren’t the monsters that they depict us to be,” 587 and to “offer[ ] the
Lesbian an outlet in meeting others. She can talk over her problems
with people versed in experience and study of her nature.” 588 That
the Daughters, like the Mattachine, went so far out of their way to
depict their activities as nonpolitical and educational probably reflected the fear both groups had in the early 1950s that state suppression of the Communist Party, reaffirmed by the Supreme Court
in 1951, could turn on them. Thus, early on, the First Amendment
was not understood as much of a prod toward publicity. Most of the
members of the Daughters and Mattachine were so frightened of exposure that they used pseudonyms even among themselves.
The First Amendment had other obvious limits that contributed
to the closeting of even these brave people. No one thought that the
constitutional guarantee of free speech protected someone caught
soliciting another person for sodomy or that the guarantee of free
585. THE MATTACHINE SOCIETY, THE MATTACHINE SOCIETY TODAY 1 (1954).
586. Id. at 8. The Society was also “unalterably opposed to Communists and Communist activity.” Id. The Communist Party returned the favor and expelled homosexuals
from its ranks.
587. D. Griffin, President’s Message, THE LADDER, Nov. 1956, at 2.
588. Del Martin, The Positive Approach, THE LADDER, Nov. 1956, at 8-9.
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association protected either Communists or homosexuals from being
fired from government jobs. This constitutional demarcation contributed to the protective closet, in which homosexuals had some
outlet for discussion so long as they were discreet. Although the state
could not force homophile groups to turn over membership lists, the
state could discover memberships through spying and stool pigeons.
This constitutional demarcation permitted space for the threatening
closet, into which the state could at any time pry to assure itself that
the homosexual was not about to break out and overthrow the country.
During the anti-homosexual terror, the most sustained legal resistance involving homosexual association arose out of the revocation
of liquor licenses. Lesbian and gay bars were apparently profitable;
not only did they flourish, but many neighborhood bars, such as Hazel Nickola’s in San Matteo, California, “went gay” and prospered.
When regulators sought to take away their licenses, some bar owners
retained counsel and got stays during the appeal process. (Most bar
owners, it appears, either paid off investigating agents or closed
their bars and reopened them under a new name.) On appeal, there
would sometimes be amicus briefs filed by ACLU or allied attorneys.
Sol Stoumen, the owner of San Francisco’s Black Cat, spent more
than $38,000 in legal fees over the course of a decade. 589 Challengers
were most successful when they could rely on procedural technicalities.
Even the moderate anti-homosexual states such as New Jersey
and New York initially refused to consider arguments resting upon
the social needs of homosexuals to congregate. In 1952, the New
York Court of Appeals held that the SLA could close bars that became regular resorts of homosexuals.590 The only cases that regulators seemed to lose in the 1950s were those where shocked police officers provided insufficient details to pin a bar to congregating deviants.591 The SLA tended to win all the cases in which it relied on detailed affidavits by its undercover investigators, who returned time
and again to an establishment to be shocked and fondled. New Jersey’s courts were even more acquiescent. In the leading case, the
ABC suspended the license of Paddock’s Bar simply for “permitting
persons who conspicuously displayed by speech, tone of voice, bodily
movements, gestures, and other mannerisms the common charac589. See Tenth Life for the Black Cat?, MATTACHINE REV., Nov. 1963, at 5-7.
590. See Lynch’s Builders Restaurant v. O’Connell, 103 N.E.2d 531, 531 (N.Y. 1952);
see also Gilmer v. Hostetter, 245 N.Y.S.2d 252, 253 (App. Div. 1963).
591. See Stanwood United, Inc. v. O’Connell, 126 N.Y.S.2d 345, 346-47 (App. Div.
1953) (declaring that a police officer’s testimony concerning one incident was insufficient
to revoke the petitioner’s liquor license); People ex rel. Fasone v. Arenella, 139 N.Y.S.2d
186, 190-91 (N.Y. Magis. Ct. 1954) (requiring substantial evidence to prove a violation of
an ABC law).
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teristics of homosexuals habitually and in inordinate numbers (on
one occasion, as many as 45) to congregate at the tavern, which, incidentally, was advertised to be ‘The Gayest Spot in Town.’ ” 592 Although there was no evidence of lewd solicitation or even conclusive
evidence that the patrons were practicing homosexuals, the court
upheld the suspension based upon the philosophy that immoral activity should be nipped in the bud, even before the danger of actual
immorality materializes.593
Only one state’s courts offered rule-of-law protections for gay
bars. In 1951, the California Supreme Court overturned the revocation of the Black Cat’s liquor license in Stoumen v. Reilly.594 The
Board of Equalization rested its decision on the undisputed fact that
homosexuals socialized at the Black Cat with Stoumen’s knowledge.595 The supreme court held that this was legally insufficient and
stated: “Members of the public of lawful age have a right to patronize
a public restaurant and bar so long as they . . . are not committing
illegal or immoral acts.”596 It was not clear whether that right was
constitutional, common-law, or merely statutory, but unlike the New
York and New Jersey courts, the California court relied on the right
as the basis for holding that the ABC statute was not violated by
proof of “patronage of a public restaurant or bar by homosexuals . . .
without proof of the commission of illegal or immoral acts on the
premises.”597
Arriving at the height of the anti-homosexual terror, Stoumen
was a brave decision, though the court hedged its bets by declining to
set forth the source of the right. The California Legislature responded in 1955 with the statutory amendment quoted in Part I. 598
The amendment threw down the legislative gauntlet. The ABC
closed down homosexual bars right and left, including Hazel Nickola’s bar, Pearl Kershaw’s bar, and of course the Black Cat. 599 In a
test case, Mary Azar and Albert Vallerga, owners of the First and
Last Chance Bar in Oakland, conceded that their bar was a resort
for homosexuals and argued that the 1955 amendment was uncon-
592. Paddock’s Bar, Inc. v. Division of Alcoholic Beverage Control, 134 A.2d 779, 780
(N.J. Sup. Ct. 1957) (emphasis added).
593. See id. To the same effect were Inman v. City of Miami, 197 So. 2d 50, 51 (Fla. 3d
DCA 1967); Kotteman v. Grevemberg, 96 So. 2d 601, 603 (La. 1957); Murphy’s Tavern, Inc.
v. Davis, 175 A.2d 1, 5 (N.J. Super. Ct. App. Div. 1961); In re Freedman, 235 A.2d 624, 625
(Pa. Super. Ct. 1967).
594. 234 P.2d 969, 972 (Cal. 1951).
595. See id. at 970.
596. Id. at 971.
597. Id.
598. See supra text accompanying note 383.
599. See Nickola v. Munro, 328 P.2d 271, 275 (Cal. Dist. Ct. App. 1958); Kershaw v.
Department of Alcoholic Beverage Control, 318 P.2d 494, 498 (Cal. Dist. Ct. App. 1957).
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stitutional.600 An amicus brief prepared by Morris and Juliet Lowenthal, ACLU attorneys who specialized in homosexual bar cases, supported their position. The California Supreme Court unanimously
invalidated the 1955 amendment as inconsistent with Stoumen, but
chose its words carefully. The court emphasized that the ABC Department did not rely on investigative reports of lewd conduct nor its
revocation authority under the pre-1955 statutory prohibition of
bars’ being used as a “disorderly house or place . . . in which people
abide or to which people resort for purposes which are injurious to
the public morals.”601 The court all but endorsed the results in Kershaw and Nickola, albeit under authority of the pre-1955 law and
not the 1955 amendment: “Conduct which may fall short of aggressive and uninhibited participation in fulfilling the sexual urges of
homosexuals, reported in some instances [Kershaw], may nevertheless offend good morals and decency by displays in public which do
no more than manifest such urges.”602 The court concluded with the
suggestion that reports of “women dancing with other women, and
women kissing other women” would have sustained a revocation
consistent with Stoumen.603
Although it was the first decision to strike down an antihomosexual statute as unconstitutional and was hailed by the homophile press and moderate homophobe press alike, Vallerga was
not revolutionary.604 It was a compromise that established a closet on
terms unfavorable to homosexuals: they had a theoretical right to
congregate, but not if they touched or kissed one another, as that
would be offensive to the hypothetical heterosexual. That the only offended heterosexuals likely to frequent these bars were undercover
investigators revealed that Vallerga acquiesced in the threatening
closet: same-sex dancing and kissing in a gay bar threatened the
morals of a society that would never see it but through the eyes of its
undercover investigators, who could quickly bust such an establishment. The California appellate courts got the message, upholding
post-Vallerga license revocations of the 585 Club, the Paper Doll,
and the Black Cat, based upon decoy cop testimony about kissing,
dancing, and advances by homosexual patrons.605
600. Vallerga v. Department of Alcoholic Beverage Control, 347 P.2d 909, 910 (Cal.
1959).
601. CAL. BUS. & PROF. CODE § 25601 (West 1954). Violation of this prohibition subjected a bar to the loss of its liquor license. See id. § 24200(b).
602. Vallerga, 347 P.2d at 912.
603. Id. at 912-13.
604. See, e.g., Adah Aragon, Note, Licensing Revocation: Premises of Liquor License as
Meeting Place for Homosexuals Not Good Cause, 7 UCLA L. REV. 804 (1960).
605. See Stoumen v. Munro, 33 Cal. Rptr. 305, 316 (Dist. Ct. App. 1963); Morrell v.
Department of Alcoholic Beverage Control, 22 Cal. Rptr. 405, 414 (Dist. Ct. App. 1962);
Benedetti v. Department of Alcoholic Beverage Control, 9 Cal. Rptr. 525, 528 (Dist. Ct.
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B. Freedom of Expression and Press (Homophile Publications and
Obscenity)
In 1942, the Supreme Court said that certain “classes of speech”
find no protection in the First Amendment:
These include the lewd and obscene. . . . It has been well observed
that such utterances are no essential part of any exposition of
ideas, and are of such slight social value as a step to truth that any
benefit that may be derived from them is clearly outweighed by the
social interest in order and morality.606
There was little dispute about the decision among lawyers in the
1950s, but considerable uncertainty arose as to exactly what “obscene” speech was. Were the lesbian-friendly stories in Vice-Versa
obscene? The postwar literature depicting homosexuals? News items
in The Ladder or One? A lot of people believed that any mention of
homosexuality without disapproval was legally obscene.
Two California decisions handed down in 1957 illustrated vastly
different viewpoints. The plaintiff, One, sued for an order declaring
its October 1954 issue mailable as nonobscene, and its appeal from
an adverse trial judgment reached the federal court of appeals in
1957.607 Judge Ross applied a traditional obscenity test of “whether
the tendency of the matter is to deprave and corrupt the morals of
those whose minds are open to such influence and into whose hands
a publication of this sort may fall” by allowing or implanting in such
minds obscene, lewd, or lascivious thoughts or desires. 608 Under the
traditional test, the court held that truly educational articles about
homosexuality would be protected, but the three items cited by the
Postmaster would not. The court noted that the three items were
“nothing more than cheap pornography calculated to promote lesbianism,” “dirty, vulgar and offensive to the moral senses,” and “morally depraving and debasing.”609
Judge Ross’s standard for obscenity had greatest support in the
older case law. However, more recent case law, such as the New York
federal court decisions disallowing Customs Service censorship of
James Joyce’s Ulysses, reflected another standard. The newer standard held that sexually open speech might serve discursive as well
as prurient functions, and courts should overturn censorship when
App. 1960), overruled by Kirby v. Alcoholic Beverages Control Appeals Bd., 87 Cal. Rptr.
908, 916 (Ct. App. 1970).
606. Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942) (dictum).
607. See One, Inc. v. Olesen, 241 F.2d 772 (9th Cir. 1957), rev’d per curiam, 355 U.S.
371 (1958).
608. Id. at 775.
609. Id. 777-78 (referring to the short story Sappho Remembered, the poem Lord Samuel and Lord Montagu, and an advertisement for the magazine The Circle, respectively).
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literature had any socially redeeming feature. Allen Ginsberg’s Howl
both tested and expressed this anti-conformist understanding of the
First Amendment, for it elegized “the best minds of my generation by
madness,” those
who bit detectives in the neck and shrieked with delight in
policecars for committing no crime but their own wild
cooking pederasty and intoxication,
who howled on their knees in the subway and were dragged off
the roof waving genitals and manuscripts,
who let themselves be fucked in the ass by saintly
motorcyclists, and screamed with joy,
who blew and were blown by those human seraphim, the
sailors, caresses of Atlantic and Caribbean love,
who balled in the morning in the evenings in rosegardens and
the grass of public parks and cemeteries scattering
their semen freely to whomever come who may.610
The newer standard was liberally applied by Judge Clayton Horn
of the San Francisco Municipal Court when he evaluated the charges
against Lawrence Ferlinghetti for selling Howl. As to the state’s
charge that Howl used “filthy, vulgar, obscene, and disgusting language,” Judge Horn replied:
The authors of the First Amendment knew that novel and unconventional ideas might disturb the complacent, but they chose to
encourage a freedom which they believed essential if vigorous enlightenment was ever to triumph over slothful ignorance. . . .
The theme of “Howl” presents “unorthodox and controversial
ideas.” Coarse and vulgar language is used in treatment and sex
acts are mentioned, but unless the book is entirely lacking in “Social importance” it cannot be held obscene.
. . . The People state that it is not necessary to use [vulgar]
words and that others would be more palatable to good taste. The
answer is that life is not encased in one formula whereby everyone
acts the same or conforms to a particular pattern. No two persons
think alike; we were all made from the same mold but in different
patterns. Would there be any freedom of press or speech if one
must reduce his vocabulary to vapid innocuous euphemism? An
author should be real in expressing his thoughts and ideas in his
own words. . . .611
Finding that Howl was indeed “real” in this way, Judge Horn acquitted Ferlinghetti.
Later that year, in Roth v. United States ,612 the Supreme Court
spoke for the first time on the relationship between obscenity and
610. GINSBERG, supra note 335, at 3-4.
611. People v. Ferlinghetti, Decision of October 3, 1957, reprinted in GINSBERG, supra
note 335, at 173-74.
612. 354 U.S. 476 (1957).
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the First Amendment. The Court held that obscenity was not speech
under the First Amendment, but limited obscenity to “material
which deals with sex in a manner appealing to prurient interest,”
that is, “material having a tendency to excite lustful thoughts.” 613
Justice William Brennan’s Roth opinion seemed to fall between
Judge Ross’ broad view of obscenity in One and Judge Horn’s broad
view of the First Amendment in Ferlinghetti. Indeed, he explicitly
endorsed the centrist approach expressed by the ALI’s draft Model
Penal Code. The ALI posited that a work was obscene “if, considered
as a whole, its predominant appeal is to prurient interest, i.e., a
shameful or morbid interest in nudity, sex, or excretion, and if it goes
substantially beyond customary limits of candor in description or
representation of such matters.”614 Under such a vague standard,
reasonable people might differ as to the obscenity of Howl or Sappho
Revisited.
Notwithstanding the many ambiguities of Roth, the Supreme
Court took a stronger stand on issues of homosexual expression. In
January 1958, the Court, in a one-sentence unsigned opinion, reversed the Ninth Circuit’s One disposition.615 The Court’s citation of
Roth616 suggested that the Court was open to the view that discussion of homosexuality and same-sex intimacy was not itself an appeal to “prurient” interests. In another application of Roth, the
Court, in Kingsley International Pictures Corp. v. Regents ,617 struck
down New York’s film licensing law banning movies presenting acts
of “sexual immorality, perversion, or lewdness . . . as desirable, acceptable, or proper forms of behavior.”618 Because the law targeted
movies for advocating specific ideas (adultery in Kingsley), it violated
the First Amendment’s core guarantee. In Manual Enterprises, Inc.
v. Day,619 the Court held that the Post Office could not refuse mail
services for male physique magazines.620 The plurality opinion by
Justice Harlan assumed that such magazines had a “prurient” appeal to male homosexuals, but held them nonobscene because pictures of semi-nude male physiques were not “patently offensive” to
community standards.621
613. Id. at 487-88 n.2.
614. MODEL PENAL CODE § 207.10(2) (Tentative Draft No. 6, 1957).
615. See One, Inc. v. Olesen, 355 U.S. 371, 371 (1958) (per curiam).
616. See id.
617. 380 U.S. 684 (1959). The Court first applied the First Amendment to movies in
Burstyn v. Wilson, 343 U.S. 495 (1952).
618. Id. (quoting N.Y. EDUC. LAW § 122-a (McKinney Supp. 1958)).
619. 370 U.S. 478 (1962).
620. See id. at 482.
621. Id. Justice Harlan’s opinion was joined by Justice Stewart. See id at 479. Three
Justices (Brennan, Warren, Douglas) concurred in the judgment on the ground that the
Post Office did not have authority to ban mail. See id. at 518-19 (Brennan, J. concurring).
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One, Kingsley, and Manual Enterprises suggested that homosexual literature, film, and erotica were protected by the First Amendment. Unfortunately, lower federal and state courts did not read the
precedents in a pro-homosexual manner. The New York Court of Appeals said that “[d]epicting dirt for dirt’s sake, the obscene is the vile,
rather than the coarse, the blow to sense, not merely to sensibility. It
smacks, at times, of fantasy and unreality, of sexual perversion and
sickness . . . .”622 The U.S. Court of Appeals for the Seventh Circuit
upheld the Comstock Act convictions of Nirvana and Jack Zuideveld
for sponsoring a correspondence club, “The Adonis Male Club,” among
the subscribers to their male physique magazines, Vim and Gym.623
Although the magazines were not obscene under Manual Enterprises,
the Zuidevelds were charged with conspiracy to circulate “vile,” obscene letters,624 which many of the Adonis Club letters concededly
were. The conviction seems to have been based mainly upon the
Zuidevelds’ knowledge that their subscribers were male homosexuals.
Roth and the Supreme Court’s subsequent obscenity decisions
tangibly contributed to the explosion of lesbian and gay subcultures,
and to their inclusion within American culture. The One and Manual
Enterprises decisions largely insulated informational publications,
male physique magazines, and almost all of the lesbian pulp romances from state regulation. The same year that Roth was handed
down, Ann Bannon’s Odd Girl Out was published. Bannon became
the most successful lesbian romance author and her success encouraged other authors and publishers to enter this lucrative market. Although not considered well-written literature today, the 1950s lesbian romances were the first positive expression of same-sex desire
most women could find before 1969. Unlike Radclyffe Hall’s depressing Well of Loneliness, most of the romances written by Bannon
and other leading authors had happier endings. In short, this literature affirmed that lesbians were human beings who could enjoy
happy, productive, middle-class lives. Other work validated in the
face of censorship included great literature such as James Baldwin’s
exploration of a gay-threatening closet in Giovanni’s Room.
More importantly, the Supreme Court decisions substantially
raised the cost of censorship. Gone were the days when Customs
Service officials, Post Office personnel, and state boards could simply
decree what would be available to citizens. These proceedings were
Justice Black concurred in the result without opinion. See id. at 495. Justice Frankfurter
did not participate. See id. Justice Clark dissented. See id. at 519 (Clark, J., dissenting).
622. People v. Richmond County News, 175 N.E.2d 681, 686 (N.Y. 1961). A similar approach was applied to censor magazines displaying nude males. See People v. G.I. Distributors, Inc., 228 N.E.2d 787, 789 (N.Y. 1967).
623. See United States v. Zuideveld, 316 F.2d 873, 875-76, 881 (7th Cir. 1963).
624. Id. at 877.
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expensive for the porn purveyors as well, but the Supreme Court
provided procedural advantages that made lesbian and gay erotica
widely available.
Most of the state and municipal laws allowed censors or the police
to seize the allegedly obscene materials, sometimes without notice
such as through the Customs Service, and usually without a prior
hearing of any kind. In Marcus v. Search Warrant ,625 the Supreme
Court held that the seizure of allegedly obscene materials based
upon an ex parte petition to a magistrate was unconstitutional because it would have a chilling effect on the promulgation of materials
protected by Roth.626 In Bantam Books, Inc. v. Sullivan ,627 the court
more broadly prohibited even informal “prior restraints” by state actors against allegedly obscene materials.628 The Court extended Bantam’s strong presumption against prior restraints to protect allegedly obscene movies in Freedman v. Maryland .629 Films had not been
protected by the First Amendment until the 1950s, and Freedman
clinched the proposition that film was an expressive medium similar
to newspapers and novels.
Censorship is a sieve-like process under the best of circumstances, and the Supreme Court’s ever-changing, and generally
stricter, requirements for censorship made it virtually nonexistent
after 1961. Lesbian romances and male physique magazines continued to flourish, and were joined in the 1960s by a wider array of informational newsletters and magazines, openly gay erotica, and even
gay characters in films. The relaxation of the Motion Picture Production Code to allow mention of homosexuality in 1961, and the Code’s
subsequent collapse, was surely abetted by the Supreme Court’s application of free-speech precepts to film in Kingsley. Although American motion pictures continued to depict homosexuals in grotesquely
stereotypical terms, European films presented gay characters more
naturally. These films were subject to much less censorship in the
1960s and, by the 1970s, virtually none at all. More importantly,
Roth confirmed that radio and, later, television were free to air programs discussing homosexuality “so long as the program is handled
in good taste,” according to the Federal Communications Commission.630 In short, gay characters and themes became part of American
public culture, in part because of First Amendment jurisprudence.
625. 367 U.S. 717 (1961).
626. See id. at 738.
627. 372 U.S. 58 (1963).
628. See id. at 70.
629. 380 U.S. 51, 57 (U.S. 1965).
630. FCC v. Pacifica Found., 36 F.C.C. 147, 149 (1964) (rejecting challenges to KFPA’s
broadcast of Live and Let Live, the first nationally broadcast program in which gay people
spoke for themselves).
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C. Equal Treatment (The New Wave of Employment Cases)
Dr. Franklin Kameny had been cashiered in 1957 as a result of an
arrest for lewdness the year before.631 He not only lost his government job, but also any prospect of employment in the private sector
because he could not obtain a security clearance. Shocked and then
angered, Kameny sued. Initially, his challenge deemphasized homosexuality and stressed neutral criteria and asserted procedural violations; these arguments did not prevail. Kameny wrote his own petition for review by the Supreme Court and introduced egalitarian
arguments similar to those of Cory’s The Homosexual in America .632
The civil service’s action and allied federal policies reduced homosexuals like himself to second-class citizenship, Kameny argued. Discrimination based upon homosexual orientation was “no less illegal than
discrimination based on religious or racial grounds.”633 The Supreme
Court denied the petition without comment,634 and Kameny founded
the Mattachine Society of Washington (MSW) shortly thereafter.635
The central goal of the Mattachine Society was to end federal employment discrimination in the civil service, in security clearances,
and in the armed forces.636 The stated goals of the group were
to secure for homosexuals the basic rights and liberties established
by the word and spirit of the Constitution of the United States, [t]o
equalize the status and position of the homosexual with those of
the heterosexual by achieving equality under law, equality of opportunity, equality in the society of his fellow men, and by eliminating adverse prejudice, both private and official, [and] [t]o secure
for the homosexual the right, as a human being, to develop and
achieve his full potential and dignity, and the right, as a citizen, to
make his maximum contribution to the society in which he lives.637
This statement represented an intellectual turning point in the history of the closet: homosexuals insisted upon equality as uncloseted
citizens, not just the liberty of the protective closet. Indeed, the new
generation of leaders saw the libertarian closet of the ALI and its
moderate homophobes as a threatening closet, cutting off homosexuals from one another and from equal citizenship.
MSW’s main practical agenda was to confront harassment of homosexuals by the federal and district governments. At the August
1961 organizational meeting, Kameny was alerted that one of the
631.
632.
633.
634.
635.
636.
637.
See Kameny v. Brucker, 282 F.2d 823, 823-24 (D.C. Cir. 1960) (per curiam).
See Johnson, supra note 2, at 55-56.
Id. at 55.
See Kameny v. Brucker, 365 U.S. 843, 843 (1961).
See Johnson, supra note 2, at 56.
See id. at 58-62.
CONSTITUTION OF THE MATTACHINE SOCIETY OF WASHINGTON art. II, § 1(a)-(c).
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sixteen men present was Lieutenant Louis Fochet of the District’s
morals squad. Kameny announced, “I understand that there is a
member of the Metropolitan Police Department here. Could he
please identify himself and tell us why he’s here?” 638 Thus outed by
an out-of-the-closet homosexual, Fochet skulked away.639 Kameny
and MSW followed the same unashamed approach in dealing with
all branches of government, including the White House and the FBI,
both of which were on the society’s mailing list. 640 In June 1962,
Kameny wrote Attorney General Robert Kennedy, introducing himself and the society:
We feel that, for the 15,000,000 American homosexuals, we are in
much the same position as the NAACP is in for the Negro, except
for the minor difference that the Negro is fighting official prejudice
and discrimination at the state and local level, whereas we are
fighting official prejudice and discriminatory policy and practice,
as ill-founded, as unreasonable, as unrealistic, and as harmful to
society and to the nation, at the Federal level [as well]. Both are
fighting personal prejudice at all levels. For these reasons, and because we are trying to improve the position of a large group of citizens presently relegated to second-class citizenship in many respects, we should have, if anything, the assistance of the Federal
government, and not its opposition.641
In accord with the FBI’s recommendation, the Attorney General declined to respond. In August 1962, MSW made similar points in a
press release that it circulated to the media, members of Congress,
and other government officials.642 This new homosexual spirit was
also taking charge of New York’s Mattachine Society, whose leadership changed hands from the old to the new guard in 1964 with the
election of Richard Leitsch as president. Likewise, the Society for
Individual Rights (SIR), a San Francisco homophile group founded
in 1964, began with the premise of “the worth of the homosexual . . .
and [his] right to [his] own sexual orientation.” 643 SIR insisted upon
equal rights protecting publicly gay people from discrimination and
not just an apartheid of the closet protecting discreet gay people
from invasion of their private spaces.644
638. Johnson, supra note 2, at 56.
639. See id.
640. See id. at 57.
641. Letter from Dr. Franklin E. Kameny, President, Mattachine Soc’y of Washington,
to Robert F. Kennedy, U.S. Attorney General (June 28, 1962) (on file with author).
642. See Johnson, supra note 2, at 57. The release argued that a strong initiative be
taken to obtain for the homosexual minority the same constitutional rights guaranteed to
all citizens.
643. MARTIN S. WEINBERG & COLIN J. WILLIAMS, MALE HOMOSEXUALS: THEIR
PROBLEMS AND ADAPTATIONS 51-53 (1974).
644. See id.
1997]
APARTHEID OF THE CLOSET
811
Combining egalitarian arguments with traditional libertarian
ones, these organizations organized a series of lawsuits against the
civil service exclusion. In the first of this new wave of lawsuits, MSW
secretary Bruce Scott and his ACLU-allied lawyer won a landmark
victory against the Civil Service Commission’s exclusion of him because of “immoral conduct,” namely, his disorderly conduct arrests in
1947 and 1951.645 Chief Judge David Bazelon voted to remand his
case to the Commission because it had not given a sufficiently precise reason for the action: “The Commission must at least specify the
conduct it finds ‘immoral’ and state why that conduct related to ‘occupational competence or fitness,’ especially since the Commission’s
action involved the gravest consequences.”646 Scott was the first
openly gay person to win a lawsuit against the federal civil service
exclusions. More were to follow in the 1960s.
CONCLUSION: THE DISCOURSES OF PRIVACY AND EQUALITY
Privacy rights only become important once the Lockean state has
evolved into the bureaucratic regulatory state. Same-sex intimacy
was practically unregulated in the nineteenth century, and little
regulated outside of New York City before World War I. Twentiethcentury America grew increasingly interested in gender and sexual
deviance, and by the 1950s had created a pervasive regulatory regime for it. The objects of that regime—lesbians, homosexual men,
butch women, female impersonators, pedophiles, and sex perverts of
all stripes—resisted it in the legal argot of their time, the emerging
principle or policy of privacy, which boils down to a list of things the
state cannot do to one. My account of gay-friendly privacy discourse
reveals the familiar problem with privacy as a Millian concept,
namely, the lack of criteria by which to distinguish the “private”
from the “public,” or acts that only affect the actor from those with
third-party effects.647 I have added a more profound problem, from a
gay point of view, namely, privacy’s contribution to an unstable culture of the closet. By channeling energy into privacy rights, homo645. See Scott v. Macy, 349 F.2d 182, 185 (D.C. Cir. 1965).
646. Id. at 184. Chief Judge Bazelon wrote only for himself; there was no majority
opinion. Concurring, Judge Carl McGowan voted to overturn the government’s action
“solely for what seem to me to be the inadequacies, in terms of procedural fairness, of the
notice given to appellant of the specific elements constituting the ‘immoral conduct’ relied
upon as disqualifying him for all federal employment.” Id. at 185 (McGowan, J., concurring).
647. The Model Penal Code’s resolution, for example, deregulated consensual sodomy
in private but left public solicitation of same-sex sodomy criminal. So long as the solicitation is accomplished discreetly or to an apparently willing listener, it would seem to have
no greater third-party effects in the normal run of cases. So long as the only offended observers of solicitation were decoys planted by the state, there would seem to be only trivial
differences even from a locational (bedroom versus park) view of privacy, again in most
cases.
812
FLORIDA STATE UNIVERSITY LAW REVIEW
[Vol. 24:703
philes slighted rights of equal citizenship and public expression that
are also important. The right of privacy is the hermaphroditic parent
of “don’t ask, don’t tell.”648
There are many doctrinal as well as historiographical directions
one can pursue from this idea. One is that it helps explain the obsessional effort by the Warren and Burger Courts to distance their
rights of privacy from homosexuality. Although Justice Louis Brandeis was the first legal thinker to identify the right of privacy as a
needed limit on the overzealous state and to explore its constitutional dimensions,649 Justice Harlan’s dissenting opinion in Poe v.
Ullman 650 is properly thought to be the genesis of the modern right.
Unlike Justice Brandeis’s right to be left alone in one’s home, Justice
Harlan’s right is to be left alone in one’s bedroom. It is a thoroughly
sexualized right, and one whose border is marked by the writer’s
opinion of what is unacceptable sexual deviance. Privacy in the
1950s meant sexual privacy and, like sexual secrecy, sexual privacy
was most dramatically marked by same-sex intimacy.
Justice Harlan wrote against this background in 1961 and staked
out his traditionalist position: the sexualized right of privacy is tied
to marriage and distanced from “[a]dultery, homosexuality, and the
like.”651 A Warren Court majority would repeat this rhetoric in Griswold v. Connecticut ,652 and the Burger Court would follow the idea
with Justice White’s opinion in Bowers v. Hardwick.653 Like traditionalists before them, Justices White and Harlan viewed a homosexual’s right of privacy as a straight-threatening closet. Like libertarians before him, Justice Blackmun’s Hardwick dissent viewed a
homosexual’s right of privacy as a mutually protective closet. A criticism of Justice Blackmun’s nice dissent is that privacy and the closet
648. Privacy is hermaphroditic in that it is both mother and father of “don’t ask, don’t
tell.” The policy protects the privacy of gay people, who can be left alone by the state; it
also protects the privacy of gay-fearing people, who can be left unbothered by gays. It is
unstable, however, for the same reasons the closet was in 1961: closeted gay people are
not protected from private discrimination and violence, and homophobic people are not
protected from the knowledge that they are surrounded by homosexuals and cannot even
tell whom to fear first.
649. See Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L.
REV. 193 (1890) (articulating policy reasons to favor privacy rights); Olmstead v. United
States, 277 U.S. 438, 479 (1928) (Brandeis, J., dissenting) (constitutional protection
against overzealous government rooted in rhetoric of privacy).
650. 367 U.S. 497, 522 (1961) (Harlan, J., dissenting).
651. Id. at 553.
652. 381 U.S. 479 (1965). Justice Douglas’ opinion for the Court emphasized the marital features of privacy to ensure that the married plaintiffs could use contraceptives during marital sex. See id. at 485-86. Justice Harlan repeated his Poe views. See id. at 499502 (Harlan, J., concurring). Justice Goldberg, joined by Chief Justice Warren and Justice
Brennan, quoted and endorsed the “[a]dultery, homosexuality, and the like” language in
his concurring opinion. Id. at 499 (Goldberg, J., concurring).
653. 478 U.S. 186 (1986) (upholding Georgia’s consensual sodomy law, at least as applied to “homosexual sodomy”).
1997]
APARTHEID OF THE CLOSET
813
do not take us far toward a society where gay people can participate
freely in public culture as equal citizens. The critique of the closet
and of privacy in this Article resonates well with Justice Anthony
Kennedy’s opinion for the Court in Romer v. Evans.654 Although Justice Antonin Scalia’s dissenting opinion lambasted Evans for leaving
Hardwick in a constitutional closet, the history in this Article suggests that this was fine. Gay rights has generally moved beyond privacy rhetoric to equality and free speech rhetoric, and the Court is
entitled to do the same.
654. 116 S. Ct. 1620 (1996).
814
[Vol. 24:703
FLORIDA STATE UNIVERSITY LAW REVIEW
APPENDIX 1A
SODOMY ARRESTS IN THREE CITIES, 1930-1975a
WASHINGTON, D.C.
BALTIMORE
NEW YORK CITY
1930
2
28
108
1931
0
NA
116
1932
0
28
91
1933
NA
53
125
1934
0
31
137
1935
2
39
130
1936
1
35
182
1937
4
40
156
1938
9
61
186
1939
9
45
165
1940
6
47
158
1941
5
39
154
1942
5
62
163
1943
NA
55
136
1944
NA
42
157
1945
NA
69
117
1946
NA
50
98
1947
NA
27
117
1948
NA
52
148
1949
NA
78
116
1950
b
78
103
161
1951
59
73
180
1952
69
52
168
1953
73
97
165
1954
70
110
200
1955
36
172
223
a. The data in this Appendix are derived from the annual reports of the District of
Columbia, Baltimore, and New York City police departments.
b. The Washington, D.C., figures from 1950 to 1975 are sodomy complaints, rather
than arrests. Because as many as half of the sodomy arrests in major cities were the result of decoy cop operations and not citizen complaints, the figures for arrests are certainly higher.
1997]
815
APARTHEID OF THE CLOSET
WASHINGTON, D.C.
BALTIMORE
NEW YORK CITY
1956
24
121
211
1957
41
131
487
1958
26
192
NA
1959
NA
72
NA
1960
54
159
NA
1961
56
87
NA
1962
106
98
NA
1963
60
77
NA
1964
58
81
NA
1965
37
NA
NA
1966
36
c
45
NA
1967
35
71
NA
1968
38
100
NA
1969
39
NA
NA
1970
41
NA
NA
1971
171
NA
NA
1972
137
NA
NA
1973
171
NA
NA
1974
163
NA
NA
1975
93
NA
NA
c. The Baltimore figures for 1966-68 are indictments brought by grand juries and
hence understate the number of arrests.
816
FLORIDA STATE UNIVERSITY LAW REVIEW
[Vol. 24:703
APPENDIX 1B
DISTRICT OF COLUMBIA SODOMY COMPLAINTS, 1950-1975d
COMPLAINTS
1950
78
SAME SEX (% OF
TOTAL)
SAME SEX MINORS (%
OF SAME-SEX TOTAL)
65 (81%)
14 (22%)
1951
59
51 (87%)
34 (66%)
1952
69
58 (84%)
40 (69%)
1953
73
57 (78%)
38 (66%)
1954
70
64 (91%)
44 (69%)
1955
36
29 (81%)
22 (69%)
1956
24
24 (100%)
18 (75%)
1957
41
38 (93%)
22 (59%)
1958
26
19 (72%)
7 (37%)
1959
NA
NA
NA
1960
54
50 (93%)
23 (46%)
1961
56
54 (96%)
14 (26%)
1962
106
106 (100%)
40 (38%)
1963
60
55 (91%)
9 (16%)
1964
58
54 (92%)
14 (26%)
1965
37
35 (95%)
11 (32%)
1966
36
32 (89%)
6 (19%)
1967
35
27 (77%)
19 (70%)
1968
38
36 (95%)
29 (80%)
1969
39
34 (87%)
29 (86%)
1970
41
32 (78%)
1 (3%)
1971
171
145 (79%)
83 (57%)
1972
137
123 (82%)
69 (56%)
1973
171
135 (71%)
103 (77%)
1974
163
130 (80%)
75 (57%)
1975
93
72 (77%)
41 (57%)
d. The data in this Appendix are derived from the annual reports of the District of
Columbia Police Department.
1997]
817
APARTHEID OF THE CLOSET
APPENDIX 1C
“DEGENERATES” ARRAIGNED IN NEW YORK CITY’S MAGISTRATES’
COURTS, 1930-62e
ARRAIGNMENTS
(FEMALES)
% CONVICTIONS
(OVERALL %)
% WORKHOUSE
(OVERALL %)
% SENTENCED
TO > 2 MOS.
(OVERALL %)
1930
1212 (4)
85% (86%)
33% (4%)
17% (30%)
1931
437 (0)
80% (84%)
26% (2%)
10% (26%)
1932
465 (4)
79% (83%)
24% (2%)
17% (29%)
1933
1042 (NA)
NA
NA
NA
1934
456 (NA)
NA
NA
NA
1935
554 (82)
70% (83%)
28% (1%)
24% (30%)
1936
543 (100)
80% (85%)
34% (1%)
28% (21%)
1937
610 (39)
83% (86%)
33% (1%)
33% (22%)
1938
726 (67)
79% (87%)
39% (2%)
34% (17%)
1939
647 (41)
86% (90%)
44% (2%)
35% (17%)
1940
707 (69)
85% (88%)
44% (2%)
33% (15%)
1941
735 (61)
80% (81%)
36% (2%)
23% (13%)
1942
717 (NA)
79% (86%)
29% (3%)
27% (14%)
1943
855 (NA)
81% (82%)
32% (2%)
30% (11%)
1944
1072 (NA)
84% (84%)
30% (1%)
20% (13%)
1945
2147 (NA)
89% (84%)
28% (2%)
9% (10%)
1946
2473 (NA)
86% (89%)
27% (1%)
11% (12%)
1947
3105 (NA)
90% (81%)
20% (1%)
11% (10%)
1948
3289 (NA)
91% (80%)
20% (1%)
10% (9%)
1949
3227 (NA)
90% (91%)
18% (2%)
NA
1950
2285 (NA)
85% (90%)
30% (2%)
NA
1951
1532 (NA)
63% (89%)
87% (1%)
NA
1952
1330 (NA)
79% (92%)
33% (1%)
NA
1953
1054 (NA)
80% (92%)
33% (1%)
NA
1954
1307 (NA)
80% (93%)
28% (2%)
12% (8%)
e. The data in this Appendix are derived from the annual reports of the New York
City Magistrates’ Courts, microformed on *ZAN-10223 (N.Y. Pub. Libr.). The Fingerprint
Bureau began keeping separate records for “degenerates” in 1916, but the magistrates did
not create a separate category for “degenerates” until 1922. Before 1922, “degenerates”
were included with others arraigned for “disorderly conduct.”
818
FLORIDA STATE UNIVERSITY LAW REVIEW
[Vol. 24:703
ARRAIGNMENTS
(FEMALES)
% CONVICTIONS
(OVERALL %)
% WORKHOUSE
(OVERALL %)
% SENTENCED
TO > 2 MOS.
(OVERALL %)
1955
2148 (NA)
78% (92%)
32% (1%)
10% (7%)
1956
1887 (NA)
75% (92%)
39% (1%)
11% (6%)
1957
1862 (NA)
77% (91%)
33% (1%)
10% (7%)
1958
1197 (NA)
68% (89%)
32% (1%)
NA
1959
1000 (NA)
63% (89%)
33% (1%)
9% (3%)
1960
784 (NA)
67% (90%)
36% (1%)
10% (3%)
1961
839 (NA)
69% (91%)
32% (1%)
13% (3%)
1962
565 (NA)
68% (90%)
38% (1%)
15% (4%)
1997]
819
APARTHEID OF THE CLOSET
APPENDIX 2A
SEX CRIME STATUTES APPLICABLE TO SAN FRANCISCANS, 1950f
Felonies
CALIFORNIA
PENAL CODE
PENALTY
Unconsented Rape
§ 261
3 years to life
Aggravated Oral Copulation
§ 288a
3 years to life
Bestiality
§ 286
1 year to life
Sodomy (Anal Copulation)
§ 286
1 year to life
Lewd Act with a Child Under 14
§ 288
1 year to life
Molesting a Child Under 18
§ 647a
1 year to life
Indecent Exposure (2d Offense)
§ 311
1 year to life
Incest
§ 285
1-50 years
§ 261(1)
1-50 years
Assault to Rape/Sodomy
§ 220
1-20 years
Oral Copulation
§ 288a
1-15 years
Abduction & Forced Marriage
§ 265
2-14 years
Pimping
1907 Gen. L.
1-10 years
Pandering
1906 Gen. L.
1-10 years
Abduction Against Will
§ 266a
1-5 years; $1000
Abduction for Prostitution
§ 267
6 mos.-5 years; $1000
Solicitation Rape by Force
§ 653 (f)
6 mos.-5 years; $5000
§§ 266, 268
6 mos.-5 years; $5000
Conspiracy, Sex Misdemeanor
§ 182
up to 3 years, $5000
Conspiracy, Sex Felony
§ 182
same as misdemeanor
Attempt to Commit Sex Crime
§ 664
½ penalty
CRIME
Statutory Rape (Girls Under 18)
Seduction
Misdemeanors
CRIME
Contributing to the Sexual Delinquency
of a Minor
CALIFORNIA
PENAL CODE
PENALTY
§ 702 W&I
2 years, $1000, or 5 years
probation
f. The data in this Appendix are derived from CAL. DEP’T OF MENTAL HYGIENE, supra note 42, at 78-80.
820
[Vol. 24:703
FLORIDA STATE UNIVERSITY LAW REVIEW
CALIFORNIA
PENAL CODE
PENALTY
§ 269 (a)
1 year, $1000
Indecent Exposure (1st Offense or
Inducing Another)
§ 311 (1)-(2)
6 mos., $500
Indecent Exhibitions
§ 311 (3)-(6)
6mos., $500
Lewd Vagrancy
§ 647 (5)
6 mos., $500
Molesting a Child Under 18 (1st Offense)
§ 647 (a)
6 mos., $500
Loitering About Public Place Attended by
Schoolchildren
§ 647 (a) (2)
6 mos., $500
Peeping Tom
§ 647 (12)
6 mos., $500
Sexual Contact with a Corpse
§ 647 (5)
6 mos., $500
Prostitution
§ 647 (10)
6 mos., $500
§ 318
6 mos., $500
§§ 315, 316
6 mos., $500
Keeping Minor in House of Prostitution
§ 309
6 mos., $500
Lewd Acts in Presence of Children
§ 273g
6 mos., $500
§ 647 (5)
6 mos., $500
§ 415
90 days, $200
§ 1308 Labor
6 mos., $250
§ 290
6 mos., $500
§ 381 Agric
30 days, $20
CRIME
Adultery
Soliciting for Prostitution
Keeping House Prostitution
Mutual Masturbation (Adults)
Disturbing Peace by Offensive Sexual
Conduct
Using Minor in Indecent Exhibition
Failure to Register as a Sex Criminal
Public Mating of Animals
Offenses, San Francisco Municipal Police Code
OFFENSE
SECTION OF CODE
Lewd, Obscene Language Within Hearing of Others
§ 147
Mechanically Reproducing Obscene Language
§ 168
Exhibition of Indecent Pictures, Figures, etc.
§ 169
Possessing Indecent Pictures, etc., for Indecent Purposes
§ 170
Being Witness to Indecent Performance
§ 170
Dramatization with Subject of Sex Degeneracy/Perversion
§ 176
Exhibiting, Participation in Lewd Play, Representation
§ 177
Displaying Lewd and Indecent Advertising
§ 182
Displaying Lewd or Indecent Posters
§§ 183, 193
1997]
821
APARTHEID OF THE CLOSET
OFFENSE
SECTION OF CODE
Displaying Representations of Sex Organs
§ 199
Using Obscene Language in Telephone Conversations
§ 210
Engaging in Lewd and Indecent Acts
§ 215
Being Inmate or Visitor to House of Prostitution
§ 220
Soliciting Prostitution
§ 225
Engaging in Business in House of Prostitution
§ 231
Using a Building for Prostitution
§ 236
Offering or Agreeing to Prostitution, etc.
§ 240
Indecent Motion Pictures
§ 741
Lewd Theatrical Performances
§ 759
1997]
823
APARTHEID OF THE CLOSET
APPENDIX 2B
SEX OFFENSE ARRESTS IN SAN FRANCISCO, 1945-1950 & 1958-1964g
1945-46
1947-48
1949-50
1958-59
1959-60
1960-61
1961-62
1962-63
1963-64
4556
4418
3707
—
—
—
—
—
—
1698
1793
1663
—
—
—
—
—
—
Prostitution
583
712
507
—
—
—
—
—
—
Lewd Conduct
353
546
522
—
—
—
—
—
—
Rape
150
220
212
58
65
49
63
90
87
Contributing Minor
Delinquency
186
165
158
—
—
—
—
—
—
Crime Against Child
66
53
85
—
—
—
—
68
72
Fellatio & Sodomy
48
54
35
28
37
118
121
71
97
All Others
42
43
144
—
—
—
—
—
—
2768
2528
1982
—
—
—
—
—
—
Prostitution
2634
2473
1927
—
—
—
—
—
—
All Others
134
55
55
—
—
—
—
—
—
90
97
62
—
—
—
—
—
—
Total Arrests
Adult Males
Adult Females
Juveniles
g. The data in this Appendix for 1945-1950 are derived from the annual reports of the San Francisco Police Department, while the data for 1958-1964 are derived from the er
ports of the San Francisco District Attorney. The figures for 1958-1964 are fragmentary.
1997]
825
APARTHEID OF THE CLOSET
APPENDIX 2C
SELECTED SEX OFFENSE ARRESTS IN LOS ANGELES, 1940 & 1948h
1940
1948
ARRESTS
(FEMALES)
CHARGES
FILED
CONVIC-
ARRESTS
(FEMALES)
CHARGES
FILED
CONVIC-
TIONS
Rape
263(2)
179
106
514(1)
219
145
Crime
Against a
Child
154(1)
75
25
281(2)
85
68
112(1)
113
90
137(4)
180
131
19(5)
18
10
33(7)
33
27
Sex
Perversion
21(1)
18
9
397(11)
16
9
Sodomy
19(0)
7
4
86(0)
0
1
166(50)
215
186
1555(142)
1908
1711
Indecent
Exposure
Obscene
Writing/
Pictures
Lewd
Vagrancy
TIONS
h. The data in this Appendix are derived from the annual reports of the Los Angeles
Police Department.
826
FLORIDA STATE UNIVERSITY LAW REVIEW
[Vol. 24:703
APPENDIX 3
FEDERAL DEPARTMENT SEX PERVERSION CASES, 1947-1950i
CASES OF SEX
PERVERSION
RESIGNED OR
DISMISSED
CLEARED
Agriculture
32
31
0
Atomic Energy Comm’n
8
5
0
Civil Service Comm’n
18
18
0
Commerce
49
41
4
Economic Coop. Admin.
27
19
6
Federal Security Agency
22
13
5
General Accounting Off.
13
12
0
General Services Admin.
19
8
2
Housing & Home Finance
10
8
2
Interior
31
16
10
Justice
7
5
1
Labor
6
5
0
Library of Congress
15
10
0
Post Office
8
5
0
State Department
143
121
10
Treasury
23
20
0
Veterans Admin.
101
48
43
Other Departments
42
25
2
Totals
574
420
85
DEPARTMENT
i. The data in this Appendix are derived from EMPLOYMENT OF HOMOSEXUALS IN
GOVERNMENT, supra note 197, at 25. The Investigation Subcommittee’s report has a separate category for cases pending in 1950, which this Appendix does not replicate.
1997]
APARTHEID OF THE CLOSET
827
APPENDIX 4
STATE SEXUAL PSYCHOPATH STATUTES, 1935-1960j
This Appendix identifies state laws that sought to identify “sexual
psychopaths,” people afflicted with “psychopathic personality,”
“sexually or defective delinquent” persons, “psychopathic offenders”
and to incarcerate them so that they could be treated by state psychiatrists.
CODE REFERENCE
DATE ENACTED
(AMENDMENTS)
JURISDICTIONAL BASIS
ALA. CODE tit. 15, §§ 434-442
1951
Conviction of sex offense
1939 (1945, 1949,
1950, 1951, 1952)
Conviction of any criminal offense with child under 14 or petition filed in court
COLO. REV. STAT. §§ 39-19-1
to -10
1953
Conviction of specified sex
offenses, including assault with
intent to commit unnatural acts
D.C. CODE §§ 22-3501 to
-3511
1948
Petition filed in court
CALIF. WELFARE & INST.
CODE §§ 5500-5522, 56005607
FLA. STAT. § 917.12
1951 (1953, 1955,
1957)
Charge or conviction of
specified crimes involving
minors, including sodomy,
lewdness, and attempts to
commit those crimes
ILL. STAT. ch. 38, §§ 820-825g
1937 (1947)
Charge of any crime
IND. CODE §§ 9-3401 to -3412
1949
Charge or conviction of any but a
few specified crimes
1955 (1959)
Charge of public offense
KAN. STAT. ANN. §§ 62-1534
to -1537
1953
Conviction of a crime against
public morals, including
perversion
MASS. GEN. LAWS ch. 123A,
§§ 1-11
1947
Conviction of specified sex
offenses
MICH. STAT. ANN. §
28.967(1)-(9)
1937 (1939, 1950,
1952)
Charge or conviction of criminal
offense
MINN. STAT. §§ 526.09-.11
1939, (1945, 1953)
Petition to the court
MO. REV. STAT. §§ 202.700.770
1949
Criminal charge
NEB. REV. STAT. §§ 29.2901-
1949 (1951)
Petition to the court
IOWA CODE §§ 225A.1 to
225A.15
j. The data in this Appendix are derived from Swanson, supra note 43, at 228-35.
828
FLORIDA STATE UNIVERSITY LAW REVIEW
CODE REFERENCE
[Vol. 24:703
DATE ENACTED
(AMENDMENTS)
JURISDICTIONAL BASIS
1949 (1953)
Charge of specified sex offenses
(including sodomy, unnatural
acts, or attempts) or petition to
the court
N.J. REV. STAT. §§ 2:192-1.13
to -1.23
1949 (1950, 1951)
Conviction of specified and sex
crimes, including sodomy,
lewdness, indecent exposure, or
attempts to commit such crimes
N.Y. PENAL LAW §§ 243, 483a, 483-b, 1944-a, 2010
1950
Conviction of specified sex
crimes, including first- and
second-degree sodomy
1947 (1950)
Conviction of specified felonies or
of misdemeanor involving sex
offense or “abnormal tendencies”
OR. REV. STAT. §§ 137.111.117
1953
Conviction of sex offenses
involving child under 15
PA. STAT. ANN. tit. 19, §§
1166-1174
1951
Conviction of certain sex
offenses, including sodomy,
assault with intent to commit
sodomy
S.D. CODIFIED LAWS §
13.1727
1950
Conviction of molestation of a
minor
TENN. CODE ANN. §§ 33-1301
to -1305
1957
Conviction of any sex crime
UTAH CODE ANN. §§ 77-49-1
to -8
1951 (1953)
Conviction of sex offense
1943 (1945, 1951)
Conviction of any felony or third
conviction of a misdemeanor
1950
Conviction of crime indicating
sexual abnormality
WASH. REV. CODE §§
71.06.010 to .260
1947 (1951)
Charged with or convicted of a
specified sex offense, including
sodomy, indecent exposure,
indecent liberty with child, lewd
vagrancy
WIS. STAT. § 959.15
1947 (1951)
Conviction of any crime
1951
Conviction of certain sex crimes,
including sodomy, liberties with
child, indecent exposure (third)
.2907
N.H. STAT. §§ 173:1 to :16
OHIO REV. CODE ANN. §§
2947.24-.29
VT. STAT. ANN. tit. 18, §§
2811-2816
VA. CODE ANN. §§ 53-278.2 to
-278.4
WYO. STAT. ANN. §§ 7-348 to
-362
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APPENDIX 5
MIAMI SEX CRIME ORDINANCES, 1945-1958
MIAMI CODE OF 1945
It unlawful to be a “disorderly person,” defined to include “any person
who shall be drunk or intoxicated or engaged in any indecent or obscene
conduct in any public place; any vagrant; any person found begging in a
public place; any person found loitering in a house of ill fame or prostitution
or place where prostitution or lewdness is practiced, encouraged or allowed .
. . .”
MIAMI ORDINANCE 4655 (1951)
It shall be unlawful for any person to permit participation by any person
or for any person to participate in any scene, act or play in which obscene
language is used or obscene conduct is engaged in.
It shall be unlawful for any person to permit a female person to appear,
or for any female person to participate and appear, in any scene, sketch, act
or play, fully or partly clothed, and to gradually disrobe by discarding clothing or attire so that the breasts or lower part of the torso beginning at the
hip line and buttocks are uncovered, or so thinly covered by mesh, transparent net, lawn, skin-tight materials which are flesh colored and worn skintight, so as to appear uncovered.
MIAMI ORDINANCE 4586 (1952)
No person shall permit the participation of any male person or group of
male persons as female impersonators in any show or act within the limits of
the city and no male person shall exhibit himself as a female impersonator
in any show or act within the limits of the city. This section shall not apply
to theatrical performances sponsored by accredited schools, colleges and
universities, public parades, or any play or movie in a licensed legitimate
theatre that is in no way lewd, indecent or immoral, in which members of
the cast are males impersonating females.
MIAMI ORDINANCE 5135 (1954)
It shall be unlawful for an owner, manager, operator or employee of a
business licensed to sell intoxicating beverages to knowingly employ in such
business a homosexual person, lesbian of pervert as the same are commonly
accepted and understood. It shall likewise be unlawful for an owner, operator, manager or employee of a business licensed to sell intoxicating beverages to knowingly sell to, serve to or allow consumption of alcoholic beverages by a homosexual person, lesbian or pervert, as the same are commonly
accepted and understood, or to knowingly allow two or more persons who are
homosexuals, lesbians or perverts to congregate or remain in his place of
business.
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MIAMI ORDINANCE 5521 (1956)
It is unlawful for a person in any place, whether publicly or privately
owned, in the city to be found in a state of nudity or in a dress not customarily worn by his or her sex, or exposing his or her sexual organ, or committing any indecent or lewd act so as to be seen by another person from or in
any place frequented by the public . . . .
MIAMI ORDINANCE 5271 (1955)
It is unlawful “for any person to make any indecent, lascivious or lewd
proposals to any other person.”
MIAMI ORDINANCE 5324 (1955) (AMENDED 1956)
A person is guilty of “disorderly conduct” who
....
2. Is idle, dissolute or found begging.
3. Is found in a house of ill fame, gambling house disorderly house.
....
5. Is found standing, loitering or strolling about in any place in the city,
and not being able to give a satisfactory account of himself, or who is without any lawful means of support.
....
7. Uses obscene or profane language in the presence of anyone else, or
any indecent, insulting or abusive language to another, or makes any
threats of violence against another person.
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APPENDIX 6
MINUTES OF THE ADVISORY COMMITTEE TO THE FLORIDA
INVESTIGATIVE COMMITTEE, JUNE 29-30, 1964k
John E. Evans, staff director of the Florida Legislative Investigation Committee, called the Advisory Committee meeting to order at
2:05 P.M. Present and participating were:
Mr. J. Duane Barker
Mrs. Charlotte Blee
Dr. Julian Davis
Mr. John E. Evans
Dr. Alan Gessner
Dr. Jack Kapchan
Judge Julian Laramore
Judge John Rudd
Mrs. Betty Sparks
Dr. Walter Stokes
S.A. Berwin Williams
Judge Lamar Winegart, Jr.
Mr. Crockett Farnell participated in the Monday afternoon and
Tuesday noon and afternoon sessions.
Mr. Evans introduced Detective Morris Meek of the Pinellas
County Sheriff’s Office. Detective Meek reviewed the Sheriff’s Office
raid of a gay bar in Madeira Beach. Several undercover men had observed the activities of the customers, and were propositioned. There
were almost 50 persons arrested, all charged with disorderly conduct. Confiscated was a national directory of gay bars entitled “The
Lavender Baedeker,” which was distributed for the perusal of the
Committee.
Detective Meek reported that the vast majority of these people
were from out of the state, with just a few from Tampa and the immediately surrounding area.
The disorderly house statute, under which this case is being
prosecuted, is a new tool to combat public places which openly permit homosexual conduct, Meek said. He answered questions from the
Committee on both the law under which the Department operated
and on the views of the officers toward the operation of such places.
Dr. Gessner noted that in a situation where there are several gay
bars which have mainly homosexuals in attendance, if as long as
they limit themselves to these bars and are not soliciting in other locations, wouldn’t it perhaps be a disservice to the community in
k. This document is available at Fla. Dep’t of State, Div. of Archives, ser. 1486, carton 1, folder 15, Tallahassee, Fla.
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FLORIDA STATE UNIVERSITY LAW REVIEW
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breaking up these gay bars, rather than leaving the homosexuals to
themselves in certain known bars.
Judge Winegart stated that he doubted this would actually segregate homosexuals from straight people; that this would only serve as
a rallying point for the homosexuals.
Mr. Evans briefly summarized the tentative goals of the advisory
group, stating that perhaps at this meeting the group could propose
some basic legislation and have specific measures drafted as an initial recommendation; that after this was done, the Statutory Revision Section of the Attorney General’s Office will examine the proposal. He suggested the group not concern itself with the political
strategy for the passage of the recommended legislation, but rather
with a consideration of the specifics of a sound law. If there is basic
disagreement, majority and minority reports submitted on controversial issues will be appropriate.
Dr. Stokes reviewed correspondence with Dr. Charles Bowman,
Professor of Law at the University of Illinois and leader of the
movement which resulted in revision of the Illinois Criminal Code.
Professor Bowman’s letter gave a considerable insight into the mechanics which were involved in the development and adoption of the
Illinois Code pertaining to sex offenses and sexual conduct.
A short discussion ensued concerning the extent of involvement, if
any, of this committee with abortion laws and laws regarding the use
of contraceptives. Judge Winegart read a portion of the Investigation
Committee’s mandate, and it was generally agreed that these problems would not be within the purview of the Committee.
Dr. Stokes suggested: (1) The adoption of a code eliminating the
wording “crimes against nature” and substituting the concept of deviate sexual conduct as defined by the Illinois law to make the language more specific. (2) The elimination of crimes committed with
animals. (3) The exclusion of specific prohibitions against sexual relations between mutually consenting adults in private — either heterosexual or homosexual.
Judge Winegart suggested that the group should first know how
the Division of Mental Health is planning to revise Chapter 801, the
Child Molester Law, before starting revision of that particular law. A
copy of the current Chapter 801, Florida Statutes, and proposal
drafted by the Legislative Council’s Committee on Mental Health
and Mental Retardation of Chapter 917.12, Criminal Sexual Psychopaths, was distributed to each member for examination.
Mr. Evans asked if there were any objections to changing the
wording “crimes against nature” to “deviate sexual conduct,” eliminating restrictions on sexual relations between mutually consenting
adults and on humans and animals, as suggested by Dr. Stokes.
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Judge Winegart stressed that he saw no objection to the words
“crime against nature” and he felt this phrase contained very good,
descriptive words. Further that “crime against nature” was merely
the title of the offense; and under this heading in the bill, the offenses are set out more specifically.
After some little discussion of terminology, Mr. Evans suggested
the group divide into two units, one composed of law enforcement
and judicial representatives (Barker, Laramore, Winniams, Winegart and Rudd), and the other of the psychiatrists and psychologists
(Davis, Gessner, Kapchan and Stokes) to evaluate and summarize
their positions. Mrs. Blee requested that she not be appointed to either group so as to remain nonpartisan. There was no opposition to
this suggestion. Mr. Evans asked that the two groups use as a
starting point the five recommendations of the Investigation Committee set forth on the last page of the text in its report on homosexuality.
There was no objection to this arrangement, and the Committee
split into their respective groups at approximately 4 P.M.
The Advisory Committee reconvened at 5:10 P.M. Dr. Stokes reported the recommendation of his group, which he later reduced to a
written report attached hereto.
1. The general concept of the psychiatric examination proposal
was acceptable, but to be change to read: “Mandatory psychiatric examination shall be conducted prior to sentencing in accordance with
the provisions of 801.04 and/or 917.12 (as amended) of every person
convicted of deviant sex conduct with a minor and discretionary presentence examination of others.”
2. The second point, providing for outpatient psychiatric treatment centers, was approved.
3. The group also concurred with the Investigation Committee’s
recommendation for provision of the confidentiality of information
relating to the first arrest for “deviant sexual conduct.”
4. The creation of a central records repository for information on
homosexuals arrested and convicted in Florida was not acceptable.
5. The group would approve the fifth point if amended to read:
“Placing sole jurisdiction of a second deviant sexual conduct offense
in a felony court and provide appropriate penalties upon conviction.”
Dr. Stokes commented that they could not accept the “crimes
against nature” phrase, but would substitute “sexual deviant conduct;” that they would propose the provision of no penalty for sexual
relations between mutually consenting adults in private. He stated
that it was their contention that any time deviant sexual conduct
was performed in public, then the individuals would be in violation
of the public indecency statute. Also proposed was the omission of
any statutes dealing with the animal-human sex relations.
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FLORIDA STATE UNIVERSITY LAW REVIEW
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Judge Winegart reported the conclusions of his group.
1. The subcommittee felt this should be broadened to provide for
a mandatory examination for all offenders falling within its definition and should contain a provision making commitment to an institution for treatment mandatory on receipt of a positive report of
mental illness from the examining team.
2. The group concurred with the provision for outpatient psychiatric treatment centers to which offenders on probation or parole be
assigned, with this treatment to be a condition of the parole or probation.
3. The provision of confidentiality in the arrests and convictions
of homosexuals was not endorsed. Judge Winegart explained that
the confidentiality of matters which concern the public creates public
distrust, and the juvenile courts are under attack for this constantly.
4. His group favored the adoption of a central records repository
as set forth in the Investigation Committee’s report, but would recommend that this proposal be broadened to include all political subdivisions of the State, and that all these employees be photographed
and fingerprinted for the suggested records repository.
5. The proposal of a second homosexual offense being considered
a felony was favorable to the group.
Judge Winegart reported that the group would recommend the
following:
1. That the statutes retain the wording, “crimes against nature,”
and the specific crimes denoted by this heading be identified as follows:
A. Any act providing or tending to provide sexual gratification
performed with any beast.
B. Any act providing or tending to provide sexual gratification
between two persons of the same sex.
C. Any act providing sexual gratification or tending to provide
sexual gratification, between male and female involving the sex organs of one and the mouth or anus of another.
2. That the definition of incest be amended to include stepchildstepparent relationships.
3. That Chapter 801, the Child Molester Law, omit the age limit
of 14 years, and amend it to apply to a child as defined by Florida
Statutes, which is under 17 years of age; and that the penalty be
changed to not less than 10 years or more than 20 years.
Judge Winegart, in speaking of the controversy concerning the
“crime against nature” phrase, stated that the law has to give the
law enforcement and judicial branches something specific to guide
them when making arrests and passing judgments on offenders;
that, as a practical matter, if a couple engaged in sexual relations
are actually in the privacy of their room, then they never come to the
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attention of law enforcement officials anyway, but this law needs to
be included in the statutes to give law enforcement officials and the
judiciary “teeth” with which to work.
Dr. Kapchan said that he believed that the moral fiber was destroyed when laws are drafted that cannot be enforced; and, further,
that these acts should not be considered a criminal offense.
Dr. Gessner compared the similarities between a man becoming
inebriated in his own private home and committing sex acts in his
private home.
Judge Rudd stressed that to ignore consenting adults in private
would certainly be to condone their actions and before long the
problem would be out of control.
Judge Winegart remarked that he did not feel the homosexuals
would start and stop their relationships with a certain birthdate of
their prospects.
Brief discussion followed concerning the questionable public acceptance, by newspapers and citizens, of the proposal of mutually
consenting adults; the ages of homosexual personality characteristics
developed in children; and the ratio of male adults who have ever
had homosexual contacts with the practicing male homosexuals today.
Mr. Evans asked the Committee if it was in general agreement to
combine all the sex offense laws into one statute or code. There were
no objections. Its was also agreed that it should be named “Sexual
Deviation Code.”
At this point, the Committee adjourned for dinner.
At 8:30 P.M. The meeting reconvened. Mr. Evans exhibited the
circular advertising the Investigation Committee’s report on homosexuality to the group, and read background information on H. Lynn
Womack, who distributes the booklet through Guild Book Service of
Washington, D. C.
A general discussion followed concerning the general characteristic traits of homosexuals and the proposal of allowing mutually consenting adults in private to do as they wished.
Dr. Stokes said that the homosexual who engages in homosexual
activities exclusively with other homosexuals in private presents no
harm or danger to society, and that ordinarily it is not their compulsion to cruise and try to involve children; that the child molester is in
another group.
Mr. Barker emphasized that he could not believe that homosexuals stay completely within their own group; that perhaps a great
number of them do, but that he was concerned with the others who
did not limit themselves and did go out looking for children.
Mr. Barker further stated that in California if a man went into a
public restroom, closed the door, and had a sex act with another man
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FLORIDA STATE UNIVERSITY LAW REVIEW
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in the adjacent stall, there was no charge he could be arrested on because the toilet would be considered private and this would be an invasion of his privacy.
There was discussion concerning the adjustment hardship found
in homes where one partner was a homosexual and could not change;
the rates of divorce in these situations; and the effect such circumstances had upon the children of the family.
Judge Rudd noted that in Federal government jobs, a homosexual
was considered to be a security risk and a person could lose his job if
it was found out that he was such. He said that a great percentage of
defectors from our country were homosexuals.
Dr. Kapchan questioned the validity of homosexuals actually being security risks, and whether or not they actually were infiltrated
into the State Department.
Judge Rudd said he had noticed in One magazine, the homosexual
publication, that one of their recommendations was the legislation of
mutually consenting adults and that we ought to be able to see that
this is what they want — so the field will be wide open to them.
At 9:40 P.M. the meeting adjourned for the night, to reconvene at
8:30 A.M.
Mr. Evans convened the meeting at 9:05 A.M. Tuesday, June
30th. He distributed a draft entitled “Sexual Deviation Law,” which
he had composed for the Committee’s examination and edification.
The Committee agrees, without dissent, to change the title of the
law to “Sexual Behavior Law.”
Dr. Gessner suggested the elimination of the phrase “performed
through the use of inanimate objects or animals” located at the termination of .02.
Dr. Kapchan concurred, pointing out that such terminology might
be construed to include magazines containing suggestive pictures.
The problem of a child engaging in fetishism was discussed.
Judge Winegart pointed out that none of these laws would apply to
any child as defined by Florida Statutes, and that if this came to the
attention of the law, it would have, of necessity, been done in public.
Dr. Kapchan stated that ours is supposed to be a free society, and
he felt it to be immoral to invade the privacy of human beings if they
are in no way encroaching on the rights of another human being.
This is a basic point in considering individual freedoms.
Dr. Davis suggested that the individual could be then arrested on
the public indecency charge; and that if the person did this in private, no one would know about it, and what is the need in having
laws for no purpose.
There was no agreement reached on the retention or deletion of
this phrase.
1997]
APARTHEID OF THE CLOSET
837
Judge Winegart suggested that throughout this draft, the phrase
“child as defined by Florida Statutes,” be substituted for specific age
references. There were no objections to this suggestion.
Judge Winegart proposed .04(3) be amended to read: “Any lewd
fondling.” He explained that specific intent to arouse was extremely
hard to prove.
After discussion, a majority agreed upon this recommendation.
There was no opposition to this section being treated as a felony.
Judge Laramore asked the Committee to leave consideration of
penalties to all the various sections until a later date when it has
been decided exactly what the law would contain and that the group
might possibly have someone from the Division of Corrections or
other authority to discuss penalties at the next meeting.
There was brief discussion concerning .05, after which there was
general agreement that (1), (2) and (3) would be omitted, as these
topics were repetitious. It was agreed that (4) and (5) would then become (1) and (2) with the following changes: (1) strike “with the intent” after “child” in the first line. (2) strike “of any nature whatever,
with the intent” after “material” in the third line. It was agreed, also,
that this section should be considered a misdemeanor.
Sections .06 and .07 were approved.
There was dispute concerning .08. Dr. Kapchan said he felt it
should be omitted entirely. The judicial and law enforcement representatives advocated the retention of this proposed statute. No compromise was agreed upon.
Section .09 was amended, omitting (2), changing subsequent
numbers appropriately, and modifying (2) to read “A lewd exposure
of the body or genital organs.”
Section .10 was discussed, as previously, and there was no
agreement whatsoever on this proposal.
Incest (.11) was amended to include stepparent - stepchild relationships, and Aggravated Incest (.12) was eliminated.
SEXUAL BEHAVIOR LAW
.01 Short Title — This Chapter shall be known as the Florida
Sexual Behavior Act.
.02 Definitions — For the purposes of this act, sexual deviation
and deviate sexual conduct shall include, but not be limited to, acts
of sexual gratification, or tending to provide sexual gratification, between persons of the same sex; acts of sexual gratification, or tending to provide sexual gratification, involving the sex organs of one
person and the mouth or anus of another *(and acts of sexual gratification, or tending to provide sexual gratification, performed through
the use of inanimate objects or animals.)
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FLORIDA STATE UNIVERSITY LAW REVIEW
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.03 Rape — Any person who has sexual intercourse with a female, not his wife, by means of force and against her will, commits
rape. Sexual intercourse occurs when there is any penetration of the
female sex organ by the male sex organ. A person convicted of rape
shall be punished by death, unless a majority of the jury in their
verdict recommend mercy, in which event the punishment shall be
by imprisonment in the state prison for life, or for any term of years
within the discretion of the judge.
.04 Indecent Liberties with a Child — Any person of the age of 17
years and upwards who performs or submits to any of the following
acts with a child as defined by Florida Statutes commits indecent
liberties with a child:
(1) Any act of sexual intercourse.
(2) Any act of deviate sexual conduct.
(3) Any lewd fondling.
Penalty .05 Contributing to the Sexual Delinquency of a Child — (a) Any
person of the age of 17 years and upwards who performs or submits
to any of the following acts with any child as defined by Florida
Statutes contributes to the sexual delinquency of a child:
(1) Any lewd act done in the presence of the child.
(2) Any display, presentation or exposure of the child to lewd,
lascivious, obscene, pornographic or otherwise indecent material
to arouse or satisfy the sexual desires of the child or person, or
both.
(b) It shall not be a defense to contributing to the sexual delinquency of a child that the accused reasonably believed the person not
to be a child as defined by Florida Statutes.
(c) Penalty .06 Indecent Solicitation of a Child — (a) Any person of the age of
17 years and upwards who solicits a child, as defined by Florida
Statutes, to do any act, which if done would be an indecent liberty
with a child or an act of contributing to the sexual delinquency of a
child, commits indecent solicitation of a child.
(b) It shall not be a defense to indecent solicitation of a child that
the accused reasonably believed the person not to be a child as defined by Florida Statutes.
(c) Penalty .07 Adultery — (a) Any person who cohabits or has sexual intercourse with another not his spouse commits adultery, if
(1) The person is married and the other person involved in
such intercourse or cohabitation is not his spouse; or
(2) The person is not married and knows that the other person involved in such intercourse is married.
1997]
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(b) Where either of the parties living in an open state of adultery
is married, both parties shall be deemed to be guilty of the offense
provided for in this section.
(c) Penalty *.08 Fornication — (a) Any person who cohabits or has sexual
intercourse with another not his spouse commits fornication.
(b) Penalty .09 Public Indecency — Any person who performs any of the
following acts in a public place commits a public indecency:
(1) An act of sexual intercourse; or
(2) A lewd exposure of the body or genital organs.
(3) A lewd folding or caress of the body of another person of
either sex.
(b) “Public Place” for the purposes of this act means any place
where the conduct my reasonably be expected to be viewed by others
or which may be frequented by members of the general public.
(b) Penalty *.10 Crimes Against Nature — (a) The (open or notorious) performance of acts of sexual deviation, as defined but not otherwise
provided for in this Chapter, shall be deemed a crime against nature.
(b) Penalty .11 Incest — (a) Any person who has sexual intercourse or performs an act of deviate sexual conduct with another to whom he
knows he is related as follows commits incest:
(1) Father - daughter; or
(2) Mother - son; or
(3) Brother - sister, either of the whole blood or the half blood.
(b) “Daughter” and “Son” for the purpose of this Act, means a
blood daughter or son, regardless of legitimacy or age, and also
means a stepdaughter or stepson or adopted daughter or son, so long
as they are a child as defined by Florida Statutes.
(c) Penalty (Bigamy, Prostitution, Sexual Psychopath, Child Molester and
Mentally Retarded Child need to be considered in this area)
*.12 Mandatory Psychiatric and Psychological Examination —
(a) Each person found to be guilty of an act of deviate sexual conduct
involving or related to a child as defined by Florida Statutes, shall,
before sentencing, be made subject of a psychiatric and psychological
examination in accordance with procedures set forth in the Florida
Statutes for such examination.
(b) The judge may, in his discretion, order psychiatric and psychological examination of other individuals convicted before him of
deviate sexual conduct.
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FLORIDA STATE UNIVERSITY LAW REVIEW
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PROPOSALS OF THE GROUP OF PSYCHOLOGISTS AND
PSYCHIATRISTS
As fundamental changes:
1. Drop the term “crime against nature” and substitute for it “deviant sex conduct” as defined in the Illinois Code.
2. Drop any mention of animal-human sex relations.
3. Do not penalize the sex conduct of mutually consenting adults,
carried out in private, including that defined as “deviant sex conduct.”
4. Penalize as public indecency any deviant sex conduct occurring
in public (adopt the Illinois section on Public Indecency).
Views concerning steps offered for consideration by the Committee (see Booklet):
1. Mandatory psychiatric examination shall be conducted prior to
sentencing, in accordance with the provisions of 801.4 and/or 917.12
(as amended), in the case of every person convicted of the deviant sex
conduct with a minor and discretionary pre-sentence examination of
others.
2. Provision for out patient psychiatric centers to which offenders
or probation or parole may be assigned. (Approved)
3. Providing for the confidentiality of information relating to the
first arrest for deviant sexual conduct similar to that now in effect in
juvenile cases, with provision that the confidentiality shall be waived
upon conviction or a plea of guilty. (Approved)
4. This proposal should be completely stricken—creation of central records, etc.
5. Placing sole jurisdiction of a second offense of deviant sex conduct in a felony court and providing appropriate penalties upon conviction. (Approved)
HOW WILL LAWYERING AND MEDIATION
PRACTICES TRANSFORM EACH OTHER?
JOHN LANDE*
I. INTRODUCTION ..................................................................................................
II. THE GROWING AND INCREASINGLY SPECIALIZED MARKET FOR MEDIATION
SERVICES ...........................................................................................................
A. Shopping for Mediators in a Liti-Mediation Culture ................................
B. Mediator Styles and Goals .........................................................................
C. Single-School and Pluralist Theories of Mediation...................................
III. APPROACHING THE IDEAL OF “HIGH-QUALITY CONSENT” ..................................
A. Concepts of Empowerment and Principals’ Exercise of Decisionmaking
Responsibility .............................................................................................
B. Standard of Legal Consent.........................................................................
C. Indicators for a Continuum of High-Quality Consent ...............................
1. Explicit Consideration of Principals’ Goals and Interests ..................
2. Explicit Identification of Plausible Options.........................................
3. Principals’ Explicit Choice of Options for Consideration ....................
4. Careful Consideration of Options ........................................................
5. Mediators’ Restraint in Pressuring Principals to Select Particular
Options .................................................................................................
6. Limitation on Use of Time Pressure ....................................................
7. Confirmation of Consent ......................................................................
IV. POTENTIAL EFFECTS OF LAWYER PARTICIPATION IN LITI-MEDIATION...............
A. Relationships Between Principals, Lawyers, and Mediators ....................
B. Timing in Liti-Mediation ...........................................................................
C. Use of Adversarial and Problem-Solving Approaches in Mediation .........
V. SUMMARY AND CONCLUSION..............................................................................
VI. RECOMMENDATIONS ..........................................................................................
A. Mediators....................................................................................................
B. Lawyers.......................................................................................................
C. Law Schools................................................................................................
D. Judges, Court Administrators, and Legislators ........................................
E. Researchers.................................................................................................
839
844
845
849
854
857
858
866
868
871
872
873
873
876
877
878
879
881
886
888
890
895
895
896
897
898
899
I. INTRODUCTION
In the past two decades, the use of mediation 1 in legal disputes
has increased dramatically.2 State legislatures have enacted statutes
* Assistant Professor, Department of Dispute Resolution, Nova Southeastern University. A.B., University of Michigan, 1974; Ph.D., University of Wisconsin-Madison, 1995;
J.D., Hastings College of Law, 1980. I am enormously grateful to Bob Barrett, Jim
Boskey, Baruch Bush, Aimee Delman, Greg Firestone, Janice Fleischer, Bill Howard, Jon
Hyman, Ron Kelly, Lela Love, Mike Lowy, David Matz, Bobbi McAdoo, Craig McEwen,
Rick Reed, Len Riskin, Nancy Rogers, Jean Sternlight, Fran Tetunic, Bill Warters, and
Archie Zariski for their encouragement and very helpful comments, and to Aimee Delman
for her diligent research assistance. I dedicate this Article to Marc Galanter, who has been
a kind mentor and has provided a wonderful model of scholarship. Of course, I take responsibility for what follows, so don’t blame these good people.
1. In general, mediation is a procedure in which the mediator tries to help disputing
parties reach agreement and in which the mediator has little or no authority to impose a
decision if the parties do not reach agreement. See CHRISTOPHER W. MOORE, THE
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authorizing, and in some cases mandating, courts to order cases to
mediation.3 In some areas, the use of mediation in litigation is so
routine and accepted that lawyers4 do not wait to be ordered into
mediation, but initiate mediation themselves. 5 Indeed, in some
places, mediation has become so much a part of the litigation process
that lawyers may refrain from direct, unmediated negotiations, anticipating that they will conduct their negotiations in mediation. 6 As
MEDIATION PROCESS: PRACTICAL STRATEGIES FOR RESOLVING CONFLICT 8, 41-53 (2d ed.
1996). Practitioners and empirical researchers differ about many characteristics claimed
to be essential to mediation, such as the goals of the mediation. See infra Part II.B. The
definition in this footnote represents minimal characteristics that I believe most knowledgeable observers would accept.
2. Good data on use of mediation is hard to come by. Unlike the courts, where there
is a clerk’s office through which all lawsuits must flow, there is no central registry of mediation cases. Indeed, even in states like Florida, where there is a well-organized statewide system for providing mediation, it is impossible to get a full and accurate count. In
Florida, at least 76,920 mediations were conducted in 1995. See SARAH SCHULTZ ET AL.,
FLORIDA MEDIATION/ARBITRATION PROGRAMS: A COMPENDIUM 26, 52, 79, 102 (9th ed.
1996). This figure understates the actual number of cases because data was not available
from courts without coordinators of mediation services. See id. at v; see also Sharon Press,
Institutionalization: Savior or Saboteur of Mediation?, 24 FLA. ST. U. L. REV. 903, 907
n.18 (1997).
The RAND Corporation made perhaps the best effort to count private alternative dispute resolution (ADR) cases by surveying ADR providers in Los Angeles about caseloads
during the period of 1988-93. See ELIZABETH ROLPH ET AL., INSTITUTE FOR CIVIL JUSTICE,
ESCAPING THE COURTHOUSE: PRIVATE ALTERNATIVE DISPUTE RESOLUTION IN LOS ANGELES
18, 19 (1994). The RAND researchers found that the annual rate of growth of caseloads
increased dramatically during this period, from about 15% in 1989 to 90% in 1993. See id.
at 19 fig.3.1. Because some providers in the earlier years were not available to respond to
the study, the figures for the earlier years actually understate the rate of growth. See id.
at 19 n.3. In 1993, there were at least 23,672 private ADR cases in Los Angeles (including
procedures other than mediation). See id. at 18 tbl.3.1.
3. See NANCY H. ROGERS & CRAIG A. MCEWEN, MEDIATION: LAW, POLICY, PRACTICE
app. B (2d ed. 1994 & Supp. 1996) (providing a state-by-state listing of significant mediation legislation). Although many points in this Article would apply to ADR procedures
generally, this Article focuses on mediation because it is the quintessential third-party
procedure for eliciting agreement and because of its widespread and generic applicability.
4. To avoid confusion, this Article uses the word “lawyers” to refer to lawyers only
when they act as representatives. The word “mediators” refers to people who act as third
parties assisting in negotiation, regardless of the mediators’ profession of origin. This distinction is important because many lawyers act as mediators as part of their practices.
The term “lawyer-mediator” is reserved for lawyers when they are acting as mediators.
5. In Florida, the courts may order cases to mediation. See FLA R. CIV. P. 1.700(a).
Within 10 days after a court-ordered referral to mediation, the parties may select their
own mediator. See FLA. R. CIV. P. 1.720(f). The Florida Dispute Resolution Center reports
that more than 90% of parties ordered to mediation agree on a mediator rather than having one assigned by the court. See SCHULTZ ET AL., supra note 2, at v. There are no statistics describing the number of cases in Florida in which the participants choose mediation
without first having been ordered to mediation. See Interview with Sharon Press, Director, Fla. Disp. Resol. Ctr., in Fort Lauderdale, Fla. (Oct. 10, 1996).
6. See Barbara McAdoo & Nancy Welsh, The Times They Are a Changin’—Or Are
They? An Update on Rule 114, HENNEPIN LAW., July-Aug. 1996, at 8, 10. In Hennepin
County, Minnesota, lawyers view Minnesota Supreme Court Rule 114 as mandating use of
ADR, usually mediation. A preliminary study based on 12 in-depth interviews with Hennepin County lawyers found that as a result of Rule 114, “[t]here may be less lawyer-tolawyer negotiation” as lawyers prefer to “wait for a ‘mandatory’ mediator’s assistance with
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court planners perceive growth in the volume and complexity of their
caseloads and that their resources do not keep pace with that
growth, it seems likely that many courts will find it increasingly attractive to order large numbers of cases to mediation. 7 Where mediation becomes routinely integrated into litigation practice, we can expect that this will significantly alter both lawyers’ practices in legal
representation and mediators’ practices in offering and providing
mediation services. I describe this new dispute resolution environment as a “liti-mediation” culture, in which it becomes taken for
granted that mediation is the normal way to end litigation. 8
This Article sketches out some aspects of both lawyering and mediation practice that may be affected by development of a litimediation culture. Part II examines the growth of the private market for mediation and an accompanying specialization of mediation
practice. These changes seem likely to require mediators to develop
market niches with identifiable characteristics of their mediation
practices. Simultaneously, lawyers, as regular buyers of mediation
services, will be expected to recognize and make decisions based on
significant distinctions between mediation providers. Part II describes some of these distinctions that may evolve in the mediation
market, particularly focusing on differences in various mediation
goals and styles. The institutionalization of a liti-mediation culture
settlement.” Id. at 10; see also Press, supra note 2, at 908 (noting that Florida lawyers are
increasingly requesting mediation without waiting to be ordered to mediate).
7. See Jay Folberg et al., Use of ADR in California Courts: Findings & Proposals, 26
U.S.F. L. REV. 343, 346, 409-10 (1992). Finding that California courts are now faced with a
greater number of cases and more complex cases than ever before, the authors made recommendations that included the development of an “ADR track” for some cases. Id. at
397; see also id. at 409-10.
8. See infra Part II.A. Mike Bridenback, the first director of the Dispute Resolution
Center and current trial court administrator for Florida’s Thirteenth Judicial Circuit, emphasized this view: “Mediation, in just ten short years, is not an alternative but the primary system of justice in Florida’s civil and family courts.” Announcement for the Florida
Dispute Resolution Center’s Annual Conference for Mediators & Arbitrators (1996) (on file
with author). Liti-mediation culture is likely to vary in different communities. See infra
note 23 and accompanying text. Thus, references to liti-mediation cultures refer to the
various situations in different areas rather than a single, homogeneous, national litimediation culture. For example, my research suggests that different states have stronger
and weaker “mediation cultures.” I asked six experts on dispute resolution to rate the
strength of the ADR cultures of 19 states and found that their ratings were highly correlated with each other and with the existence of certain types of statutes. See John Lande,
The Diffusion of a Process Pluralist Ideology of Disputing: Factors Affecting Opinions of
Business Lawyers and Executives 48-53 (1995) (unpublished Ph.D. dissertation, University of Wisconsin (Madison)) (on file with author). A survey of business lawyers and executives in several states revealed that there was greater support for use of mediation in
Florida (identified by the experts as a strong ADR-culture state) than in Tennessee and
Pennsylvania (identified as weak ADR-culture states). There were no comparable differences in support for arbitration, suggesting that these attitudes related more specifically
to mediation than ADR generally. See id. at 177-83, 197-201. Although this suggests that
there is significant variation between states, there is obviously considerable variation
within states as well.
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is likely to generate generally accepted vocabularies that reflect and
reinforce such differences within local mediation markets. Part II
speculates about the language that will be used to portray varied
species of mediation in a liti-mediation world. Although proponents
of competing mediation philosophies understandably seek to define
the language and practice of mediation in their own terms, I advocate for pluralist local mediation cultures in which differences are
clearly identified, respected, and valued.
Part III focuses on an important distinction between mediation
practices. Much of the current ferment in the mediation field deals
with a distinction between “facilitative” and “evaluative” approaches
to mediation.9 A related distinction is between “empowerment” (or
“transformative”) and “settlement” approaches.10 In Part III, I maintain that the essence of facilitative and empowerment approaches is
a high priority devoted to promoting the principals’ 11 exercise of their
9. See Leonard L. Riskin, Understanding Mediators’ Orientations, Strategies, and
Techniques: A Grid for the Perplexed, 1 HARV. NEGOTIATION L. REV. 7 (1996). Professor
Riskin’s framework has attracted a good deal of attention. Teachers and trainers have incorporated his framework into their presentations, and practitioners have used it to explain their version of mediation to potential clients. See id. at 49 n.125. At the 1996 Annual Conference for Mediators and Arbitrators, sponsored by the Florida Dispute Resolution Center, a major plenary session was entitled “Evaluative v. Facilitative Mediation:
Current Ethical and Policy Considerations.” See James J. Alfini, Moderator, Evaluative
Versus Facilitative Mediation: A Discussion, 24 FLA. ST. U. L. REV. 919 (1997). Similarly,
in September 1996, the Association of Broward County (Florida) Mediators sponsored a
program entitled, “A Great Debate: Facilitative v. Evaluative Mediation,” featuring Mel
Rubin and Arthur “Jim” Parkhurst. Professors Barbara McAdoo and Jeffrey Krivis are
now developing a self-assessment questionnaire for mediators to identify their orientation
within Riskin’s framework. See Barbara McAdoo & Jeffrey Krivis, Mediator Classification
Index (unpublished manuscript, on file with the author). For a critique of Riskin’s framework, see Kimberlee K. Kovach & Lela P. Love, “Evaluative” Mediation Is an Oxymoron,
14 ALTERNATIVES TO HIGH COST LITIG. 31, 32 (1996), and for a response, see John Bickerman, Evaluative Mediator Responds, 14 ALTERNATIVES TO HIGH COST LITIG. 70 (1996). For
a collection of sources on this topic, see Jeffrey W. Stempel, Beyond Formalism and False
Dichotomies: The Need for Institutionalizing a Flexible Concept of the Mediator’s Role, 24
FLA. ST. U. L. REV. 949, 953 n.7 (1997).
10. The clearest and strongest expression of the empowerment ideal is in ROBERT A.
BARUCH BUSH & JOSEPH P. FOLGER, THE PROMISE OF MEDIATION: RESPONDING TO
CONFLICT THROUGH EMPOWERMENT AND RECOGNITION (1994). The Bush and Folger model
of transformation was the focus of a lively discussion at a session of the ADR Section at
the 1996 Annual Meeting of the Association of American Law Schools (Models of Mediation, Jan. 7, 1996). The subject of transformation was also highlighted at a popular session
at the 1996 Annual Meeting of the Society for Professionals in Dispute Resolution entitled, “Transformation of What? The Meaning of Conflict Transformation” (Oct. 24, 1996).
For two critical reviews of The Promise of Mediation, see Carrie Menkel-Meadow, The
Many Ways of Mediation: The Transformation of Traditions, Ideologies, Paradigms, and
Practices, 11 NEGOTIATION J. 217, 235-39 (1995), and James Boskey, Books in Review,
ALTERNATIVE NEWSL., March 1995, at 22-23. For a detailed discussion of issues of
empowerment, see infra Parts III.A and III.C.
11. In keeping with the emphasis on promotion of responsibility by the parties in a
conflict who have retained lawyers and/or mediators, the parties are generally referred to
as the “principals” because “clients” has a connotation of dependence on and deference to
others’ judgments. Although parties are not principals of mediators in the sense of a legal
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843
decisionmaking responsibility by eliciting what I refer to as “highquality consent” to their agreements.12 Part III analyzes how the
concept of “empowerment” has been used and contrasts it with the
minimal standards of consent required to create a legally enforceable
agreement. Rather than achieving the minimal standards needed to
settle a dispute, proponents of empowerment aspire to help principals achieve a higher standard of consent, what I call “high-quality
consent.” As this can be confusing to apply in practice, Part III identifies a set of concrete mediation tactics that may promote—and be
indicators of—this approach. These tactics include: (1) explicit consideration of the principals’ goals and interests, (2) explicit identification of plausible options for satisfying these interests, (3) the principals’ explicit choice of options for consideration, (4) careful consideration of these options, (5) mediators’ restraint in pressuring principals to accept particular options, (6) limitation on use of time pressure, and (7) confirmation of the principals’ consent to selected options. This set of tactics is offered as a cluster of factors that might
be used to create a continuum of the quality of consent and not as
absolute or necessary requirements. Although these tactics for eliciting high-quality consent may not be the norm in practice, 13 even by
practitioners who subscribe to this philosophy, they reflect the ideal
to which much mediation theory aspires. 14 Part III asserts that this
principal-agent relationship, the term is used in the sense of the parties being the principal decisionmakers. See BLACK’S LAW DICTIONARY 1192 (6th ed. 1990) (defining the adjective “principal” as meaning “[c]hief; leading; most important or considerable; primary;
original” and “[h]ighest in rank, authority, character, importance, or degree”); see also infra Parts III.A, III.C; cf. Stempel, supra note 9, at 965-66 n.53 (criticizing reference to disputing parties as mediator’s “clients” or “principals”). I am grateful to Berkeley, California, mediator Ron Kelly for suggesting use of the term “principal.” For convenience, I use
the term “participants” to collectively refer to the principals and their lawyers in mediation, but not the mediator.
12. The notion of evaluating dispute resolution by standards of quality is not original
to me. Professor Carrie Menkel-Meadow, in particular, has made this a central theme in
her work. See generally Carrie Menkel-Meadow, Whose Dispute Is It Anyway?: A Philosophical and Democratic Defense of Settlement (In Some Cases), 83 GEO. L.J. 2663 (1995)
[hereinafter Menkel-Meadow, Whose Dispute Is It Anyway?]; Carrie Menkel-Meadow, Pursuing Settlement in an Adversary Culture: A Tale of Innovation Co-opted or “The Law of
ADR”, 19 FLA. ST. U. L. REV. 1 (1991) [hereinafter Menkel-Meadow, Pursuing Settlement
in an Adversary Culture]; Carrie Menkel-Meadow, For and Against Settlement: Uses and
Abuses of the Mandatory Settlement Conference, 33 UCLA L. REV. 485 (1985); Carrie
Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem
Solving, 31 UCLA L. REV. 754 (1984) [hereinafter Menkel-Meadow, Toward Another View
of Legal Negotiation]; see also generally Symposium, Quality of Dispute Resolution, 66
DENV. U. L. REV. 335 (1989).
13. See Deborah M. Kolb & Kenneth Kressel, Conclusion: The Realities of Making
Talk Work, in WHEN TALK WORKS: PROFILES OF MEDIATORS 459, 459-60 (Deborah M. Kolb
ed., 1994).
14. See generally BUSH & FOLGER, supra note 10; ROGER FISHER ET AL., GETTING TO
YES (2d ed. 1991); MOORE, supra note 1; Menkel-Meadow, Whose Dispute Is It Anyway?,
supra note 12.
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standard for evaluating mediation processes is important for two reasons. First, this dimension may be an important distinguishing feature of mediation practices in the mediation marketplace described in
Part II. Second, it is an important variable of mediation that is likely
to be affected by the participation of lawyers as described in Part IV.
Part IV considers how the routine incorporation of mediation in
litigation may affect both processes. This Part analyzes these possibilities by examining how the active participation of lawyers in mediation may alter the constellation of relationships of professionals
and clients in a legal case. Regular participation of lawyers in mediation is likely to result in ongoing relationships between mediators
and lawyers that may overshadow their respective relationships
with the principals and dramatically affect the mediation process. As
a result of the prominent role of lawyers in mediation, mediators
may feel especially obliged to cater to the lawyers’ interests, which
often entails pressing the principals into settlement. The participation of lawyers may increase time pressure in mediation, putting additional pressure on principals. Moreover, extending lawyers’ norms
of adversarial bargaining and “client control” further adds to the pressure, all of which may undermine the quality of principals’ consent.
Part V integrates the analysis of how the dynamics of litimediation culture may affect both lawyering and mediation practices. In Parts V and VI, I contend that the possible changes in lawyering and mediation practices outlined in this Article are contingent
upon the values, attitudes, and decisions of a wide range of actors, including mediators, lawyers, law school faculty, legislators, judges,
court administrators, and the general public. I suggest that we are
now in a critical period regarding these changes because they are
likely to crystallize for an extended time—albeit with significant local
variations—after the current period of institutionalization. 15 I conclude with suggestions for developing the mediation field in the future.
II. THE GROWING AND INCREASINGLY SPECIALIZED MARKET FOR
MEDIATION SERVICES
As the private market for mediation has grown, there has been an
accompanying specialization of mediation practices. Mediators vary
15. Institutionalization processes have been analyzed in a variety of disciplines and
using a variety of definitions. Though popular conceptions often focus on institutions as
organizational structures, most scholarly analyses are much broader and include generally recognized norms, roles, and conventions. Thus, institutions may range “from handshakes to marriages to strategic-planning departments” and may cover “a wide territorial
range, from understandings within a single family to myths of rationality and progress in
the world system.” Paul J. DiMaggio & Walter W. Powell, Introduction to THE NEW
INSTITUTIONALISM IN ORGANIZATIONAL ANALYSIS 1, 7-9 (Walter W. Powell & Paul J. DiMaggio eds., 1991). For an analysis of the institutionalization of ADR in the United States
in recent decades, see Lande, supra note 8.
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greatly in their training and experience, areas of expertise, and
styles and techniques, among other characteristics. For mediators
and buyers of their services (often lawyers) to make the mediation
market operate effectively, it is becoming increasingly important for
the buyers and sellers to accurately identify relevant distinctions between mediators. Part II.A provides an overview of how mediation
buyers may go about shopping for a mediator in a liti-mediation culture typified by a large pool of increasingly specialized mediators.
Part II.B describes two important dimensions that may differentiate
mediators: their primary goals and techniques. Part II.C analyzes a
controversy within the mediation field over what philosophies and
styles may be appropriately called “mediation.” Contrasting what I
describe as a “single-school” position, which favors a relatively narrow and pure definition of mediation, I advocate a “pluralist” view
that accepts the legitimacy of a broad range of mediation practices as
long as they are clearly described to prospective mediation buyers.
A. Shopping for Mediators in a Liti-Mediation Culture
There was a time not long ago in the modern ADR era 16 when the
use of mediation in legal cases was extremely rare. It was so rare
that some early mediating practitioners themselves did not have a
name for the procedure.17 In a relatively short time, mediation has
become so widely accepted that it is now enshrined in many statutes18 and generally viewed positively by lawyers,19 who are especially important actors in our adversarial legal system. 20 Indeed,
even though some statutes only authorize, but do not mandate, use
16. Professor Jeffrey Stempel suggests that the 1976 Pound Conference is an appropriate point to mark the beginning of the modern ADR movement. Stempel argues that
“new ADR” is more likely than “old ADR” to involve, among other things, mass-produced
procedures affecting large classes of persons or entities. See Jeffrey W. Stempel, Reflections on Judicial ADR and the Multi-Door Courthouse at Twenty: Fait Accompli, Failed
Overture, or Fledgling Adulthood?, 11 OHIO ST. J. ON DISP. RESOL. 297, 309-24, 334-40
(1996).
17. For example, when Henry Elson began mediating in 1971, he referred to his work
as “nonadversarial law practice.” Henry M. Elson, Divorce Mediation in a Law Office Setting, in DIVORCE MEDIATION: THEORY AND PRACTICE 143, 143-44 (Jay Folberg & Ann
Milne eds., 1988).
18. See ROGERS & MCEWEN, supra note 3, apps. A-C (providing a comprehensive
summary of mediation legislation).
19. See, e.g., Lande, supra note 8, at 133-76; Morris L. Medley & James A. Schellenberg, Attitudes of Attorneys Toward Mediation, 12 MEDIATION Q. 185, 189-92 (1994);
DELOITTE & TOUCHE LITIG. SERVS., 1993 SURVEY OF GENERAL AND OUTSIDE COUNSEL 1015 (1993); see also Folberg et al., supra note 7, at 365 (finding that judges familiar with
ADR had high praise for ADR processes, especially mediation).
20. See Robert Kagan, Do Lawyers Cause Adversarial Legalism? A Preliminary Inquiry, 19 L. & SOC. INQUIRY 1 passim (1994) (observing that the U.S. legal system relies
on litigant activism in which investigation and presentation of claims is based on initiative of disputing parties acting primarily through lawyers).
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of mediation, some courts routinely order most cases on their dockets
to mediation.21 In areas where mediation has become a regular part
of the litigation process, key actors in the legal system (such as
judges, court administrators, and lawyers) may take it for granted
that settlement negotiations will primarily take place in mediation.
Shifting from a predominant culture of “litigotiation” that Professor
Marc Galanter described a decade ago,22 we may be developing what
might be called “liti-mediation” cultures in some areas where it has
become taken for granted that mediation is the normal way of ending
litigation.23
In recent years, liti-mediation culture has expanded from what
some might consider the isolated “backwaters” of low-status cases in
areas like family law and small-claims court into the “heartland” of
litigation,24 including legal disputes of virtually every kind. Thus, a
well-developed liti-mediation culture requires a market with both a
substantial variety and volume of mediators to provide a range of acceptable mediation services. Full-fledged liti-mediation cultures are
especially likely to develop in larger urban areas where there are
greater caseload pressures and difficulties in reaching resolution because of more tenuous relationships between lawyers and the clients
themselves.25 Under these conditions, the pool of mediators is likely
21. See McAdoo and Welsh, supra note 6, at 10.
22. Galanter used the term “litigotiation” to refer to the strategic pursuit of settlement through mobilizing the court process. Thus, lawyers, and to some extent principals,
pursue litigation with the private expectation of ultimately reaching settlement, but use
the litigation process to gain strategic advantage in negotiation. See Marc Galanter,
Worlds of Deals: Using Negotiation to Teach About Legal Process, 34 J. LEGAL EDUC. 268,
268 (1984).
23. As with litigotiation, in a “liti-mediation” culture, the initiation and conduct of
litigation are oriented to obtaining favorable settlements, usually defined in adversarial
terms. The two regimes differ in the cultural stories and practices typical of bilateral and
mediated negotiations. For example, in typical litigotiation culture, lawyers work to create
strong cases for trial and then engage in a ritual pretense of being reluctant to negotiate
out of fear of losing advantage by appearing weak. While liti-mediation culture may not
differ radically from that typical of litigotiation, there are certainly some differences. The
existence of a formal and (quasi-) mandatory mediation procedure probably provides
greater legitimacy of resolution through settlement. Moreover, mediation, especially with
directive techniques, see infra note 40, provides a generally accepted mechanism for lawyers to settle while maintaining the appearance of strength for the “benefit” of clients and
opposing parties alike. See Craig A. McEwen et al., Bring in the Lawyers: Challenging the
Dominant Approaches to Ensuring Fairness in Divorce Mediation, 79 MINN. L. REV. 1317,
1369-70 (1995). As one reviewer suggested, lawyers may take strong positions for a variety of reasons, including protecting the clients’ interests and solving the lawyers’ problems
in managing relationships with their clients, or some combination.
24. I am grateful to Marc Galanter for suggesting the concept of the “heartland” of
litigation.
25. For an excellent analysis of these and other factors leading to increased litigation, see MARC GALANTER & JOEL ROGERS, A TRANSFORMATION OF AMERICAN BUSINESS
DISPUTING? SOME PRELIMINARY OBSERVATIONS 41-47 (Inst. for Legal Stud., Disp. Processing Res. Program Working Paper No. 10-3, 1991).
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847
to be relatively large26 and characterized by relatively distant and
professional (rather than close and personal) relationships with the
various actors in a case.
In this market, both buyers and sellers of mediation services need
to identify and distinguish differences between mediators. This is an
important concern for both the buyers and sellers. For the sellers
(i.e., the mediators and mediation businesses), regularly attracting
new clients is obviously necessary to stay in business and prosper.
Thus, it is not surprising that workshops on marketing techniques
are perennial favorites at conferences for mediation practitioners. 27
In a large, diverse, and somewhat impersonal 28 market of mediation
services, buying those services considered appropriate for particular
cases is an important and difficult task, which is often performed by
the principals’ lawyers.29 The lawyers are repeat players30 who become familiar with the disputing practices and practitioners in their
community31 and thus are usually in a better position than their clients to serve as expert shoppers for mediation services. 32
26. For example, nine of Florida’s 20 judicial circuits have more than 200 certified
mediators, with the most (441) working in the 11th Circuit, covering Dade County (Miami). See Florida Certified Mediators, RESOL. REP., July 1996, at 7.
27. See, e.g., Program Brochure, “The Business of Mediation: A Series of Seminars
for Anyone Who Has Considered Making Mediation a Career!” (1993) (on file with author).
This program, sponsored by the Southern California Mediation Association, spanned three
Saturday mornings in 1993-94. See id.
28. Although many mediators operate as sole practitioners, largely trading on their
personal skills and experiences, there is a major institutional sector of organizations in
which the buyers do not necessarily select individual mediators but rather purchase a
package of services including case administration as well as mediation. On a national
level, some of the best known organizations include the American Arbitration Association,
JAMS/Endispute, and Judicate. There are also local and regional providers of mediation
services. For example, Mediation, Inc. and Florida Mediation Group serve a substantial
share of the South Florida market.
29. See, e.g., ERIC GALTON, REPRESENTING CLIENTS IN MEDIATION 8-24 (1994).
30. See Marc Galanter, Why the “Haves” Come Out Ahead: Speculations on the Limits
of Legal Change, 9 L. & SOC’Y REV. 95, 97-104 (1974); cf. Mark Suchman, On Advice of
Counsel: Law Firms and Venture Capital Funds as Information Intermediaries in the
Structuration of Silicon Valley 95-126 (1994) (unpublished Ph.D. dissertation, Stanford
University) (on file with author) (observing that, in Silicon Valley, business lawyers’ repeated experience of structuring start-up companies and matching them with venture
capital funds enables lawyers to provide valuable advice).
31. The geographical scope of practice communities varies. Many lawyers and mediators practice only within a limited area around their offices. Others have regional, national, and transnational practices. Thus, references to practice communities relate to the
group of colleagues and clients to which practitioners regularly relate, rather than to a local geographic area.
32. As Florida mediator Janice Fleischer pointed out, although lawyers are generally
in a better position to evaluate mediators because of their greater experience, they may
not make better selections of mediators in some cases because lawyers and their clients
often have different interests. See Telephone Interview with Janice Fleischer, Coordinator, S. Fla. Off., Fla. Conflict Resol. Consortium (Oct. 26, 1996); see also infra note 174
(discussing differences in interests between attorneys and their clients).
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How does one shop for a mediator?33 I suspect that to a large extent, buyers of mediation services use processes similar to those of
buyers of other professional services. Presumably, one of the first
things that buyers do is identify mediators who have previously
worked for them or trusted members of their networks of professionals. For some buyers, the search may begin and end there. Expert
shoppers have probably worked with and developed this kind of information about numerous mediators, especially in liti-mediation
cultures. Thus, even these buyers are likely to need additional information. Does the mediator have much experience (or, better yet,
specialize) in the general type of case involved, such as family, personal injury, or perhaps more obscure categories of cases? 34 Does the
mediator have some kind of certification? 35 Is the mediator a former
judge?36 Of course, shoppers may also be sensitive to differences in
the level of mediators’ fees both due to an intrinsic interest in costs
and as a proxy believed to indicate the quality of services. In cases
33. This is an interesting and important question that deserves empirical research. I
offer some hypotheses about the shopping process in this subpart. See Riskin, supra note
9, at 38-39 (discussing the mediator selection process).
34. As the practice of mediation has grown in recent years, mediators can now claim
to have mediated many hundreds, and even thousands, of cases. I have attended numerous events where mediators introduced themselves by saying that they have mediated
more than 1000, 2000, and even 5000 cases.
35. Certification of mediators has become a big business. Individual and organizational trainers are constantly offering training programs that often provide “graduates”
with certificates suitable for framing and citing as credentials. The most recent Alternative Newsletter published by Professor James Boskey lists 58 organizations in the United
States that offer training in ADR skills. Many of these organizations offer multiple trainings over the course of a year. See Training in ADR Skills, ALTERNATIVE NEWSL., July
1996, at 12-19. Based on the level of practitioner experience, professional organizations
like the Society of Professionals in Dispute Resolution offer stratified membership categories that can be used to create market distinctions. See Soc’y of Profs. in Disp. Resol., Application for Membership (1995) (on file with author). In Florida, the state government
has gotten into the certification business to the extent that mediators who satisfy the legal requirements routinely advertise that they have been “certified by the [Florida]
[S]upreme [C]ourt.” FLA. R. CERT. & CT.-APPTD. MEDIATORS 10.010(a)(1), (b)(1), (c)(1)
(1996). Recently, a growing number of universities have joined the training and certification market. For example, my dispute resolution program at Nova Southeastern University is one of at least 16 university programs in the United States that offer graduate certificates (typically involving at least ten credits of course work), 10 that offer masters degrees, and two that offer doctoral degrees. See Bill Warters, Mapping the Contours of
Graduate Study in Dispute Resolution, (unpublished materials produced for a national
symposium conducted in Fort Lauderdale, Fla., on March 22-24, 1996) (on file with
author).
36. Some mediators and mediation organizations showcase mediators’ prior judicial
experience as a prime selling point. Indeed, the Wall Street Journal recently profiled the
competition between ADR firms in recruiting former judges with “marquee power” such as
a former chief justice of the California Supreme Court. Margaret A. Jacobs, Renting Justice: Retired Judges Seize Rising Role in Settling Disputes in California, WALL ST. J., July
26, 1996, at A1. An official in one ADR company compared his firm with a merchandiser,
saying, “[j]udges are like our inventory.” Id. Judicial experience is likely to be especially
valued by buyers seeking mediators with an “evaluative” style or settlement-orientation.
See infra note 40.
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that are, or might be, litigated, the significance of mediation charges
is likely to be more symbolic than financial, considering that the differences in mediation costs are likely to be relatively small in the
context of total litigation costs. Note that the criteria described in
this paragraph are fairly standard, objective, and easy to ascertain.
Given the substantial populations of mediators in many markets,
however, these criteria may not be adequate to weed out enough mediators to narrow the shopping search sufficiently to select a particular mediator, or these may not be the primary criteria that some
buyers use. No doubt, some buyers will be very interested in whether
particular mediators are more or less sympathetic to some types of
parties (notably those with characteristics like the principals in a
given dispute) and thus whether they are truly impartial. Although
classic mediation theory requires or assumes that mediators are impartial, certainly many lawyers and principals hope that a mediator
will be especially helpful to their side. For example, in mediation of
tort cases, mediation shoppers may wonder whether the mediator
tends to favor plaintiffs or defendants. If the opposing party or lawyer is “difficult,” can the mediator effectively “handle” them? 37 If
there are cultural differences between the parties, is the mediator
sensitive to these differences?38 While all these distinctions may be
helpful, mediation buyers may be especially interested in distinguishing mediation services based more on what mediators actually
do in mediation. In the next subpart, we consider some differences in
mediators’ styles and philosophies.
B. Mediator Styles and Goals
Mediation buyers will often want to distinguish the working
styles of the mediators and match them to the perceived needs in
particular cases or to the buyers’ own general preferences about mediator styles and goals. This is where empirical research on mediators’ promotional communications about their styles and especially
the buyers’ investigation and decisionmaking would be helpful. It
would be interesting to see how the classifications used by mediation
buyers and sellers relate to those developed by theorists. 39 For ex37. I am grateful to Palo Alto, California, mediator Althea Lee Jordan for suggesting
the preceding buying criteria in this paragraph.
38. I am grateful to Palo Alto, California, mediator Michael J. Lowy for suggesting
this criterion.
39. In daily life, people often use informal categories that reflect and affect their behavior. For example, Professors Lynn Mather, Richard Maiman, and Craig McEwen found
that New Hampshire divorce lawyers use a variety of characterizations of their colleagues
that presumably describe and affect the behavior of divorce lawyers and those with whom
they deal. The categorizations include “reasonable,” “client-driven,” “papering” (i.e., engage in excessive discovery and motion practice), “just a business” (i.e., uncommitted to
their clients’ interests), “incompetent,” “cause,” “conflict-escalating” lawyers, “sleepers,”
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ample, when mediators describe their services and lawyers shop for
mediators, do they refer to the distinction between facilitative and
evaluative styles?40 Perhaps some of the more sophisticated buyers
and sellers do and do so explicitly in those terms. However, it is
probably somewhat more common for them to refer to this issue but
to use different terms. For example, market participants may describe mediators and their styles as weak or strong. Other, more
colloquial expressions may also be used. Thus, more directive mediators may be referred to as “muscle mediators,” “Rambo mediators,”
“Attila the mediator(s),”41 or mediators who will “knock some sense”
into the principals by “banging their heads together” or “twisting
their arms.” More facilitative mediators may be referred to as “soft,”
“touchy-feely,” “therapeutic,” “potted plant,” or “new age-y.” 42 It is
worth noting that most of these terms have strong and generally
negative connotations. Although classic mediation theory clearly fa-
and “snakes.” Lynn Mather et al., Negotiating a Divorce: Differences Among Lawyers 8,
10, 13-14, 19-21 (June 1991) (paper presented at the Annual Meeting of the Law and Society Association).
40. Mediators using a facilitative style focus on eliciting the principals’ own opinions
and refrain from pressing their own opinions about preferable settlement options. See
Riskin, supra note 9, at 24. Mediators using an evaluative style develop their own opinions about preferable settlement options and may try to influence principals to accept
them. See id. at 23-24. I believe that the term “evaluative” often refers to the level of directiveness or coercion that a mediator employs to reach a particular agreement or any
agreement, at least at the extreme end of the continuum. Thus, in this Article, I generally
use the term “directive” in place of “evaluative.”
Like most of the distinctions in this field, it is more useful to think of this as a continuum rather than a discrete dichotomy. Presumably most mediators’ styles would fall
somewhere between the two extremes, and the question would be where a mediator’s style
is located on this continuum. The importance of conceptualizing this as a continuum is reflected by the fact that a mediator makes multiple interventions in any given case, each of
which might be classified differently. Thus, to identify a mediator’s “true” style would require some aggregation of multiple interventions and should somehow weigh the varying
degrees that each intervention is facilitative or directive and take into account differing
situational contexts. See Joseph B. Stulberg, Facilitative Versus Evaluative Mediator Orientations: Piercing the “Grid” Lock, 24 FLA. ST. U. L. REV. 985, 989 (1997). This suggests
that it is probably impossible to create a truly valid measure of this dimension. This need
not, however, prevent theorists and participants in the mediation market from finding the
concept useful. See id. at 1004-05; cf. Stempel, supra note 9, at 952 n.9, 969-70 (criticizing
use of bipolar and continuum models as creating false dichotomies but recognizing their
value for purpose of discussion and analysis)
41. I am grateful to Berkeley, California, mediator Ron Kelly for relating an experience in which a principal in a mediation referred to the third party as “Attila the mediator.”
42. Dean James Alfini used the evocative terms “hashers,” “bashers,” or “trashers,”
which I believe refer to the facilitative-directive distinction. See James J. Alfini, Trashing,
Bashing, and Hashing It Out: Is This the End of “Good Mediation"?, 19 FLA. ST. U. L.
REV. 47, 66-73 (1991). “Hashers” tend to encourage the parties to communicate directly
with each other and are willing to let the principals end the process without agreement.
See id. at 71. “Trashers” work primarily in caucus, pressing to reach agreement by criticizing the merits of each side’s case. See id. at 66-67. “Bashers” focus primarily on criticizing each side’s position in a “mad dash for the middle.” Id. at 70.
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vors minimal directiveness by mediators,43 a substantial number of
mediation buyers and sellers highly value “strong” mediators and
look down upon those they consider too “touchy-feely.”44 Thus, the issue of mediator directiveness clearly stirs fervent passions of theorists and market participants alike and is probably a factor used in
promoting and shopping for mediators.45
Many mediation buyers and sellers probably also focus on the
mediators’ goals in mediation. Professor Robert A. Baruch Bush developed a typology of mediators based on their identification with
one of five primary goals.46 Bush labels these five types of mediators
as “settlors,” “fixers,” “protectors,” “reconcilors,” and “empowerors.”47
Settlors “see their job as settling cases, period—as many as possible,
as quickly as possible.”48 They tend to believe that what the principals most want (or need) is simply to end the case. When using a
positional (rather than a problem-solving) approach to mediation, 49
43. See, e.g., MOORE, supra note 1, at 327-33.
44. See, e.g., Stempel, supra note 9, at 973-75. One Florida mediator with a facilitative philosophy told me that lawyers frequently pressed her to tell the principals “how
much the case is worth” and were quite frustrated when she would not do so.
45. My experience has been that academics are often especially passionate proponents of facilitative approaches and criticize directive approaches, whereas lawyers and
mediators who practice law and mediation for a living often have the opposite passions.
However, there are many in each group who do not fit this generalization. The unflattering characterizations clearly rankle theorists and practitioners committed to the differing
views. For example, two reviewers who strongly identify with a facilitative approach expressed concern about including in this Article pejorative references to that approach using such terms such as “weak,” which they believe is an inaccurate portrayal. On the
other hand, a reviewer with an evaluative approach complained about descriptions of mediators’ evaluative settlement efforts as being like portrayals of a night with a prostitute.
Though I agree that these are often misleading characterizations, the fact that these epithets are widely used—and touch sensitive nerves—says a lot about the current state of
the field. See generally infra Part II.C.
46. See Robert A. Baruch Bush, Ethical Dilemmas in Mediation 17-18 (1989) (unpublished manuscript, on file with author). Bush notes that mediators often aspire to several
or all of the goals, but that the goals sometimes conflict and the mediators must then
choose between them. See id. at 15-17. Even when the goals do not conflict, many mediators unambiguously favor some goals over others. Nonetheless, the typology necessarily
oversimplifies mediator motivation and behavior to some extent. Although in practice
there are probably few, if any, mediators who perfectly embody the pure types such assettlors and empowerors, these labels do reflect some basic differences and will be used for
convenience.
In The Promise of Mediation, Bush presents a somewhat different typology of mediators’
goals. See BUSH & FOLGER, supra note 10, at 15-32. I refer to the goals from Bush’s earlier
manuscript because they better capture the distinctions between the goals, as described
below. See infra note 54. Bush’s descriptions of the five roles are fairly brief. The descriptions in this Article include my own elaborations of Bush’s typology.
47. See Bush, supra note 46, at 17-18.
48. Id. at 17.
49. In a positional (or adversarial) approach, each participant sets extreme aspiration
levels and makes a series of strategic offers intended to result in a resolution as close as
possible to that person’s initial aspiration. See FISHER ET AL., supra note 14, at 4-7. A
problem-solving approach involves a joint identification and selection of options maximizing the interests of all principals. See id. at 40-80; see also Riskin, supra note 9, at 13-
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settlors often assume that all participants will be pleased to be rid of
the dispute even though some, and possibly all, of the participants
may be disappointed with the outcome of mediation. Not surprisingly, the mediator’s settlement rate is likely to be critically important to mediation buyers and sellers for whom settlement is the primary goal.50 An emphasis on settlement lends itself to being highly
directive and thus may be characterized in practice with some of the
same terms—such as “strong”—as a directive style generally. However, mediators who focus on other goals may also be quite directive,
as we shall see shortly.
Another type of mediator, whom Bush calls “fixers,” emphasizes
the development of optimal solutions.51 For fixers, “their job is to
help the parties by relieving them of their problem and finding them
the best possible solution to it—best for both parties, that is.”52 The
quintessential fixers are “getting-to-yes” joint problem-solvers. They
want to consider all the relevant information and options and then
craft the solution that works best for all the principals. 53 Fixers
probably vary in their levels of directiveness. Some may develop
strong opinions about the best result for the principals and press
them to accept it, while other fixers may be content to generate desirable options but be relatively detached about the principals’ decisions.54 Mediation buyers looking for fixers might identify the desired quality as being especially “knowledgeable,” “creative,” or
“smart.”
Some of Bush’s other types of mediators seem like variants of the
general “fixer” species. “Protectors” are especially concerned with
preventing any principal (especially those perceived to be weaker)
from experiencing an unfair process and/or receiving an adverse outcome.55 Protectors “see their job as making sure that nobody gets
hurt or taken advantage of in the mediation process, and—in some
cases—that not only the process but the final outcome is basically
fair.”56 Like the fixers, protectors focus generally on the quality of the
outcome (or process), but focus primarily on avoiding harm rather
16 (citing sources and noting variety of terms used to distinguish problem-solving and
positional approaches).
50. Critics are concerned that settlors may be more interested in getting “another
notch on their belts” than in the substantive quality of the mediated resolution. See Frank
E.A. Sander, The Obsession with Settlement Rates, 11 NEGOTIATION J. 329, 329-31 (1995).
51. See Bush, supra note 46, at 17.
52. Id.
53. See id.
54. In his subsequent book with Joseph Folger, Bush uses the more widely used term
“problem-solving” (which I prefer), referring to the goals of fixers. Bush and Folger also
describe this orientation as “directive, settlement-oriented,” which lumps together two approaches that often do not go together. BUSH & FOLGER, supra note 10, at 12.
55. See Bush, supra note 46, at 17-18.
56. Id.
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than producing optimal benefit. Mediation buyers might describe
protectors as “protective” or “prudent.”
Mediators of Bush’s “reconcilor” type are particularly concerned
about the relationships between the principals and try to get the
principals “to come to some kind of a new and more accepting understanding of one another.”57 One might think of these mediators as
fixers who focus on the quality of the process in mediation itself—
and especially the quality of the resulting relationships—as possibly
more important than the specifics of any agreements reached.
Moreover, reconcilors may expand the scope of attention to include
relationships with individuals not in the mediation. One might expect reconcilors to be concentrated in the ranks of community and
family mediators, though there may well be a cadre of reconcilors
who handle stereotypically hard-boiled problems such as those in
business. Mediation buyers might refer to reconcilors as “sensitive”
or “therapeutic.” Many reconcilors may favor less-directive tactics
(which is why the term “therapeutic” might be used regarding both
techniques and goals), though this need not always be the case.
Some therapeutic mediators with strong beliefs about the importance of relationships may be quite directive, such as, for example,
when a family mediator presses divorcing parents very hard to develop a good working relationship for the benefit of their children.
Bush refers to the fifth type of mediators as “empowerors.”58 They
focus on helping the principals “to exercise their power of selfdetermination to resolve the dispute on whatever terms they think
best.”59 One might think of empowerors as fixers who reject a directive approach. Empowerors are likely to work hard to get the principals to examine their options and their own interests, but display detachment about the options selected as long as the principals have
engaged in a certain amount of careful deliberation. Lawyers are not
typically interested in promoting their clients’ self-reflection, 60 so it
seems unlikely that many lawyers would seek out mediators with
empowerment philosophies. Still, some disputants may be most interested in this approach. Such mediation buyers might describe the
kind of mediators they seek as “thorough and systematic.”
As this tour of mediator styles and goals demonstrates, some
widely different activities take place in the name of mediation.
57. Id. at 18. This is similar to Bush and Folger’s concept of recognition. See BUSH &
FOLGER, supra, note 10, at 2.
58. Bush, supra note 46, at 18.
59. Id.
60. Lawyers often say things such as that they hope the mediator will help them (the
lawyers) when they have a “hard sell” with recalcitrant clients. See McEwen et al., supra
note 23, at 1370. To that extent, lawyers may want a mediation to promote self-reflection.
However, in such situations, the lawyers really want to reduce the principals’ control and
lower their expectations, not increase their self-determination.
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Should all these activities be entitled to carry the mediation label? I
consider this question in the next subpart.
C. Single-School and Pluralist Theories of Mediation
This exercise speculating about the process of shopping for mediation services is useful for analyzing how mediation markets may become institutionalized by developing a generally accepted vocabulary
reflecting distinctions within these markets. This institutionalization process entails both the conscious activity of “intellectual entrepreneurs” (such as promoters of mediation services, policymakers,
and academic theorists and researchers)61 and the less-conscious interactions of individual buyers and sellers in the market. Over time,
some conceptions gain currency and others fall into disuse. Institutionalization processes occur in relatively unsettled situations with
“bursts of ideological activism” in which ideologies compete for dominance.62 After these ideological contests are settled, actions are
guided by taken-for-granted traditions and what is perceived as
common sense.63 It seems clear that we are now right in the middle
of such a period of ideological contest.64
A fundamental issue in this institutionalization of mediation is
whether there should be a single, relatively pure, conception of mediation that is appropriate for all mediators (which I call the “singleschool” view), or whether a variety of conceptions should be accepted
61. Professor Paul DiMaggio argues that the success of an institutionalization project
is usually premised on certain types of conceptualizations that institutional entrepreneurs
advance:
Unless [legitimating conceptualizations] are enacted by an organizational system that segments labor markets, evokes consumer (or state) demand, manufactures new areas of expertise, and classifies new products and services as
qualitatively different from old ones, newly institutionalized forms will be
highly unstable in their structures, public theories, and programs.
. . . Recruiting or creating an environment that can enact their claims is the
central task that institutional entrepreneurs face in carrying out a successful
institutionalization project.
Paul J. DiMaggio, Interest and Agency in Institutional Theory, in INSTITUTIONAL
PATTERNS AND ORGANIZATIONS: CULTURE AND ENVIRONMENT 3, 15 (Lynne G. Zucker ed.,
1988) (citations omitted).
62. Ann Swidler, Culture in Action: Symbols and Strategies, 51 AMER. SOC. REV. 273,
279 (1986).
63. See id. at 279-81.
64. See BUSH & FOLGER, supra note 10, at 12. Bush and Folger make this contest
quite explicit, arguing that the mediation movement is now at a “crossroads” where the
mediation community must decide between a settlement-oriented, problem-solving approach and a transformative approach as the primary strategy for mediation. Id. The intense reaction to their book, pro and con, suggests that they have indeed “touched a
nerve” and that the “correct” resolution of this matter is anything but taken for granted in
the mediation community generally. See supra note 10.
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as legitimate (which I refer to as the “pluralist” view). 65 The “singleschool” view seems to be quite popular among mediators, judging
from casual conversations I have heard at gatherings of mediators,
though single-school mediators differ as to just what that school
should be. Dean James Alfini captured this ethos in quoting a comment by a mediator who distinguished what she believed to be “good”
mediation—some mediators call it “real mediation” 66—from what she
considered substandard mediation practice. 67 For example, many
mediators can identify quite clearly whether they subscribe to a facilitative or evaluative approach and to which goals they aspire. Not
only do these mediators attest to the merits of their own approach,
but they cast doubt on the merits of the others, as reflected in the
less-than-flattering characterizations of the others as described
above.68 Professors Kimberlee Kovach and Lela Love clearly articulate a positive rationale for a single standard of acceptable mediation:
To develop rules, standards, ethical norms and certification requirements, legislators and administrators need well-defined and
uniform processes. Similarly, meaningful program evaluations require uniformity. . . . “Mediation” should mean the same thing
from state to state, and from one court to another within a state.69
Some who hold a single-school view somewhat reluctantly accept the
legitimacy of what they view as substandard mediation practices but
plead, “Just don’t call it mediation.”70
65. Others have also used the term “pluralist” in this context. See, e.g., MenkelMeadow, supra note 10, at 236. For other descriptions of pluralist philosophies, see Stempel, supra note 9, at 950 (favoring an “eclectic model”); MOORE, supra note 1, at 53-55 (opposing “narrow” definition of mediation); Robert B. Moberly, Mediator Gag Rules: Is It
Ethical for Mediators to Evaluate or Advise?, 38 S. TEX. L. REV. (forthcoming 1997) (distinguishing whether theorists favor pure “bright line” definition of mediation or not);
James B. Boskey, Let 100 Flowers Bloom, ALTERNATIVE NEWSL., Nov. 1996, at 1. I have
used a related concept of “process pluralism,” referring to acceptance of the legitimacy of a
variety of third-party ADR procedures See Lande, supra note 8, at 7-8. This is in contrast
to legal centralism, which holds that the courts, the law, and lawyers are and should be
the primary means for handling disputes involving legal issues. See id.
66. McEwen et al., supra note 23, at 1392.
67. See Alfini, supra note 42, at 47.
68. See supra text accompanying notes 41-42. The fact that many of my dispute
resolution students who have little or no professional mediation experience have very
strong convictions about the “right” and “wrong” approaches is further evidence that these
differences run deep.
69. Kovach & Love, supra note 9, at 32; see also Bush, supra note 46, at 20.
70. This is often expressed by mediators holding facilitative and empowerment philosophies who believe that directive and settlor approaches should be called “mediationarbitration” (often referred to as “med-arb”), “nonbinding arbitration,” “neutral case
evaluation,” or “private settlement conferencing.” See, e.g., Kovach & Love, supra note 9,
at 32; Lela P. Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 FLA.
ST. U. L. REV. 937, 948 (1997).
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I am skeptical of a single-school approach for both philosophical
and pragmatic reasons. Although I have my own preferences in mediation philosophy—I lean toward an approach promoting principals’
exercise of responsibility in decisionmaking 71—I am a pluralist because I believe that there is a positive value in having a diverse
market that offers a wide variety of legitimate options for both mediation buyers and sellers. As a practical matter, I doubt that it is
possible either to limit the style of mediator practices or to enforce a
single-school usage of the term “mediation.” 72 Rather than trying to
maintain distinctions about what is and isn’t “real mediation,” it
would be more productive to try to concretely define distinct varieties
of mediation in ways that are clearly recognizable by participants in
the mediation market. While this would be no easy task in itself, I
believe it is more likely to be successful and productive. 73
71. Substantively, this is somewhat similar to what Bush and Folger refer to as an
“empowerment” approach. See BUSH & FOLGER, supra note 10, at 2. I do not like the
“empowerment” label because it gives an impression of mediators conveying power to the
principals. This is not necessarily an accurate description of behavior of practicing mediators who use this label. Moreover, even as an ideal reflecting the best intentions, I
believe that mediators should not be trying to manipulate the power of principals. Finally, the term has become so clichéd in usage as to lose clear meaning. Below, I elaborate my view of a substantively similar, though differently labeled, approach. See infra
Part III.A.
72. As the profiles of mediators in Deborah Kolb’s book demonstrate, the range of
mediation practices is indeed quite diverse, and it would be difficult to disenfranchise mediators from using the title. See generally WHEN TALK WORKS, supra note 13.
73. When explaining his rationale for using an inclusive approach in his categorizations of mediation, Leonard Riskin expressed the pluralist view very well:
I hope to facilitate discussions and to help clarify arguments by providing a
system for categorizing and understanding approaches to mediation. I try to
include in my system most activities that are commonly called mediation and
arguably fall within the broad definition of the term. I know that some mediators object to such inclusiveness, and fear that somehow it will legitimize activities that are inconsistent with the goals that they associate with mediation.
Although I sympathize with this view, I also disagree with it. Usage determines meaning. It is too late for commentators or mediation organizations to
tell practitioners who are widely recognized as mediators that they are not, in
the same sense that it is too late for the Pizza Association of Naples, Italy to
tell Domino’s that its product is not the genuine article. Such an effort would
both cause acrimony and increase the confusion that I am trying to diminish.
Instead, I propose that we try to categorize the various approaches to mediation so that we can better understand and choose among them.
Riskin, supra note 9, at 13 (footnotes omitted). Advocates of a single-school approach, see,
e.g., Kovach & Love, supra note 9, at 32, and pluralists agree on the need for clearly understood distinctions in the mediation market. They differ regarding whether it is more
appropriate and practical to use the term “mediation” as the distinguishing label or to use
qualifiers distinguishing different varieties of mediation instead. I believe that limiting
the use of the term “mediation” does not solve the problem because there is confusion between mediation and similar processes (like mini-trials), as well as between styles of what
is commonly called “mediation.” See infra notes 103, 107-22 and accompanying text. It is
too much to expect the single term “mediation” to distinguish various subtly different processes. Distinct and meaningful descriptors can provide more information about the substantive differences being established.
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As we have seen, the mediation market is quite diverse and currently in the process of institutionalization. Theorists and market
participants are struggling to develop what they hope will become
taken-for-granted definitions. These arguments over terminology are
not “just” academic exercises; these debates shape the practices of
mediators and lawyers regarding what it means to be a “good” practitioner, referring to shared meanings and norms within one’s practice community.74 Thus, for mediators and lawyers to succeed in
practice, especially in liti-mediation environments, most mediators
will need to relate their practices to generally-accepted definitions,
and lawyers will need to distinguish key differences in mediation
practices. The next part of this Article illustrates a behavioral description of one important dimension of mediation.
III. APPROACHING THE IDEAL OF “HIGH-QUALITY CONSENT”
As suggested in Part II, there is now a major controversy over
whether the primary goal of mediation should be to achieve the outcome of case settlement (the view of Bush’s settlors) or to provide a
deliberative decisionmaking process in which principals exercise
their best judgment (the view of Bush’s empowerors).75 There is also
a related contest over the degree of pressure, if any, that is appropriate for mediators to exert on principals (Riskin’s facilitativeevaluative distinction).76 This Part focuses on these controversies,
which are important issues that lawyers and mediators will increasingly need to confront. These issues define significant distinctions that lawyers and mediators will rely upon in the mediation
market77 because they reflect important variations in actual lawyering and mediation procedures.78
Part III.A examines an empowerment perspective or, as I prefer
to call it, an approach promoting principals’ exercise of their decisionmaking responsibility. This subpart analyzes the goals of this
approach and examines two cases illustrating problematic mediation
practices from this perspective. To provide a contrast with the higher
standards of what I call “high-quality consent,” Part III.B reviews
the legal standards of consent required for any settlement. In Part
III.C, I define “high-quality consent” as a condition in which a principal has exercised his or her responsibility for making decisions in a
dispute by considering the situation sufficiently and without excessive pressure. This subpart identifies seven factors that can be used
74. See John Lande, Mediation Paradigms and Professional Identities, MEDIATION Q.,
June 1984, at 19, 41-45.
75. See supra notes 46-50, 58-59 and accompanying text.
76. See supra note 9.
77. See supra Part II.
78. See infra Part IV.C.
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to define the quality of consent that a mediation process has
achieved; I contend that achieving high-quality consent should be an
important goal in mediation.79 Because high-quality consent is defined as a continuous, rather than a dichotomous, concept, it suggests that the issue is not whether high-quality consent has been
achieved but rather the level of quality.
A. Concepts of Empowerment and Principals’ Exercise of
Decisionmaking Responsibility
Recently, there has been a revival of interest in “empowerment”
as the principal goal of mediation. This was often the motivation for
mediation at the dawn of the modern ADR era, especially in neighborhood mediation projects.80 As lawyers and courts became increasingly involved in offering or encouraging use of mediation in the
1980s, much of the focus shifted to efficiently handling larger volumes of cases and removing them from court dockets. 81 That shift of
emphasis toward settlement was accompanied by the use of more directive mediation techniques.82 I suspect that much of the current
revival of interest in empowerment is a (often horrified) reaction to
the institutionalization of directive, settlement-focused mediation. 83
79. Several reviewers noted what seemed to them to be an inconsistency between my
advocacy of pluralism in mediation philosophies, see supra notes 71-73 and accompanying
text, and my version of empowerment. However, this does not seem inconsistent to me.
Like Riskin, having my own preferences “does not keep me from seeing the virtues of
other approaches in appropriate cases,” Riskin, supra note 9, at 13 n.17, and, I would add,
with clear disclosure in all cases. Offering mediation buyers and sellers a wide range of
choices is an even higher value for me than having a market limited to my preferred approach. Thus, I favor a vibrant mediation market in which advocates of different approaches fairly highlight the relative advantages of their approaches so that principals are
given clear choices.
Bush and Folger argue that it is unlikely that, if offered their transformative style of
mediation, potential mediation users would reject it. See BUSH & FOLGER, supra note 10,
at 276-78. To support this view, Bush cites social science research describing general
characteristics of dispute resolution procedures disputants favor that are consistent with a
transformative model. See Robert A. Baruch Bush, “What Do We Need a Mediator For?”
Mediation’s Value-Added for Negotiators, 12 OHIO ST. J. ON DISP. RESOL. 1, 6-26 (1996).
Even if the vast majority of mediation users would prefer transformative mediation if offered a clear set of choices, I would still want to respect the preferences of the minority
who would prefer other styles, such as the settlor-style that I do not prefer. Providing
principals with a choice between styles of mediation is very consistent with the value of
promoting their responsibility for decisionmaking that is so central to empowerment philosophies.
80. See generally Peter Adler et al., The Ideologies of Mediation: The Movement’s
Own Story, 10 L. & POL’Y 317 (1988).
81. As some commentators have pointed out, many cases settled in mediation would
probably have been settled through direct negotiation even without mediation. See, e.g.,
McEwen et al., supra note 23, at 1373. Thus, it is not completely accurate to think of mediation as removing cases from a court’s trial docket.
82. See supra note 40.
83. See BUSH & FOLGER, supra note 10, at 1-12.
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This revival is reflected by the recent publication of several books on
empowerment,84 especially Bush and Professor Joseph P. Folger’s
The Promise of Mediation: Responding to Conflict Through
Empowerment and Recognition ,85 which has stimulated a great deal
of discussion and controversy within the mediation community.
What do people mean by the term “empowerment”? Professor Edward Schwerin presents a fascinating analysis of how the term has
been used in social science literature generally as well as in the mediation literature.86 Schwerin finds that theorists differ in the extent
to which they refer to empowerment of individuals 87 or transformation of large-scale social and political relationships. While some of
the mediation movement literature (and much of the social science
literature) focuses on achievement of macro-political goals, 88 virtually all of the mediation theorists (as well as the social science theorists) include individual transformation as a major element of
empowerment.
84. See EDWARD W. SCHWERIN, MEDIATION, CITIZEN EMPOWERMENT, AND
TRANSFORMATIONAL POLITICS (1995); JONATHAN G. SHAILOR, EMPOWERMENT IN DISPUTE
RESOLUTION (1994); KATHY DOMENICI, MEDIATION: EMPOWERMENT IN CONFLICT
MANAGEMENT (1995).
85. BUSH & FOLGER, supra note 10. This book caps more than a decade of interest of
both authors in this subject. Bush’s publications include: Robert A. Baruch Bush, Dispute
Resolution Alternatives and the Goals of Civil Justice: Jurisdictional Principles for Process
Choice, 1984 WISC. L. REV. 893 [hereinafter Bush, Jurisdictional Principles for Process
Choice]; Robert A. Baruch Bush, Mediation and Adjudication, Dispute Resolution and Ideology: An Imaginary Conversation, 3 J. CONTEMP. LEGAL ISSUES 1 (1989); Robert A.
Baruch Bush, Defining Quality in Dispute Resolution: Taxonomies and Anti-Taxonomies of
Quality Arguments, 66 DENV. U. L. REV 335 (1989); Robert A. Baruch Bush, Efficiency and
Protection, or Empowerment and Recognition? The Mediator’s Role and Ethical Standards
in Mediation, 41 FLA. L. REV. 253 (1989); Bush, supra note 79. Folger’s publications include: Sydney E. Bernard et al., The Neutral Mediator: Value Dilemmas in Divorce Mediation, MEDIATION Q., June 1984, at 61; Joseph P. Folger & Sydney E. Bernard, Divorce Mediation: When Mediators Challenge the Divorcing Parties, MEDIATION Q., December 1985,
at 5; JOSEPH P. FOLGER ET AL., WORKING THROUGH CONFLICT: STRATEGIES FOR
RELATIONSHIPS, GROUPS, AND ORGANIZATIONS (1993); Joseph P. Folger & Robert A.
Baruch Bush, Ideology, Orientations to Conflict and Mediation Discourse, in NEW
DIRECTIONS IN MEDIATION (Joseph P. Folger & Tricia S. Jones, eds., 1994); Joseph P. Folger & Robert A. Baruch Bush, Transformative Mediation and Third Party Intervention:
Ten Hallmarks of a Transformative Approach to Practice, 13 MEDIATION Q. 263 (1996)
[hereinafter Folger & Bush, Ten Hallmarks].
86. See SCHWERIN, supra note 84, at 55-91.
87. Although the individuals to be empowered specifically in the mediation context
presumably are the principals, Schwerin finds that some of the mediation literature focuses on empowerment of the mediators. See id. at 77-79. Some studies of empowermentoriented community mediation find that the mediators were indeed quite empowered, but
that the principals were less so. See, e.g., Judy H. Rothschild, Dispute Transformation, the
Influence of a Communication Paradigm of Disputing, and the San Francisco Community
Boards Program, in THE POSSIBILITY OF POPULAR JUSTICE: A CASE STUDY OF COMMUNITY
MEDIATION IN THE UNITED STATES 265, 319-20 (Sally Engle Merry & Neal Milner, eds., 1993).
88. These social and political goals include promotion of political awareness and participation, as well as outcomes of increased participation, greater social and material resources for the disadvantaged in society, and enforcement of legal rights protecting political participation. See SCHWERIN, supra note 84, at 81-87.
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This Article focuses only on individual-level empowerment. This
narrower definition of transformation deals with the development of
individuals’ knowledge, skills, and resources, typically focusing on
those needed to resolve a particular dispute. 89 Bush and Folger’s
definition of empowerment encompasses elements of individual
empowerment, using particular disputes as opportunities for personal transformation generally. They write that “empowerment is
achieved when disputing parties experience a strengthened awareness of their own self-worth and their own ability to deal with whatever difficulties they face, regardless of external constraints.” 90 In
this view, people become empowered in mediation when they better
understand their goals, options, skills, and resources, and then make
conscious decisions about how they want to handle a dispute. 91 Thus,
Bush and Folger contend that a mediator oriented toward promoting
empowerment would routinely and persistently act to help the principals become more deliberative in making decisions in a dispute. 92
Bush and Folger do not conceive of empowerment as requiring mediators to be passive. Indeed, they argue that good transformative
mediators should “push” principals to focus on the issues as much as
possible, and that failing to do so would deprive principals of the
greatest potential benefits of mediation.93 In essence, transformative
mediators try, gently but firmly, to help the principals in a dispute
responsibly exercise their decisionmaking authority. 94
Why do theorists and practitioners who are concerned about
empowerment consider the principals’ exercise of their responsibility
to be so important? There are several reasons. For some, at least
89. See id. at 77-78. Schwerin also finds that many mediators’ discussions of
empowerment include the related goals of promoting individuals’ self-esteem and sense of
control over their environments more generally (i.e., not limited to a specific dispute) and
reducing dependency on professional and social services. While this general learning is often a very valuable product of mediation, it does not seem to be an element of consent.See
infra Part III.C.
Some mediators associate the concept of empowerment with “equalizing” or “balancing”
the power between the principals. See SCHWERIN, supra note 84, at 79; see also BUSH &
FOLGER, supra note 10, at 95-96. I agree with Bush and Folger’s critique that conceiving
empowerment in terms of power balancing undermines mediators’ efforts at impartiality.
Moreover, I believe that it is virtually impossible for anyone to accurately measure and
then balance power between principals. Thus, I do not use “empowerment” or similar concepts to incorporate the notion of equalizing power. This is not to say that mediators cannot or should not raise questions about whether differences in power are having or should
have a substantial impact on the process and outcome in a mediation.
90. BUSH & FOLGER, supra note 10, at 84.
91. See id. at 85-87.
92. See id. at 95.
93. See id. at 210-211.
94. I use the term “exercise” rather than “take” or “assume” because the latter terms
suggest that the responsibility was not originally that of the principals. The term “retain”
thus seems more accurate, but does not reflect the active exercise of responsibility that I
intend to convey (and promote).
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part of the reason is instrumental: they believe that if principals exercise responsibility for their decisions and actions, it will produce
benefits for the principals themselves, those they deal with, and society generally.95 For some, exercising responsibility is an ultimate
value in itself—or really two related values. 96 Probably most commonly expressed is the belief in the value of individuals making uncoerced decisions for and about themselves as an intrinsic good. 97
The terms “autonomy” and “self-determination” 98 reflect this view
that values individuals’ unrestrained freedom to act as they choose,
obviously limited by the rights (and perhaps reasonable expectations) of others.99 A refinement of this perspective particularly values
the making of informed and considered decisions.100 In this view,
principals carefully consider their situations and accept responsibility for making possibly difficult choices.101
As noted above, some advocates of empowerment are motivated in
reaction to the spread of a strongly directive style of mediation. 102
From this perspective, directive-style mediation actively undermines
principals’ self-determination by pressuring principals to accept particular proposals based on others’ judgments rather than the principals’ own careful deliberation. We can get a sense of the problems
seen in directive mediation by reviewing the description of a minitrial103 conducted by Professor Eric Green. Green is a pioneering and
95. See BUSH & FOLGER, supra note 10, at 28-32.
96. See id.
97. See id.
98. For example, official rules in Florida are designed to protect principals’ “selfdetermination.” FLA. R. CERT. & CT.-APPTD. MEDIATORS 10.060. Similarly, the first point
in the Model Standards of Conduct for mediators developed by the American Arbitration
Association, the American Bar Association, and the Society for Professionals in Dispute
Resolution is that “self-determination is the fundamental principle of mediation.” MODEL
STANDARDS OF CONDUCT FOR MEDIATORS Standard I (Am. Arb. Ass’n et al. 1994).
99. Professor Ellen Waldman describes what she calls a “norm-generating model” of
mediation in which unfettered party autonomy is the ultimate goal of mediation. Ellen A.
Waldman, The Challenge of Certification: How to Ensure Mediator Competence While Preserving Diversity, 30 U.S.F. L. REV. 723, 733 (1996).
100. Waldman uses the term “norm-educating model,” referring to an approach based
on the assumption that parties must be educated about relevant norms (e.g., information
about legal entitlements and relevant financial, technical, and psychological data) to truly
exercise autonomy. Id. at 734-35. Her trichotomy is completed with a “norm-advocating
model” in which party autonomy is an important value, but one subordinated to the
achievement of other values, such as goals established by various statutes. Id. at 735.
101. See id. at 732.
102. See supra notes 83-85 and accompanying text.
103. The term “mini-trial” is somewhat misleading because, at least in theory, it is
more like mediation than a trial. Mini-trials, which are most often used in business disputes, begin with summary presentations by lawyers to a panel consisting of high-level
executives from each side. See STEPHEN B. GOLDBERG ET AL., DISPUTE RESOLUTION 230
(1992). After the lawyers’ presentations, a “neutral advisor” assists the parties in negotiation, possibly giving a prediction of the likely results in litigation. See id.
Although this case is usually referred to as a mini-trial in the published account, it is
sometimes described as a mediation. Moreover, the case is highlighted in a book subtitled
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prominent mediator who was a co-founder of Endispute,104 and who
“likes the role of ‘power mediator’ or ‘mediator with clout.’ ” 105 In one
case described by a colleague and protégé of Green’s, an employer
fired a sales representative who sued the employer for breach of contract and willful infliction of emotional distress. 106 In this case, Green
received a referral from a judge, then called the principals’ lawyers,
explaining that the judge suggested that he (Green) might be able to
help settle the case. The judge had provided a great deal of information about the case to Green, including his impressions of the merits
of the case.107 To prepare for the mini-trial, during the weeks preceding its onset, Green had a series of conversations with both sides,
mostly with each side separately.108 In a conversation with the researcher writing the profile, Green described his process as gathering information and developing his own early assessment of prospects for settlement, including key issues and appropriate settlement values.109 For example, apparently early in the mini-trial itself,
“Profiles of Mediators.” From the description of the process, it could have consistently
been called a directive mediation. See Kolb & Kressel, supra note 13, at 473-74. It presents the same issues about exercise of responsibility even if it were consistently called a
mini-trial. This is one reason why I believe that simply “not calling it mediation” would
not resolve the underlying controversies about appropriate dispute resolution techniques.
See supra notes 65-73 and accompanying text.
104. Endispute later merged with the Judicial Arbitration and Mediation Service
(JAMS), and is now called JAMS/Endispute. See S. Gale Dick, Making ADR Profitable, 13
ALTERNATIVES TO HIGH COST LITIG. 1, 4 (1995).
105. Lavinia Hall, Eric Green: Finding Alternatives to Litigation in Business Disputes,
in WHEN TALK WORKS, supra note 13, at 306. Green also described the mediator’s role as a
“pest-advocate for settlement.” Id. at 286.
106. See id. at 285.
107. See id. at 286. The researcher describes the conversation with the judge as follows:
The parties appear to be at the point where the company would offer
$350,000, while the plaintiff[’s] . . . attorney has mentioned $750,000 during
the settlement conference. The salesman has alleged damages as high as $7
million. The judge tells Green that “heavy discovery” has already been done.
The case cannot be calendared for trial for three months, but a firm trial date
can be set then if it will create the right incentives to encourage the defendant
to settle. It is the judge’s understanding that the plaintiff is hurting for cash.
An expensive trial in three months, with the prospect of an appeal by the losing party (which in all likelihood will take another year), will result in the
plaintiff losing his house. The plaintiff has strong incentives to settle. Finally,
the judge notes that the plaintiff’s attorney, a bright junior partner in a big
firm, seems very invested in the case and has spent a lot of time on it.
Id. at 286. In what turned out to be a critical effort to influence the process, Green encouraged the plaintiff’s attorney to bring to the mini-trial a senior partner who could
“judge the case from a business point of view, not just a legal one.” Id. at 290. After the
case settled, the plaintiff told Green that it was the senior partner who advised him (and
the junior partner) to accept the ultimate $550,000 offer. See id. at 301. “ ‘Otherwise,’ the
plaintiff says, he feels ‘sure that my lawyer [the junior partner] would have advised me
not to accept.’ ” Id.
108. See id. at 286.
109. See id.
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Green told the researcher that he thought that the settlement range
was $500,000 to $600,000.110 Green freely expressed his opinions to
the principals and gave them strong advice based on his assessments. For example, in a private conversation before the mini-trial
began, he told the plaintiff, “Do you really think the court will exclude that evidence? I disagree.”111 At another point, he said, “My
advice would be to drop the claim for ‘willful infliction of emotional
distress.’ In my opinion, that claim could be extremely messy.” 112
When the plaintiff insisted on more than $600,000, the maximum
appropriate amount under Green’s litigation decision analysis, he
asked the plaintiff, “How greedy can you get?” 113 Green got very angry late in the process when the defendant’s representatives refused
to accept a $550,000 offer which, from their earlier statements,
Green had inferred they might accept.114 The formal mini-trial session went nonstop for thirteen hours—from noon to 1:00 a.m. The
day was even longer than that, considering that Green started the day
with an 8:00 a.m. meeting with the president of the defendant company and its attorneys.115 Green used caucuses116 extensively, keeping
the sides separated for seven hours.117 At 11:00 p.m., the plaintiff
suggested stopping for the night, but Green told the researcher that
he “want[ed] to keep the heat on and settle tonight . . . . Their desire
to go home may be the fuel needed for final settlement.” 118 Pressing
hard on the defendant’s representatives, Green said the defendant
should know “that the judge has no desire to hear this case,” suggesting that the court might rule against the defendant if it fails to
“live up to its moral obligations” to settle the case. 119 Green finally
brought the parties together after hammering out an agreement in
which the defendant agreed to pay $550,000 in three installments
110. See id. at 298.
111. Id. at 297.
112. Id. at 293.
113. Id. at 299.
114. See id.
115. See id. at 297-98.
116. A caucus is when the mediator meets separately with some of the participants.
Typically, the mediator meets with one side—including both a principal and his or her
lawyer if the lawyer attends the mediation—and then the other side. There are many possible variations because a mediator may meet with a single principal or lawyer, just the
lawyers, or just the principals. Many mediators set a “ground rule” that statements in
caucus are confidential unless the principal agrees to permit the mediator to disclose particular information. See generally MOORE, supra note 1, at 318-26.
117. See Hall, supra note 105, at 300. Miami mediator John W. Salmon uses the term
“terminal caucus” to refer to a process in which virtually all of the mediation is conducted
in caucus and the participants reconvene all together only after the mediator has finished
working out an agreement by “shuttling” back and forth between separate meetings with
each side. See Interview with John W. Salmon, Miami mediator, in Ft. Lauderdale, Fla.
(March 13, 1996).
118. Hall, supra note 105, at 299-300.
119. Id. at 298-99.
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over a period of two years.120 The parties signed a handwritten
agreement on the spot and the attorneys agreed that the defendant’s
lawyer would draft a final agreement.121
This case demonstrates many features that disturb some people
about a directive style of mediation. When judges make “suggestions,” attorneys and principals often feel strongly pressured to accept the suggestions, even if the judges do not intend to limit the
litigants’ choices. The attorneys and principals may experience extra
pressure when approached by a private-sector (“third-party”) ADR
provider who conveys the judge’s suggestion and offers to mediate.
When he entered the case, the third party already had significant information about the case and had developed ideas about what the ultimate result should be. He purposely used a variety of strong moves
to push the participants toward his conception of the appropriate result. Although he certainly listened to the participants, his extensive
use of caucusing limited the amount that the participants could
communicate directly with each other. This procedure gave the third
party tremendous power to influence the participants through careful characterization of the other sides’ positions. The third party
joined forces (at least temporarily) with one attorney to pressure the
attorney’s own client to take a more “reasonable” position. The third
party used the pressure of time to prod the principals, in this case by
continuing the process until the principals finally agreed. In addition
to these relatively indirect forms of pressure, the third party strongly
expressed his opinions, disparaged the participants’ positions, and
pressed hard for the participants to accept a particular agreement.
He apparently implied that if the defendant did not make what he
considered reasonable movement toward settlement, he (Green) might
so inform the judge. While this case may represent an extreme on the
scale of directiveness, a directive style is not unusual.122 Researchers
Deborah Kolb and Kenneth Kressel find that many mediators extensively use heavy-handed “pressure tactics and arm twisting.”123
The tactics that Green used were relatively overt. Mediators’
moves to influence the participants are often much more subtle than
120. See id. at 300.
121. See id.
122. I use this case for illustration because it provides an especially detailed account
of directive mediation tactics. I do not intend to single out Professor Green for criticism
because he is, after all, a successful and respected mediator who uses techniques that are
quite common in some sectors. Although I criticize Green’s tactics in this case, I believe
there may be an appropriate place in the dispute resolution market for directive mediation under some conditions. It is not clear from the published account whether Green accurately described to the principals the kind of pressure tactics that he would use and how
they compared with other mediation practices. If he did so, I would be less concerned
about his procedures. See supra note 79 and infra notes 173-74, 269 and accompanying
text.
123. Kolb & Kressel, supra note 13, at 461; see also id. at 479-83, 488.
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the ones that Green used. Professors David Greatbatch and Robert
Dingwall describe a process that they call “selective facilitation,” 124 in
which the mediator directs the discussion toward some proposals
and away from others.125 Using sophisticated conversation analysis
techniques126 to analyze an audiotape of a mediation session, they
present a case in which a divorcing couple owns a family residence
(where the wife and the couple’s two young children were then living) and a less valuable piece of rental property. 127 The wife wanted
an agreement in which she would keep the family residence and the
husband would keep the rental property. 128 The husband wanted to
sell both properties and divide the proceeds. 129 A casual reading of
the transcript might give the impression that the mediator did not
favor either option, but a close examination reveals that the mediator subtly moved the process toward one option and away from the
other.130 The mediator never directly expressed an opinion about
these two options, but she repeatedly returned to the option of
keeping the properties; whenever the husband raised the sale option,
the mediator either raised questions about it or steered the conversation back to the option of keeping the properties. 131 Although the
couple did not reach agreement in mediation about the real estate,
the mediator apparently salvaged an agreement about support payments.132 Greatbatch and Dingwall report that the selective facilitation in this case was not unusual among the forty-five mediation sessions that they analyzed.133
For settlors,134 the mediation process in the two cases described in
this subpart are not very problematic because the mediators focused
intensely on trying to get an agreement. For those concerned about
values other than simply settlement, these cases may be quite troubling. For example, if the plaintiff in Green’s case had second
thoughts in the following day or two and did not want to proceed
with the agreement, one might question the quality of his consent. In
the following subpart, we examine the legal standards of consent,
124. David Greatbatch & Robert Dingwall, Selective Facilitation: Some Preliminary
Observations on a Strategy Used by Divorce Mediators, 23 L. & SOC’Y REV. 613, 613 (1989).
125. See id. at 618, 636-38.
126. Conversation analysis techniques provide much more detail than verbatim transcripts prepared by court reporters. Conversation analysis transcripts display utterances,
pauses, voice inflections, and overlapping talk, thus providing a relatively complete depiction of conversations. See id. at 619 n.7.
127. See id. at 618.
128. See id.
129. See id.
130. See id. at 619-35.
131. See id. at 636.
132. See id. at 634.
133. See id. at 617.
134. See supra notes 48-50 and accompanying text.
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which would almost certainly have been satisfied in this situation. In
Part III.C, I suggest some standards of what I call “high-quality consent” under which there would be serious concerns about the quality
of the plaintiff’s consent.
B. Standard of Legal Consent
To provide the legal context and a basis for comparison in defining the “high-quality consent” in mediation discussed in Part III.C, it
may be useful to consider the standard of consent that the courts use
in determining whether to enforce agreements, including agreements
settling disputes. In general, contract law has a low standard of consent and recognizes only a few narrow exceptions. 135 Contracts typically involve an exchange of promises in which a “promise is a manifestation of intention to act or refrain from acting in a specified way,
so made as to justify a promisee in understanding that a commitment has been made.”136 In assessing a “manifestation of intention,”
courts use “an external or objective standard for interpreting conduct; it means the external expression of intention as distinguished
from undisclosed intention. A promisor manifests an intention if he
believes or has reason to believe that the promisee will infer that intention from his words or conduct.”137 Note that under the objective
standard, the courts generally do not analyze the care with which
the parties negotiated the agreement (e.g., the parties’ consideration
of various alternatives that they might have chosen or the likely consequences of the various alternatives), the fairness of the agreement,
or even their actual understanding of the agreement. 138 Although
there is a doctrinal exception for “unconscionable” agreements, as
most first-year law students know, that exception is quite limited. 139
135. See RESTATEMENT (SECOND) OF CONTRACTS §§ 12-19 (1981); see also infra notes
139-43 and accompanying text.
136. RESTATEMENT (SECOND) OF CONTRACTS § 2(1).
137. Id. § 2(1) cmt. b.
138. See id. §§ 17-19. According to a comment in the Restatement:
Almost never are all the connotations of a bargain exactly identical for both
parties; it is enough that there is a core of common meaning sufficient to determine their performances with reasonable certainty or to give a reasonably
certain basis for an appropriate legal remedy.
Id. § 20 cmt. b.
139. See id. § 208 cmt. d:
A bargain is not unconscionable merely because the parties to it are unequal
in bargaining position, nor even because the inequality results in an allocation
of risks to the weaker party. But gross inequality of bargaining power, together with terms unreasonably favorable to the stronger party, may confirm
indications that the transaction involved elements of deception or compulsion,
or may show that the weaker party had no meaningful choice, no real alternative, or did not in fact assent or appear to assent to the unfair terms.
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The other factors negating assent, including misrepresentation, 140
duress,141 undue influence,142 and mistake,143 are also fairly narrow.
As a matter of legal policy, using such an inclusive, (fairly) bright
line approach seems prudent considering the courts’ difficult role in
adjudicating contentious disputes and the possible result that some
parties will act more carefully knowing that they cannot easily evade
the consequences. On the other hand, by definition, the law permits—and thus, perhaps, encourages—sharp practices that almost,
but do not quite, run afoul of the law.144 Thus, while contract doctrine
regarding the required level of consent may produce good results in
the adjudication context, considering the shadow that the law casts
on negotiation, it may be counterproductive or at least suboptimal in
its effect on negotiation.145
The fact that the law tolerates unsavory negotiation practices is
one reason that many people are interested in ways to improve the
negotiation process. This concern reflects an intrinsic value in the
disputing process itself, independent of the merits of the outcome or
even the principals’ satisfaction. For example, there might be a
broad consensus of experts on divorce that, under the circumstances,
the retention of the family residence in Greatbatch and Dingwall’s
case would be in the best interests of the children and perhaps the
family as a whole, especially if that option had been developed so
that the father’s interests could also have been addressed. 146 Similarly, in Eric Green’s case, the terms of the agreement that Green
engineered might be quite appropriate under applicable legal or
other norms.147 Moreover, if one interviewed the participants after
the mediations in these cases, the participants might feel quite satisfied with both the outcome and the process, particularly considering
the legitimate values of being heard by a formally neutral third
party, gaining resolution, and banishing fears of litigation. 148 Even
140. See id. §§ 159-73.
141. See id. §§ 174-75.
142. See id. §§ 176-77.
143. See id. §§ 151-58.
144. See, e.g., ROBERT J. RINGER, WINNING THROUGH INTIMIDATION (1978).
145. See Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the
Law: The Case of Divorce, 88 YALE L.J. 950, 980 (1979). “[A] standard may have good
characteristics as a background rule for private ordering but may nevertheless be unacceptable as a standard for adjudicating disputed cases.” Id. The converse is true as well.
Professors Mnookin and Kornhauser show that the “best interests of the child standard”
for determining child custody may produce good results in adjudication, but creates perverse incentives in negotiation. Id. at 977-79.
146. See supra text accompanying notes 126-33.
147. See supra text accompanying notes 120-21.
148. Some commentators correctly point out that the termination of some cases does
not necessarily completely resolve a conflict or even avoid future litigation. See Bush, Jurisdictional Principles for Process Choice, supra note 85, at 907 n.26. Nonetheless, settlement often does result in resolution, which is something that people may legitimately value.
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so, many observers may not be satisfied, believing that the processes
were inappropriate or did not realize their potential. 149 If the legal
standards of consent do not provide adequate guidance for determining an appropriate or desirable quality of consent for an agreement in mediation,150 we should consider other standards for evaluating consent, which we will examine in the next subpart.
C. Indicators for a Continuum of High-Quality Consent
If a mere objective “manifestation of mutual assent” 151 is not
enough to establish what one might consider high-quality consent,
what is? This is obviously a difficult question to answer, and the following is the best that I have developed so far. I will use the term
“high-quality consent” to refer to a condition in which a principal has
exercised his or her responsibility152 for making decisions in a dispute by considering the situation sufficiently and without excessive
pressure. Like many definitions, this relies on important terms (“sufficiently” and “excessive”) that are very ambiguous. In this subpart, I
will suggest seven factors that may make this concept more concrete
(though these factors admittedly entail some subjective judgment).
These factors are intended to provide principals, their attorneys,
mediators, or other observers with practical criteria for determining
the quality level of consent of a principal in mediation.
This task is more difficult than it might appear for at least three
reasons. First, as we shall see, the goal of high-quality consent is an
ideal that is not completely achievable in practice. To produce the
highest possible quality of consent would require more time and
money than normally would be justified. Thus, the quality of consent
to be obtained must be balanced with the value of resources to be
committed and other criteria for evaluation. 153 Second, mediation
149. As described below, although I am critical of directive mediation styles involving
substantial mediator pressure, I would be satisfied if principals chose such an approach
after receiving a clear description of the procedures that are likely to be used. See infra
notes 173-74, 269 and accompanying text; see also supra note 79.
150. Craig McEwen raised an important question about whether agreements reached
in mediated negotiations should be judged by a higher standard than those reached in
unmediated negotiations. See Telephone Interview with Craig McEwen, Daniel B. Fayerweather Professor of Political Economy and Sociology, Bowdoin College (Oct. 24, 1996).
This is a large and important question beyond the scope of this Article.
151. RESTATEMENT (SECOND) OF CONTRACTS § 3 (1981).
152. I use the term “responsibility” to refer to both authority and accountability. By
definition, the principals are the ones who are authorized to make the ultimate decisions
in a dispute. The concept of accountability is clearest for representatives of organizations,
such as executives and claims adjusters, who are accountable to others in their organizations. Principals acting solely as individuals are accountable to their own self-judgment,
and they must live with the consequences of their decisions.
153. See infra notes 162-87 and accompanying text. I am grateful to Jim Boskey for
highlighting the costs of producing high-quality consent.
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processes are not single, discrete events, but are processes unfolding
over time that may have more or fewer characteristics of highquality consent at different points during the process. Finally, because the behaviors fostering (and impeding) the principals’ deliberation and the application of pressure are subtle, proper analysis
depends on the context.154
The following list reflects my working hypotheses about factors affecting the quality of principals’ decisionmaking. These suggestions
are necessarily tentative and subject to revision depending on their
usefulness in clinical practice and empirical research. The descriptions
incorporate my own views about some controversial issues; I am hopeful that this discussion will contribute to some clarification of the issues, if not an eventual general consensus.155 The factors include: (1)
explicit identification of the principals’ goals and interests, (2) explicit
identification of plausible options for satisfying these interests, (3) the
principals’ explicit selection of options for evaluation, (4) careful consideration of these options, (5) mediators’ restraint in pressuring principals to accept particular substantive options, (6) limitation on use of
time pressure, and (7) confirmation of principals’ consent to selected
options.156 I describe each of these factors below.
Note that these factors are suggested as possible indicators in a
continuum of the quality of consent, not as necessary ethical or legal
requirements in every situation.157 This set of factors is intended to
suggest some possible “best-practice” guidelines oriented to enhancing the quality of principals’ consent. The fact that a mediation does
not fully follow all of these guidelines does not necessarily suggest
that there is anything wrong with the mediation, only that it does
not fully achieve an aspirational standard on one (and, I would argue, important) dimension of mediation. Unlike the legal test for
fraud, in which the absence of any element negates the existence of
fraud,158 these factors are suggestive, and not every factor is essen-
154. See Riskin, supra note 9, at 38 n.98.
155. For another effort to identify critical elements in empowerment-style mediation,
see Folger & Bush, Ten Hallmarks, supra note 85. Folger and Bush’s list of factors overlaps with mine in focusing on principals’ decisionmaking responsibility, thorough consideration of issues, and avoidance of mediator pressure. Their list seems oriented to providing tactical advice to mediators and thus contains some specific prescriptions that
might be included in some of my more general factors.
156. Because this scale is intended to reflect the quality of principals’ consent, these
factors focus primarily on the quality of the decisionmaking process, though the factors
involving selection and evaluation of options do require careful analysis of potential outcomes by the principals. Evaluation of results by such criteria as fairness and efficiency is
also important, but beyond the scope of this Article.
157. Cf. Moberly, supra note 65 (arguing that although evaluative methods present
potential dangers, they are not unethical per se).
158. Lawsuits based on fraud sometimes refer to “deceit.” The following is a recitation
of the elements required for this cause of action:
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tial. This is more like the test for a type of undue influence, referred
to as “overpersuasion” in a line of California cases:
[O]verpersuasion is generally accompanied by certain characteristic elements which, when simultaneously present in a significant
number, characterize the persuasion as excessive. These elements
are “(1) discussion of the transaction at an unusual or inappropriate time, (2) consummation of the transaction in an unusual place,
(3) insistent demand that the business be finished at once, (4) extreme emphasis on untoward consequences of delay, (5) the use of
multiple persuaders by the dominant side against a single servient
party, (6) absence of third-party advisers to the servient party, (7)
statements that there is no time to consult financial advisers or attorneys.”159
For example, in a case in which a police officer was pressured to resign by a deputy police chief soon after the officer had been charged
with rape, the court upheld a civil service board’s decision setting
aside the resignation, finding that the evidence could support five of
the seven factors of overpersuasion.160
Just as the preceding seven factors can be assessed to create an
implicit scale of overpersuasion, the seven factors I propose may be
used to form a continuum of quality of consent in mediation. Thus,
rather than indicating distinctly whether a principal has or has not
given high-quality consent in a particular situation, one might say
that the quality is better or worse considering all of these factors and
then judge whether the quality of consent is “enough.” Given the difficulty in defining this subjective concept, there can be obvious differences of opinion over how much is enough (or how much is approThe essential elements required to sustain an action for deceit are, generally
speaking, that a representation was made as a statement of fact, which was
untrue and known to be untrue by the party making it, or else recklessly
made; that it was made with intent to deceive and for the purpose of inducing
the other party to act upon it; and that he did in fact rely on it and was induced thereby to act to his injury or damage. The representation must have
been made to him either directly or indirectly, and must have been of such a
nature that it was reasonably calculated to deceive him and to induce him to
do that which otherwise he would not have done. Generally, all of these ingredients, except for a few variants from the common-law rules in force in some
American jurisdictions, must be found to exist, and the absence of any one of
them is fatal to a recovery . . . .
37 AM. JUR. 2D Fraud and Deceit § 12 (1968) (footnotes omitted).
159. Keithley v. Civil Serv. Bd., 89 Cal. Rptr. 809, 815 (Ct. App. 1970) (citation
omitted). These behaviors have an eerie resemblance to the more directive style of mediation, especially with the use of multiple persuaders. Although principals in mediation often have their lawyers present, they may sometimes feel that their own lawyers
have “turned on them,” joining with the opposing side and the mediator in urging them
to become “more reasonable.” See supra note 107; see also infra text accompanying
notes 214-15, 224.
160. See Keithley, 89 Cal. Rptr. at 815; see also generally 1 B.E. WITKIN, SUMMARY OF
CALIFORNIA LAW, Contracts § 428 (9th ed. 1995).
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priate considering other values such as efficiency and termination of
a dispute). Indeed, this is probably the heart of the difference between settlors and empowerors.161 Defining the quality of consent as
a continuum using fairly concrete behavioral indicators such as the
following could help clarify such debates.
1. Explicit Consideration of Principals’ Goals and Interests
It may seem obvious that it would be important for principals to
identify their goals for resolving a dispute and the interests underlying their goals. Yet many mediators, lawyers, and principals often
assume—incorrectly—that they know the goals and interests of the
principals and that explicit discussion of these matters is thus unnecessary. No doubt many mediators and lawyers often assume that
the principals simply want to end up with “more” of whatever they
want, and that they usually just want more money. The principals
may make similar assumptions about each other. Moreover, the
principals and lawyers may enter mediation so fixated on obtaining
particular outcomes that they do not consider what the principals’
basic interests are that may be achieved with outcomes they had not
considered. In terms of Leonard Riskin’s typology, eliciting higher
quality consent entails defining the problem broadly rather than
narrowly.162 Riskin identifies four progressively broader levels of interests, which he calls litigation issues, business interests, personal/professional/relational interests, and community interests. 163
Clearly, to obtain high-quality consent, one need not necessarily expand the definition of a dispute to encompass all possible interests
and issues. Rather, enhancing the quality of consent entails exploration of the principals’ goals and interests to an appropriate extent
under the circumstances. Eliciting interests explicitly increases the
likelihood that principals will identify their interests. 164 As noted
above, these interventions are not suggested as being necessary or
appropriate in every case, and thus there are undoubtedly situations
in which mediators quite wisely refrain from exploring all the interests.
161. See supra notes 48-50, 58-60 and accompanying text.
162. See Riskin, supra note 9, at 18-23; see also FISHER ET AL., supra note 14, at 40-55
(advising parties to identify interests underlying their positions); BUSH & FOLGER, supra
note 10, at 85 (advocating empowerment by identifying goals); Menkel-Meadow, Toward
Another View of Legal Negotiation, supra note 12, at 794-829 (proposing model of problemsolving negotiation meeting parties’ underlying needs).
163. See Riskin, supra note 9, at 18-23.
164. Many of the factors I suggest entail an element of explicitness. I am grateful to
Mill Valley, California, mediator and trainer Gary Friedman for highlighting this value.
This may be useful to assure that the matter is indeed dealt with and to minimize confusion.
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2. Explicit Identification of Plausible Options
To make an informed decision, it seems obvious that it is necessary to identify various plausible options165 for resolving an issue. In
some cases, the discussion focuses on a single option, such as the
first one suggested by a principal or thought of by the mediator.
Moreover, mediators sometimes do not use a problem-solving approach seeking to develop options benefiting all principals, 166 which
is a major potential benefit of mediation processes. The quality of
principals’ consent is diminished to the extent that there are serious
plausible options that the participants do not identify. I believe that
it can be quite appropriate for mediators to identify plausible options
that the participants have not thought of and that, if done properly,
this enhances rather than detracts from the quality of principals’
consent.167
We should not underestimate the difficulty of routinely identifying a wide range of plausible options. This demands a significant
amount of time and emotional commitment, especially if the participants enter the process with strong commitments to a positional approach in which the participants make a series of counteroffers to
165. Some people advocate the use of brainstorming processes in which the participants are encouraged to suggest many different options, often including outrageous options, as a spur to creative thinking. See FISHER ET AL., supra note 14, at 60-70. While it
can be a very useful technique to encourage people to suggest even silly options, this is not
necessary for informed decisionmaking. The fact that one can almost always suggest a virtually infinite number of implausible options indicates that one need not consider all options to make informed judgments. Indeed, even limiting discussion to all plausible options may be impractical because there may be a virtually infinite number of plausible options in some situations, as when the issue is about allocation of a continuous commodity
like money. If P demands $100,000 and D offers $10,000, there are at least 90,000 plausible options. Here, consideration of all plausible options would not entail explicit consideration of every single intermediate amount, but rather examination of the different principles on which the principals may base their decision of which amount to select. In addition, plausible options may include nonmonetary solutions, options based on linkages between issues, and possible contributions of parties not “at the table.”
166. See supra note 49.
167. Some people would argue that it is inappropriate for mediators to suggest options
because they believe this would undermine the principals’ self-determination. I have frequently heard mediators say that it would be inappropriate to suggest options because it
would unduly influence the parties or inevitably favor one party over another. I am concerned about mediators favoring some options over others, but I do not believe that mediator suggestions necessarily pressure principals excessively, which I believe depends on
such things as the substantive balance, timing, and tone of mediators’ suggestions. Thus, I
would focus directly on the nature and effect of mediator efforts at influence rather than
make the categorical assumption that mediator suggestions have adverse effects. Mediators who criticize directly suggesting options sometimes recommend that mediators can
avoid (at least the appearance of) bias or pressure on parties by asking questions rather
than making declarative suggestions. This formula seems wholly inadequate because, depending on the tone and context, some questions (e.g., “How greedy can you get?”) can exert
more pressure than declarative suggestions. See supra note 113 and accompanying text.
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narrow and ultimately eliminate their differences. 168 In a given case,
there may be multiple issues and subissues; theoretically, mediation
processes should entail explicit identification of plausible options for
all the issues. Even though this is an important ideal, it may be
practically impossible to realize fully. Thus, one may judge mediation processes by the extent to which the mediators do promote explicit identification of plausible options, especially for the most important issues. In some situations, such as where the stakes are
relatively small or the principals are quite familiar with the circumstances, principals may intelligently decide to restrict the consideration of options. In such situations, mediators oriented to eliciting
high-quality consent can explicitly check if the principals want to
consider additional options.169
3. Principals’ Explicit Choice of Options for Consideration
The third factor involves the principals explicitly choosing to consider the most plausible options. This factor is an extension of the
preceding ones and is subject to similar limitations. As a practical
matter, it is typically impossible or undesirable to fully evaluate the
complete range of plausible options for each issue. Thus, some
choices must be made to restrict the range of options and extent of
evaluation. This factor involves mediators helping the principals to
make these decisions consciously. Moreover, it encompasses an element of impartiality by which mediators do not implicitly or explicitly steer the principals to focus on one option over another without
their consent. In this respect, the selective facilitation performed by
Greatbatch and Dingwall’s mediators170 and the pressure tactics that
Eric Green used171 reduce the quality of the principals’ consent.
Normally, mediators do not threaten the quality of the principals’
consent if the mediators do not press for consideration of particular options (at least if no side is taking inappropriate advantage over another). While this may reflect an ideal approach, I believe that it is often helpful for mediators to suggest that the principals focus on certain options for evaluation. In my view, this does not undermine the
quality of the principals’ consent if mediators do so explicitly and with
limited pressure on the principals to accept the mediators’ suggestions.
4. Careful Consideration of Options
To produce high-quality consent, the principals, after identifying
plausible options, should decide what information they need to
168.
169.
170.
171.
See supra note 49.
I am grateful to Professor Fran Tetunic for suggesting this point.
See supra text accompanying notes 124-33.
See supra text accompanying notes 110-14.
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evaluate the options and then weigh the likely favorable and unfavorable consequences. Clearly, the expected transaction costs of
various options (e.g., settlement versus trial) are important subjects
that should be considered. To enhance the quality of the principals’
consent, mediators would elicit realistic (rather than unreasonably
understated or exaggerated) estimates of the likely costs and consequences of trial. In cases pending in litigation, mediators may be especially prone to describing how judges (either generally or the particular judge sitting on the case) and juries “typically” decide cases
like their case. Sometimes mediators portray litigation as almost
completely negative and exaggerate the risks of litigation as a means
of pressing the principals to settle. Clearly, this diminishes the
quality of their consent.
Some advocates of empowerment argue that mediators should not
express opinions about the substantive issues because doing so inevitably favors one side or another and excessively pressures the
principals.172 While this may often be the result, I do not believe that
a mediator’s expression of opinion necessarily reduces the quality of
the principal’s consent (or the mediator’s impartiality). For example,
a mediator may present opinions about likely court results or typical
resolutions in similar disputes without undermining the quality of
principals’ consent if the mediator first asks if the principals would
like the mediator’s opinion and, if so, presents this information without excessively pressing the principals to accept a particular option.173 This risk can be further reduced if the mediator takes actions
to promote high-quality consent, such as explicitly facilitating consideration of several options. This analysis suggests that mediators’
expression of opinions (and, as discussed above, identification and
selection of options for consideration) do not necessarily impair the
quality of the principals’ consent, but rather should be evaluated to
determine the extent to which these practices in fact pressure the
principals and whether the pressure is excessive. 174
172. See Kovach & Love, supra note 9, at 31-32.
173. See Marjorie Corman Aaron, ADR Toolbox: The Highwire Art of Evaluation, 14
ALTERNATIVES TO HIGH COST LITIG. 62, 63 (1996); Laurence D. Connor, How to Combine
Facilitation with Evaluation, 14 ALTERNATIVES TO HIGH COST LITIG. 15, 15 (1996) (concluding that innovative procedure is appropriate only by consent of principals).
174. Some advocates of empowerment question the need for mediators to express
opinions, arguing that the principals’ lawyers or other experts retained by the principals
can provide this information. See, e.g., Kovach & Love, supra note 9, at 31. While this
strategy may address the principals’ needs in some cases, some principals may feel unsatisfied with this. Lawyers (and other professionals retained by one side in a dispute)
have their own perspectives and interests that are not always congruent with those of
their clients. Lawyers may take strong positions as a natural part of their role as advocates or simply to maintain the clients’ confidence. On the other hand, clients are often
aware that their lawyers may be more inclined to settle than the clients, raising doubts
about the opinions expressed by the lawyers. See AUSTIN SARAT & WILLIAM L.F.
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The impact of a dispute on the principals’ relationships should often be an important consideration. Disputes don’t happen in a vacuum. They happen in a web of relationships that give meaning to
people’s lives. Often, disputes arise out of problems in a relationship.
In fact, considerations about the continuation of the relationship between the principals may be more important than the subject of the
dispute itself.175 Disputes may implicate a range of relationships between the principals and others who are not formally part of the dispute, if only because the principals may provide accounts of the dispute to relatives, friends, and other associates. 176 Important relationships are involved even in the stereotypical automobile negligence
case in which the plaintiff has no prior relationship nor expected future relationship with the insurance company or its insured. Simply
maintaining a dispute requires the principals to continue a set of
relationships, albeit ones that are usually temporary and undesired.
Often, incidents in the conduct of a dispute overshadow the event or
transaction precipitating the dispute.177 Given the importance of relationships to most people and the fact that relationship issues can
easily be overlooked in the course of fighting over the “substance” of
a dispute, mediators can increase the quality of principals’ consent
by focusing on the significance of relationships in the dispute. 178 This
FELSTINER, DIVORCE LAWYERS AND THEIR CLIENTS: POWER AND MEANING IN THE LEGAL
PROCESS 108-41 (1995). Although principals sometimes jointly hire third-party experts
(such as appraisers) to provide impartial opinions, this approach presents financial and
practical problems in many cases. Thus, some principals may especially value their mediators’ perspectives, particularly if the principals have confidence in the mediators’ integrity and impartiality. See Riskin, supra note 9, at 38 n.98.
175. The general counsel of a large conglomerate described the importance of relationships in many of the firm’s disputes:
[M]any of our businesses, for example, are with an industry in which it’s primarily a customer-dominated market. In other words, if I have a dispute with
a car company, or if I have a dispute with [names of companies], . . . the overriding consideration is the long-term relationship. Whether we win, lose, or
draw, the economics, how strong our case is—none of that matters.
Lande, supra note 8, at 121.
176. See Herbert Jacob, The Elusive Shadow of the Law, 26 L. & SOC’Y REV. 565, 571,
581-83 (1992) (observing that whether divorcing parties got information about the law
from personal network of relatives, friends, co-workers, and acquaintances affected how
the parties defined the issues).
177. Someone told me of a case in which his mother was the plaintiff in a personal injury suit. According to the story, the insurance company offered more than the plaintiff
had decided that she needed to settle. During the negotiations, however, the insurance
adjuster implied that the plaintiff was partially at fault for the incident, and the plaintiff
refused to accept the offer until the adjuster apologized for the statement. I don’t know
how accurate this particular story is, but it illustrates a common dynamic in which the
initial dispute triggers other disputes about the conduct of the dispute. When attorneys
are involved, sometimes the attorneys “go at it,” thus multiplying the number of things
that the principals may be angry about in the dispute.
178. This is different from Bush and Folger’s concept of “recognition,” by which they
refer to empathy for and acknowledgment of others’ problems. See BUSH & FOLGER, supra
note 10, at 2. I believe that recognition can be a very important goal and benefit of media-
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factor does not necessarily require lengthy discussion of any particular relationships, but only a sensitivity to the significance of relationships and a willingness to raise relationship issues when it appears that they are or might be important to the principals.
5. Mediators’ Restraint in Pressuring Principals to
Particular Options
Select
The choice of substantive options (e.g., whether to agree on x dollars or y dollars or not to agree at all) is the ultimate decision that
principals must make in mediation and may be the most common
subject of mediator pressure. Clearly, mediators reduce the quality
of principals’ consent when the mediators effectively pressure principals to substitute the mediator’s judgment for their own judgment,
as exemplified by the actions Eric Green took in the case described
above.179 Probably more common, mediators offer their opinions
about the merits of a case without expressly urging the principals to
take a particular position. Expression of such opinions does not necessarily result in excessive pressure and may be quite appropriate in
certain situations. In some situations, however, it creates a risk of
reducing the quality of principals’ consent, especially if the mediator
tion. Like Bush and Folger, I distinguish it from some concept of empowerment. In this
analysis, consideration of relationships is an element of high-quality consent because of
the important meanings that principals derive from individuals’ relationships. Focusing
on emotional and relationship issues is an especially important potential benefit of mediation, considering that many lawyers feel ill-equipped to deal with such issues. See SARAT
& FELSTINER, supra note 174, at 42-52, 128-33.
179. See supra text accompanying notes 109-14. One reviewer thought that I was too
critical of Eric Green’s techniques. The reviewer noted that many mediation authorities
recognize a legitimate role of a mediator as an “agent of reality,” and that many of Green’s
statements are about his perception of reality. Indeed, one of the techniques that I advocate is promotion of careful consideration of options. See supra text accompanying notes
165-78. Nonetheless, I have always been uncomfortable with the agent-of-reality concept
because some mediators interpret this as a warrant establishing that mediators necessarily have superior knowledge of reality than the participants do. Though mediators often do
have a privileged perspective (especially if they caucus extensively so that the mediators
have more current information than any of the participants), the agency-of-reality claim is
sometimes made to privilege the mediators’ personal opinions, advice, and overly confident predictions. As the reviewer noted, agent-of-reality techniques are dangerous if the
mediators give false impressions of what would happen in the absence of agreement, or if
they make a participant feel so uncomfortable about the mediators’ behavior (rather than
the underlying reality of the situation) that the participant makes decisions primarily to
reduce that discomfort.
While the participation of experienced attorneys may, as one reviewer suggested, mitigate harmful effects of mediators’ pressure techniques, these techniques are especially
risky if a principal is unrepresented or represented by incompetent counsel. Should the
standard be that pressure tactics do not diminish the quality of consent if the mediators
can assure that the principals are represented by (equally) competent counsel? Not as far
as I am concerned. The critical distinction is whether the reality testing is primarily designed to help the principals better exercise their own judgment or to inhibit principals
from doing so by pressuring them to accept the mediators’ preferred options. Based on the
published account of Green’s case, his actions fall clearly in the latter category.
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effectively urges the principals to accept a position expressed by the
mediator or described as normal. This is especially dangerous if the
mediator suggests that refusal to accept the mediator’s position
might result in some sanction, such as a report to the court that one
side was responsible for unreasonably failing to settle. An actual or
implied threat to withdraw the mediator’s respect and cooperation is
probably a more typical and more potent sanction.
Probably the greatest pressure that mediators exert is the pressure to reach settlement for the sake of settlement, based on the assumption that settling in mediation is almost always better than not
settling. Deciding whether or not to settle is the ultimate decision
that principals make in mediation. The right to trial is a precious
value protected under the federal and state constitutions. 180 Principals may legitimately decide to take advantage of this right. If they
are to enhance the quality of principals’ decisionmaking, mediators,
after discussing the principals’ analysis of the dispute as described
above, must respect principals’ decisions not to settle if they so
choose.
6. Limitation on Use of Time Pressure
Time pressure can impair people’s judgment and can be used to
reduce the quality of principals’ consent. Time pressure often results
from an apparent need to make a decision within a short time,
though it also may result from efforts to prolong a dispute, as we saw
in Eric Green’s case.181 In some cases, time pressure results from external constraints that may be difficult or impossible to change, such
as a trial date or a relevant external transaction. In such situations,
mediators help participants by periodically focusing attention on
those time constraints and helping principals to exercise decisionmaking responsibility as well as possible within those constraints.
Indeed, mediators may provide a valuable service by eliciting agreements about the pace of the process and any deadlines that the principals may want to set.
In some situations, the mediator or a participant in a mediation
may manipulate time constraints to pressure some participants. Depending on the circumstances, this may inappropriately reduce the
quality of principals’ consent, especially if the mediator initiates the
time pressure. Inappropriate time pressure is a serious risk in mediation when there is an unnecessary expectation that the principals
can reach and sign an agreement during a single-session mediation
without further opportunity for advice, reflection, or negotiation.
Thus, mediators can enhance the quality of principals’ consent by
180. See U.S. CONST. amend. VII; see also, e.g., FLA. CONST. art. 1, § 22.
181. See supra text accompanying notes 115-18.
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being genuinely open to continuing a mediation at a later time as
appropriate. Mediators can enhance the quality of principals’ consent by suggesting that principals take a reasonable amount of time,
such as several days, to consider a proposed agreement before being
expected to commit to it.182
7. Confirmation of Consent
When principals are on the verge of reaching an agreement, mediators can ensure that principals’ decisionmaking responsibility is
honored by checking whether the principals understand the proposed agreement, need further information, and want to proceed
with the agreement. Of course, this would not be effective if the mediators appear to simply “go through the motions,” as some courts do
when accepting plea bargains.183 Rather, mediators oriented to ensuring principals’ high-quality consent would make a serious inquiry, especially if a principal seemed uncertain or ambivalent. This
is especially important in one-session mediations in which the mediator drafts an agreement that the principals are expected to sign
at that session. Although the participation of the principals’ lawyers
in mediation may provide some assurance of high-quality consent, if
the lawyers are strongly motivated to reach some settlement in the
mediation, their presence may undermine rather than support the
principals’ decisionmaking responsibility, as described below. 184
As noted above, I hypothesize that cumulatively these seven factors are good indicators of the extent to which a mediation process
enhances or diminishes the quality of the principals’ consent, which
is an intrinsic potential benefit of the process. For several reasons,
the development of a fairly clear and generally accepted conception
of high-quality consent may be an important influence in the devel-
182. Cf. 16 C.F.R. § 429.1 (1997) (Federal Trade Commission rule defining as unfair
and deceptive act in which door-to-door seller fails to provide buyer with notice of right to
cancel sale within three days of sale). I am grateful to Berkeley, California, mediator Ron
Kelly for persistently emphasizing this point.
183. In criminal cases, defendants who plead guilty typically must go through a “copout” ceremony in court where the
accused not only is made to assert publicly his guilt of a specific crime, but also
a complete recital of its details. He is further made to indicate that he is entering his plea of guilt freely, willingly, and voluntarily, and that he is not doing so because of any promises or in consideration of any commitments that
may have been made to him by anyone.
Abraham S. Blumberg, The Practice of Law as Confidence Game: Organizational Cooptation of a Profession, L. & SOC’Y REV., June 1967, at 15, 32. This process is obviously a charade in many cases and virtually everyone involved knows it. Despite the guilty pleas and
affirmations of voluntariness, Blumberg, in a random survey of 724 defendants, found
that in presentence probation interviews following their guilty pleas, more than half the
defendants claimed to be innocent. See id.
184. See infra notes 214-16, 223-25, 236 and accompanying text.
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opment of both lawyering practices and mediation practices in the
next century. First, mediators’ philosophies about principals’ responsibility in mediation may be an important distinguishing feature in
the mediation marketplace.185 If so, it will be vital for mediators to
develop and project their own identities along this dimension in the
market.186 By the same token, to serve their clients profitably, lawyers, as regular buyers of mediation services, will need to recognize
these key distinctions between mediators. Second, and more important, this issue may shape actual lawyering and mediation practices,
as we consider in the next Part of this Article. These factors may
provide useful guidelines for mediators, lawyers, and principals who
champion values of empowerment. In addition, the behavioral factors comprising the scale suggest specific procedures that mediators
of all persuasions, including dyed-in-the-wool settlors,187 can readily
include in their mediation practices without necessarily “buying the
whole program.” By the same token, lawyers who generally prefer
settlor-style mediation may identify certain procedures that they
might request to enhance their clients’ interests without jeopardizing their goals of definite and efficient dispute resolution. We now
consider how these and related issues will affect lawyers’ and mediators’ practices.
IV. POTENTIAL EFFECTS OF LAWYER PARTICIPATION IN LITIMEDIATION
As mediation becomes a routine step in contested litigation, 188 we
can expect that mediation and litigation procedures will co-evolve,
i.e., the dynamics of litigation will influence the practice of mediation
and vice versa.189 Some obvious possibilities are that routine use of
mediation in litigation could reduce the level of adversarial behavior
in litigation generally,190 and the incorporation of mediation into the
185. See supra Part II.
186. See Lande, supra note 74, at 41-45.
187. See supra notes 48-50 and accompanying text.
188. See supra notes 8, 23 and accompanying text (discussing development of “litimediation” culture).
189. Co-evolution is a process of mutual adaptation of different interdependent entities in which the development of each entity affects the other(s). See Suchman, supra note
30, at 321-24. “Various entities pivot around each other towards a stable but initially indeterminate end-state, creating their environment collectively, rather than adjusting to it
individually.” Id. at 321.
190. See Craig A. McEwen et al., Lawyers, Mediation, and the Management of Divorce
Practice, 28 L. & SOC’Y REV. 149, 178-81 (1994). Professors Craig McEwen, Lynn Mather,
and Richard Maiman conducted a compelling study comparing divorce practice in Maine,
where there is a mandatory divorce mediation scheme, and in New Hampshire, where
there is not such a scheme. Based on interviews with 163 lawyers, they found that Maine
lawyers typically acted reasonably in mediation and that the lawyers had less adversarial
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litigation process could increase the level of adversarialness in mediation.191 This Part examines some possible and, indeed, likely
changes as these two forms of practice evolve in tandem, particularly
as lawyers routinely shop, plan for, attend, and participate in mediation. Although principals are not always represented by attorneys
and attorneys do not always attend mediations, attorneys often do
attend and participate actively in liti-mediation environments.192
Part IV.A focuses on how routine participation of lawyers in mediation is likely to result in ongoing relationships between mediators
and lawyers that may overshadow their respective relationships
with the principals. Part IV.A also describes how lawyers’ participation may induce mediators to focus on lawyers’ interests in pressing
the principals into settlement and inhibit mediators from independently managing the process. In addition, lawyers’ participation may
significantly affect the timing of the mediation process, as described
in Part IV.B. In liti-mediation cultures, the scheduling of mediation
is likely to be determined by local norms about whether it is most
appropriate at early, intermediate, or late stages of pretrial litigation. Part IV.B also describes how the mediation process may be
rushed as it is oriented toward the time frame of litigation and limitations of lawyers’ time. Part IV.C analyzes how an orientation of
mediation toward the needs of lawyers and courts may enhance or
undermine the principals’ ability to exercise their decisionmaking
responsibility. Lawyers’ norms of adversarial bargaining and “client
control” may be incorporated into mediation. This may have an especially powerful effect given the time pressures described in Part
IV.B. Despite many lawyers’ interest in using a problem-solving approach that enhances the exercise of the clients’ decisionmaking responsibility, Part IV.C contends that the lawyers’ very participation
in mediation may undermine those possibilities if the lawyers bring
adversarial approaches into mediation that reduce the quality of the
principals’ quality consent to settlement.193
attitudes and behaviors than their counterparts in New Hampshire. See id.; see also
McEwen et al., supra note 23, at 1367-68.
191. McEwen and his colleagues reported that the mandatory mediation in Maine did
not appear to spoil the mediation process or undermine real mediation. See McEwen et al.,
supra note 23, at 1371-73, 1392-94. While these problems may not have occurred in
Maine, I believe that without careful precautions, institutionalization of mediation may
entail substantial risks to principals, as described in this Part.
192. See infra note 205.
193. Craig McEwen correctly points out that in analyzing the effects of lawyer participation in mediation, rather than comparing this to a process in which the principals do
not retain lawyers at all, one should generally compare mediation processes in which lawyers attend mediation sessions with mediation processes in which lawyers are retained by
the principals but do not attend mediation sessions. See McEwen, supra note 150. He suggests that when the lawyers do not attend mediation sessions, they may nonetheless have
a major adverse effect if, for example, they give principals strict instructions about what
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A. Relationships Between Principals, Lawyers, and Mediators
As mediation becomes more common, and especially where the
courts are authorized to order cases into mediation, 194 most lawyers
will feel the need to be able to advise clients about the use of mediation, select appropriate mediators, and competently represent their
clients in mediation.195 Indeed, the institutionalization of mediation
may lead to establishment of an ethical duty to advise clients about
mediation and even malpractice liability for failing to do so. 196 Nonetheless, I suspect that informal social pressure and (actual or perceived) court mandates will influence lawyers to routinely incorporate mediation into their practices much more than the threat of professional discipline or liability. As lawyers perceive that participation in mediation is normal or even the “in thing,” 197 they are likely
to take it for granted as a normal feature of the legal process. 198
Institutionalization of mediation is likely to result in significant
redefinitions of the relationships between principals, lawyers, and
mediators. Over time, lawyers and mediators in the same professional community are likely to establish distinctive reputations and
ongoing relationships with each other.199 As the lawyers are likely to
they should not agree to and then second-guess agreements reached in sessions in which
the lawyers did not participate. See id. While this certainly may be so, I believe that direct
lawyer participation in mediation brings the serious risks described in this Article, which
I suspect often exceed those that McEwen identifies. The issue deserves more analysis
than is possible within the scope of this Article.
194. See ROGERS & MCEWEN, supra note 3, app. B.
195. The McEwen et al. study of divorce mediation in Maine found that “having incorporated mediation into their practices, Maine divorce lawyers report that they typically
describe the process, seriously examine settlement options and approaches, and preach
mediation’s virtues to clients in preparing them to undertake the process.” McEwen et al.,
supra note 23, at 1385.
196. See Robert F. Cochran, Jr., Legal Representation and the Next Steps Toward Client Control: Attorney Malpractice for the Failure to Allow the Client to Control Negotiation
and Pursue Alternatives to Litigation, 47 WASH. & LEE L. REV. 819 (1990); Frank E.A.
Sander, At Issue: Professional Responsibility, Should There Be a Duty to Advise of ADR
Options? Yes: An Aid to Clients, A.B.A. J., Nov. 1990, at 50, 50; ROGERS & MCEWEN, supra
note 3, § 4:03.
197. See Elizabeth D. Ellen, Attorneys and Court-Ordered Mediation: An Examination
of the Lawyer-Neutral (June 3, 1995) (paper presented at the Law and Society Association
Annual Meeting). Ellen conducted a study of mediators in North Carolina, where the mediated settlement conference statute was modeled on Florida’s mediation statute, particularly in its provisions governing certification and selection of mediators. Ellen found
that lawyer-mediators comprised an elite group in the bar as compared with the nonmediators. See id.
198. See McEwen et al., supra note 23, at 1385. McEwen and his colleagues found that
“[f]rom the perspective of clients, mediation in Maine simply appears as another step in
the divorce process” and that Maine lawyers typically view it the same way. Id.
199. As one indication of this, many mediators in Florida begin their “opening statements” by telling the principals that the opening statement is directed to them (the principals) because the lawyers have heard it many times. See, e.g., Videotape: Circuit Civil
Mediation with Martin I. Lipnak (on file with author).
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be repeat players,200 mediators may well see lawyers as their (the
mediators’) clients rather than the principals, 201 with whom the mediators are much less likely to have repeat business. This alliance
between mediators and lawyers—and mediators’ great stake in their
goodwill with the lawyers in their community—is likely to be reinforced if the lawyers (rather than the principals) typically do the
shopping for mediators.202 When the lawyers in a case (or their major
clients) are roughly comparable in their repeat-player status, the
mediator would presumably be equally dependent on both lawyers
and would generally not have an incentive to favor one side or another.203 When one side is a repeat player (such as an insurance
company or a lawyer who uses mediation frequently) and the other
side is not, the mediation process could consciously or unconsciously
be affected by an ongoing relationship between a mediator and a
lawyer.204
200. See Galanter, supra note 30, at 114 (characterizing lawyers as quintessential repeat players).
201. For example, Eric Green identifies cases by the person who referred the case,
such as “Judge X’s case” or the “construction case from Attorney Y.” Hall, supra note 105,
at 283.
202. See supra notes 29-32 and accompanying text. It is true, as Greg Firestone correctly pointed out, that some attorneys may receive case referrals from mediators. Thus,
the influence is not entirely a “one-way street.” Nonetheless, I suspect that mediators are
generally more dependent on receiving referrals from lawyers than the other way around,
especially in liti-mediation environments where cases are ordered to mediation only after
the litigation (and often the legal representation) has begun.
203. Mediators do not have formal authority to impose an ultimate resolution in a
matter, and thus could not make a formal decision favoring one side or another. See, e.g.,
FLA. R. CERT. & CT.-APPTD. MEDIATORS 10.050-.070. Nonetheless, mediators may help or
interfere with particular individuals’ efforts through the mediators’ control over the process, including such decisions as what issues are worthy of discussion and what options are
suitable for serious consideration, and subtle or not-so-subtle expressions of opinion about
particular positions. See supra text accompanying notes 162-84.
204. A journalistic report highlighted risks of private ADR service providers regularly
relying on certain lawyers or principals for work as neutrals. See Richard C. Reuben, The
Dark Side of ADR, CAL. LAW., Feb. 1994, at 53. Although this account focused primarily
on adjudicatory ADR processes, the potential for abuse is similar with mediation, especially when the mediators use more directive techniques. See supra note 40. One attorney
complained about perceived bias of a private ADR organization because he was a “oneshotter,” Galanter, supra note 30, at 97, in a proceeding with a repeat player before the
ADR organization:
“I realized the situation the minute I walked in the room,” says the attorney.
“There I was, a sole practitioner who may bring one case to JAMS [Judicial
Arbitration and Mediation Service] in a year, going up against an insurance
company that brings it thousands of cases every year.”
Reuben, supra, at 57. Clearly, from an account like this, one cannot tell whether the ADR
provider did or did not act improperly. However, this account highlights a serious potential problem. One attorney told me that he believes that insurance company claims adjusters
have significant input in the choice of specific mediators in their cases. Another attorney
summarized the problem in the following graphic and probably overstated quotation:
“Anytime you are paying someone by the hour to decide the rights and liabilities of litigants, and that person is dependent for future business on maintaining good will with those who will bring him business, you’ve got a system
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Local norms about whether lawyers normally attend mediation
sessions and, if so, how they participate may radically affect the constellation of relationships and the dynamics of the process. In some
places, lawyers routinely attend mediation sessions; 205 in other
places, lawyers rarely attend.206 If lawyers do attend the mediation,
they may affect the process dramatically. In some situations, the
lawyers take a dominant role in which they do most of the talking,
typically making their sides’ opening statements and often responding to offers (presumably, though not necessarily, based on prior
authorizations). In other situations, the lawyers are permitted only
to observe and consult with their clients, but not speak for them. 207
that is corrupt at its core,” [Century City, California, attorney Joseph A.]
Yanny charges. “They have taken Lady Justice and put her on the street corner, hooking for tricks.”
Id. at 54. Of course, repeat players receive favored treatment in traditional litigation
through their relationships with “institutional incumbents,” e.g., judges and court clerks.
Galanter, supra note 30, at 99. Therefore, any such dynamics in mediation would not be
unique or necessarily greater than in traditional litigation.
Conflicts of interest may be prohibited by statute or rule. See, e.g., FLA R. CERT. & CT.APPTD. MEDIATORS 10.070(b) (requiring mediators to disclose conflicts of interest). Nonetheless, it may not be clear whether disclosure is mandated (or normally provided) in
some situations; thus, prudent mediation shoppers take the initiative to ask about it. See
Harry N. Mazadoorian, Disclosure Questions for ADR Counsel to Ask When Choosing Neutrals or Provider Groups, 14 ALTERNATIVES TO HIGH COST LITIG. 95, 95 (1996).
205. For example, in Maine, lawyers usually attend divorce mediation sessions. Seventy-eight percent of lawyers interviewed said that they “almost always” attend mediation
sessions and an additional 17% said that they “usually” did so. See McEwen et al., supra
note 23, at 1359-60. In Florida, official estimates of lawyer attendance vary widely by type
of court and geographical location. For example, in about one-quarter of the mediation
programs in county court mediation (covering cases up to $15,000), lawyers attend in
more than half the cases. In about three-quarters of the programs in family mediation,
lawyers attend in more than half the cases. In about three-quarters of the programs in
circuit civil mediation (cases in which requested damages exceed $15,000), lawyers attend
in more than 80% of the cases. See SCHULTZ ET AL., supra note 2, at 39-40, 89-90, 109. Indeed, in circuit civil cases, “[i]f a party is represented by counsel, the counsel of record
must appear unless otherwise stipulated to by the parties or otherwise ordered by the
court.” FLA. STAT. § 44.1011(2)(b) (Supp. 1996) (emphasis added).
206. For example, a lawyer-mediator in Northern California with a large family mediation practice reported that she had never attended a mediation on behalf of a client she
represented, and that she is unusual in her mediation community because when she mediates, she occasionally suggests that the lawyers attend. See Interview with Althea Lee
Jordan, California attorney and mediator, in Palo Alto, Cal. (Aug. 11, 1996). Data from
205 court-related divorce mediation programs indicated that lawyers did not play a role in
mediation in 43% of the programs, and 33% reported that lawyers could participate by
stipulation of the parties. See McEwen et al., supra note 23, at 1362 n.261 (analyzing data
from a state ADR program database maintained by the National Center for State Courts
(NCSC)). In several states, statutes permit exclusion of lawyers from mediation sessions.
See id. at 1331 & nn.68-69.
207. According to data from the NCSC database as analyzed by McEwen and his colleagues, 11% of the court-related divorce mediation programs permitted lawyers to observe mediation sessions. See McEwen et al., supra note 23, at 1362 n.261. Lawyers in
Maine reported flexibility in their approaches to the balance of their participation and
that of their clients; sometimes the lawyers participate more actively and other times the
clients participate more actively. See id. at 1363-64.
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Some mediators explicitly define their expectations about the
lawyers’ role in the mediators’ opening statement. The lawyers’ role
is often reflected in, and affected by, the seating arrangements. The
individuals seated directly next to the mediators often act as the
primary spokespeople for their side. If the principals sit next to the
mediator, this often signals that the lawyers are expected to act primarily as advisors to their clients rather than as advocates with the
mediator and other side. Some mediators emphasize limitations on
the lawyers’ advisory role by insisting that the lawyers sit behind
their clients rather than sitting at the table. If principals are represented by counsel but their lawyers do not attend mediation sessions, the lawyers typically review any agreement that is reached in
mediation and may or may not talk with the mediators by phone.
The complicated sets of relationships between mediators, lawyers,
and principals may cause confusion about the nature of the relationships and thus about what behaviors are appropriate. For example,
are the principals primarily the mediators’ clients, primarily the
lawyers’ clients, or both equally? The significance of this issue is illustrated in a simulated mediation of a personal injury case from a
training video featuring a prominent Florida mediator and trainer. 208
After the plaintiff’s lawyer completed the opening statement, the
mediator turned to the lawyer and, referring to the plaintiff, asked,
“Would you mind if I ask her a question or two?” 209 The question implied that the principal was primarily the lawyer’s—not the mediator’s—client and that the mediator could not address the principal
directly without the lawyer’s consent.
Should the mediator normally assume that lawyers accurately
present their clients’ perspectives or should mediators periodically
confirm the principals’ positions themselves? If principals do not appear comfortable with their lawyers’ statements, would it be an improper interference in the lawyer-client relationship to suggest that
the lawyers confer with their clients or to ask the principals (perhaps
in caucus) to confirm their positions? These quandaries reflect an
ambiguity in the relationships between mediators, lawyers, and
principals. If mediators are more assertive, they risk alienating the
lawyers and perhaps the principals as well. If mediators do not pursue these issues, they clearly reduce the quality of the principals’
consent by failing to examine the issues carefully. Although these
problems can be addressed by mediators, especially by setting expectations in the opening statements,210 they reflect serious potential
208. See Videotape, supra note 199.
209. Id.
210. I am grateful to Craig McEwen for highlighting the fact that mediators have
some control over the role of lawyers in mediation, especially by setting expectations in
the opening statement.
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threats to the authority of both mediators and lawyers. If mediators
assume that lawyers may legitimately use an adversarial approach
to mediation, even a mediator’s questions to a principal may be perceived as inappropriately interfering with the lawyer’s strategy. In
these situations, mediators may feel quite reluctant to probe a principal’s thinking in much depth.
Consider further that the question “Would you mind if I ask her a
question or two?” mirrors a typical interaction in litigation in which
one attorney displays respect to an opposing attorney.211 Of course,
rather than being the principal’s adversary, the mediator is supposed
to help the principals. Given the fact that some mediators use strong
directive tactics to pressure principals,212 it may well be necessary and
appropriate for lawyers to protect the principals from the mediator. 213
On the other hand, lawyers sometimes look to the mediators to provide
precisely that kind of pressure on the lawyers’ own clients that the
lawyers feel unable or unwilling to effectively exert themselves. 214 It is
not uncommon for lawyers to believe that their clients are taking unreasonable positions but feel that they (the lawyers) cannot argue too
strongly with their clients without losing the clients’ confidence. Indeed, McEwen et al. reported that more than half the Maine lawyers
they interviewed spontaneously identified a benefit of mediation as
having mediators “challenge clients to relinquish unrealistic positions
and claims,” thus reinforcing the lawyers’ own advice.215
This discussion shows how the participation of lawyers in mediation can complicate and confuse the relationships between lawyers,
mediators, and principals. Given mediators’ dependence on lawyers
as regular sources of future business, it should not be surprising if
mediators especially cater to lawyers’ interests, possibly superseding
the principals’ interests.216 Indeed, mediators and lawyers may find
that they share an interest in pressuring principals to settle, especially in those liti-mediation cultures where the dominant norm favors settlement per se as the primary goal of mediation. The follow211. In fact, the mediator in the videotape had extensive experience as a litigator.
Thus, the form of the question may be due, in part, to force of habit. I suspect, however,
that this interaction reflected much more than simply an old habit.
212. See supra note 40.
213. McEwen and his colleagues found that virtually all the Maine lawyers they interviewed said that their principal role was to protect their clients from unfairness by the
mediator or the other side. See McEwen et al., supra note 23, at 1360-62.
214. See id. at 1370; see also McEwen et al., supra note 190, at 163-66.
215. McEwen et al., supra note 23, at 1370; see also McEwen et al., supra note 190, at
163-66.
216. Although it may be relatively easy to parry requests from principals for facilitative mediators to be directive by expressing opinions about the merits of a case, I have
heard several mediators express a serious dilemma about how to respond when such requests (or demands) come from attorneys who might be sources of future referrals in a
tight market for mediators. See, e.g., supra note 44.
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ing section considers how lawyers’ participation in mediation may affect timing of litigation and mediation.
B. Timing in Liti-Mediation
Institutionalization of mediation as a normal step in litigation
may affect the pattern and pace of litigation. Under the mandatory
divorce mediation statute in Maine, mediation has become an expected settlement event, forcing the lawyers and principals to seriously focus on the issues.217 McEwen and his colleagues found that
the mandated mediation in Maine encouraged the lawyers and principals to settle earlier than they otherwise would have. 218 Conceivably, institutionalization of mediation could also delay settlement, depending on local judicial or legal norms about timing of settlement
negotiations. If lawyers expect that they will eventually settle the
cases in mediation, they may hold off conducting direct negotiations
early in litigation.219
There is a split of opinion in the mediation community over the
best time to conduct mediation. Some argue that mediation is most
appropriate early in litigation (or better yet, before litigation), when
principals have not yet hardened their positions and invested a great
deal in litigation expenses.220 Others argue that mediation is not appropriate until late in litigation because principals can make informed decisions only after completing discovery. 221 Whatever the local norms for the timing of mediation, where it becomes institutionalized, it is likely to be a (if not the) central settlement event around
which other litigation activities revolve.222
217. See McEwen et al., supra note 23, at 1387.
218. See id. It is not clear how much time mediation saved, considering that the timing in the litigation varied. In cases that otherwise would have settled “on the courthouse
steps” just before trial, a mediation conducted a week or two before trial resulted in
some—but not substantial—time savings. On the other hand, when mediation occurred
early in the litigation, it presumably resulted in much greater time savings.
219. See McAdoo & Welsh, supra note 6, at 10. In Hennepin County, Minnesota,
where Supreme Court Rule 114 authorizes court referral to mediation,
[t]here may be less lawyer-to-lawyer negotiation going on now, with a preference to wait for a “mandatory” mediator’s assistance with settlement. . . .
[T]he sheer number of lawyers practicing makes informal, more civil negotiations difficult. Lawyers like the fact that with mediation under Rule 114, an
outside neutral is brought to the case who can assist the lawyers to tone down
their posturing, to be realistic about their cases, and to allow clients to be more
actively involved in the ultimate resolution. In addition, mediation provides a
specific day when all parties come to the table, with the task at hand being to
settle.
Id.
220. See ROGERS & MCEWEN, supra note 3, § 4:06.
221. See id.
222. One of my students, who is a paralegal with extensive experience working for an
insurance defense firm, describes how her conversations with clients and the lawyers in
her firm often involve planning for their moves in mediation. See Interview with Noël
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The involvement of lawyers in mediation may affect the timing of
the process in several ways, generally adding time pressure to the
mediation process. When lawyers attend mediation, the scheduling
of mediation sessions may be more difficult because it obviously requires coordination of at least two additional schedules. Because
lawyers often have tight schedules, the time available for mediation
may be quite constrained. For example, in the dependency mediation
clinic at my school, it is not unusual for lawyers to arrive late, have
hearings or other appointments scheduled for a time soon after the
mediation is set to begin, and be interrupted during mediation sessions by calls on their pagers and cellular phones. 223 Given the pace
of their schedules, they may want to settle cases as fast as possible,
and they often express impatience if the principals, including their
own clients, talk “too much.” If the lawyers do not consider the parties’ relationship concerns224 to be relevant or important, these issues
may not be raised at all or discussed in much depth. When the principals are paying their lawyers on an hourly basis (often in addition
to half of the mediator’s fees), the principals may also feel a financial
pressure to avoid dealing with issues that are not legally relevant
and thus “get the mediation over” as quickly as they can.
Given all these time pressures, everyone involved may be reluctant to consider scheduling additional mediation sessions and thus
may try to complete a settlement in a single meeting. When mediation takes place shortly before a scheduled trial date, it may be difficult or impossible to schedule a second session even if all the participants agree that it would be productive. The regular presence of
lawyers may thus lead to a norm of mediations conducted in a single,
possibly rushed session. Indeed, that is what McEwen and his colleagues observed in divorce mediation in Maine, where mediation
usually involves a single mediation session lasting two to three
hours.225 By contrast, Jessica Pearson and Nancy Thoennes found
that in public and private divorce mediation programs that lawyers
did not attend, the mediations involved an average of 3.4 to 6.2 ses-
Miner, graduate student, Nova Southeastern University, in Fort Lauderdale, Fla. (Oct. 3,
1996); see also Edward F. Sherman, The Impact on Litigation Strategy of Integrating Alternative Dispute Resolution into the Pretrial Process, 15 REV. LITIG. 503, 510 (1996)
(“ADR is now a central consideration in pretrial planning.”).
223. See Interview with Sharon Boesl, Director, Clinical and Community Outreach
Center, School of Social and Systemic Studies, Nova Southeastern University, in Fort
Lauderdale, Fla. (Sept. 29, 1996); Interview with Lynne Lucas, Fort Lauderdale mediator,
in Fort Lauderdale, Fla. (Sept. 26, 1996). As Craig McEwen pointed out, norms for timing
are a function of the local culture. Thus, if overscheduling by lawyers was considered unacceptable (especially by the judges), this time pressure could be reduced. See McEwen,
supra note 150.
224. See supra notes 175-78 and accompanying text.
225. See McEwen et al., supra note 190, at 154.
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sions, totaling an average of 6.3 to 8.7 hours, respectively. 226 It is
possible that the difference in the amount of time in mediation is a
function of whether discovery had been completed prior to mediation.
Given the view of many lawyers that mediation is appropriate only
after discovery has been completed, it is possible that mediations
with lawyers attending are more likely to occur with discovery
largely completed. Obviously, if discovery had not been completed
prior to mediation, one would expect that it would take additional
time in mediation to collect and analyze the relevant information.
Nonetheless, the participation of lawyers is likely to add time pressure in mediation for the reasons described above.
In sum, mediation is a central settlement event in liti-mediation
culture. When the lawyers and parties expect that litigation will
normally end in mediation, one can assume that they will plan their
activities in litigation with an eye toward how the case will “play
out” in mediation. Including lawyers in the mediation sessions may
often restrict the time available and the scope of issues considered
appropriate for discussion. Ironically, lawyers’ participation in mediation may reduce the quality of the principals’ consent unless mediators prepare to handle time pressures that may accompany the
lawyers in mediation.
C. Use of Adversarial and Problem-Solving Approaches in
Mediation
Regular participation of lawyers in mediation sessions may also
affect the negotiation dynamics in mediation, possibly encouraging
use of positional dynamics of offer and counteroffer rather than a
joint problem-solving effort to seek mutual gains by analyzing the
principals’ underlying interests.227 In a survey of 515 lawyers and
fifty-five judges in New Jersey, Professor Jonathan Hyman and his
colleagues found that, on average, the respondents estimated that
about seventy percent of their cases were settled using positional
methods, even though about sixty percent of the respondents said
that problem-solving methods should be used more often. 228 Hyman
226. See Jessica Pearson & Nancy Thoennes, Divorce Mediation Research Results, in
DIVORCE MEDIATION, supra note 17, at 429, 432.
227. See supra note 49.
228. See JONATHAN M. HYMAN ET AL., CIVIL SETTLEMENT: STYLES OF NEGOTIATION IN
DISPUTE RESOLUTION (1995) at 165. In my survey of 128 business lawyers, 83% said that
in more than half of suits between two businesses, it is appropriate to try to find outcomes
addressing the underlying interests of each party. See Lande, supra note 8 (data on file
with author). Moreover, 60% of the lawyers said that in more than half of suits between
two businesses, outcomes other than or in addition to monetary payments would be appropriate. See id. Thus, at least in theory, the majority of lawyers support the use of
problem-solving approaches in litigated cases. However, interviews with Hennepin
County, Minnesota, lawyers suggest that there are barriers between this philosophy and
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et al. suggest that problem-solving may be used less than lawyers
would like due to fear that opponents will take advantage of them,
perceived opportunities to gain advantage through positional methods, or simply habitual use of positional tactics. 229 Thus, it would not
be surprising if lawyers bring an habitual positional mindset into
mediation,230 especially if the mediator is also a lawyer or retired
judge. Mediators who also have that mindset may feel inhibited
about asking questions to avoid interfering with each side’s
positional strategy, as suggested in Part IV.A.
As Professors David Lax and James Sebenius point out, lawyers’
fears of losing strategic advantage through problem-solving tactics
reflect real risks entailed in such an approach. 231 Lax and Sebenius
also show, however, that using a mediator may reduce these risks by
providing a neutral third party who can receive and analyze information in confidence.232 Mediation can thus offer a useful forum for
lawyers who want to use a problem-solving approach to negotiation.
Indeed, McEwen et al.’s study suggests that mandatory divorce mediation in Maine may have offered just such opportunities and that
most lawyers generally accepted them.233 The researchers found that
lawyers generally adopt a norm of “the reasonable lawyer,” who,
rather than exacerbating conflict, typically tries to reduce it by
“limit[ing] client expectations, resist[ing] identifying emotionally
with the client, avoid[ing] substantially inflated demands, understand[ing] the likely legal outcome, assert[ing] the client’s interests,
respond[ing] to new information, and seek[ing] to reach a divorce
settlement.”234 This finding, though at odds with many popular conceptions of lawyer behavior, is consistent with many other analyses
of lawyers’ settlement orientations, even outside of mediation. 235
actual practices, considering that settlements in mediation were not more “creative” than
before mediation became institutionalized. See McAdoo & Welsh, supra note 6, at 10.
229. See HYMAN ET AL., supra note 228, at 166.
230. Leonard Riskin referred to this as a lawyer’s “standard philosophical map.” Leonard L. Riskin, Mediation and Lawyers, 43 OHIO ST. L.J. 29, 43-48 (1982); see also Michael
J. Lowy, Law School Socialization and the Perversion of Mediation in the United States, 3
WINDSOR Y.B. ACCESS TO JUSTICE 245, 248-52 (1983) (providing an analysis of nine elements of “legalism” that lawyers may bring into mediation, resulting in the failure to realize the educational potential of mediation). Indeed, mediation practice guides often caution about the risks of aggressive attorneys obstructing settlement. See, e.g., KIMBERLEE
K. KOVACH, MEDIATION: PRINCIPLES AND PRACTICES 89 (1994).
231. See DAVID A. LAX & JAMES K. SEBENIUS, THE MANAGER AS NEGOTIATOR:
BARGAINING FOR COOPERATION AND COMPETITIVE GAIN 29-45 (1986).
232. See id. at 172-78; see also Robert H. Mnookin, Why Negotiations Fail: An Exploration of Barriers to the Resolution of Conflict, 8 OHIO ST. J. ON DISP. RESOL. 235, 248-49
(1993).
233. See McEwen et al., supra note 23, at 1365.
234. Id. at 1365; see also Ronald J. Gilson & Robert H. Mnookin, Disputing Through
Agents: Cooperation and Conflict Between Lawyers in Litigation, 94 COLUM. L. REV. 509,
541-46 (1994).
235. See McEwen et al., supra note 23, at 1364-68 and sources cited therein.
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Being “reasonable,” however, is not the same thing as using a problem-solving approach. Indeed, being “reasonable” may involve lawyers pressuring their own clients to give up demands and expectations (perhaps correctly) perceived as unreasonable, 236 rather than
searching for options addressing the underlying interests of the
principals. McEwen et al.’s data suggests that Maine lawyers may be
more likely to address the concerns of both principals than lawyers
in New Hampshire, where mediation practice is much less common.237 When asked about their primary goals in negotiating divorce
cases (not limited to cases in mediation), 39.5% of Maine lawyers reported the goal of reaching “settlements fair to both parties,” compared with 28.3% of New Hampshire lawyers, whereas only 15.8% of
Maine lawyers reported the goal of “getting as much as possible for
[their] client,” compared with 33.3% of New Hampshire lawyers. 238
This may indicate that Maine lawyers are more likely to use problem-solving tactics, especially in mediation. Nonetheless, Hyman et
al.’s data described above239 suggests that we should be cautious
about assuming a tight link between lawyers’ aspirations and actual
problem-solving behavior.240
As we have seen, the participation of lawyers in mediation may
have quite different effects on the use of adversarial and problemsolving processes in mediation. On one hand, their participation may
contribute to thorough and careful problem solving. On the other
hand, their participation may inhibit such a process by incorporating
traditional adversarial approaches into mediation.
V. SUMMARY AND CONCLUSION
In liti-mediation cultures, lawyering and mediation practices may
shape each other in significant ways. Where mediation becomes a
236. See supra text accompanying notes 214-16, 223-25.
237. See McEwen et al., supra note 190, at 178-79.
238. Id.
239. See supra notes 228-29 and accompanying text.
240. My survey of business lawyers also suggests that there are often loose links between attitudes and behaviors about desirable dispute resolution procedures. More than
three-quarters (77%) of the business lawyers in the survey said that mediation would be
appropriate in at least half of lawsuits involving a business. See Lande, supra note 8 (data
on file with author). Nonetheless, over the course of their careers, which averaged eight to
ten years, they personally had participated in a median of six to ten cases in which any
ADR procedure was used. See id. For a description of the research design, see id. at 46-84.
Although mediation services may have been less available at the outset of their careers
than at present, this still represents a fairly low usage rate even if all the ADR cases had
occurred in the year or two before the survey was conducted in 1994.
On the other hand, McEwen and his colleagues present data showing an approximate
20% reduction in the number of “adversarial divorce motions per case” coinciding with the
introduction of mandatory divorce mediation in Maine. See McEwen et al., supra note 190,
at 179. This may (or may not) indicate an increase in “reasonableness” or problem-solving
behavior related to increased use of mediation.
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routine part of litigation, the mediation market is likely to be sizable, complex, and specialized. Lawyers will recognize their clients’
interests, and thus their own self-interests, in learning the variations between mediation practices in the relevant mediation markets. In a liti-mediation environment, lawyers are likely to focus
their settlement efforts on mediation, displacing traditional lawyerto-lawyer negotiation to some extent. Over time, they are likely to
identify a set of mediators with whom they have good relationships
and whom they can trust with their clients and favor with business
referrals. Lawyers will learn how to practice advocacy in mediation,
reading the mediators’ moves and then coordinating or parrying as
appropriate.241 Indeed, evidence shows that lawyers quickly come to
appreciate how they can use mediators to manage relationships with
their clients during the awkward process of negotiation. Mediation,
especially where there is a high settlement rate, can add predictability and control to lawyers’ practices.
Lawyers’ routine participation in mediation is also likely to have
a major impact on mediation practice in liti-mediation cultures. Mediators will feel pressure to develop distinctive professional identities with identifiable characteristics of their mediation practices to
maintain and grow their mediation businesses. Mediators will need
to manage relationships with lawyers as repeat buyers of their services and professional colleagues who serve the same principals. 242
Regular participation of lawyers in mediation is likely to result in
ongoing relationships between mediators and lawyers that may
overshadow their respective relationships with the principals and
dramatically affect the mediation process. Mediators can expect that
lawyers will practice advocacy in mediation and thus mediators will
develop strategies to finesse, reframe, or resist lawyers’ advocacy at
times. Mediators will also learn to recognize when lawyers seek the
mediators’ help by acting as “agents of reality” to reduce or otherwise
reframe principals’ expectations and demands. As this is a recurring
problem for lawyers, mediators are likely to develop regular tactics
for managing these interactions as part of a general definition of the
mediators’ relationships with the principals. Mediators will need to
consider whether they see the lawyers or the principals as their primary clients.
To the extent that mediators view principals as their primary clients, mediators will develop tactics to manage their relationships
with lawyers and principals to help the principals assess their goals
241. See generally Lawrence M. Watson, Jr., Effective Legal Representation in Mediation, in 2 ALTERNATIVE DISPUTE RESOLUTION IN FLORIDA 2-6 to 2-27 (2d. ed. 1995) (discussing lawyers’ roles in mediation).
242. Of course, mediators serve all the principals, whereas lawyers serve only one
side.
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and the best way to achieve those goals. Of particular concern are
the principals’ priorities among potentially conflicting mediation
goals, including speedy and efficient resolution, optimal problemsolving outcomes, enhanced relationships, and principals’ exercise of
responsibility for their decisions. Most mediators probably try to
help principals achieve efficient settlements. Focusing on the principals’ interests and priorities may lead mediators to consider—and
explicitly discuss with participants—whether the principals have
additional goals and which goals they want to take precedence.
Although lawyers’ participation in mediation may well help their
clients exercise responsibility for their decisions, I suspect that lawyers’ participation often undermines the principals’ exercise of decisionmaking responsibility. In general, lawyers normally do help
their clients exercise decisionmaking responsibility by identifying
key issues and providing an analysis that enables the principals to
make more informed decisions. On the other hand, lawyers often feel
the need to control their clients’ decisionmaking. 243 Moreover, when
lawyers attend mediation, the lawyers’ participation may, possibly
subtly, undermine their clients’ decisionmaking responsibility. 244
This is especially likely when lawyers take an active speaking role,
which, by definition, dilutes the role of the principals. In addition,
lawyers’ participation is likely to result in increased time pressure, 245
which, in itself may undermine principals’ responsibility taking.
Moreover, time pressure is likely to inhibit the processes that permit
and encourage high-quality consent, including explicit identification
of principals’ goals and interests246 and plausible options,247 principals’ explicit choice of options for consideration, 248 careful analysis of
the options,249 mediators’ restraint from pressuring principals to select particular options,250 and confirmation of consent.251 These are
certainly not inevitable results of lawyer participation, but I believe
that they are quite likely if mediators do not develop explicit, or at
least conscious, procedures for dealing with it.
Slightly reframing a question that Craig McEwen and his colleagues pose, we should consider whether the blending of mediation
243. See McEwen et al., supra note 190, at 163-64.
244. See McEwen et al., supra note 23, at 1327 (summarizing the critique that “legal
advocacy and decision making diminish party autonomy and freedom—and thus
‘empowerment’—by allowing lawyers and courts to shape decisions using legal rules in a
way that may have little relationship to the parties’ priorities, needs, and interests”).
245. See supra text accompanying notes 223-24.
246. See supra Part III.C.1.
247. See supra Part III.C.2.
248. See supra Part III.C.3.
249. See supra Part III.C.4.
250. See supra Part III.C.5.
251. See supra Part III.C.7.
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and the work of lawyers will favorably transform the practices of
both law and mediation, thus justifying McEwen’s call to “bring in
the lawyers,”252 or whether lawyers will co-opt, capture, and legalize
mediation to the detriment of both law and mediation practices. 253
My answer is “probably both.”
Relying primarily on the research on mandatory divorce mediation in Maine, McEwen et al. argue that
[l]awyer participation in the mediation sessions permits intervention on behalf of clients and buffers pressures to settle. Lawyers
may also counsel clients to moderate extreme demands. In addition, once lawyers become accustomed to mediation, lawyer involvement in mandated mediation does not appear to prevent the
meaningful participation of parties or inhibit emotional expression
between spouses.254
Not only has lawyer participation stabilized mediation, McEwen and
his colleagues argue, but it may have moderated lawyers’ adversarial
attitudes about negotiation outside of mediation. 255
On the other hand, Professor Carrie Menkel-Meadow256 and others257 worry that institutionalization of mediation in the courts and
the attendant lawyer participation have corrupted mediation without particularly changing lawyers’ adversarial attitudes. She finds
that what is called “mediation” (at least of the court-ordered variety)
is often “just another stop in the ‘litigation’ game which provides an
opportunity for the manipulation of rules, time, information, and ultimately, money.”258 Similarly, mediators Nancy Foster and Joan
Kelly express concern about “replicat[ing] the values, norms, assumptions, and procedures of the adversarial divorce process.” 259
252. McEwen et al., supra note 23. Note that McEwen and his colleagues specifically
focused on promoting fairness in divorce mediation cases. See id. at 1322. Although their
argument could be applied to most disputes involving significant stakes and potential legal issues, one might make distinctions based on different types of cases, whether there
are significant disparities in power, etc.
253. See McEwen et al., supra note 190, at 176.
254. McEwen et al., supra note 23, at 1394.
255. See supra text accompanying notes 233-38.
256. See generally Menkel-Meadow, Pursuing Settlement in an Adversary Culture, supra note 12 (presenting a philosophical defense of settlement in certain situations).
257. See McEwen et al., supra note 23, at 1354-55, 1392 (citing critiques of lawyers as
“spoilers” of “real” mediation).
258. Menkel-Meadow, Pursuing Settlement in an Adversary Culture, supra note 12, at
17; see also Lowy, supra note 230, at 252-54.
259. Nancy J. Foster & Joan B. Kelly, Divorce Mediation: Who Should Be Certified?,
30 U.S.F. L. REV. 665, 673 (1996). Foster and Kelly express concern about problems with
lawyers serving as mediators, arguing that, to perform appropriately, lawyer-mediators
may face a difficult challenge to learn new behaviors and change assumptions about their
roles. See id. at 674. Lawyers acting as advocates in mediation may face similar challenges and may be less likely to receive training or to consider differences between mediation and traditional litigation practices.
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As many analysts have noted, mediation practices vary widely, 260
so it should not be surprising that in some areas mediation and related lawyering practices take on the sunny cast that McEwen et al.
depict in Maine, and that in other areas these practices have a
darker (or at best a more mixed) image, as McAdoo and Welsh describe regarding Hennepin County mediation and Hyman et al. find
in lawyer-to-lawyer negotiation in New Jersey. Even these geographic distinctions are too crude, as there are probably significant
variations within most practice communities.
Rather than try to determine which portrayal is more accurate, I
believe it makes more sense to frankly acknowledge the reality in all
of these accounts. Indeed, when analyzed carefully, I think these pictures can be integrated fairly easily, yielding a composite of a glass
that is both part empty and part full. McEwen and his colleagues
Professors Lynn Mather, Nancy Rogers, and Richard Maiman have
performed a great service by documenting liti-mediation261 practices
in Maine and identifying important benefits that may accrue from
routinely involving lawyers in mediation practice. McEwen et al.
make a compelling case that Maine-style practices can benefit principals, mediators, lawyers, and the legal system more generally. On
the other hand, regular participation of lawyers in liti-mediation
practice can easily spoil important benefits of mediation, especially
the potential for helping principals in disputes retain and responsibly exercise the power to resolve their own problems. 262
On balance, I would not support an unqualified call either to
“bring in the lawyers” or to keep them out. Without appropriate precautions (and perhaps even with them), having lawyers regularly
participate in mediation can predictably lead to the undermining of
important values that mediation can promote, particularly the principals’ careful exercise of their responsibility to make decisions about
their disputes. On the other hand, having lawyers participate in mediation can provide real benefits and may be the optimal process in
many cases, especially if some or all of the principals would have difficulty protecting their interests without professional advocates to
speak for them.263
How will lawyering and mediation practices transform each other
in the future? I submit that this will depend on the individual and
collective values, decisions, and commitments of the actors in this
260. See, e.g., Menkel-Meadow, supra note 10, at 228-30; Howard S. Erlanger et al.,
Participation and Flexibility in Informal Processes: Cautions from the Divorce Context, 21
L. & SOC’Y REV. 585, 587 (1987).
261. See supra notes 8, 23 and accompanying text (explaining liti-mediation).
262. See supra notes 214-16, 223-25, 236 and accompanying text.
263. I am grateful to Professor Nancy Rogers for highlighting the importance of attorneys in protecting people less able to protect themselves.
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realm. We should expect that this will vary greatly by local culture
and that local culture can, to a significant extent, be consciously developed.264 I conclude with some recommendations for how various
actors in this collective drama might help bring this about.
VI. RECOMMENDATIONS
A. Mediators
I encourage mediators to embrace a great diversity of practices
under the “mediation” label. Mediators of various persuasions (e.g.,
differently valuing promotion of settlement and empowerment) have
good reasons to hold their values, and also have legitimate concerns
about the implications of other philosophies. There is some merit to
most mediation philosophies, and we should resist the temptation
(which I confess to succumb to at times) to elevate our own approach
as “real” mediation and denigrate others as false substitutes that
should not share the mediation franchise. Though disparaging other
approaches may feel satisfying in the moment, I am convinced that it
is a counterproductive long-term strategy. It is unlikely that any
camp will prevail completely, and if perchance one does, mediators,
and, more importantly, principals, will lose the precious values of diversity and choice.
Instead, it would be much more helpful for adherents of differing
mediation philosophies in local mediation communities to respectfully work together to concretely classify their differences as an aid
to mediation consumers.265 Various methods exist for mediators to do
this. One method is to observe and then discuss each others’ work.266
Another is to participate in peer consultation groups to discuss mediation cases, styles, and techniques.267 A third method is to operate
a speaker’s bureau or other public education program. I participated
264. See Swidler, supra note 62, at 279-80; Lande, supra note 8, at 224-31.
265. See supra Parts II.A-B for one attempt to define market differences.
266. Local norms for observing mediation vary widely. For example, a California mediator with a busy practice told me that she had never had anyone observe her work and
would be very concerned about clients’ reactions to having observers in her mediation sessions. This was typical of my mediation community when I was in practice in California.
In Florida, where observation is mandated as part of the process for becoming certified,
see FLA. R. CERT. & CT.-APPTD. MEDIATORS 10.010(a)(2), (b)(3), (c)(3), having observers is
so routine that mediators often simply introduce the observers without seriously inquiring
if the participants have any concerns about their presence. Even so, experienced Florida
mediators may never see any other mediators’ work after becoming certified. At the 1995
annual training session of the Florida Academy of Professional Mediators, one Florida
mediator who had done over 1000 mediations realized, after watching someone else do a
mediation demonstration, that he had never seen anyone else do mediation since becoming certified and that he was not aware of many differences in styles. Mediators in a given
community could create a norm, legitimizing particular observation procedures.
267. See Edward Blumstein & Patricia B. Wisch, Who Nurtures the Nurturer? A Model
of a Peer Support Group, 9 MEDIATION Q. 267 (1992).
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in such a group, which developed a training program for speakers
and a directory of local mediators. Our discussions regarding how to
present mediation to our community helped us identify relevant distinctions between mediation services.268 Given the critical role that
lawyers play in liti-mediation culture—especially as mediation
shoppers—it would be especially important to develop materials addressing lawyers’ particular interests in mediation as well as mediators’ concerns about lawyer participation in mediation. When attorneys attend mediations, mediators should consider discussing at the
outset how the principals would like the attorneys to participate.
Those especially interested in promoting disputants’ responsibility
for making dispute resolution decisions should find a public education strategy to be particularly appealing.
I encourage mediators primarily committed to an empowerment
philosophy to appreciate the values of settlement and efficiency in
mediation, especially for principals making informed choices and
selecting mediators with those orientations. If mediators provide
reasonable disclosure to principals about their procedures and gain
the principals’ consent to use those procedures, 269 then these are legitimate choices that should be respected. By the same token, I encourage settlement-oriented mediators to appreciate that principals
may have goals that they value as much or more than settlement itself. Rather than assuming that settlement is the only or primary
goal, I encourage these mediators to assess and respect the principals’ goals and priorities, recognizing that the principals’ perspectives may well be somewhat different than those of their lawyers.
Settlors should consider using at least some of the practices promoting high-quality consent,270 even if they do not adopt all of them.
I would hope that all mediators become more aware of their own mediation styles and philosophies and describe them clearly, both in
the shopping process and the mediation process itself.
B. Lawyers
To serve their clients’ interests, and thus serve their own interests, lawyers should become familiar with the various styles of mediation practice in their local culture so they can competently advise
clients about use of mediation, select mediators appropriate for particular cases, and constructively participate in mediation as appropriate. Given that mediation offers the special opportunity for a
268. See John Lande, Speaking for Mediation, MEDIATION Q., Fall 1987, at 23, 28.
269. See Mazadoorian, supra note 204 (identifying questions ADR buyers might ask
ADR providers); Aaron, supra note 173, at 63 (advising mediators to ask permission before
offering evaluations).
270. See supra Part III.C.
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problem-solving approach to negotiation, which many lawyers
value,271 lawyers should use their role as mediation shoppers to especially assess whether a problem-solving approach would be appropriate in particular cases and whether particular mediators would
use it. Lawyers should also be sensitive to the impact of their participation and how it may affect (and sometimes impair) the quality
of mediation offered and their clients’ opportunities to assume responsibility for their decisions. Thus, lawyers should not simply assume that their clients need or want the lawyers to act as the primary advocates in mediation and should discuss with their clients
the range of possible roles that the lawyer might take.
C. Law Schools
As liti-mediation becomes more common, law schools should prepare their students to advise and represent clients regarding mediation as described in the preceding subpart. Indeed, law schools have
been making progress in adding courses on mediation and ADR to
their curricula. Very few ADR course offerings existed a decade
ago.272 Today, most law schools provide some ADR courses, although
these are often electives available only to a small fraction of the students. Although some schools, like the University of MissouriColumbia,273 integrate ADR material into all the required first-year
courses, this is beyond what most law schools are likely to do in the
near future. At a minimum, however, all law schools should include
some coverage of ADR in required courses like civil procedure and
ethical lawyering/professional responsibility. Given the widespread
use of mediation in family cases, mediation should be covered in
family law courses as well. While law professors should certainly be
free to expound their own philosophies of mediation in courses
271. See supra note 228 and accompanying text.
272. See Lande, supra note 8 (data on file with author). My survey of business lawyers
asked how much information about ADR they had gotten from a number of sources, including their graduate or professional schools. On average, the lawyers in the sample had
graduated from law school in the mid-1980s. Seventy-four percent said that they received
“no information” about ADR from school, eighteen percent said “a little information,” and
eight percent said “more than a little information.” See id.
273. See RONALD M. PIPKIN, FINAL REPORT TO THE UNIVERSITY OF MISSOURI-COLUMBIA
SCHOOL OF LAW: PROJECT ON INTEGRATING DISPUTE RESOLUTION INTO STANDARD FIRST
YEAR COURSES: AN EVALUATION (1993). Since 1985, the University of Missouri-Columbia
School of Law has integrated ADR material into all first-year courses. See id. In 1995, six
additional law schools began adapting this model in their curricula under a $180,000
grant from the U.S. Department of Education’s Fund for the Improvement of PostSecondary Education. These schools are at DePaul University, Hamline University, Inter
American University, Ohio State University, Tulane University, and the University of
Washington. See Press Release from University of Missouri-Columbia School of Law (Nov.
2, 1995) (announcing expansion of dispute resolution teaching program) (on file with
author).
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teaching mediation skills, as a pluralist,274 I would hope that they
would identify and legitimize a variety of styles and philosophies of
mediation, discussing the benefits and problems of each. I would also
hope that they would specifically address questions about the effects
of lawyer participation in mediation and strategies that mediators
might use to work constructively with lawyers on behalf of their joint
clients.
D. Judges, Court Administrators, and Legislators 275
Officials responsible for making and implementing mediation
policy should act based on an appreciation of both the reach and
limits of legal authority. On one hand, courts’ authority to decide
cases gives them great influence, even in formally nonbinding suggestions. Thus, a judge’s comment or a policy merely encouraging the
use of mediation may be widely interpreted as a directive that may
result in formal or informal sanctions if the “suggestion” is not followed.276 If officials do not intend such statements to be interpreted
as being mandatory or carrying even informal sanctions, they must
say so clearly. In addition, officials dealing with court policy and
administration are often understandably concerned about keeping
court dockets moving by regularly settling a steady stream of
cases.277 While this is certainly a legitimate goal, it is often in tension
with other goals of dispute resolution.278 Of particular concern here is
the potentially adverse impact of time and other settlement pressures on the disputants’ exercise of their decisionmaking responsibilities.279 Unless officials make a conscious and careful effort to protect against inappropriate pressures,280 such pressures may well become a regular part of the legal culture.
Although judges and other public officials dealing with dispute
resolution have great authority, they are often in a difficult position
274. See supra notes 65, 71-73 and accompanying text.
275. It is well beyond the scope of this Article to offer general recommendations about
the overall goals and design of court mediation programs. For an excellent analysis of
such issues, see ELIZABETH PLAPINGER & MARGARET SHAW, COURT ADR: ELEMENTS OF
PROGRAM DESIGN (1992). The discussion here is limited to suggestions related to issues
addressed in the body of this Article.
276. See McAdoo & Welsh, supra note 6, at 10; see also supra note 107 and accompanying text.
277. See Kovach & Love, supra note 9, at 31.
278. See supra notes 46-60 and accompanying text (discussing various goals of mediation.
279. See generally supra Part IV.
280. See generally SOCIETY OF PROF’LS IN DISP RESOL., MANDATED PARTICIPATION AND
SETTLEMENT COERCION: DISPUTE RESOLUTION AS IT RELATES TO THE COURTS (1991) (recommending caution in mandating participation in mediation programs); ROGERS &
MCEWEN, supra note 3, at chs. 7, 13 (arguing that judges should be prohibited from using
economic and time pressures in connection with mediation to increase settlement rates).
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to manage these processes because the regulatory tools generally
used are blunt instruments and their policy directives often do not
fully “penetrate” into daily practice.281 As McEwen et al. persuasively
argue, many regulations intended to protect against unfairness in
mediation are ill-defined, vague, contradictory, difficult to implement, and unlikely to be effective, but likely to increase costs. 282 Indeed, there is a risk that such regulation will actually cause harm by
lulling public officials and/or the general public into a false sense of
security.283 Under these circumstances, I have no general prescription for officials other than to be cautious and not assume that official policies will be simply and directly implemented as intended. 284
As we have seen with official “suggestions” to consider or use mediation, informal pressures may be quite powerful and sometimes override official policies. Indeed, various nonregulatory approaches may
be more effective in assuring quality and achieving social goals. 285
Thus, I see regulation as only one—and not necessarily the most important—component of a comprehensive approach to promote positive values in mediation.
E. Researchers
This Article suggests a narrow agenda for empirical research as
well as a broad one. Starting with the narrower agenda, in Part II of
this Article, I identified some distinctions that practitioners and
analysts have used to differentiate mediators. Are these distinctions,
or perhaps other “native concepts,” actually used in the mediation
market? In Part III, I outlined a set of behavioral factors describing
the quality of consent in mediation. Are these (or other factors) valid
indicators? How can these factors be measured concretely? In Part
IV, I hypothesized about possible changes that might occur in lawyering and mediation practices as part of the development of liti-
281. See Galanter, supra note 30, at 103.
282. See McEwen et al., supra note 23, at 1330-49. I share McEwen et al.’s skepticism
about the efficacy of legal regulation to protect principals in mediation and safeguard
larger social values of disputing. See Lande, supra note 74, at 44; Lande, supra note 268,
at 28-30.
283. See McEwen et al., supra note 23, at 1335 (“[T]he primary virtue of legislating
such mediator duties is to instill optimism in the rule-maker or legislator.”); cf. Susan S.
Silbey, Mediation Mythology, 9 NEGOTIATION J. 349, 350 (1993) (suggesting that guidelines for selecting mediators perpetuate myth of informal, innovative, neutral, and nonauthoritative process and create “false expectations [that] disappoint users and practitioners
of mediation alike”).
284. For example, while I endorse the notion that “[n]egotiations in family mediation
are primarily conducted by the parties,” FLA. STAT. § 44.1011(2)(d) (Supp. 1996), and I
even think that it is useful to include this statement in statutory language, we should not
expect that this alone will make it so.
285. See Lande, supra note 74, at 44; Lande, supra note 268, at 28-30.
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mediation culture. Which, if any, of these changes are actually occurring and why?
More broadly, the contemporary co-evolution of lawyering and
mediation practices provides a wonderful opportunity to study the
development of professional cultures and markets. 286 We are now in
a period when definitions of legitimate practice are coalescing, albeit
in varying configurations in different local areas. It would be fascinating to analyze the forces leading to the development of particular
local disputing cultures. One possibility is that general indigenous
norms (i.e., norms not specifically relating to dispute resolution procedures) affect the evolution of norms about dispute resolution. If so,
the development of mediation practice (or the predominance of a particular style of mediation) in a community may be a function of more
general attitudes about human relationships in that community.
Thus, we might hypothesize that liti-mediation culture may be more
likely to be adopted in communities where residents have more cooperative relationships than communities with more adversarial relationships. Similarly, liti-mediation culture may be more likely to
grow in more interconnected communities. Alternatively, there may
be an inverse relationship such that mediation may especially take
hold in those communities where indigenous social connections are
especially frayed or lacking.
Is the development of a local disputing culture a function of the
availability and perceived quality of indigenous alternatives for
handling disputes? For example, is the growth of formal mediation a
result of dissatisfaction with existing informal dispute processes? Or
problems with the local courts? Or reactions to initial experiments
with mediation?
Are there particular types of individuals and institutions that play
key roles in the evolution of local disputing cultures? The obvious suspects include lawyers, judges, mediators, public officials, and other
professionals and community leaders. Perhaps less obvious may be the
activity of intellectual and organizational entrepreneurs who provide
the conceptual and material structures needed to sustain a culture.
To what extent is the development of local disputing culture a result of historical coincidence of several (or certain) of these factors at
the same time or the fact that significant events have (or have not)
previously occurred?
The better we can answer these questions, the better we will be
able to anticipate and shape the future of mediation. If the spread of
286. Andrew Abbott argues that the jurisdictional boundaries limiting the professional
activities of particular professions often shift over time in relation to the activities of
“neighboring” professions. See ANDREW ABBOTT, THE SYSTEM OF PROFESSIONS: AN ESSAY
ON THE DIVISION OF EXPERT LABOR 33-113 (1988).
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liti-mediation cultures continues, we can expect that both lawyering
and mediation practices will be profoundly affected. Although some
of the changes would presumably be beyond our control, this Article
suggests ways that various actors can help define and improve the
range of disputing practices in their local communities. 287
287. The ideas regarding the broader research agenda grew, in part, from my dissertation research. I am grateful to my committee, especially the chair, Mark Suchman, for
nourishing these ideas. I also want to thank the participants at a faculty seminar of the
Program on Negotiation at Harvard Law School in May 1995, who contributed some of
these ideas.
INSTITUTIONALIZATION: SAVIOR OR SABOTEUR
OF MEDIATION?*
SHARON PRESS**
As we celebrate the tenth anniversary of the creation of the Florida
Dispute Resolution Center, it is only fitting that we should critically
reflect on what has happened in the field of dispute resolution. 1 Many
wonderful and exciting trends have occurred in the alternative dispute
resolution (ADR) arena during the past fifty years—many of which
have taken place within the last decade, both in Florida and nationally. We have seen not only increased usage of ADR terminology in the
press and popular magazines, but also more widespread independent
use of ADR processes. The President of the United States routinely
deploys mediators to assist with international crises, ballplayers routinely seek arbitration to resolve contract disputes, and students nationwide, some as young as elementary school age, participate in peer
mediation programs. The use of these processes has become so increasingly pervasive that the “alternative” of ADR is increasingly being dropped in favor of such terms as “complementary,”2 “additional,”
“appropriate,” or simply “dispute resolution.”3
* My thoughts on this topic have been greatly enhanced by my participation on a
panel at the annual meeting of the Association of American Law Schools (AALS) in January
1994, discussing “What Happens When Mediation Is Institutionalized? To the Parties, Practitioners, and Host Institutions,” and my participation in a Festschrift in March 1994, honoring Robert Coulson upon his retirement from the American Arbitration Association. Special thanks to Dean James Alfini and Professor Jean Sternlight, who reviewed drafts of this
Article, and to Professor Joseph Stulberg, who invited me to participate in the Festschrift.
** Director, Florida Dispute Resolution Center. B.A., George Washington University, 1983; J.D., National Law Center, George Washington University, 1986. The author
has worked for the last eight years at the Center, which is a joint program of the Florida
Supreme Court and Florida State University College of Law. Under her direction, the
Florida court-connected dispute resolution program has been widely recognized as being
on the cutting edge of issues related to institutionalization. In addition to conducting
training and staffing the two supreme court committees on mediation and arbitration, the
author is a director on the Board of the Society of Professionals in Dispute Resolution
(SPIDR) and teaches a course in mediation at the Florida State University College of Law.
1. The Center was formed with the dual goals of conducting research and education
in the field of ADR and promoting the use of mediation and other alternative processes,
particularly in the court system—i.e., institutionalization. The Center has been remarkably successful in achieving its institutionalization goal; Florida now boasts one of the most
comprehensive court-connected mediation programs in the country. Nevertheless, in our
zeal to concentrate on the actual implementation of programs, our research arm has not
been as prolific, although the Center’s research publications include JAMES J. ALFINI ET
AL., FLA. DISP. RESOL. CTR., SUMMARY JURY TRIALS IN FLORIDA: AN EMPIRICAL ASSESSMENT
(1989) and KARL D. SCHULTZ, FLA. DISP. RESOL. CTR., FLORIDA’S ALTERNATIVE DISPUTE
RESOLUTION DEMONSTRATION PROJECT: AN EMPIRICAL ASSESSMENT (1990).
2. See 1 TASK FORCE ON DISP. RESOL., N.J. SUPREME COURT, 1988 JUDICIAL
CONFERENCE DISCUSSION PAPER 6 (1988) (opting for the use of complimentary dispute
resolution (CDR) rather than the more traditional ADR).
3. Interestingly, some of mediation’s greatest supporters are not in favor of dropping the “alternative” from the description of ADR because they fear that by doing so, the
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In my mind, however, one of the most exciting and challenging
developments for practitioners in the past ten years has been the increased institutionalization of ADR—particularly in relation to mediation within the court system. Spreading ADR processes has been
a goal many who are committed to the field have pursued with great
vigor. As the old cliché reminds us, however, “be careful what you
wish for.” The growth and development of mediation and other dispute resolution processes in institutional settings, while certainly
producing more exposure and interest in these processes, has also
brought with it a host of concerns I believe worthy of thought and
discussion. This issue holds particular interest for me because I have
not only benefited directly from this institutionalization, but have
also been actively involved in promoting and overseeing the institutionalization of ADR within the court system in Florida.
When I entered this field, the law school career service center had
no “alternative” positions on file, and my family and friends did not
understand what I was planning to do. Today, most people have at
least a passing familiarity with the processes of mediation and arbitration (even if they sometimes confuse them). Even traditional law
firms now understand the significance of “alternative” processes. Increasingly, clients are demanding changes in the traditional way
that disputes are resolved. Recently, even the American Bar Association, in an effort to keep pace with the increased viability of alternative processes, upgraded the status of its Dispute Resolution Standing Committee to a permanent section.4
As I discuss the issue of institutionalization, it is important to
have a common frame of reference. For the purposes of this Article, I
use the term “institutionalization” to refer to any entity (governmental or otherwise) which, as an entity, adopts ADR procedures as a
part of doing business. Some examples include schools that develop
peer mediation programs, courts that establish rules to govern referral to ADR procedures, and government agencies that incorporate
ADR processes in developing rules and regulations. My discussion
will focus primarily on the institutionalization of court mediation
programs, with examples drawn from Florida’s experience because
that is what I know best; however, I believe that many of the same
opportunities and concerns raised are readily transferable to other
institutions. To me, Florida’s experience with court-connected mediation can serve as a case study for how and why bureaucracies develop.
process will become just like more traditional methods of dispute resolution—expensive,
time-consuming, and not necessarily just. For purposes of clarity in this Article, I will continue to use “ADR” as shorthand to identify these processes.
4. See AMERICAN BAR ASS’N, REPORTS WITH RECOMMENDATIONS TO THE HOUSE OF
DELEGATES, 1993 MIDYEAR MEETING 4 (1993).
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Institutionally, Florida entered the ADR movement in the mid1970s with the establishment of “citizen dispute settlement” (CDS)
centers and pilot divorce mediation programs within the trial
courts.5 The CDS centers are similar to the neighborhood justice centers of other jurisdictions and handle disputes (mostly minor criminal, neighborhood-type disputes) that are voluntarily brought by the
individuals involved in the disputes. The model pursued for the
Florida CDS centers, after the initial ones came into being, centered
around local development with strong support from the Office of the
State Courts Administrator (OSCA) and the Chief Justice of the
Florida Supreme Court. OSCA conducted research on the programs,
produced training and organizational manuals, 6 and pursued the
adoption of legislation7 to promote the establishment of these programs, many of which had strong ties to the local court system.
Some argued that this development was not in keeping with the
primary goal of the CDS movement, which was to empower those in
the local community to resolve issues for themselves. 8 On the other
hand, these programs would not have spread as quickly or completely had it not been for the Florida Supreme Court’s support. The
research conducted by OSCA provided the data to show that the programs worked, the organizational manuals provided the step-by-step
information on how to establish programs, and the training manuals
and guidelines provided some measure of consistency and quality
control that led to confidence in the program. Looking around the
nation, one finds that these programs have flourished primarily in
those states in which the courts provided an institutional home, established institutional frameworks, and promoted the use of these
5. For a more complete history of the development of Florida’s experience in establishing a statewide, court-connected mediation program, see Sharon Press, Building and
Maintaining a Statewide Mediation Program: A View from the Field, 81 KY. L.J. 1029
(1993).
6. See JOSEPH B. STULBERG, SUPREME COURT OF FLA., INSTRUCTOR’S GUIDE FOR
TRAINING MEDIATORS FOR SERVICE IN CITIZEN DISPUTE SETTLEMENT PROGRAMS (1981).
7. Statutory authority for CDS programs was pursued as early as 1976. See SARAH
SCHULTZ ET AL., FLA. DISP. RESOL. CTR., FLORIDA MEDIATION/ARBITRATION PROGRAMS: A
COMPENDIUM 262 (9th ed. 1996). It was finally adopted in 1985. See Act effective June 19,
1985, ch. 85-228, § 2, 1985 Fla. Laws 1237, 1237-39 (codified as amended at FLA. STAT. §
44.201 (Supp. 1996)).
8. The proposed National Institute of Law Enforcement and Criminal Justice Design for Neighborhood Justice Centers have the following objectives: (1) to establish in the
community an efficient mechanism for the resolution of minor criminal and civil disputes
that stresses mediation and conciliation between the parties in contrast to the findings of
fault or guilt that characterize the traditional adjudication process; (2) to reduce court
caseloads by redirecting cases that are not appropriate for the adversarial process; (3) to
enable the parties involved in the disputes to arrive at fair and lasting solutions; and (4)
to serve as a source of information and referral for disputes that would be more appropriately handled by other community services or government agencies. See DANIEL MCGILLIS
& JOAN MULLEN, NEIGHBORHOOD JUSTICE CENTERS: AN ANALYSIS OF POTENTIAL MODELS
197 (1977).
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processes.9 I believe there is a direct correlation. In Florida, the CDS
programs thrived when the supreme court focused attention on the
program.10 When attention shifted from the CDS programs toward
the court programs, no new programs were established and many of
those that were in existence expanded to include court cases. Within
a few years, the bulk of the CDS centers’ cases had shifted away
from communities and towards the courts. 11 This shift is not surprising, based upon the difficulty CDS or neighborhood justice centers have in generating cases. Because the number of cases that a
community center actually mediates is significantly lower than the
number of cases that are scheduled (due to the inherent difficulty in
getting both parties to attend a completely voluntary process), the
centers face a continuing challenge, resulting in disappointingly low
caseloads.12
As part of its effort for the future, the Florida Supreme Court appears to be refocusing attention on neighborhood justice centers, and
we once again are beginning to see an increase in the caseload numbers and a renewed commitment to the concept of neighborhood/community justice.13 In 1995, a Neighborhood Justice Center
opened in Tallahassee and has received attention from the Governor
and the Chief Justice of the Florida Supreme Court. 14
9. For example, New York state now has established community dispute resolution
centers in all 62 of its counties. See COMMUNITY DISP. RESOL. CTRS. PROGRAM, UNIFIED
COURT SYS. OF THE STATE OF N.Y., 1995 FISCAL YEAR ANNUAL REPORT 1 (1996).
10. In 1986, when the first compendium of mediation and arbitration programs was
published, there were 15 CDS programs, three small claims programs, and two circuit
court civil mediation programs. See BRENDA DUANE & MIKE BRIDENBACK, FLA. DISP.
RESOL. CTR., FLORIDA MEDIATION PROGRAMS: A COMPENDIUM 2 (1st ed. 1987). In 1995,
there were “14 CDS programs, 26 county mediation programs, 23 family mediation programs, nine circuit civil mediation programs and five arbitration programs.” SARAH
SCHULTZ ET AL., supra note 7, at v. This graphically demonstrates the growth of mediation
overall, as well as the shift from community, pre-suit mediation to a court-filed focus.
11. In 1995, the Dade County community dispute resolution program, which was one
of the pioneer programs in Florida, closed due to lack of funding. One of the reasons cited
was the caseload, which was low compared with the court-connected mediation programs.
A troubling corollary in this regard is being repeated in California, where firmly established community programs are being included in the state’s legislative efforts to institutionalize court mediation programs.
12. See Sally Engle Merry, Defining “Success” in the Neighborhood Justice Movement, in NEIGHBORHOOD JUSTICE: ASSESSMENT OF AN EMERGING IDEA 172 (Roman Tomasic & Malcolm M. Feely eds., 1982).
13. In his 1996 public swearing-in, Chief Justice Gerald Kogan of the Florida Supreme Court stated, “The biggest thing that I believe in is access to the courts.” Kogan
Sets Priorities for Term as Chief Justice, FULL COURT PRESS (Fla. Off. of the State Courts
Adm’r, Tallahassee, Fla.), July/Aug. 1996, at 1.
14. The Neighborhood Justice Center was funded partly by an “innovation grant”
from the Dispute Resolution Center. This ironic turn of events underscores the cyclical
nature of this field in which the forerunner of the comprehensive dispute resolution program in Florida would, twenty years later, be seen as an innovative approach to dispute
resolution.
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INSTITUTIONALIZATION
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If we start from the premise that mediation and other alternative
processes provide a positive means of resolving disputes, then it
seems to follow that providing for the more rapid spread and more
comprehensive use of these processes would also be a positive step.
As practitioners, we have longed for more cases to be referred to mediation so more disputants can benefit from the empowerment possibilities of mediated disputes (and also so there is enough work for us
to pursue our chosen field). Institutionalization certainly focuses attention on the processes, and it can be very instrumental in promoting its uses; yet increased institutionalization is not without its
downside.
In 1987, after Florida had experienced its great success with the
early CDS and divorce mediation programs, the Florida Legislature
adopted one of the nation’s most comprehensive court-connected
(read: institutionalized) mediation and arbitration statutes. 15 Trial
judges were given the broad discretion to order any civil case to mediation or arbitration subject to Florida Supreme Court rule. 16 The
original plan under the 1987 law was to implement a pilot courtconnected mediation and arbitration project in one judicial circuit,
evaluate the pilot project, and then spread it to all of the other circuits. For a variety of reasons, mediation programs started throughout the state immediately.17
In 1995, over 75,000 cases were mediated through courtconnected mediation, and all twenty judicial circuits in Florida sent
some portion of their caseloads to mediation. 18 Mediation now has
become an accepted process within the Florida state courts. 19 Much
15. See Act effective Jan. 1, 1988, ch. 87-173, §§ 1-6, 1987 Fla. Laws 1202, 1202-05
(codified as amended in scattered sections of FLA. STAT. ch. 44 (1995 & Supp. 1996)).
16. See id. § 2, 1987 Fla. Laws at 1202 (codified as amended at FLA. STAT. §
44.102(2)(a) (Supp. 1996)); see also In re Proposed Rules for Implementation of Florida
Statutes Sections 44.301-.306, Rules of Civil Procedure, 518 So. 2d 908, 909 (Fla. 1987).
17. The development of private-sector participation in court-connected mediation
programs in Florida is actually very interesting. The original statute adopted in 1987 did
not preclude the appointment of a mediator paid for by the parties. This was later codified
in 1990, when section 44.102(4)(b), Florida Statutes, was amended to state that “a mediator may be compensated by the county or by the parties.” Act effective Oct. 1, 1990,ch. 90188, § 2, 1990 Fla. Laws 850, 852 (codified at FLA. STAT. § 44.102(5)(b) (Supp. 1996)). As a
result, several entrepreneurial lawyers-turned-mediators actively worked with judges to
persuade them to use mediation as a court management tool. When the state budget crisis
of the early 1990s struck Florida, it became clear that public (state) funding of mediation
was not possible and, as a result of these pioneer efforts, probably not necessary (at least
for large, nonfamily civil cases).
18. See SCHULTZ ET AL., supra note 7, at v-vii. This number is unrepresentative of the
actual number of cases diverted from the courts because statistics are only available for 12
of the 20 judicial circuits in Florida, even though all 20 refer cases to mediation. In addition, the court programs in the 12 circuits that do collect statistics vary in their ability to
capture all of the mediated cases in their jurisdictions.
19. The court-ordered arbitration program in Florida has not been as widely received
as the mediation program. In 1995, fewer than 60 cases were arbitrated in court-
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[Vol. 24:903
to my surprise, the mandatory order to mediate has not been heavily
litigated in Florida.20 This is interesting to note, especially because
the parties in civil cases over $15,000 are ordered to mediation and
typically are ordered to pay the mediator’s fees. 21 I believe one can
draw a fair conclusion from the relative lack of litigation that the
parties and lawyers who are ordered to mediation are pleased with
the process and view it as helpful. In addition, the trend in Florida
has been that lawyers increasingly are requesting mediation (rather
than waiting to be ordered to mediation) both before and after a lawsuit has been filed.22
While the heightened awareness of mediation alternatives and
the increased use of mediation is a very positive and exciting development in the evolution of our justice system, the natural consequences of this rapid, institutional development have also concerned
me. Since 1987, Florida has experienced tremendous growth in the
number of rules and laws surrounding the mediation program. 23
From an administrative perspective, each additional rule has been
necessary and important in the maturation of the program. Overall,
however, I remain concerned about the ultimate effect that additional rules will have on the mediation process, 24 i.e., what will hap-
connected programs statewide. See SCHULTZ ET AL., supra note 7, at 129. This is largely
due to the success of the mediation program. Attorneys prefer mediation because there is
almost no downside. Along with their clients, they still retain decisionmaking control over
their cases. If neither an attorney nor her client like a potential agreement, they can end
the mediation and request a trial. In court-ordered arbitration, on the other hand, the arbitrator will render a decision, and a party/attorney who does not like the decision and requests a trial runs the risk of sanctions if there is not a better outcome at trial. For their
part, judges do not care which alternative is used so long as some alternative is tried.
20. See Bruce A. Blitman, Mediation in Florida: The Newly Emerging Case Law, FLA.
B.J., Oct. 1996, at 44.
21. See SCHULTZ ET AL., supra note 7, at 7. Civil cases for less than $15,000 in damages are typically handled at no charge to the parties. In addition, most judicial circuits in
Florida have family (divorce) mediators on staff to handle cases at no charge to the parties
or on a sliding scale fee basis that depends on the parties’ incomes. See id. at 61-62, 68-79.
22. This may be the result of a more sophisticated client base requesting mediation, a
perceived ethical duty, see Robert F. Cochran, Jr., Legal Representation and the Next
Steps Toward Client Control: Attorney Malpractice for the Failure to Allow the Client to
Control Negotiation and Pursue Alternatives to Litigation, 47 WASH. & LEE L. REV. 819,
843 (1990), a recognition that the case will be ordered to mediation in any event, or a true
commitment to mediation as an appropriate method of resolution.
23. Over the course of eight years, the Florida Supreme Court has adopted rules of
procedure governing the mediation and court-ordered arbitration process, see FLA. R. CIV.
P. 1.700-.750; FLA. FAM. L.R.P. 12.740-.741, promulgated a code of ethical conduct and
grievance procedures for mediators, see FLA. R. CERT. & CT.-APPTD. MEDIATORS 10.010.100, and established qualifications for court mediators and arbitrators, see FLA. R. CERT.
& CT.-APPTD. MEDIATORS 10.010; FLA. R. CERT. & CT.-APPTD. ARBITRATORS 11.010.
24. See CHRISTOPHER W. MOORE, THE MEDIATION PROCESS 14 (1986) (stressing the
consensual nature of the mediation process); ROBERT A. BARUCH BUSH & JOSEPH P.
FOLGER, THE PROMISE OF MEDIATION: RESPONDING TO CONFLICT THROUGH EMPOWERMENT
AND RECOGNITION 2 (1994) (stressing same).
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INSTITUTIONALIZATION
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pen when a flexible process, like mediation, is incorporated into the
traditional court process. Which process changes?
A description of some of the recent revisions and additions to the
Florida Statutes and the Florida Rules of Civil Procedure serves as
an ideal way to illustrate this dilemma. In 1988, the Florida Supreme Court adopted qualifications for court mediators. 25 To promote
use of the qualifications and add to the comfort level of the judges
and lawyers who would ultimately be the users of the process, the
court relied heavily on previous experience and “paper credentials.” 26
The national mediation community was outraged by the development of mediator qualification requirements by an institution. 27
Nevertheless, if an institution takes the step to order parties who file
in court to participate in mediation prior to (or hopefully instead of)
obtaining a trial before a judge, doesn’t it logically follow that the
court has an affirmative obligation to ensure that the individual to
whom the case is referred has some expertise? To take it a step fur25. Originally found in Florida Rule of Civil Procedure 1.760, the qualifications were
moved in 1992 to Florida Rule for Certified and Court-Appointed Mediators 10.010 when
the court adopted the code of conduct and grievance procedure for mediators. See In re
Proposed Standards of Professional Conduct for Certified and Court-Appointed Mediators,
604 So. 2d 764, 764-65 (Fla. 1992); see also In re Florida Rules of Civil Procedure, Florida
Rules for Certified & Court-Appointed Mediators, and Proposed Florida Rules for CourtAppointed Arbitrators, 641 So. 2d 343, 348 (Fla. 1994) (current version). It is important to
note that the qualifications for mediators apply only to those who wish to receive referrals
from the state court system. To date, there is no title act in Florida regarding mediators;
in fact, there are many different qualifications established for mediators who are involved
with different types of mediation such as insurance, worker’s compensation, and public
policy issues. The other statewide office of dispute resolution, the Florida Conflict Resolution Consortium, maintains a roster of individuals available to serve as mediators in public policy, growth management, and environmental disputes. In addition, in 1990, the
Florida Supreme Court amended the Florida Rules of Civil Procedure governing mediation to provide parties ordered to mediation with 10 days from the order of referral to select a mediator. See In re Amendment to Florida Rules of Civil Procedure 1.700-1.780
(Mediation), 563 So. 2d 85, 86 (Fla. 1990). Within that initial time period, the parties are
free to select a certified mediator or any other individual upon whom the parties can
agree. See id. at 88.
26. The qualifications for certification as a mediator include: (1) mediation training
but no additional educational or experiential requirements for county mediators (initially
for civil cases under $5000 but now includes cases under $15,000); (2) mediation training
and (a) a masters or doctorate degree in a mental health, behavioral, or social science, (b)
licensing as a physician in adult or child psychology, or (c) licensing as a CPA or attorney
in any U.S. jurisdiction (all with four years of experience in any of the aforementioned
fields for family (divorce) mediators); or (3) mediation training and admission to The
Florida Bar with five years of Florida legal practice or previous service as a judge from
any U.S. jurisdiction for circuit mediators (initially for civil cases above $5000 but now includes cases above $15,000 due to an unrelated jurisdictional change of the courts). See
FLA. R. CERT. & CT.-APPTD. MEDIATORS 10.010.
27. See George Nicolau, Ill-Considered Criteria Endanger Mediation, SPIDR President Warns, 2 ALTERNATIVE DISP. RESOL. REP. 244, 245 (1988) (discussing Society of Professionals in Dispute Resolution president’s criticism of Florida mediation program). For a
response to Nicolau, see Sharon Press, Florida Explains Court Rules in Face of Continuing Controversy, 2 ALTERNATIVE DISP. RESOL. REP. 434, 434-35 (1988).
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ther, wouldn’t it be irresponsible, if not negligent, for the courts not
to develop some method of determining who should mediate for the
courts and who should not? I do not see easy answers to these questions. While I am sympathetic to the view that the qualifications
originally established by the Florida Supreme Court are not perfect,
I do believe that the establishment of mediation as an alternative
within the court system brought with it the obligation to provide
some means for individuals ordered to mediation to have confidence
in their mediator.28 I also believe, based on discussions I have had
over the years with judges and attorneys, that mediation would not
have succeeded in the court system if the early mediators in large
cases were not attorneys.29
This is not to say that the obligation of the court or institution
that establishes the program ends with its initial rules and its ability to gain acceptance for the program. On the contrary, I am a
strong proponent of the notion that if a court undertakes to institutionalize mediation, it has an ongoing obligation to routinely and
systematically review the governing policies, rules, and procedures
with an eye toward continual revision. To me, this is a crucial step in
preventing the ossification of a flexible process.
In keeping with this continuing obligation, Florida has two
standing supreme court committees on mediation and arbitration:
the Supreme Court Committee on Mediation and Arbitration Training, created in 1988,30 and the Supreme Court Committee on Mediation and Arbitration Rules, created in 1989. 31 The training committee
is charged with developing and recommending policies and procedures concerning the certification of mediator and arbitrator training programs; reviewing requests from individuals seeking waivers
28. While “paper credentials” are generally considered to be poor indicators of potential success and skill as a mediator, courts must make determinations based upon objective criteria. Subjectively assessing an individual’s skills and abilities would place the
court in an untenable position. This may ultimately be a reason why courts should not be in
the business of “credentialing”; however, in the case of Florida, no one was up to the challenge at the time the program was started. It is my belief that because Florida began a program of mediator certification, the mediation community has taken “credentialing” seriously,
and the community has made great strides in the past five years in the area of “credentialing.” See, e.g., NATIONAL INST. FOR DISP. RESOL., PERFORMANCE-BASED ASSESSMENT: A
METHODOLOGY FOR USE IN SELECTING, TRAINING AND EVALUATING MEDIATORS (1995);
SOCIETY OF PROF’LS IN DISP. RESOL., ENSURING COMPETENCE AND QUALITY IN DISPUTE
RESOLUTION PRACTICE (1995). The State Justice Institute recently awarded to SPIDR and
the National Center for State Courts a grant entitled “Principles and Policies to Guide
State Courts in Selection, Training, Qualifications and Evaluation of Neutrals.”
29. The initial rules allowed the trial judge to choose the alternative process of dispute resolution to which the parties would be ordered and also to select the mediator.
30. See In re Special Committee on Mediator and Arbitrator Training, Fla. Admin.
Order (Apr. 19, 1988) (on file with Clerk, Fla. Sup. Ct.).
31. See In re Special Committee on Mediation and Arbitration Rules, Fla. Admin.
Order (July 26, 1989) (on file with Clerk, Fla. Sup. Ct.).
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of the qualifications required for arbitrators and mediators; studying
the mentorship process in order to recommend procedures and policies for improving it; studying the issue of continuing education and
other requirements that may be necessary and proper for certification renewal; and “[a]ssist[ing] the Supreme Court by making other
recommendations relating to implementation of the provisions of the
rules governing mediator and arbitrator qualifications and training.”32 The rules committee is charged with regularly reviewing the
mediation rules and statutes and recommending revisions. 33 In addition, the rules committee is charged with making “such other recommendations as would improve the use of mediation or arbitration
to supplement the judicial process, as deemed appropriate.” 34
In 1990, Florida revised its rules to provide for greater party control over the selection of a mediator.35 This rule revision opened the
door for parties to select a mediator within the first ten days of referral to mediation. During this time, any mediator could be selected,
including one not certified by the Florida Supreme Court. These revisions are an example of a critical step in the evolutionary process
of an institutionalized mediation program, namely the obligation to
introduce flexibility and choice into the process as it becomes more
accepted.
This rule revision, while illustrative, was only one of the recommendations submitted to the supreme court in the three petitions
that have been filed since the committee’s appointment in 1989. In
addition, the Florida Legislature has revised the statute governing
mediation and arbitration several times since its adoption in 1987. 36
One of the legislative changes adopted provides for “judicial immunity in the same manner and to the same extent as a judge.” 37
The adoption of such a strong provision, interestingly, was advocated
by The Florida Bar in an effort to promote the use of mediation and
encourage more individuals to volunteer their services as mediators.
The passage of this legislation created a situation that led to the
need for the next major set of rules, namely, the Florida Rules for
Certified and Court-Appointed Mediators, which contain the stan-
32. In re Standing Committee on Mediation and Arbitration Training, Fla. Admin.
Order (Feb. 14, 1996) (on file with Clerk, Fla. Sup. Ct.).
33. See In re Special Committee on Mediation and Arbitration Rules, Fla. Admin.
Order (July 26, 1989) (on file with Clerk, Fla. Sup. Ct.). All other court rules are handled
through committees of The Florida Bar, which can only submit revisions as part of a fouryear review cycle.
34. Id.
35. See FLA. R. CIV. P. 1.720(f).
36. See Act effective Jan. 1, 1990, ch. 89-31, §§ 1-7, 1989 Fla. Laws 48, 48-50; Act effective Oct. 1, 1990, ch. 90-188, §§ 1-11, 1990 Fla. Laws 850, 850-56; Act effective May 5,
1993, ch. 93-161, §§ 2-5, 1993 Fla. Laws 941, 942-43.
37. FLA. STAT. § 44.107 (1995).
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dards of conduct and rules of discipline for supreme-court-certified
and court-appointed mediators.
The original legislation establishing the comprehensive mediation
program contained a provision that the Florida Supreme Court
would establish minimum standards and procedures for professional
conduct and discipline.38 However, the adoption of the immunity for
mediators provided the real impetus to adopt standards and a disciplinary procedure. Absent such adoption, parties to court-ordered
mediation had no redress for inappropriate mediator behavior. In
addition, Florida mediators had been the subject of ethics research
conducted by Professor Robert A. Baruch Bush.39 One of the important conclusions that Bush found was that
the findings reported here are cause for concern and caution. For
mediators’ interest in good practice, however encouraging, will not
be enough by itself to guarantee the responsible handling of the
numerous and difficult dilemmas described above. The mediators
themselves know this. They need guidance: training, standards,
supervision, etc. And that guidance must come from policy makers—at the program, the state, and the national level. The real
cause for concern is not what mediators are doing, but what policy
makers are doing—or rather, not doing.40
With such a backdrop, one can readily appreciate the need for the
development of standards of conduct. In 1992, the Florida Supreme
Court adopted such a code of conduct and a means for enforcing the
standards.41 I was at the forefront in urging the supreme court to establish a committee to draft standards, providing staff support to the
rules committee in its drafting efforts and anxiously awaiting adoption of the standards. However, I remain concerned about the impact
that these standards will have on the process. I come back again to
the overriding concern that mediation is a flexible process and that
adoption of a code of conduct will somehow rigidify the process. If the
standards are written broadly to allow for the subtle nuances of an
individual situation, might they then offer no real guidance to mediators in discharging their duties? If they are written very specifically, might they then inhibit a mediator’s ability to handle each
situation creatively?
A concrete example of how the standards might change the practice of mediation in an unintended manner is in the simple practice
38. See Act effective Jan. 1, 1988, ch. 87-173, § 6, 1987 Fla. Laws 1202, 1205 (codified
as amended at FLA. STAT. § 44.106 (1995)).
39. See ROBERT A. BARUCH BUSH, NATIONAL INST. FOR DISP. RESOL., THE DILEMMAS OF
MEDIATION PRACTICE: A STUDY OF ETHICAL DILEMMAS AND POLICY IMPLICATIONS (1992).
40. Id. at 30.
41. See In re Proposed Standards of Professional Conduct for Certified and CourtAppointed Mediators, 604 So. 2d 764, 764-65 (Fla. 1992).
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relating to the retention of notes. Because communication in courtconnected mediation is privileged and cannot be disclosed absent a
waiver of the privilege by all parties to the mediation, 42 mediators
typically do not retain notes from concluded mediation sessions. In
fact, in the past, most trainers recommended to student mediators
that they not retain notes. Will the adoption of a standard of conduct
and the potential for a grievance being filed cause mediators not only
to keep notes of their sessions, but also to request that parties sign
off on statements that say they were fully capable of participating or
that they were aware of their legal rights and were still desirous of
pursuing this mediated agreement? I wonder whether changes in
these procedures will cause a greater underlying change in the way
mediation is conducted. Will the need to cover oneself override a mediator’s creativity? Will it lead to more party refusals to mediate? If
so, maybe those were cases that should not have been mediated in
any event.
After more than four years of experience under the mediator code
of conduct and grievance system, we are starting to see some trends.
While the number of grievances filed remains extremely low (only
twenty have been filed statewide), we learned that the original
grievance procedure did not provide for enough front-end investigation and confidentiality protection. The rules were amended in 1995
to address those concerns.43 The revised rules provide many opportunities for the grievance to be resolved short of a hearing—namely,
the nonadjudicative resolution of a grievance by having the mediator
and complainant meet with the complaint committee in an effort to
resolve the matter. During such a meeting, the mediator may accept
sanctions.44 In addition, an analysis of the grievances filed shows
common concerns, namely the failure of the mediator either to allow
the parties to exercise self-determination,45 to act impartially,46 or to
refrain from providing professional advice. 47 A summary of the
grievances that have been filed is published in the DRC newsletter,
The Resolution Report , for educational purposes.48 The hope is that
this formal (institutional) process of handling grievances will enable
mediators to better understand their role in the process and prevent
inadvertent inappropriate behavior.49
42. See FLA. STAT. § 44.102(3) (Supp. 1996).
43. See In re Amendments to the Florida Rules for Certified & Court-Appointed Mediators, 661 So. 2d 807 (Fla. 1995).
44. See FLA. R. CERT. & CT.-APPTD. MEDIATORS 10.220.
45. See FLA. R. CERT. & CT.-APPTD. MEDIATORS 10.060.
46. See FLA. R. CERT. & CT.-APPTD. MEDIATORS 10.070.
47. See FLA. R. CERT. & CT.-APPTD. MEDIATORS 10.090.
48. The Resolution Report is a publication of the Florida Dispute Resolution Center.
49. In 1994, the court amended the Florida Rules for Certified and Court-Appointed
Mediators to create the Mediator Qualifications Advisory Panel, which provides advisory
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FLORIDA STATE UNIVERSITY LAW REVIEW
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Another example of the effect institutionalization has had on the
mediation process relates to the training of mediators. The original
statute contained a mandate that the Florida Supreme Court adopt
minimum standards for mediation and arbitration training programs.50 In 1989, the Florida Supreme Court adopted mediation
training program standards for the three types of court-connected
mediation: county (civil cases under $15,000); family (divorce cases);
and circuit (civil cases above $15,000).51 The standards included requirements on subject matter, trainer qualifications, and studentfaculty ratios.52
Some training providers argued that the training program standards did not allow for enough flexibility in designing and conducting the training program. The supreme court committee charged
with enforcing the standards found that they allowed for too much
flexibility and as such were difficult to enforce. 53 Once again, the issue of the institution’s responsibility to ensure quality was pitted
against the need to retain the flexibility of the process. It stands to
reason that if the Florida Supreme Court requires an individual to
complete a mediation training course before that individual can be
certified, then the court has some obligation to the participants in
the training program to ensure that the program is of high quality.
By extension, if the court believes that mediation training is an important prerequisite to becoming a mediator, presumably there is
some expectation of what will happen during that training program.
Clearly, a forty-hour program in which the participants merely share
thoughts about life or listen to litigation “war stories” would not provide any basis for the court to have confidence that the participants
understand the mediation process or how to provide mediation services. Yet how far should the institution go? Research in the area of
mediation training and the effect such training has on a mediator’s
ability is scant.54 Studies that have attempted to address the relationship training has to subsequent performance have produced
mixed results. Based upon this incomplete and inconclusive information, should an institution provide mandates? By providing a manethics opinions to mediators who have questions about the standards of conduct. See In re
Florida Rules of Civil Procedure, Florida Rules for Certified & Court-Appointed Mediators, and Proposed Florida Rules for Court-Appointed Arbitrators, 641 So. 2d 343, 351
(Fla. 1994).
50. See FLA. STAT. § 44.106 (1987).
51. See In re Rules Governing Qualifications for Mediators, Fla. Admin. Order (July
7, 1989) (on file with Clerk, Fla. Sup. Ct.).
52. See id.
53. See Internal Dispute Resolution Center Memorandum on Training Standards 3
(on file with author).
54. See Margaret Shaw, Selection, Training, and Qualifications of Neutrals, in
NATIONAL SYMPOSIUM ON COURT-CONNECTED DISPUTE RESOLUTION RESEARCH 155 (Susan
Keilitz ed., 1994).
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date, does the institution in essence concretize an area that is still
developing and potentially inhibit innovative means of preparing
mediators for what lies ahead?
In 1995, the Florida Supreme Court adopted the second generation of training program standards for certified mediation training
programs.55 Theoretically, the standards provide clearer direction as
to what needs to happen during the training program, while providing greater flexibility for the trainers to accomplish the tasks. This
was accomplished by a move away from standards based on strict
hour requirements and towards learning objectives that must be
completed. Because the standards are so new, there is little experience to suggest whether our greatest fears or expectations for the
standards will be realized.56
The most recent discussions of the training committee have centered around the need for continuing mediator education. Once a
court embarks on the road of certification, doesn’t the court then retain some responsibility to ensure continuing competence? This point
has crystallized in Florida now that nine years have passed since the
institution of certification requirements. Specifically, an individual
could have completed a supreme-court-certified mediation training
program in 1988 and obtained certification. During the last nine
years, this individual may never have been selected or appointed as
a mediator and may not have taken any continuing mediator education. In short, he or she may not even remember how to mediate. Yet
this individual remains a “certified” mediator. 57 If one accepts the
premise presented earlier in this paper that once the court mandates
mediation, the court bears some responsibility to identify competent
mediators, then arguably the court bears the responsibility to ensure
that competence is maintained. One method would be to require continuing mediator education. The specifics on how the requirements
would be established are still being debated. Once again, we find
ourselves revisiting the balancing of how much bureaucracy and institutionalization is necessary to achieve the desired end.
A final concern that I would like to raise on this issue is one for
which I am completely without data to confirm or dispel. However, it
seems fitting to include some thoughts on the impact the next generation will have in the institutional context. When I joined the Dis55. See In re Mediation Training Standards and Procedures, Fla. Admin. Order (Dec.
1, 1995) (on file with Clerk, Fla. Sup. Ct.).
56. The training program standards also contain a procedure by which complaints
can be lodged against training programs that will be reviewed by a 16-member Mediation
Training Review Board.
57. To retain certification as a mediator in Virginia, an individual must complete
continuing mediator education as well as practice requirements. See OFFICE OF THE
EXECUTIVE SECRETARY, SUPREME COURT OF VA., GUIDELINES FOR THE TRAINING AND
CERTIFICATION OF COURT-REFERRED MEDIATORS 5 (1995).
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[Vol. 24:903
pute Resolution Center in 1988, I expected that I would remain
somewhere between three to five years because, in my mind, the
challenge and excitement of the position was the ability to create a
new program. I thought that the job would quickly lose my interest
when it became routine, i.e., when my major functions shifted from
policy development to policy implementation. Unlike many others
who come to work for a state court system, my goal was not to move
up through the court bureaucracy, but rather to pursue the development of a comprehensive mediation program—in other words, to
change the way justice was delivered in our court system through
the adoption of mediation alternatives. However, the revision of my
three-to-five-year time frame has more to do with a mistaken notion
on my part of how long it would take for the policy development
phase of the program to conclude rather than a reassessment that I
truly enjoy running a bureaucracy. Each year has brought new
challenges and more policy development decisions to be made, and
despite an increased level of administrative duties, the bulk of my
activity remains in the creative, innovative areas.
Thus, I still remain committed to moving on when the administrative side of the job outweighs the creative side. This leads me to
my final concern, namely, what happens to these programs when the
second generation of program administrator comes in? Clearly, the
type of individual who will be attracted to such a position will not be
a “mediator type”—such an individual would no more wish to handle
the bureaucracy than I would. More likely, the second generation of
program administrator will be one who does not necessarily have
any particular commitment to a mediation program, but rather is interested in career court administration.
When the program was small, I interacted with individuals on a
one-to-one basis. In fact, in the early days of the program, I knew all
of the certified mediators. Now that we maintain a database that
contains over 8000 individuals who have completed mediation
training and approximately 4500 certified mediators, I no longer
know everyone personally. It has been my commitment, however, to
maintain a “good” bureaucracy—if an individual calls, we will explain the policy or procedure and the rationale for it rather than just
say, “That’s the policy, period.” It has been my commitment to run
the DRC using all of the positive lessons that I have learned from
being trained and serving as a mediator. Will the next generation
bring that same commitment? As the office grows in numbers (a necessary outgrowth of increased institutionalization), will everyone be
able to answer all of the questions that arise? When the rules become so numerous, will the answer increasingly be, “That’s what the
rule says—we have no flexibility in this area”?
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In sum, I believe that the institutionalization of mediation programs has served a worthwhile purpose. It is only with institutionalization that we are able to achieve the increased attention and
high level of debate around these issues. I have seen first hand, both
through my experiences in the school system and in the courts, how
helpful—and transforming—these programs can be. I know that
most people still are not very sophisticated in thinking through their
options for resolving disputes. In the school setting, students frequently view their options as limited to ignoring the situation, telling a teacher or other authority, or fighting it out. For adults, the
choices are surprisingly similar: ignoring the conflict, appealing to
the authority of the courts, or fighting it out. For too long, the metaphors have been those of “The People’s Court”: “Don’t take it into
your own hands, take them to court,” rather than, “You have the capability of resolving your disputes yourself.” Institutionalization
provides necessary legitimacy and widespread utilization to a process that is only useful if one knows about it. One can only make informed decisions about whether to use mediation if one is aware that
the process exists.
Perhaps continued discussion of institutionalization—both the
positive and negative aspects—will prevent some of the dangers I
discussed from occurring. I believe that we all have an obligation, as
“the next generation” takes over, to focus our attention on and critically analyze the impact of the processes we have set in motion—
particularly the institutionalization of mediation. It is only with vigilance that we will determine if institutionalization is the “savior” or
the “saboteur” of the mediation process.
EVALUATIVE VERSUS FACILITATIVE MEDIATION :
A DISCUSSION*
JAMES J. ALFINI,** MODERATOR
DEAN ALFINI: We are celebrating the tenth anniversary of the
Florida Dispute Resolution Center. The Center was founded in 1986,
and soon thereafter, in 1987, the statute was passed that gave to
every judge in the state the power to send any case to mediation or
arbitration.1 In 1988, a set of rules were promulgated by the supreme
court that essentially operationalized the statute. 2 Since that time,
literally tens of thousands of cases have been mediated here in the
State of Florida in the court-sponsored programs at the circuit level,
the family level and in the county courts. Tens of thousands of cases!
They represent a significant body of experience.
That body of experience is now causing a bit of trauma. People are
making judgments about what works and what doesn’t work, and
sometimes these judgments about what works and what doesn’t
work collide with traditional notions of what’s “good mediation,” how
mediators should behave, and how mediators should perform. This
collision between the pragmatic and the ideal, or traditional, to some
extent is being crystallized in the debate over facilitative versus
evaluative mediation. May a mediator offer an evaluation of the case
to the parties? Those who argue in favor of facilitative mediation say,
“Absolutely no. Never.” Never should a mediator evaluate a case.
Those who argue in favor of a more pragmatic approach to mediation
say, “Well, it isn’t the way I would start out, but if the parties want
it, certainly I’ll offer an evaluation, or even sometimes I’ll offer it on
my own if I think it’s warranted. I generally wait for awhile, though.”
This debate is raging in the law reviews and the literature on dispute resolution.3 We have with us today a very able panel to address
* This Discussion took place at the Fifth Annual Conference for Mediators and Arbitrators presented by the Florida Dispute Resolution Center on August 23, 1996, in Orlando, Florida. Many thanks to Sharon Press, Director of the Florida Dispute Resolution
Center, who was responsible for the casting of this discussion and who suggested various
scenarios. Some of the scenarios used in the discussion are based on actual grievances
filed with the Florida Mediator Qualifications Board.
** Dean and Professor, Northern Illinois University College of Law. B.A., Columbia
University, 1965; J.D., Northwestern University, 1972.
1. See Act effective July 1, 1987, ch. 87-123, §§ 1-7, 1987 Fla. Laws 995, 995-97
(codified as amended in scattered sections of FLA. STAT. ch. 44 (1995 & Supp. 1996)).
2. See FLA. R. CIV. P. 1.700-.830. These rules were adopted on December 31, 1987,
and became effective on January 1, 1988. See In re Proposed Rules for Implementation of
Florida Statutes Sections 44.301-.306, Rules of Civil Procedure, 518 So. 2d 908, 909 (Fla.
1987).
3. See, e.g., Leonard L. Riskin, Understanding Mediators’ Orientations, Strategies,
and Techniques: A Grid for the Perplexed, 1 HARV. NEGOTIATION L. REV. 7, 24 (1996) (presenting a four-quadrant grid describing the varieties of mediator behavior as facilitative-
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this debate. I won’t tell you where any of them come out on this beforehand, but I think you’ll get the sense after awhile. Some are from
the State of Florida and others are from outside of the state. Let me
introduce them to you.
Over here on my far right is Professor Lela Love. Professor Love
directs the Mediation Clinic at the Cardozo Law School in New York
City. Next to Lela is Donna Gebhart. Ms. Gebhart is a lawyer and
appellate mediator in Florida who has also mediated large civil cases
in the circuit court. Next to Donna is Professor Cheryl McDonald.
Professor McDonald is an assistant professor of law at Pepperdine in
California and directs the Dispute Resolution Clinic at the law
school. Next to Cheryl is Jeff Stempel. Jeff Stempel is a professor of
law at Florida State University. He has written extensively on ADR
issues. Next to Jeff is Lawrence Watson. Larry is one of the preeminent mediators in Florida. He mediates large civil cases in the circuit
mediation program as a partner with the law firm of Carlton Fields
in Orlando and is a former president of the trial lawyer’s section of
The Florida Bar. He is a converted “Rambo” litigator, basically. Next
to Larry is Kathy Reuter. Kathy is the director of the county mediation program here in Orlando and also directs the contract family
mediators as well. Next to Kathy is Javier Perez-Abreu. Mr. PerezAbreu is a lawyer and a certified family mediator in Florida. Next is
Carmen Stein. Carmen is a practicing psychotherapist and family
mediator in Florida. So we have Kathy and Carmen as the two nonlawyers on the stage. Next to Carmen Stein is Robert Moberly. Bob
is a professor of law at the University of Florida law school. Bob and
I served together on the Florida Supreme Court Committee on Mediation and Arbitration Rules (Committee). You might pull out those
Rules because I’m about to refer to them. While Bob and I were on
the Rules Committee chaired by Larry Watson, Larry would inevitably, invariably, refer to anything that came out of our mouths as a
bit “teachy-preachy,” but after awhile he became a convert, I think.
He became softer, kinder, and gentler, but still has that “Rambo”
litigator look in his eyes.
broad, facilitative-narrow, evaluative-broad, and evaluative-narrow). For a critical view of
evaluative mediation, see Kimberlee K. Kovach & Lela P. Love, “Evaluative” Mediation Is
an Oxymoron, 14 ALTERNATIVES TO HIGH COST LITIG. 21, 32 (1996) (criticizing evaluative
mediation for perpetuating or creating an adversarial climate and being inconsistent with
the primary objectives of mediation: to promote self-determination of parties, to help the
parties examine their real interests, and to develop mutually acceptable solutions). The
evaluative/facilitative terminology has already found its way into the legal practice literature and has been adopted by commentators offering advice as to how lawyers might represent clients in mediation. See, e.g., JOHN W. COOLEY, NAT’L INST. FOR TRIAL ADVOCACY,
MEDIATION ADVOCACY app. A-2 at 86-88 (1996) (recommending that lawyers and their clients decide whether they want an evaluative or facilitative mediator, or a combination of
both, prior to the mediator selection process and describing the roles and functions that
various types of mediators may assume to assist parties in resolving disputes).
1997]
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What I’m going to do with these people up here is essentially conduct a Socratic dialogue. Those of you who went to law school will be
familiar with this form of pedagogical abuse. I’ll develop some short
hypotheticals and ask questions of the panel, but what I’d like you to
do is keep in mind a few provisions from the Florida Rules for Certified and Court-Appointed Mediators as we proceed. If you’ll turn to
the bottom of page nine, you’ll find Rule 10.090, “Professional Advice.” Let me do a short dramatic reading of that rule:
(a) Generally. A mediator shall not provide information the
mediator is not qualified by training or experience to provide.
(b) Independent Legal Advice. When a mediator believes a
party does not understand or appreciate how an agreement may
adversely affect legal rights or obligations, the mediator shall advise the participants to seek independent legal counsel.
....
(d) Personal Opinion. While a mediator may point out possible
outcomes of the case, under no circumstances may a mediator offer
a personal or professional opinion as to how the court in which the
case has been filed will resolve the dispute.4
You might also keep in mind over on page seven the impartiality
provisions of the Rules:
(a) Impartiality. A mediator shall be impartial and advise all
parties of any circumstances bearing on possible bias, prejudice, or
impartiality. Impartiality means freedom from favoritism or bias
in word, action, and appearance. Impartiality implies a commitment to aid all parties, as opposed to an individual party, in moving toward an agreement.
(1) A mediator shall maintain impartiality while raising questions for the parties to consider as to the reality, fairness, equity,
and feasibility of proposed options for settlement.5
Okay. With those in mind, let’s ask our panel to have at it. The
first scenario I’d like to present to them is basically one you would
find in the county courts here in Florida. It’s a landlord-tenant dispute. It’s a dispute over the withholding of rent until an unsafe condition in an apartment is fixed up. Both parties, as is the case in
most county mediations, are unrepresented. The mediator tells the
parties in joint session that she’s familiar with the judge in this case,
and the judge is unsympathetic to landlords. What about that, Ms.
Reuter? Is that okay? Can a county court mediator tell the parties
that the judge is unsympathetic to landlords?
4. FLA. R. CERT. & CT.-APPTD. MEDIATORS 10.090.
5. FLA. R. CERT. & CT.-APPTD. MEDIATORS 10.070.
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[Vol. 24:919
MS. REUTER: I think that falls into giving an opinion that you
aren’t qualified to give, first of all, and also that you shouldn’t be
giving.
DEAN ALFINI: Why is that an opinion? Would you agree with
that, Professor Stempel? Is that an opinion? It sounds more like information to me. It doesn’t say how the judge is going to come out,
just that judges are unsympathetic to landlords.
PROFESSOR STEMPEL: It seems to me that it’s an opinion, but
it may be one that the person is perfectly qualified to give if the mediator has experience in the area. I guess my first reaction would be
that it might warp the wheels, so to speak, to come out with that
early in mediation. If that was the first or second sentence out of the
mediator’s mouth, it tends to cast, if not a pall, at least an aura over
the proceeding. The landlord better wake up and do something reasonable to resolve the case, but that may be more of a nudge than
you want to give at that juncture. It seems to me that statement becomes a lot less problematic if you’ve gone on for awhile and it appears that the tenant is expecting a judge like Justice Brennan at
the end of his or her rainbow who is going to solve this dispute by
making the landlord be decent or generous. Meanwhile, the landlord
is expecting a judge more like Justice Scalia, who will back him or
her by holding the tenant to the letter of a lease with language extremely favorable to the landlord. Both are probably mistaken, and
where this mistake gets in the way of effective resolution, I see
nothing wrong with a mediator providing an assessment of the likely
range of judicial outcomes or even an assessment of the particular
judge assigned. So, at least down the way, this sort of comment
seems appropriate as a dose of reality for the disputants, but it
would probably be over-intervention to offer these assessments at
the outset of the mediation.
DEAN ALFINI: Would it matter, Professor McDonald, if you did
it in joint session or in separate session?
PROFESSOR MCDONALD: I think it would matter a good deal.
What sounded like a preliminary nudge gets a lot more like a push if
it’s done in caucus or separate sessions. I’m not sure that I agree
that it would be okay even in joint session, or even later in the session. I think that there are a lot more ways and more neutral ways
in which both parties could be alerted to the possibility that judges,
being human beings, might have particular biases that might have
an impact on their case, and that’s something they should both be
thinking about.
DEAN ALFINI: Okay. What if the mediator went a step further.
Does it become an easier case if the mediator says, “I know, given
what I’ve seen of these kinds of cases before, there is no way, Mr.
Landlord, that the judge is going to go your way in this case. You
1997]
MEDIATION DISCUSSION
923
better give a little bit.” He says this maybe in separate session, but
he says it. Professor Love, what do you think?
PROFESSOR LOVE: I don’t think stating an opinion like that is
proper behavior for a mediator. The mediator is giving a prediction
about the court outcome, and is also compromising his or her neutrality since the prediction so clearly favors the tenant. I wouldn’t do
it as a mediator. I think it violates the Florida Rules that you read.
PROFESSOR MOBERLY: Yes, I think that’s exactly the scenario
that the committee intended to prohibit when it adopted Rule
10.090(d), particularly the last phrase. We heard testimony that certain mediators, particularly some ex-judges in an unnamed county,
tended to say, “I know this judge, I’ve worked with this judge, I know
how this judge will rule.” This is what the last phrase is intended to
prohibit. The phrase doesn’t prohibit all opinions, but it does prohibit an opinion as to how the judge in that particular case will rule. 6
DEAN ALFINI: What about the first one I mentioned? What if
the mediator just says, “Well, I know this judge, and the judge generally doesn’t like landlords?”
PROFESSOR MOBERLY: Yes, I think that starts to infringe not
only on the impartiality, but on the self-determination provisions.
You’re suddenly exerting pressure designed, in my opinion, to deter
or prevent real honest self-determination, and that verges on coercion.
DEAN ALFINI: Okay. So there are overarching concerns that
creep in. Maybe the general principle that mediation is or should be
an exercise in party self-determination is being eroded by this behavior, says Professor Moberly. Maybe the mediator takes a less
than impartial approach to the parties as well. Or maybe even being
somewhat unfair by loading the dice, so to speak. So there’s a fairness aspect, an impartiality aspect, and a self-determination aspect.
PROFESSOR MOBERLY: I do distinguish that from giving an
evaluation, which I’m sure we’ll probably discuss. Some academic
writers suggest a bright-line approach that would say you should
never evaluate. Some lawyers take the approach that you evaluate,
then they suggest that evaluation is part of the normal process, especially in circuit civil mediation. A third school of thought is opposed to a bright-line prohibition, but urges great caution in utilizing
this sort of opinion and evaluation.7
6. Professor Moberly chaired the Standards Subcommittee of the Florida Supreme
Court Committee on Mediation and Arbitration Rules. For further discussion of the Committee’s work and related issues, see Robert B. Moberly, Ethical Standards for CourtAppointed Mediators and Florida’s Mandatory Mediation Experiment, 21 FLA. ST. L. REV.
701 (1994).
7. See Robert B. Moberly, Mediator Gag Rules: Is It Ethical for Mediators to Evaluate or Advise?, 38 S. TEX. L. REV. (forthcoming 1997). Professor Moberly’s article is based
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FLORIDA STATE UNIVERSITY LAW REVIEW
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DEAN ALFINI: Why isn’t the second a clear evaluation? “I know
this judge and there’s no doubt in my mind that in this case, before
this judge, you’re going to lose, Mr. Landlord.”
PROFESSOR MOBERLY: Well, that is an evaluation and it’s a
prohibited evaluation.
DEAN ALFINI: Okay, I see—and the other one is maybe an
evaluation and maybe not prohibited.
PROFESSOR MOBERLY: Right, and we can explore that.
DEAN ALFINI: All right, are we all comfortable with that?
MR. WATSON: No, I’m not. I’d like to ask, what exactly is it that
we’re not supposed to be evaluating? The question arises: Can you be
evaluative about winning or losing the case based upon the merits of
the case? I would agree that that’s clearly prohibited and improper.
The next question, however, is: Can we be evaluative about the difference between proceeding with a resolution of the case through
adjudication and proceeding with a resolution of the case through
reconciliation? In an evaluation of the prospect of going forward with
adjudication, we talk about the characteristics of that process. “This
is what happens when you get in front of a jury; this is what it costs,”
and, by the way, “This particular judge to whom you’ve been assigned seems to have a track record of not being particularly favorable in landlord-tenant cases. Just an observation about your resolution path.” That’s not necessarily an evaluation of the outcome of
your particular case.
DEAN ALFINI: Okay. Even if in both or one of those instances we
aren’t crossing the ethical line, it may not be wise practice—you may
be digging a hole that’s going to be difficult to climb out of. Let’s go
on to a family case, a family mediation scenario. We have a divorce
mediation here in Florida involving custodial issues. During the
opening statement, the mediator reads to the parties the relevant
provisions of the shared parental responsibility statute here in
Florida. Any problem with that, Mr. Perez-Abreu?
MR. PEREZ-ABREU: I normally don’t do that in an opening
statement, but I don’t see it as a problem. You’re not giving them legal advice, you’re telling them what’s in the statute and what the
law provides. You’re not giving an opinion as to the law or as to its
merits. I guess if you take it further and start analyzing or interpreting the statute, you may get into trouble.
DEAN ALFINI: So you’re drawing a line between information and
advice. This is strictly information. Does it matter if you’re a lawyermediator or nonlawyer-mediator? May a nonlawyer-mediator tell
them about a state statute?
on an address delivered to a symposium sponsored by the South Texas Law Review on October 25, 1996, entitled “The Lawyers Duties and Responsibilities in Dispute Resolution.”
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MEDIATION DISCUSSION
925
MR. PEREZ-ABREU: I don’t think it makes a difference. There is
a committee note on the Rule that talks about lawyers specifically.
So if you want to draw that distinction, there is a commentary down
at the bottom of the rule.8 I don’t think it makes a difference in the
context of the question that you’ve posed.
DEAN ALFINI: Okay. Let me change the question a little bit,
Javier. Suppose, as you suggest, the mediator goes a step a further
and during the mediation says, “Now, remember I told you about the
shared parental responsibility statute,” and then goes on to explain
what it means. For example, if the kid changes schools, then you, the
custodial parent, have to talk to the other parent and get him or her
involved in this decision. Carmen, is that okay?
MS. STEIN: Well, I think at that point it still falls back into providing information that you’re qualified to give. I would do that. In
order to explain, I feel I’d be giving my advice, but that’s the law.
DEAN ALFINI: Okay. So you’re giving them information on the
law. If the law is clear, if it’s clear-cut, you’re not advising them but
you’re giving them information. Are we beginning to walk a slender
line here, Professor Moberly? Is that okay?
PROFESSOR MOBERLY: The Rule clearly allows the mediator to
provide information the mediator is qualified to provide. The line between information and advice may not always be so clear, but I think
it’s clear under the Rules that a knowledgeable family mediator can
provide information such as a state statute or guidelines for child
support or joint custody. Those to me would clearly fall within the
Rule allowing information.
DEAN ALFINI: Suppose then that the mediator as they proceed
says, “Okay, let’s pull out some worksheets here, and here are the
child support guidelines from the statute. Let’s sort of work through
them. Let me tell you how they generally work.” Is that okay,
Carmen?
MS. STEIN: I hope so. That’s what I do.
DEAN ALFINI: Let me box you in a little bit then. I think we all
have to admit though that maybe we’re sort of allowing a little bit
more in the family area than we might in some of the other areas,
but maybe that’s okay. Suppose though, Carmen, the parties tell you
that their plan is to have the kid spend every other night of the week
8. The committee note to Florida Rule for Certified and Court Appointed Mediators
10.090 provides:
Mediators who are attorneys should note Florida Bar Committee on Professional Ethics, formal opinion 86-8 at 1239, which states that the lawyermediator should “explain the risks of proceeding without independent counsel
and advise the parties to consult counsel during the course of the mediation
and before signing any settlement agreement that he might prepare for them.”
FLA. R. CERT. & CT.-APPTD. MEDIATORS 10.090 committee note.
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FLORIDA STATE UNIVERSITY LAW REVIEW
[Vol. 24:919
with a different parent. One night with the mother, one night with
the father, then the next night with the mother, the next night with
the father. You know from your knowledge of the mental health literature that this will be emotionally unhealthy for the child. You tell
them that. Is that okay?
MS. STEIN: I think in that case, I’m walking a very thin line because at that point I may be practicing psychotherapy.
DEAN ALFINI: So as a mental health professional, you’re always
concerned about—
MS. STEIN: My other license.
DEAN ALFINI: That’s right. Just as a lawyer-mediator should be
concerned about his or her other life, which is practicing law and not
giving legal advice, you’re concerned at that point about giving professional advice, in your case offering psychotherapy.
MS. STEIN: At that point, if I’m doing mediation.
DEAN ALFINI: Well, but then again, we’re drawing this distinction between information and advice. Suppose you said, “Look, I just
read a study that some Harvard psychology professor did, and here
is what they found: that this is very unhealthy for a child.” Is that
okay?
MS. STEIN: That would worry me because being a licensed psychotherapist carries a lot of weight. They ought to be given not only
my personal opinion, but my opinion as a professional. I’d probably
present it in the way of saying, “Maybe this is something you might
want to consider, this might really stretch everything, especially for
the child.” I may at the end tell them before they leave, “If you’d like
to take this research or read it on your own, you are welcome to do
so,” but I don’t think that I’d put myself in a position to give professional advice either as an expert mediator or as an expert therapist.
DEAN ALFINI: Okay. Donna Gebhart, I know you’re not a family
mediator, or I don’t think you’re a family mediator.
MS. GEBHART: I will be.
DEAN ALFINI: Oh, you will be? Okay. What do you think of this?
Is that okay?
MS. GEBHART: I would probably, as the mediator in that situation, ask the parties whether they had considered the potential effect
upon the child psychologically, rather than offer information or my
own opinion.
DEAN ALFINI: So you suggest a “good practice” device there to
avoid the issue.
MS. GEBHART: Essentially.
DEAN ALFINI: What about you out-of-staters? Lela, are you okay
with this discussion?
PROFESSOR LOVE: My concern with giving someone a study
that leans in any particular direction is that studies exist which
1997]
MEDIATION DISCUSSION
927
prove all sorts of points of view. By picking any one point of view,
you’re essentially taking a position, and pushing your own theory. In
New York State, women’s groups have objected to the institutionalization of mediation in the courts because they believe that mediators
push for joint custody, which disadvantages women in certain circumstances. I’d like that sort of evaluative activity to be considered
“bad mediation” and to be discouraged or prohibited instead of being
an argument that mediation should not be court-connected.
DEAN ALFINI: So sometimes, even if we’re willing to call it just
information and not advice, it’s going to help one party or the other.
Now, in the scenario that I gave you, at least our information, or advice, didn’t help either one. Both parties seem to want to go off on
this nutsy course. But most often, through information by way of legal advice, or psychological advice, psychological study will put another arrow in the quiver of one or the other party, and at that point
the mediator becomes less impartial, less neutral.
PROFESSOR LOVE: Correct. While providing parties with a
whole statute is sometimes problematic, the mediator picking out
particular provisions that assist one of the parties is always problematic. There may be other provisions that would lean the other
way, and the mediator is taking sides by selecting certain legal information.
MR. PEREZ-ABREU: One way of maintaining neutrality on that
issue is taking it from the point of view of the child and saying,
“Well, has anybody thought about the child and what impact that
would have on the child?” You don’t necessarily need to get into the
questioning, and that way you’re not taking one side, or not taking
the “bad” side. You’re taking the child’s side, which nobody represents.
PROFESSOR MCDONALD: Although family law has never been
my area, and I’m certainly not familiar with Florida law, my experience with the law in general has been that it’s very rarely so clear
that any one individual could pull out any piece of a statute and say
this is objectively what the law is. That may be an incorrect assumption with respect to this area here in Florida. I got uncomfortable
with the idea of even saying at the beginning, “Well, here’s the statute, let’s move on from there.” I believe the point that Lela made is
valid. Any time you pick or choose a particular section and elect to
leave something else out, you’re potentially arming the quiver of one
party or another. Whether or not objectively that’s what’s happening,
there is the potential, which I see as a serious danger.
PROFESSOR STEMPEL: But what if instead one or both of the
parties comes in and they say, “We think every-other-night custody
is just great. In fact, my husband just showed me this great article
on how wonderful it is.” Your professional view is that there is misin-
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FLORIDA STATE UNIVERSITY LAW REVIEW
[Vol. 24:919
formation, one-sided misinformation that’s leading to this result. As
a mediator, are you now liberated to level the playing field a little
bit?
PROFESSOR MCDONALD: Well, it would be better if somebody
else leveled the playing field, in my opinion. If you could say as mediator, “This is an interesting study, have you consulted professionals about this? Have you looked for other articles?” you might point
them towards the library, but it seems to me that if you pop out with
some article that you choose, you’re sort of showing your colors, your
biases, at that point.
DEAN ALFINI: Let’s move on to the context in which we generally see the evaluative-versus-facilitative issues most clearly framed:
big civil-case mediation. Here in Florida, this is circuit court mediation. We have a circuit court mediation, a personal injury case, and
the insurance adjuster is taking a hard line, asserting that there is
no liability in this case. The mediator is a retired judge, and he
knows, or thinks he knows, that juries almost always find liability in
these kinds of cases in that venue. May he reveal this to the parties?
MR. WATSON: I think, yes. Again, I think we’re talking about the
process, not the outcome or the merits of this particular case. If the
parties were unrepresented, it might be an improper observation to
make. You must take this evaluation issue in light of the issue of
self-determination. If you’re evaluating in a way that interferes with
the parties’ consensual agreement, with their independent decision
about the settlement, I don’t care if you’re “evaluating” or “hypothesizing”; whatever you’re doing, it’s wrong. The evaluation becomes
dangerous only when you start taking the decisionmaking process
away from the parties.
DEAN ALFINI: So essentially what you’re saying is that, given
the hypothetical I posed, it’s an evaluation but it’s an okay evaluation.
MR. WATSON: Yes. I don’t see anything here that would indicate
that a hard-boiled insurance agent is going to give a rip what this
mediator-judge thinks or doesn’t think the juries are going to do.
MS. GEBHART: I pretty much agree with Larry. I would do it in
private session because I think that to do something like that in joint
session definitely disturbs the balance of the playing field. I’d add
the caveat that, in the very beginning, in the introduction portion of
the mediation session and throughout, I would stress to the parties
that I’m there to help them communicate. I’m there to help them
evaluate their case and the benefits of settlement, and I would stress
that they are the ultimate decisionmakers and that I have no decisionmaking authority. I think that’s the most important.
DEAN ALFINI: So you’d do it in a separate session as a sort of
reality test?
1997]
MEDIATION DISCUSSION
929
MS. GEBHART: Yes, because if they’re going to evaluate whether
or not the case should be tried, and what’s in their best interests,
then they need to have pertinent information. If that’s pertinent information, then they should have it.
DEAN ALFINI: So you would do it with the defendant, but would
you ever do it with the plaintiff? Would you never arm the plaintiff
in that way in separate session?
MS. GEBHART: I would “reality-test” with the plaintiffs as to
whatever I perceived might be pitfalls in their case that they should
consider.
DEAN ALFINI: What about the question I posed—would you tell
the plaintiff, “They’re crazy over there on the defense side. I know
what juries will do in this jurisdiction, and they’ll generally find liability, so their hard-line, no-liability tactic is out to lunch.”
MS. GEBHART: No.
DEAN ALFINI: So you would do something with one side but not
with the other. Does that bother you, Lela?
PROFESSOR LOVE: I’d like to go back to your first question. I
don’t think the judge or former judge-mediator should give the opinion that the jury in this type of case will almost always, and probably
in this instance, find liability. I think that opinion is an improper
evaluation for a mediator to make. It would be a different case if the
parties chose the mediator for her evaluation abilities and specifically requested the mediator’s evaluation. In that situation, the process is “mixed”—not pure mediation—and the mediator is bound by
more than one set of ethical norms. Of course, the neutral mediator
must be competent to give the opinion and should be liable for careless opinions which could cost the parties a great deal. The process
should be labeled mediation and neutral evaluation.
DEAN ALFINI: Okay. So I hear you disagreeing with Larry. That
is, under the situation I posed, mediators should never offer that
kind of advice, particularly if not asked by the parties for that advice.
PROFESSOR LOVE: That’s correct.
DEAN ALFINI: Okay. So we have a disagreement here, Bob Moberly. Where do you come out on this?
PROFESSOR MOBERLY: I think there’s a distinction between
ethics and good practice on this issue. The Florida Rules don’t prohibit all or even most evaluations. They only prohibit those specifically mentioned, or those that violate impartiality or selfdetermination. The Rules specifically allow mediators to point out
possible outcomes of the case. Our Committee discussed this for
quite a bit of time, and I don’t think the Committee would have approved any kind of statement that prohibited all evaluations. The
language allowing mediators to point out possible outcomes was a
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FLORIDA STATE UNIVERSITY LAW REVIEW
[Vol. 24:919
compromise. So pointing out possible outcomes isn’t specifically prohibited, but it may not always be good practice.
DEAN ALFINI: What about the “teachy-preachy” guys on the
Committee. You don’t think that we would have opposed this?
PROFESSOR MOBERLY: As I recall, a total bar on evaluations
was proposed by one or the other of the “teachy-preachy” persons,
but the attorneys and the judges did not accept it. Since our Committee deliberations, I’ve talked to a lot of practicing attorneys who have
said, “I won’t hire a mediator in a large civil circuit case where there
are lawyers on both sides unless that person is knowledgeable and
willing to give us an opinion.”
DEAN ALFINI: Let me go a step further and make it a little
tougher on you. What if the mediator then says, “Given my experience with juries in this jurisdiction, I think that this case is worth
about $70,000. In fact, I put it right about there—no more, no less.”
How is that?
PROFESSOR MOBERLY: This is without the request of the parties?
DEAN ALFINI: Yes.
PROFESSOR MOBERLY: I don’t think the Rules prohibit that. It
may or may not be good practice, but I think the Rules specifically
allow that, unless it begins to infringe on self-determination or
amounts to coercion. I think that if there are attorneys on both sides
in large civil litigation cases, you’d have a tough case to make for coercion or violations of self-determination.
DEAN ALFINI: Donna Gebhart, what do you think? Would you
agree with him?
MS. GEBHART: Even if asked, I wouldn’t put a dollar value on
cases.
DEAN ALFINI: Why not?
MS. GEBHART: Because that’s the client’s decision, and that’s
really important because mediation is in fact the client’s process. I
believe very strongly that when, or if, I evaluate the case, because
they generally value what I say, it will affect their decision. They
may be settling for something that they wouldn’t really be happy
with. So I decline to do that. And I wouldn’t. I just don’t think it’s
proper.
PROFESSOR MOBERLY: I think that we have to distinguish
here between unethical conduct and bad practice. It may very well be
bad practice. Probably Lela would classify Donna and herself as
bright-line, anti-evaluation. Larry is clearly pro-evaluation. I would
classify myself as anti-bright-line, but very cautious about the use of
evaluations.
DEAN ALFINI: Does this sound like a law school lecture?
1997]
MEDIATION DISCUSSION
931
PROFESSOR MOBERLY: It isn’t prohibited or unethical, even
though it may sometimes be very bad practice.
DEAN ALFINI: Okay. I think that’s an important distinction to
make—the distinction between bad practice and unethical. Would
you agree with Professor Moberly, Donna, that it may not be unethical here, but it’s not wise, not good practice?
MS. GEBHART: Absolutely. I don’t think it’s unethical, particularly if you are asked. But even in the case where you’re not asked, I
don’t think it’s unethical. I don’t think it’s unethical, but it isn’t
something that I’d recommend doing. It’s not something that I would
personally feel comfortable doing because I feel that I’d be taking a
portion of the decisionmaking away from the client.
MR. WATSON: I’d like to point out again that I feel the measure
against which you are improperly evaluative or not is the selfdetermination issue. If I were mediating a case where I was asked
that question, and I realized I’m going to now dictate what the numbers are going to be—no. No. I don’t do that. On the other hand, if
my answer to the question is just one little bit of data the parties
want measured with all the other data that they’ve got, and they’re
going to put that data in and make up their own mind, there is
nothing wrong with answering the question. In civil trial cases,
where we have aggressive, strong trial lawyers present with equally
aggressive, strong, hard parties, they just aren’t going to be swayed
by what we say. If we really think we are, we’re taking ourselves too
seriously.
DEAN ALFINI: Kathy, it seems like we were taking ourselves
very seriously in the county court context. We were saying that a
mediator can’t say how a judge would feel, but it’s okay at the circuit
level for a mediator to talk about what juries will do.
MS. REUTER: I don’t think it’s okay for either one.
DEAN ALFINI: Do you see any distinction between the two?
MS. REUTER: None at all. When you point out possible outcomes,
to me, that means you might win, you might lose—you might win
$10,000, you might win $5000, you might win $100,000. But giving a
personal opinion about whether you win or lose, saying almost always for a jury, or almost always for a judge—suppose it’s one of
those one-out-of-one-hundred cases, and this person goes on to trial
and comes back and says, “Well, gee whiz, you said that judge always rules for the landlord. Well, I’m a tenant, and he ruled for me.
You know, I might have listened to you.”
DEAN ALFINI: In other words, how does that mediator or that
retired-judge-mediator, or nonattorney-mediator, or whoever the
mediator may be, know that his or her experience is the universal
experience? That’s still a personal opinion.
MS. REUTER: It’s an opinion.
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FLORIDA STATE UNIVERSITY LAW REVIEW
[Vol. 24:919
DEAN ALFINI: Okay. So you don’t see any distinction between
the county context or the circuit context in this regard. If a county
mediator can’t talk about how a judge would come out, then a circuit
mediator shouldn’t be able to talk about how juries come out.
MS. REUTER: No, because you’re leading people to what you
think they should do, and it may not be what they should do. By
saying that the jury almost always does this, or the judge almost always does this, you’re putting people on the spot because, if you’re a
mediator, they think you should know. Especially if you’re an attorney, they think you should know.
DEAN ALFINI: Professor Stempel, you’re a relatively new arrival
to this state. How does this sound to you? Where do you come out on
this evaluative-versus-facilitative issue?
PROFESSOR STEMPEL: Well, I don’t want to sound like I’m
fleeing your caricature of the Ivory Tower, but I think I’m more receptive to the evaluative mode than other people. I guess I’m curious,
particularly where you raised it with your second hypothetical about
the family law situation. As we know, there has been a lot of debate
in the literature about whether mediation is a good deal or a bad
deal for women in the family law situation. Some people say, “Well,
the mediators are choosing sides.” I think there’s a certain not-todecide-is-to-decide issue. If you really let people work it out without
a whole lot of structure, or without imparting much information because you’re afraid of being evaluative, and even if you’re using what
I think is a very good technique, which Lela and Cheryl suggested
(“Well, have you thought about this, have you thought about that?”),
I am concerned, particularly where the parties aren’t represented by
counsel or where there are substantial differences between the disputants in terms of economic wealth or sophistication. In those types
of cases, a mediator who just stays on the periphery is essentially
being a party to survival of the strongest or survival of the most aggressive, and I’m not sure that we might be able to call those sorts of
resultant settlements volitional. I’m not sure that we really want a
state-sponsored apparatus being a part of that, particularly if it does
have any kind of empirical impact and disadvantages women on
child support, custody issues, and the like. At some point, if you’re
going to have a court-ordered mediation program, mediators can’t
stand idly by and watch miscarriage-of-justice settlements either,
and that may require a more aggressive approach than just raising
the question.
DEAN ALFINI: Okay. We’re going to get to that one in a moment,
but before we do, Javier, let me give you an opportunity to jump into
the fray here. Let’s take this scenario: The parties say, “Look, we’re
not getting anywhere. We really like you, we think you’re a fair per-
1997]
MEDIATION DISCUSSION
933
son. We think you’re a knowledgeable person, an impartial person.
Tell us what you think.”
MR. PEREZ-ABREU: Well, they can ask, but I try to avoid as
much as possible getting into the evaluative mode. I do try to take a
middle-of-the-road approach. Towards the end of the mediation, if I
think that there’s one critical issue that I can assist with and give an
evaluation, and it’s going to get the case done, then I may go ahead
and put on the evaluator’s hat, but I would avoid doing it as much as
possible. I try to get into asking questions in the facilitative mode as
much as possible and leave that as a last resort type of tactic.
DEAN ALFINI: Why?
MR. PEREZ-ABREU: Just being conservative by nature. I don’t
consider myself in the Ivory Tower, but at the same time I think that
the mediation process is one where you want the parties to make
their own decision. You don’t want to influence them to go one way
or the other, so I leave that as a last resort. If it’s going to take the
critical decision in getting it done, then I may put on the evaluative
hat at that point.
DEAN ALFINI: Okay. Let me turn to one more scenario in the
short time that we have left. I’m going to give Jeff Stempel his unfairness scenario. We have a debtor and a creditor. They are about to
come to an agreement in the mediation. The mediator is a lawyer,
and the mediator knows that the agreement that they are about to
reach violates the state’s usury statute. The mediator knows that the
interest rate being agreed to is well above that permitted by law in
that jurisdiction. May the mediator intervene at that point and give
them legal advice or an evaluation so to speak? Lela?
PROFESSOR LOVE: Let me explain my bright-line approach before I answer that question. I wouldn’t object to Larry giving a requested evaluation, as long as the process of evaluating was recognized as a whole set of different activities than mediation. That is, in
forming an opinion, Larry or any neutral has determined the facts,
the burden of proof, the relevant law, and the law’s application to a
very idiosyncratic situation. All those activities take a very high
level of professional competence and should be taken on very seriously. I think Larry and I would agree that mixed processes, like a
mediator providing a neutral evaluation or med-arb, 9 might be useful
under certain circumstances, but the different activities should be
labeled accurately and governed by appropriate standards. Larry
said he wouldn’t give an opinion if he thought it would interfere with
self-determination. The truth is that we never know what happens
when we utter something. We never know the weight it has with
9. For a discussion of the benefits of med-arb, see Sherry Landry, Med-Arb: Mediation with a Bite and an Effective ADR Model, 63 DEF. COUNS. J. 263 (1996).
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FLORIDA STATE UNIVERSITY LAW REVIEW
[Vol. 24:919
people. Consequently, being conservative, one reason mediators
should not evaluate is that evaluation might interfere with selfdetermination.
DEAN ALFINI: Okay. Let’s get back to the fairness issue. What if
they’re about to agree to something that would be unfair, if not illegal, as far as the debtor is concerned? Is that okay?
PROFESSOR LOVE: No. I don’t think that a mediator can be a
part of an agreement that’s illegal, and I also think that people
shouldn’t enter into agreements if they don’t have the proper information.
DEAN ALFINI: Tell us what the mediator should do at that
point.
PROFESSOR LOVE: Were there lawyers involved in this?
DEAN ALFINI: No. Unrepresented parties and a lawyermediator. Nonlawyer, unrepresented parties.
PROFESSOR LOVE: I would say to the parties that I had some
concerns about the legality of the agreement and advise them to get
legal counsel.
DEAN ALFINI: Okay. She would advise the parties to seek independent legal counsel. Jeff Stempel, would you come in on your
white charger and do more than that?
PROFESSOR STEMPEL: Not as you’ve framed the issue. These
issues are at least relative. Of course, in a debtor-creditor case we
could have significant power imbalances. At the same time, even
when you have sophisticated parties, I guess one has to think of the
jurisprudential issues. If this is a settlement that’s illegal and can be
set aside later, maybe there is even invited error on the part of one of
the parties that’s trying to snooker the other. Whether you, as a mediator appointed by the state, want to be a party to that is, I think, a
rather tough question, even though you might want to say, “Well,
these are big boys and girls now. Let them rough it out and pay a
higher interest rate.” I’m comfortable with a mediator allowing sophisticated and equivalently powerful parties to enter into settlements that skirt the line of legality, but not where they want to enter
into a clearly illegal agreement.
DEAN ALFINI: Well, let me paraphrase Josh Stulberg here. 10
Who appointed the mediator God? If the parties are happy with this,
why not just let it happen? I mean, laws are there really strictly as
guidelines.
PROFESSOR STEMPEL: You wouldn’t let people enter into a
slavery contract. Now, usury isn’t the most heinous law; I mean, it
borders on being a blue-law if you‘re a law-and-economics type, I
10. See Joseph B. Stulberg, The Theory and Practice of Mediation: A Reply to Professor Susskind, 6 VT. L. REV. 85 (1981).
1997]
MEDIATION DISCUSSION
935
guess. People will pay what they’ll pay, but I think I’d be hesitant to
extend the libertarian reasoning that far. Jim, just to raise the issue,
they are there and they are talking in part because there is courtordered mediation. If you weren’t on the scene, they’d be out there
doing discovery and having motions in front of a court, and that
might be horribly inefficient, but it would be creating a different set
of inputs that would affect our chaos theory a little bit differently.
When you’re there as a mediator facilitating things, you’re a part of
that process, even if you stand idly by.
DEAN ALFINI: Okay, Carmen, I know you’re not a lawyer, but do
you think the lawyer-mediator should right the injustice that might
be done here and do something about an agreement that might be
okay with the parties but doesn’t conform to the law?
MS. STEIN: Well, I guess I’d have to answer that with our own
rule. I don’t think I have the expertise or training to really say what
the lawyer can or cannot do.
DEAN ALFINI: Okay. Let’s give you a law degree.
MS. STEIN: It treads a very fine line because on the one hand you
really can’t offer the opinion. You can’t jump up and say, “Wait a minute, that’s illegal.” You can’t do that because you’re taking away the
self-determination of the people.
DEAN ALFINI: Okay. Does it depend on how unjust it is? Suppose the usury statute says no more than eight percent and the
agreement would call for nine percent, as opposed to twenty percent
or fifty percent.
MS. STEIN: Well, I think if it’s illegal or unjust it just has to be
across the board. I don’t think it would be up to me to decide. For
some things seem very unjust that wouldn’t be fair for other people,
but on the other hand, on the other side, of course, it’s almost a form
of abuse from a psychological point of view to stand pat and allow
somebody to walk away feeling more abused then when they began
mediation.
DEAN ALFINI: We’ll let the first one with his or her hand up
have the last word. Javier.
MR. PEREZ-ABREU: I refer everybody to Mediator Qualifications
Advisory Panel Opinion 95-002.11
DEAN ALFINI: Okay. Let’s give our cast a hand.
(APPLAUSE)
11. See Risette Posey, Latest MQAP Opinions, RESOL. REP., Oct. 1995, at 2 (Florida
Mediator Qualifications Advisory Panel Op. 95-002); see also Jeffrey W. Stempel, Beyond
Formalism and False Dichotomies: The Need for Institutionalizing a Flexible Concept of
the Mediator’s Role, 24 FLA. ST. U. L. REV. 949, 963-64 (1997) (summarizing panel opinion).
THE TOP TEN REASONS WHY MEDIATORS
SHOULD NOT EVALUATE
LELA P. LOVE*
I. THE ROLES AND RELATED TASKS OF EVALUATORS AND FACILITATORS ARE AT
ODDS..................................................................................................................
II. EVALUATION PROMOTES POSITIONING AND POLARIZATION, WHICH ARE
ANTITHETICAL TO THE GOALS OF MEDIATION....................................................
III. ETHICAL CODES CAUTION MEDIATORS—AND OTHER NEUTRALS—AGAINST
ASSUMING ADDITIONAL ROLES ..........................................................................
IV. IF MEDIATORS EVALUATE LEGAL CLAIMS AND DEFENSES, THEY MUST BE
LAWYERS; ELIMINATING NONLAWYERS WILL WEAKEN THE FIELD ...................
V. THERE ARE INSUFFICIENT PROTECTIONS AGAINST INCORRECT MEDIATOR
EVALUATIONS ....................................................................................................
VI. EVALUATION ABOUNDS: THE DISPUTING WORLD NEEDS ALTERNATIVE
PARADIGMS ........................................................................................................
VII. MEDIATOR EVALUATION DETRACTS FROM THE FOCUS ON PARTY
RESPONSIBILITY FOR CRITICAL EVALUATION, RE-EVALUATION AND CREATIVE
PROBLEM-SOLVING ............................................................................................
VIII. EVALUATION CAN STOP NEGOTIATION...............................................................
IX. A UNIFORM UNDERSTANDING OF MEDIATION IS CRITICAL TO THE
DEVELOPMENT OF THE FIELD ............................................................................
X. MIXED PROCESSES CAN BE USEFUL, BUT CALL THEM WHAT THEY ARE!..........
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The debate over whether mediators should “evaluate” revolves
around the confusion over what constitutes evaluation and an
“evaluative” mediator. The following examples describe two situations in which the mediators operate in an evaluative capacity.
During the course of an employment termination dispute, Eric
Green1 “tells both sides privately that, in his opinion, $600,000 . . . is
the settlement value of the case.”2 Green pushes the employer towards settlement by saying, “It was your corporation’s responsibility
* Professor of Clinical Law, Director of the Mediation Clinic and the Kukin Program for Conflict Resolution, Benjamin N. Cardozo School of Law. B.A., Harvard University, 1973; M.Ed., Virginia Commonwealth University, 1975; J.D., Georgetown University,
1979. The author thanks: Kimberlee Kovach, for her partnership in writing about these
ideas in an earlier article; Joseph Stulberg, for his partnership in exploring the evaluative-facilitative debate in the context of advanced mediator training programs; Baruch
Bush, for his insightful dialogue on the subject; and Len Riskin, for raising the issue in
the first place. The author acknowledges and deeply appreciates Rebecca Martin, Abigail
Sloane, Roger Brach, and Dan Weitz for their helpful comments on drafts of this Article.
1. Eric Green founded Endispute, a dispute resolution consulting firm. He is a professor at Boston University Law School and the co-author of STEPHEN B. GOLDBERG ET
AL., DISPUTE RESOLUTION (1985), the first dispute resolution textbook for law students.
The use of this example is not to criticize Professor Green’s performance; he is a highly
successful and respected neutral intervener. Rather, this Article argues that in this example, Professor Green is combining mediation with neutral evaluation to create a “mixed
process.”
2. Lavinia Hall, Eric Green: Finding Alternatives to Litigation in Business Disputes,
in WHEN TALK WORKS: PROFILES OF MEDIATORS 279, 295 (Deborah M. Kolb et al. eds.,
1994).
937
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to live up to its moral obligations.”3 When the former employee resists the $600,000 figure, Green’s responds, “How greedy can you
get?”4 In the second example, during a divorce mediation, the husband appears friendly and gregarious while the wife is calm and
poised, but somewhat cool.5 The mediator repeatedly favors the husband in a manner indicating that she enforces the groundrules.6
When the wife mentions her debilitating health problems, the mediator laughs and says, “You don’t have to act sick to get what you
want.”7
In the first example, Green evaluates by assessing a fair settlement value of the case and pressing the parties to accept that settlement value. In the second example, the mediator evaluates by
making and articulating a judgment that the party is acting sick as a
ploy to advance her position.
An “evaluative” mediator gives advice, makes assessments, states
opinions—including opinions on the likely court outcome, proposes a
fair or workable resolution to an issue or the dispute, or presses the
parties to accept a particular resolution.8 The ten reasons that follow
demonstrate that those activities are inconsistent with the role of a
mediator.
I. THE ROLES AND RELATED TASKS OF EVALUATORS AND
FACILITATORS ARE AT ODDS
Evaluating, assessing, and deciding for others is radically different than helping others evaluate, assess, and decide for themselves.
Judges, arbitrators, neutral experts, and advisors are evaluators.
Their role is to make decisions and give opinions. To do so, they use
predetermined criteria to evaluate evidence and arguments presented by adverse parties. The tasks of evaluators include: finding
“the facts” by properly weighing evidence; judging credibility and
allocating the burden of proof; determining and applying the relevant law, rule, or custom to the particular situation; and making an
award or rendering an opinion. The adverse parties have expressly
asked the evaluator—judge, arbitrator, or expert—to decide the issue or resolve the conflict.
3. Id. at 298-99.
4. Id. at 299.
5. See Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100
YALE L.J. 1545, 1586 (1991).
6. See id.
7. Id.
8. See Leonard L. Riskin, Understanding Mediators’ Orientations, Strategies, and
Techniques: A Grid for the Perplexed, 1 HARV. NEGOTIATION L. REV. 7, 27-28 (1996) (describing the mediator techniques associated with evaluative mediation as proposing a settlement, pushing parties to accept a settlement, predicting court or other outcomes, and
assessing the strengths and weaknesses of each side’s case).
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In contrast, the role of mediators is to assist disputing parties in
making their own decisions and evaluating their own situations. A
mediator “facilitate[s] communications, promotes understanding, focuses the parties on their interests, and seeks creative problem
solving to enable the parties to reach their own agreement.” 9 Mediators push disputing parties to question their assumptions, reconsider
their positions, and listen to each other’s perspectives, stories, and
arguments. They urge the parties to consider relevant law, weigh
their own values, principles, and priorities, and develop an optimal
outcome. In so doing, mediators facilitate evaluation by the parties.
These differences between evaluators and facilitators mean that
each uses different skills and techniques, and each requires different
competencies, training norms, and ethical guidelines to perform
their respective functions. Further, the evaluative tasks of determining facts, applying law or custom, and delivering an opinion not
only divert the mediator away from facilitation, but also can compromise the mediator’s neutrality—both in actuality and in the eyes
of the parties—because the mediator will be favoring one side in his
or her judgment.10
Endeavors are more likely to succeed when the goal is clear and
simple and not at war with other objectives. 11 Any task, whether it is
the performance of an Olympic athlete, the advocacy of an attorney,
or the negotiation assistance provided by a mediator, requires a clear
and bright focus and the development of appropriate strategies,
skills, and power. In most cases, should the athlete or the attorney or
the mediator divert their focus to another task, it will diminish their
capacity to achieve their primary goal. “No one can serve two masters.”12 Mediators cannot effectively facilitate when they are evaluating.13
9. John Feerick et al., Standards of Professional Conduct in Alternative Dispute
Resolution, 1995 J. DISP. RESOL. 95 app. at 123.
10. See Kimberlee K. Kovach & Lela P. Love, “Evaluative” Mediation Is an Oxymoron, 14 ALTERNATIVES TO HIGH COST LITIG. 31, 31 (1996); see also Robert A. Baruch Bush,
Efficiency and Protection, or Empowerment and Recognition?: The Mediator’s Role and
Ethical Standards in Mediation, 41 FLA. L. REV. 253, 265 (1989) (describing the importance of complete mediator impartiality). But see Marjorie Corman Aaron, ADR Toolbox:
The Highwire Act of Evaluation, 14 ALTERNATIVES TO HIGH COST LITIG. 62, 62 (1996)
(noting that while the primary risk of evaluation is the mediator’s potential loss of perceived neutrality because the “loser” in the evaluation may view the mediator as an adversary, nonetheless, situations do exist in which the careful and thoughtful use of mediator evaluation can serve the parties).
11. See Kovach & Love, supra note 10, at 32.
12. Matthew 6:24.
13. As seen in Professor Green’s performance, there are examples in the mediation
literature of “mediators” who evaluate. See supra text accompanying notes 1-4. When mediators evaluate, they assume additional roles and potentially jeopardize their effectiveness as a mediator. However, “mixed processes,” in which the mediator assumes different
roles, can be useful. See discussion infra Part X.
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II. EVALUATION PROMOTES POSITIONING AND POLARIZATION, WHICH
ARE ANTITHETICAL TO THE GOALS OF MEDIATION14
When disputing parties are in the presence of an evaluator—a
judge, an arbitrator, or a neutral expert—they act (or should act) differently than they would in the presence of a mediator. With an
evaluator, disputants make themselves look as good as possible and
their opponent as bad as possible. They do not make offers of compromise or reveal their hand for fear that it weakens the evaluator’s
perception of the strength of their case.15 They are in a competitive
mind-set seeking to capture the evaluator’s favor and win the case.
While adversarial confrontations between parties are helpful to a
neutral who must judge credibility and clarify the choices he or she
must make, such confrontations are not helpful to collaboration. Adversarial behaviors run counter to the mediator’s efforts to move parties towards a different perception of their own situation and of each
other.16 While parties typically enter the mediation process in a hostile and adversarial stance, the mediator seeks to shift them towards
a collaborative posture in which they jointly construct a win-win solution. An atmosphere of respectful collaboration is a necessary
foundation for creative problem-solving.17
III. ETHICAL CODES CAUTION MEDIATORS—AND OTHER NEUTRALS—
AGAINST ASSUMING ADDITIONAL ROLES
The ethical codes explicitly include a preference to keep processes
“pure.” The Model Standards of Conduct for Mediators highlight
party self-determination as being the fundamental principle of mediation.18 The committee that created the Model Standards rejected
14. See Kovach & Love, supra note 10, at 31 (noting that evaluation tends to perpetuate or create an adversarial climate and discourage understanding andproblem-solving).
15. See Riskin, supra note 8, at 45 (noting that mediator evaluation can be a disincentive for the parties’ candor). Federal Rule of Evidence 408 renders evidence of conduct
or statements made in compromise negotiations inadmissible at trial to prove liability for
or validity of a claim. See FED. R. EVID. 408. This rule encourages free participation in settlement discussions and highlights the assumption that negotiators will not speak openly
and candidly if their remarks are or will be heard by someone who will subsequently
evaluate their case. See FED. R. EVID. 408 advisory committee’s note.
16. See generally ROBERT A. BARUCH BUSH & JOSEPH P. FOLGER, THE PROMISE OF
MEDIATION: RESPONDING TO CONFLICT THROUGH EMPOWERMENT AND RECOGNITION (1994)
(articulating and expounding the mediator goal of supporting parties’ efforts to move towards empowerment and recognition).
17. The technique of “brainstorming,” designed to maximize the development of creative options, precludes evaluation of ideas during the idea-generating process as detrimental to creativity. Parties should separate the processes of inventing solutions and deciding
outcomes. See ROGER FISHER & WILLIAM URY, GETTING TO YES: NEGOTIATING AGREEMENT
WITHOUT GIVING IN 62-67 (1981).
18. See MODEL STANDARDS OF CONDUCT FOR MEDIATORS Standard I (Am. Arb. Ass’n
et al. 1995) (“A Mediator shall Recognize that Mediation is Based on the Principle of Self-
1997]
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mediation as an evaluative process.19 The comments to the Model
Standards state that “[a] mediator should . . . refrain from providing
professional advice. Where appropriate, a mediator should recommend that parties seek outside professional advice, or consider resolving their dispute through arbitration, counseling, neutral
evaluation, or other processes.”20
Similarly, ethical codes for arbitrators encourage those neutrals
not to participate in settlement discussions unless requested to do so
by all parties.21 Important rationales for this rule are: the arbitrator
may be improperly influenced by the settlement discussions; the arbitrator may impede the discussions by his or her presence; and the
arbitrator’s questions and suggestions while acting as a mediator
can create improper pressure to settle.
Consequently, a mediator undertaking to give an opinion on the
likely court outcome of a particular claim or a fair resolution of a
particular matter should give an accurate label of the new role he or
she is assuming22 and obtain the disputants’ informed consent for
undertaking the new role. Also, the mediator should be sure that the
disputants understand that taking on an additional role might adversely impact the ability to facilitate discussions. When processes
become “mixed,” such as when an arbitrator mediates or a mediator
evaluates, it should be at the request and with the informed consent
of the parties.
IV. IF MEDIATORS EVALUATE LEGAL CLAIMS AND DEFENSES, THEY
MUST BE LAWYERS; ELIMINATING NONLAWYERS WILL WEAKEN THE
FIELD
If it is acceptable or customary for mediators to give opinions on
likely court outcomes or the merits of particular legal claims or defenses, then only lawyers and substantive experts will be competent
to mediate.23 The comments to the Model Standards state that a
Determination by the Parties.”) The Model Standards were approved by the American Arbitration Association (AAA), the American Bar Association (ABA), and the Society of Professionals in Dispute Resolution.
19. John Feerick, chairman of the committee that drafted the Model Standards,
noted that “[w]e as a group did not buy into mediation as an evaluative process . . . .”
Feerick et al., supra note 9, at 103.
20. MODEL STANDARDS OF CONDUCT FOR MEDIATORS Standard VI cmt. (1995).
21. See CODE OF ETHICS FOR ARBITRATORS IN COMMERCIAL DISPUTES Canon IV.H
(1977) (approved by the AAA and ABA). “[A]n arbitrator should not be present or otherwise participate in the settlement discussions unless requested to do so by all parties. An
arbitrator should not exert pressure on any party to settle.” Id.
22. See Kovach & Love, supra note 10, at 31 (stating that the Model Standards require a mediator who engages in other processes to inform the parties).
23. See Riskin, supra note 8, at 46 (noting that the need for subject-matter expertise
typically increases in direct proportion to the parties’ need for mediator evaluation);
Carrie Menkel-Meadow, Is Mediation the Practice of Law?, 14 ALTERNATIVES TO HIGH
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“mediator who undertakes, at the request of the parties, an additional dispute resolution role in the same matter assumes increased
responsibilities and obligations that may be governed by the standards of other processes.”24
While this result may be good news for lawyers, the mediator pool
would be substantially weakened by the loss of the talents and perspectives of nonlawyers.25 Furthermore, if the field is theirs, lawyermediators will likely pull mediation into an adversarial paradigm. 26
One noted authority in the mediation field, reacting to a Florida rule
requiring mediators of certain cases to be either experienced lawyers
or retired judges, proclaimed this requirement to be “the end of good
mediation.”27
V. THERE ARE INSUFFICIENT PROTECTIONS AGAINST INCORRECT
MEDIATOR EVALUATIONS
Even assuming that mediators could be governed by and held to
appropriate standards when they evaluate, growing concerns about
the quality of justice that disputants receive when they are diverted
from courts into private alternative dispute resolution (ADR) processes28 argue for leaving evaluation to adversarial processes where
due process protections are in place. In the courts, disputants can
appeal decisions they feel are wrong. In arbitration, disputants pick
arbitrators based on the arbitrator’s substantive expertise or wisdom
and consciously waive the right to appeal.
In mediation, little protection exists from a mediator’s inadequately informed opinion. Confidentiality statutes, rules, and
agreements keep sessions private.29 Quasi-judicial immunity in some
COST LITIG. 57, 61 (1996) (asserting that giving legal predictions and evaluations is the
practice of law and cautioning nonlawyer-mediators to be wary of evaluative mediation).
24. MODEL STANDARDS OF CONDUCT FOR MEDIATORS Standard VI cmt. (1995).
25. See Paul J. Spiegelman, Certifying Mediators: Using Selection Criteria to Include
the Qualified—Lessons from the San Diego Experience, 30 U.S.F. L. REV. 677, 693-97
(1996) (describing the critical role that nonlawyers and nonadversarial thinking have
played in the development of mediation).
26. See James J. Alfini, Trashing, Bashing, and Hashing It Out: Is This the End of
“Good Mediation"?, 19 FLA. ST. U. L. REV. 47, 50 (1991) (raising concerns regarding the
transformation of mediation from a consensual to a coercive process); Kovach & Love, supra note 10, at 31-32 (discussing a variety of ways in which courts and lawyers tend to
pull mediation towards an adversarial framework).
27. Alfini, supra note 26, at 47 (quoting Albie Davis’s comment that increasing the
use of evaluative mediation approaches portends the end of “good mediation”).
28. See Jacqueline M. Nolan-Haley, Court Mediation and the Search for Justice
Through Law, 74 WASH. U. L.Q. 47, 82-83 (1996) (raising concerns about the quality of
justice unrepresented litigants receive when they come to court but are diverted into mediation).
29. See Confidentiality in Court-ADR Programs, 10 ALTERNATIVES TO HIGH COST
LITIG. 173, 175 (1992) (discussing the various protections afforded the mediation process).
But see Edward F. Sherman, Confidentiality in ADR Proceedings: Policy Issues Arising
1997]
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943
cases can shield mediators from liability for careless opinions. 30 The
mediator’s opinion that one of the parties should buy a carpet to
lessen the impact of sounds heard by a neighbor or that one of the
parties does not have standing to bring a particular claim in court
carries enormous weight.31 Mediators are not in the best position to
make those sorts of evaluations because, if they are doing their facilitative job, they have not completed the necessary preliminary
tasks of an evaluator. Additionally, unless a mediator has separate
training as a judge, arbitrator, or neutral evaluator, he or she may
not be competent to serve as an evaluator. Service as a mediator
does not qualify a mediator to be a judge any more than service as a
judge qualifies a judge to mediate.
VI. EVALUATION ABOUNDS: THE DISPUTING WORLD NEEDS
ALTERNATIVE PARADIGMS
The processes of litigation, “rent-a-judge,”32 arbitration,33 early
neutral evaluation,34 and summary jury trial35 are all available for
parties who want opinions or decisions. Evaluative models and service
providers abound. We need a genuine alternative to the adversarial
paradigm of disputants who fight and a neutral who assesses.
The collaborative paradigm of mediation, in which mediator
evaluation does not play a part, offers a dispute resolution process
from the Texas Experience, 38 S. TEX. L. REV. (forthcoming 1997) (arguing that even a
strict confidentiality statute should not preclude parties’ ability to obtain information
relevant to mediator malpractice).
30. See Wagshal v. Foster, 28 F.3d 1249, 1254 (D.C. Cir. 1994) (extending quasijudicial immunity to case evaluators in the mediation program of the District of Columbia
Superior Court).
31. See Menkel-Meadow, supra note 23, at 61 (noting that parties may rely on what
mediators tell them).
32. “Rent-a-judge” or private judging is a dispute resolution process in which adversarial presentations are made to a party-selected neutral decisionmaker who renders a
decision that is typically binding and subject to the usual appeals process through the
courts. See GOLDBERG ET AL., supra note 1, at 280-81.
33. Arbitration is a private, voluntary dispute resolution process in which the parties
to a dispute agree in writing to submit the dispute for resolution to a third-party neutral,
chosen pursuant to the agreement of the parties. See Michele L. Giovagnoli, To Be or Not
to Be?: Recent Resistance to Mandatory Arbitration Agreements in the Employment Arena,
64 UMKC L. REV. 547, 554-55 (1996). The parties make adversarial presentations to the
third-party neutral, and the neutral determines the facts and makes an award. See id. at
555. The arbitrator’s award is usually binding and not subject to appeal, but may be advisory, depending on the parties’ agreement. See id.
34. Early neutral evaluation is a private dispute resolution process in which a neutral with subject-matter expertise provides the parties with a nonbinding, reasoned
evaluation of their cases to assist settlement. See J. Daniel Breen, Mediation and the
Magistrate Judge, 26 U. MEM. L. REV. 1007, 1019-20 (1996).
35. A summary jury trial is a court-ordered dispute resolution process in which attorneys give brief presentations of their cases to a jury whose nonbinding verdict assists
the parties in settling the case. See Frank Evans & Shadow Sloane, Resolving Employment Disputes Through ADR Process, 37 S. TEX. L. REV. 745, 762-63 (1996).
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through which parties are taught how to resolve their own disputes,
listen to each other differently, broaden their own capacities for understanding and collaboration, and create resolutions that build relationships, generate more harmony, and are “win-win.” 36 The lesson,
“Give a man a fish and you feed him for a day, teach him to fish and
you feed him for a lifetime,” highlights the importance of teaching
people how to solve their own dilemmas.
In the corporate world, phalanges of consultants assist in promoting creative problem-solving and building teams capable of successful collaboration. Similarly, the legal community needs a model
from among the array of dispute resolution processes that will assist
parties to evolve in their understandings, relationships, and arrangements, using the opportunity represented by conflict situations.
Mediation has the potential of being shifted towards an adversarial framework in which mediators “trash and bash” 37 to get parties to settle. They “trash” the parties’ cases, predicting loss and
risk if litigation is pursued. 38 They “bash” settlement proposals
that the other side will not accept. 39 We lose a great deal if mediation becomes a mere adjunct of the adversarial norm. Having mediators use evaluation as a technique to get movement takes us in that
direction.
VII. MEDIATOR EVALUATION DETRACTS FROM THE FOCUS ON PARTY
RESPONSIBILITY FOR CRITICAL EVALUATION, RE-EVALUATION AND
CREATIVE PROBLEM-SOLVING
If Einstein’s insight is true that “[t]he significant problems we
face today cannot be solved at the same level of thinking we were at
when we created them,”40 then we, as a society, are called on to nurture ways to achieve higher levels of thinking and creativity. Mediation is the one dispute resolution process in which the neutral’s role
36. See Kovach & Love, supra note 10, at 32 (discussing mediation’s distinctive role);
Bush, supra note 10, at 267-70 (highlighting mediation’s unique capacity for
empowerment and recognition).
37. Alfini, supra note 26, at 66-73. Professor Alfini characterizes Florida circuit court
mediation, which is conducted by legal professionals, as “trashing,” “bashing,” and “hashing it out.” Id. at 66. “Trashers” tell parties how bad their case is to get each side to be
more realistic. Effective trashers have litigation experience that lends to their “trashing”
credibility. See id. at 66-68. “Bashers” focus on settlement offers and bash away at the offers, trying to get a midrange number. Most bashers are retired judges who use their
prestige to “hammer sense” into parties. See id. at 68-71. “Hashers” are similar to facilitative mediators. See id. at 71-73.
38. See id. at 66.
39. See id. at 69.
40. Marc S. Klein, Reframing the ‘Tort Reform’ Debate (and Our Participation in It),
N.J. LAW., Jan. 1995, at 39 (quoting Albert Einstein).
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is to assist the parties to collaborate creatively and resolve the issues
they face.41
Frequently, for the individuals, communities, or institutions involved, conflicts represent true crises, holding the potential for doing
extreme harm and, at the same time, holding the potential for creative change and restructuring. The mediator’s task of elevating the
dialogue from recriminations and blame to the generation of possibilities and breakthrough ideas is a task we are just beginning to
understand. If we allow mediation and mediators to slip into the
comfortable (because it is the norm) adversarial mind-set of evaluation, we kill the turbo-thrust of the jet engine of idea generation. 42
So-called “evaluative mediation” pulls mediation away from creativity and into the adversarial frame.43 If we are to continue to survive
and evolve as a species, we need to nurture the processes that tap
our affinity to create and imagine.44
VIII. EVALUATION CAN STOP NEGOTIATION
When mediators provide opinions, the opinions have consequences. An unfavorable opinion can seriously disadvantage one of
the parties. When a party disagrees with the unfavorable opinion,
the party is likely to withdraw from the mediation, believing that the
mediator has “sided” with the other party. On the other hand, a
party advantaged by a favorable opinion may get locked into an unacceptable claim or position and negotiations may stop altogether. 45
Because mediators are charged with furthering negotiation, this result is undesirable.
The following incident illustrates this problem. The general counsel of a large shipping company was called to a mediation session in
Florida.46 The mediation involved a multi-million dollar dispute with
41. I am arguing for a clear articulation of the mediator’s role. See Bush, supra note
10, at 256 (stressing the importance of a governing conception of the mediator’s role that
articulates mediator qualifications and standards for practice). However, many different
visions of the mediator’s role exist. See, e.g., Alfini, supra note 26, at 73-74 (summarizing
a variety of mediation styles and concluding that a lack of consensus exists as to what
constitutes “good mediation”); Bush, supra note 10, at 258 (describing three different conceptions of the mediator’s role: efficiency, protection-of-rights, and “empowerment-andrecognition”); Riskin, supra note 8, at 23-34 (describing different mediator orientations
based on evaluative-facilitative and narrow-issue-definition/broad-issue-definition continuums).
42. See Kovach & Love, supra note 10, at 32 (stating that “evaluative mediation”
shifts mediation into the framework of the adversarial norm and thereby stifles parties’
creative capacity to resolve their own disputes).
43. See id.
44. See JOHN LENNON, Imagine, on IMAGINE (Apple Records 1971) (suggesting the
possibilities available).
45. See Riskin, supra note 8, at 28 n.67 (noting that assessments can impair a party’s
faith in the mediator’s neutrality or restrict a party’s flexibility).
46. See Kovach & Love, supra note 10, at 31 (describing this incident in more detail).
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a union, and the general counsel went to Florida wanting to settle
the matter.47 During the mediation, in a joint session, the mediator
urged the company to be more flexible because the business did not
have a chance of winning on appeal .48 That evaluation shut down the
negotiations by freezing the union representatives into their position.49 Several years and hundreds of thousands of dollars later, the
company won a complete victory in court that was affirmed on appeal.50 Mediator behavior should not cause such pyrrhic (lose-lose)
victories.
Of course, when one side has an unrealistic assessment of its
case, a different impediment to negotiation is present. In such cases,
mediators should encourage re-evaluation by enabling each side to
present its best case and strongest arguments to the other side, encouraging the parties to get professional advice, questioning conclusions of the parties, and urging a neutral evaluation to break a
stalemate.51
IX. A UNIFORM UNDERSTANDING OF MEDIATION IS CRITICAL TO THE
DEVELOPMENT OF THE FIELD52
A recently completed two-year-long study and report on courtreferred ADR in New York State, commissioned by New York Court
of Appeals Chief Judge Judith S. Kaye, concluded that a critical need
exists for uniformity of standards and definitions for alternative dispute resolution processes.53 The report specifically noted that “mediation” is a term used in an “extraordinary variety of ways.” 54 To
address this problem, the report recommends the promulgation of
47. See id.
48. See id.
49. See id.
50. See id.
51. Some argue that the mediator should provide the neutral evaluation as a “last
step” when the evaluation represents the “sole opportunity for settlement.” Aaron, supra
note 10, at 62. Others who find evaluation consistent with the mediator’s role say evaluations should be made only if parties are sufficiently sophisticated not to be unduly swayed
by the mediator’s opinion. See James J. Alfini, Moderator, Evaluative Versus Facilitative
Mediation: A Discussion, 24 FLA. ST. U. L. REV. 919, 928 (1997) (quoting Florida lawyermediator Lawrence M. Watson, Jr.). While a neutral evaluation can be critical in generating a settlement by expanding parties’ information bases and deflating unrealistic positions, the potential harms of a mediator evaluating outweigh the potential benefits. The
same result can be achieved by the mediator giving a party-requested evaluation only after notifying the parties that he or she is acting in a capacity other than that of a mediator. See discussion infra Part X.
52. See Kovach & Love, supra note 10, at 32 (discussing the importance of welldefined and uniform processes).
53. See CHIEF JUDGE’S N.Y. STATE COURT ALTERNATIVE DISP. RESOL. PROJECT,
COURT-REFERRED ADR IN N.Y. STATE 7 (1996).
54. Id. at 7.
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947
statewide standards55 and the subscription of neutrals to a specific
code of ethics.56 In discussing the confusion of terms and labels, the
report notes that “[b]lurring the lines between mediation, neutral
evaluation and even arbitration can have deleterious consequences.”57 The consequences include parties who do not know what
to expect and neutrals who do not understand what constitutes good
practice.58 Interestingly, the body of the report includes a discussion
of training standards that states: “mediators do not advise litigants
on the law or likely court outcomes . . . .”59
When attorneys advise clients about the advantages and disadvantages of mediation, when courts and institutions create mediation programs and panels of mediators, when consumers go to the
Yellow Pages to find a mediator, they should know what they are
getting. They should have a clear understanding of the goals of the
process and the tasks the neutral will perform. 60
In an article criticizing ADR, Noreen Connell, former president of
the New York State chapter of the National Organization for
Women, describes a case in which a married couple elects to mediate
their divorce to avoid dissipating marital assets in litigation:
At the sessions, the mediator, who is a woman, echoes the husband’s complaints that the wife is “too angry and too suspicious”
when he claims that he no longer has a pension and that he has
lost the credit card records. The wife is told her complaintss [sic]
about not getting enough money to pay the mortgage since her
husband moved out of the house are emotionally damaging to their
son and that responsible parents choose joint custody.61
Ms. Connell’s conclusion about mediation is contained in the article’s
title, “Beware of Alternative Dispute Resolution.” Another conclusion
based on the same story is that the mediator was so busy evaluating
who was right and wrong and what the outcome should be that the
mediator did not mediate at all . The mediation community must
make the meaning of mediation so clear that, in her next article, Ms.
Connell will criticize the mediator involved in this case, not the mediation process itself.
55. See id. at 8.
56. See id. at 9.
57. Id. at 37.
58. See id.
59. Id. at 54 (emphasis added). Although the mediator does not advise parties on the
law and likely court outcomes, the report states that mediators “should be familiar with
the law, court rules and procedures pertaining to the subject area of the case they are mediating.” Id.
60. See Kovach & Love, supra note 10, at 32 (stating that the term “mediation”
should have uniform meaning from state to state and from one court to another).
61. Noreen Connell, Beware of Alternative Dispute Resolution: The “Touchy-Feely
Trap”, NOW-NYS ACTION REP., Summer 1996, at 7, 7.
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X. MIXED PROCESSES CAN BE USEFUL, BUT CALL THEM WHAT THEY
ARE!
Parties sometimes request that neutrals assume a variety of
roles. “Mixed processes” abound: med-arb, arb-med,62 mini-trials,63
summary jury trials, and mediation and neutral evaluation. 64 These
mixed processes can address particular needs of a situation and can
be very helpful.
Mediators are not foreclosed from engaging in some other process
or helping parties design a mixed process. Whatever the service being provided, however, it should be requested by the parties and accurately labeled. When a process is “mixed” and the neutral has multiple roles, he or she is bound by more than one code of ethics and is
charged with separate goals and tasks. A properly labeled process—
or, conversely, a label that has a clear meaning—promotes integrity,
disputant satisfaction, and uniform practice.
Mediators who regularly give case assessments and expert opinions should continue those practices only if they are requested by the
parties, properly advertised, and accurately labeled.
Driving out of Manhattan on the Henry Hudson Parkway, a major
route to New Jersey, a large billboard pictures David Letterman proclaiming: “Attention motorists: NJ is closed.” I can imagine David
Letterman with his huge smile announcing “Attention disputants:
YOUR MEDIATOR MAY EVALUATE.” It should seem equally absurd.
62. See Laurence Connor, How to Combine Facilitation with Evaluation, 14
ALTERNATIVES TO HIGH COST LITIG. 15, 15 (1996). Connor describes a two-phase process in
which, in the first phase, the neutral evaluates, makes an award, and seals the award.See
id. If the facilitation that follows does not result in settlement, the advisory award is
shown to the parties as a “reality check.” Id. Since the sealed award cannot be changed after facilitation begins, the parties can reveal sensitive matters and possible weaknesses to
the neutral without fearing the award will be affected. See id.
63. A mini-trial is a private dispute resolution process in which attorneys for each
party present their cases to the other side in an abbreviated format in a session chaired by
a neutral advisor. See Evans & Sloane, supra note 35, at 761. After the case presentations,
the parties attempt to negotiate a settlement, usually with the assistance of a neutral advisor who facilitates the discussion or renders a nonbinding opinion. See id.
64. In the context of employment disputes, mediation and neutral fact-finding have
been successfully combined. See, e.g., Carol Wittenberg et al., Why Employment Disputes
Mediation Is on the Rise, LITIG. & TECH. MGMT. REP., Feb. 1996, at 8, 8.
BEYOND FORMALISM AND FALSE DICHOTOMIES:
THE NEED FOR INSTITUTIONALIZING A FLEXIBLE
CONCEPT OF THE MEDIATOR’S ROLE
JEFFREY W. STEMPEL*
I. INTRODUCTION ..................................................................................................
II. THE FALSE PREMISE OF THE FACILITATIVE-EVALUATIVE DICHOTOMY ..............
A. The Unnecessary Either/Or Perspective on ADR ......................................
B. The Perils of Formalist Characterization ..................................................
III. FLORIDA’S REIFICATION OF THE FORMALIST FALSE DICHOTOMY.......................
IV. THE BENEFITS OF ECLECTIC FLEXIBILITY .........................................................
A. A Page of History . . . Or Reinventing the Flat Tire ..................................
B. Ignoring the Market—and Reality—at Peril .............................................
C. Distributional Concerns and the False Dichotomy....................................
D. Additional Factors Favoring a Place for Flexible and Evaluative
Approaches .................................................................................................
1. Game Theory and the Effective Mediator ............................................
2. Chaos Theory and the Effective Mediator............................................
3. Value-Added Mediation .......................................................................
V. THE LIMITS OF EVALUATION: MEDIATION MUST BE MEDIATION—MAYBE ........
VI. CONCLUSION......................................................................................................
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I. INTRODUCTION
This Article builds upon the issues aired during a panel discussion at the Fifth Annual Conference for Florida Mediators and Arbitrators, an event that marked the tenth anniversary of the Florida
Dispute Resolution Center (DRC). In effect, the Conference marked
the end of a decade of the ADR revolution in Florida. Court-ordered
mediation was established and mandated for many state cases beginning with the enactment in 1987 of chapter 44, Florida Statutes
(“Mediation Alternatives to Judicial Action”), 1 although this resulted
from substantial ADR efforts during the 1970s and early 1980s that
laid the groundwork for ADR’s arrival as official state policy. Since
ADR became official state policy, mediation has become part of the
legal landscape in Florida, but issues continue to rage concerning the
proper scope and process of mediation. The panel discussion, entitled
“Evaluative v. Facilitative Mediation: Current Ethical and Policy
Considerations,” reflects a debate conducted nationally as well as in
* Fonvielle & Hinkle Professor of Litigation, Florida State University College of Law.
B.A., University of Minnesota, 1977; J.D., Yale Law School, 1981. Special thanks to James
Alfini, E. Donald Elliot, Ann McGinley, Robert Moberly, Sharon Press, Mark Seidenfeld,
and Jean Sternlight for ideas and assistance. Thanks also to the Florida Dispute Resolution Center staff as well as the Fifth Annual DRC Conference panelists and participants,
and to Dean Donald Weidner and the Florida State University College of Law for continued support, which included research leave time during which this Article was finalized.
1. See Act effective Jan. 1, 1988, ch. 87-173, 1987 Fla. Laws 1202 (codified as
amended in scattered sections of FLA. STAT. ch. 44 (1995 & Supp. 1996)).
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Florida.2 Expanding upon my comments in the panel discussion, 3 I
defend the evaluative aspects of mediation and question the notion
that “good” mediation must fit the facilitative model. 4 Primarily,
however, I am not advocating evaluative mediation but rather endorsing flexible mediation that permits judicious use of evaluative
techniques. Conceptual oversimplification occurs when the debate is
cast in the wooden form of evaluation versus facilitation. Not only is
this framing unwise and misleading, but it also may lead to government-sponsored unfairness when the mediation enterprise takes
place under the auspices of court-compelled mediation.
In discussing the merits of evaluative and facilitative approaches,
scholars and participants have tended to overlook or understate the
importance of distinguishing between purely private mediation and
the semi-public mediation that occurs in states such as Florida that
have mandated mediation as part of the government’s official dispute resolution process.5 When this system prevails, it is of no real
moment that the mediators are not state judicial employees. They
nonetheless are an integral part of the state’s dispute resolution apparatus. In this environment, the state errs when it mandates an excessively formal version of the facilitative model, one that in some
cases may institutionalize unfairness. Instead, Florida law and policy should celebrate a more eclectic model of good mediation and, in
appropriate cases, provide a meaningful possibility of reviewing mediated outcomes for fairness.
2. See Robert B. Moberly, Mediator Gag Rules: Is It Ethical for Mediators to Evaluate or Advise?, 38 S. TEX. L. REV. (forthcoming 1997) (noting growth of mediator ethical
costs and emerging questions).
3. See James J. Alfini, Moderator, Evaluative Versus Facilitative Mediation: A Discussion, 24 FLA. ST. U. L. REV. 919, 922, 927-28, 932, 934-35 (1997) [hereinafter Panel
Discussion].
4. See James J. Alfini, Trashing, Bashing, and Hashing It Out: Is This the End of
“Good Mediation”?, 19 FLA. ST. U. L. REV. 47, 47-50, 73-74 (1991) (noting that many or
even the bulk of mediation professionals define proper or “good” mediation as employing
exclusively facilitative approaches that preside over party-generated resolutions and suggest areas for party exploration, but refrain from providing legal judgments or rendering
evaluation of the matter or any party positions).
5. A recent exception, published just after the panel discussion, is Jacqueline M.
Nolan-Haley, Court Mediation and the Search for Justice Through Law, 74 WASH. U. L.Q.
47, 62-75 (1996), which focuses on the degree to which mediation differs according to
whether it occurs solely through the parties’ efforts or is required as part of the courtrelated dispute resolution process. Although Professor Nolan-Haley does not emphasize
the facilitative-evaluative debate, it is apparent that she concludes that a court-affiliated
mediator should, on occasion, take affirmative steps to prevent the mediation from becoming an arena of injustice, even when the parties appear to have made a “voluntary”
agreement. Although this proactive mediator should ordinarily avoid direct evaluation if
possible, Professor Nolan-Haley’s concern for unrepresented parties and for mediation
outcomes that, at least largely, parallel likely adjudication outcomes implicitly suggests a
role for judicious use of evaluative techniques by mediators in appropriate cases.See id. at
88-100.
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II. THE FALSE PREMISE OF THE FACILITATIVE-EVALUATIVE
DICHOTOMY
A. The Unnecessary Either/Or Perspective on ADR
Although the panel discussion provided a most interesting exchange of views, it proceeded on the basis of what I hope some day
will be universally recognized as a false dichotomy. 6 In particular,
the fallacious framework for our discussion has been the notion that
mediation is, or must be, either “facilitative” (designed to allow parties to work out a consensual resolution of their disputes) or “evaluative” (designed to provide a neutral viewer’s assessment of the relative merits of the issues in order to move the parties to a resolution). 7
In my view, notwithstanding respected views to the contrary, 8 this
6. The formal title of the panel discussion—“Evaluative v. Facilitative Mediation: A
Discussion”—suggests that the two modes of mediation are polar opposites with no common overlap. See Panel Discussion, supra note 3, at 1.
7. The facilitative-evaluative dichotomy has been widely accepted, at least for purposes of framing discussion, by many ADR commentators. See, e.g., ROBERT A. BARUCH
BUSH & JOSEPH P. FOLGER, THE PROMISE OF MEDIATION: RESPONDING TO CONFLICT
THROUGH EMPOWERMENT AND RECOGNITION 11-12 (1994) (describing the mediation
movement as being at a “crossroads” where it must choose between a “problem-solving”
method of mediation, which makes use of evaluative techniques as a spur to settlement,
and a “transformative approach,” generally described as more facilitative in tone with an
eye toward “fostering empowerment” of the parties); Leonard L. Riskin, Understanding
Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1 HARV.
NEGOTIATION L. REV. 7, 10-16 (1996) (reviewing variants of evaluative and facilitative approaches to mediation); Jeffrey W. Stempel, Reflections on Judicial ADR and the MultiDoor Courthouse at Twenty: Fait Accompli, Failed Overture, or Fledgling Adulthood?, 11
OHIO ST. J. ON DISP. RESOL. 297, 340-42 (1996) (noting a variation in mediation and other
ADR methods according to whether the device provides a primarily adjudicatory (evaluative) or settlement-brokering (facilitative in combination with evaluative) role); Leonard
L. Riskin, Two Concepts of Mediation in the FHA’s Farmer-Lender Mediation Program, 45
ADMIN. L. REV. 21, 24-30 (1993) (noting the presence of a primarily evaluative and a primarily facilitative approach in mediations conducted under the auspices of the federal
farm lending program); Craig A. McEwen, Pursuing Problem-Solving or Predictive Settlement, 19 FLA. ST. U. L. REV. 77, 78-84 (1991) (describing varieties of evaluative and facilitative approaches); Carrie Menkel-Meadow, Pursuing Settlement in an Adversary Culture:
A Tale of Innovation Co-Opted or “The Law of ADR”, 19 FLA. ST. U. L. REV. 1, 1-4, 18-20
(1991) (perceiving a tension between a facilitative, party-centered view of mediation and
systemic goals of case resolution consistent with legal norms); Susan S. Silbey & Sally E.
Merry, Mediator Settlement Strategies, 8 J.L. & POL’Y 7, 19-20 (1986) (describing evaluative and facilitative techniques employed by mediators).
Although some degree of polarity can be a useful analytic device or means of organizing
discussion, labels of this type inevitably tend to organize thought as well, sometimes constricting it and leading analysis astray.
8. Professors Robert A. Baruch Bush and Lela Love, for example, are two prominent
and respected commentators who can at least be interpreted as arguing that facilitative
mediation is the one true way and that any infusion of evaluative techniques essentially
corrupts mediation and alchemizes it into something else and something less. For example, Professor Bush has argued that mediation be defined in a more or less singular fashion and, implicitly, that his version of the facilitative approach—transformation and
empowerment of the parties—should be the standard:
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notion is simply wrong.9 Good mediators should be both facilitative
and evaluative in varying degrees. In addition, the view that mediators act as either facilitators or evaluators represents a triumph of
excessively formalist thinking at a time when effective dispute resolution law and policy require a functional approach.
To some extent, I am setting up a straw entity in order to attack it
in furtherance of my thesis. As the panel discussion at the DRC Conference unfolded, it became quite clear that panelists themselves had
subtle and nuanced views on the topic. Those panelists previously
identified with the facilitative perspective would not absolutely preclude mediators taking actions that would in all likelihood lead to
making assessments of the disputants’ positions 10 and behavior.
[F]or every mediator to choose for himself what conception to adopt—which
may be close to the present situation—does not seem a good idea at all. The
result would be that different mediators would handle similar dilemmas in entirely different fashion. Not only would this be unfair to individuals, it would
be damaging to the reputation of mediation as a whole. The lack of uniformity
and common standards would undermine confidence in and respect for mediation.
Robert A. Baruch Bush, Ethical Dilemmas in Mediation 20 (1989) [hereinafter Bush, Ethical Dilemmas] (unpublished manuscript, on file with author); see also BUSH & FOLGER,
supra note 7, at 7-8; Robert A. Baruch Bush, The Dilemmas of Mediation Practice: A
Study of Ethical Dilemmas and Policy Implications (Nat. Inst. Disp. Resol. monograph
1992) (presenting revised and updated version of 1989 paper).
Professor Love makes a similar case for the benefits of facilitation and the need to define mediation as an essentially facilitative enterprise in her contribution to this Symposium. See Lela Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 FLA.
ST. U. L. REV. 937, 946 (1997) (“A Uniform Understanding of Mediation Is Critical to the
Development of the Field.”).
For reasons set forth below, I disagree that such singular uniformity is required or desirable.
9. Most polar models are wrong if taken too rigidly. See, e.g., Robert G. Bone, Lon
Fuller’s Theory of Adjudication and the False Dichotomy Between Dispute Resolution and
Public Law Models of Litigation, 75 B.U. L. REV. 1273, 1274-76 (1995) (arguing persuasively that litigation generally serves both dispute resolution and policy-setting functions
and that adjudication cannot be exclusively or even primarily defined by either model).
Dichotomous models are useful heuristic devices for aiding understanding, particularly
for framing issues and enabling discussion to proceed within a realm of common terminology and understanding. For example, even though I criticize the “evaluative-facilitative”
model as inaccurate, this Symposium demonstrates the model’s utility for framing and
fomenting vigorous discussion. When another participant speaks of facilitative techniques,
I have a basic understanding of what they mean. When I talk of evaluative approaches,
they know basically what I mean. However, even good heuristic models work mischief
when they are used not only to illustrate, but also to limit debate or thought or to create
bright line criteria for identifying mediation practice as good or bad, legitimate or illegitimate, or pure or vulgarized.
10. See Panel Discussion, supra note 3, at 934 (comments of Professor Lela Love)
(noting that when confronted with a party’s desire to enter into an agreement barred by
applicable law, mediators can raise “concerns about the legality of the agreement and advise them to get legal counsel”); id. at 922 (comments of Professor Cheryl McDonald) (rejecting the mediator’s authority to state an opinion about a judge’s decisionmaking reputation in landlord-tenant matters because “there are a lot more ways and more neutral
ways in which both parties could be alerted to the possibility that judges, being human
beings, might have particular biases that might have an impact on their case and that’s
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However, partisans of evaluation were willing to impose some limits
on the evaluative mediator to prevent mediation from becoming
early neutral evaluation or, worse yet from the perspective of a facilitative mediator, arbitration or coerced settlement engineered by a
nonjudicial officer.11 As applied to the hypothetical problems addressed by the panel, it seemed clear that neither ironclad facilitation nor inflexible evaluation enjoyed universal support.
In view of the panelists’ tacit appreciation of these issues, the
prominence of the facilitative-evaluative dichotomy suprises me.
How can the battle lines be so strictly drawn when so many of the
leading experts in the field seem not to subscribe to the premise of a
vast gulf between types of mediation? To some extent, classifications
and polarities serve as heuristic devices useful in illuminating a
subject and organizing discussion and debate. Nevertheless, organizational labels and constructs tend to frame thought as well as discussion and can lead to narrowed and polarized analysis. When an
organizational dichotomy or nomenclature moves from being an
analytic device to becoming a yardstick for measuring and policing
mediators, the unnecessary dichotomization of mediation styles becomes something more than incorrect. An excessively compartmentalized and polarized view of mediation establishes a system that
may make mediation both less effective in resolving cases and more
something they should both be thinking about”); id. at 928 (comments of Professor
McDonald) (noting that to educate parties and attempt to correct misimpressions, a mediator “might point them towards the library” but should not offer his or her own assessment); id. at 923 (comments of Professor Robert Moberly) (noting that Florida Rule for
Certified and Court-Appointed Mediators 10.090(d) “doesn’t prohibit all opinions, but it
does prohibit [a mediator’s announced opinion] as to how the judge in that particular case
will rule”); id. (comments of Professor Moberly) (suggesting a distinction between permitted and prohibited types of evaluation and urging “great caution in utilizing this sort of
opinion and evaluation”); id. at 925 (comments of Professor Moberly) (observing that the
mediator is allowed “to provide information . . . . [although] [t]he line between information
and advice may not always be so clear”); id. at 929 (comments of Professor Moberly) (“The
Florida Rules don’t prohibit all or even most evaluations. They only prohibit those specifically mentioned, or those that relate impartiality or self-determination. The Rules specifically allow mediators to point out possible outcomes of the case.”); id. at 924 (comments of
Javier Perez-Abreu) (accepting the premise that mediators are permitted to at least advise
participants of relevant law and legal factors because in doing so “[y]ou’re not giving them
legal advice, you’re telling them what’s in the statute and what the law provides. You’re
not giving an opinion as to the law or as to its merits. I guess if you take it further and
start analyzing the statute or interpreting the statute, you may get into trouble”).
11. See id. at 928 (comments of Lawrence M. Watson, Jr.) (observing that the evaluation of party positions is permissible and useful and “becomes dangerous only when you
start taking the decisionmaking process away from the parties”); id. at 922 (comments of
Jeffrey W. Stempel) (noting that if the mediator provides an assessment of the merits of
an issue or the likely adjudication outcome too early in the mediation process, it may warp
the process and preclude the opportunity for a mutual resolution by the parties);id. at 928
(comments of Donna Gebhart) (approving nonevaluative techniques of alerting the parties
and raising their consciousness as a required prelude to offering an assessment of position, circumstances, or possible outcomes).
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dangerous to certain parties. When mediation is mandatory, these
potential defects of the false dichotomy cause heightened concern.
B. The Perils of Formalist Characterization
Related to the problem of the false dichotomy is the formalist application of the either/or construct. If, for example, one adopts as a
first premise the view that mediation is by definition nonevaluative,
and then rigidly applies this premise to issues of appropriate mediator behavior, the result is a formalist system that permits mediators
little or no leeway to depart from the nonevaluative style. This sort
of regulatory regimen may satisfy the nonevaluative ethos of some
mediation scholars, but it does so at the risk of becoming a rigid system that prevents mediators from taking practical actions most appropriate to the cases they mediate.
A formal regulatory regimen also has the uncomfortable air of
tautology and self-fulfilling prophecy. For example, if as the first leg
of a syllogism one posits that “all mediation is nonevaluative and facilitative only,” any situation of arguably evaluative or interventionist mediation becomes “nonmediation” or “improper mediation” when
the syllogism is carried to conclusion. This not only results in an excessively narrow view of mediation, but also creates a regulatory regime that discourages flexible, hybrid approaches to dispute resolution. At its extreme, the “mediation is nonevaluative” mantra becomes an end in itself and loses sight of the ultimate goal of mediation or any other ADR technique: the efficient and just resolution of
controversy. When the end instead becomes the preservation of a
particular model of mediation (nonevaluative), attainment of this
goal may overwhelm the more germane objective of just dispute
resolution.
To attempt to illustrate my concerns and criticisms, I want to focus primarily on a hypothetical that touches on a major criticism of
mediation: the possibility that it disserves women, 12 weaker parties,
and less assertive entities.13 I will also refer to two other hypotheti12. See, e.g., Penelope E. Bryan, Killing Us Softly: Divorce Mediation and the Politics
of Power, 40 BUFF. L. REV. 441, 444-46 (1992) (suggesting that mediation’s elimination or
de-emphasis of legal rights in pursuit of resolution disadvantages the typical woman in a
domestic dispute due to the imbalance of power); Trina Grillo, The Mediation Alternative:
Process Dangers for Women, 100 YALE L.J. 1545, 1549-51 (1991) (contending that more informal processes of mediation may discourage women disputants from asserting legal
rights and encourage mediators to overlook such rights in seeking resolution of domestic
matters). Both of these authors, however, are critical of both evaluative and facilitative
mediation: an evaluative mediator might bludgeon a more pliable party into settlement by
disparaging her case, while a facilitative mediator might encourage her to resolve the
matter quickly, even at substantial cost to her legal entitlements.
13. See Joseph Singer, Nonjudicial Resolution Mechanisms: The Effects on Justice for
the Poor, 13 CLEARINGHOUSE REV. 569, 575 (1979) (“It is generally agreed that mediation
between parties of significantly unequal power is inappropriate.”); see generally RICHARD
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cal mediation situations set forth in the panel discussion: a landlordtenant dispute and a personal injury tort action.14
Regarding the family law hypothetical, assume a husband and
wife are divorcing. The husband is a Harvard MBA investment
banker. The wife quit school one year shy of her bachelor’s degree to
work to fund the husband’s graduate education. Just as the husband
began to profit from the capital (including spousal human capital)
investment in the MBA, the couple had two children. The wife
worked at home raising the infants and did not return to either
school or a career. When she raised the possibility of hiring substantial childcare so she might finish her education, the husband insisted
on the benefits of an at-home mother and, despite some initial protest by the wife, prevailed on the issue. The children are now two
and three years old, respectively. The husband has initiated the divorce. The wife is concerned about the future but finds life with the
husband a constant state of tension. She also wants out of the marriage. The wife is also generally exhausted from the rigors of child
rearing. The couple enters mandatory mediation without formal
counsel, and the husband’s settlement offer is laughably low—but
the wife has no idea that the offer is low.
Under this perhaps soap-operatic scenario, what should the good
mediator do? Obviously, determining the “best” mediation strategy
requires more information than this thin hypothetical can provide.
However, the sketch provided suggests to me that some degree of
evaluative mediation is in order. The ridiculousness of the husband’s
opening offer cannot go unrebutted. As long as the mediator operates
within an acceptable range of discretion, procedure should be the
mediator’s choice, whether by commenting to one or both parties, insisting on counsel, or leading the parties either individually or collectively through a series of analyses designed to establish the appropriate parameters for dividing property and providing for aliABELLED, THE POLITICS OF INFORMAL JUSTICE (1982) (various contributors arguing that
weaker parties do better in more formal disputing systems).
14. See Panel Discussion, supra note 3, at 921 (comments of Moderator James J. Alfini):
The first scenario I’d like to present [to the panel] is basically one you would
find in the county courts in Florida. It’s a landlord-tenant dispute. It’s a dispute over the withholding of rent until an unsafe condition in an apartment is
fixed up. Both parties, as is the case in most county mediations, are unrepresented. Both the landlord is unrepresented, and the tenant is unrepresented.
See also id. at 928 (comments of Dean Alfini):
Let’s move on to the context in which we generally see the evaluative versus
facilitative issues most clearly framed: big civil case mediation. Here in Florida, this is circuit court mediation. We have a circuit court mediation, a personal injury case, and the insurance adjuster is taking a hard line that there is
no liability in this case. The mediator is a retired judge, and he knows, or
thinks he knows that juries almost always find liability in these kinds of cases
in that venue. May he reveal this to the parties?
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mony and child support. Leading the parties through such analyses
may, by implication, reveal the inadequacy and probable bad faith of
the husband’s opening offer.
Although there should probably be a presumptive preference for
requiring mediators to first exhaust facilitative approaches before
turning evaluative, mediators should have some discretion to make
evaluative moves if necessary, and that choice should be given wide
deference by the courts. For example, in the divorce scenario outlined above, straining to avoid sounding evaluative may needlessly
prolong the process or provide opportunities for the husband to simply obfuscate. Further, even if the mediator begins by indirectly attempting to spur the wife toward making or obtaining a more realistic assessment of the husband’s position, she may not understand or
appreciate the significance of the indirect approach. At some point,
the good mediator should be permitted to be blunt with the wife and
tell her that the husband’s offer is far lower than any imaginable
court-ordered financial settlement.15
15. In his professional responsibility casebook, Professor Stephen Gillers uses a
similar hypothetical to prompt discussion regarding the lawyer’s duty to settle a claim in
the manner desired by the client, even though the lawyer thinks the proposal is completely inadequate and unfair to the client. See STEPHEN GILLERS, REGULATION OF
LAWYERS: PROBLEMS OF LAW AND ETHICS 85-86 (4th ed. 1995) [hereinafter GILLERS,
REGULATION OF LAWYERS] (“Accept the Offer” problem); see also STEPHEN GILLERS,
TEACHER’S MANUAL FOR REGULATION OF LAWYERS: PROBLEMS OF LAW AND ETHICS 40 (4th
ed. 1995) [hereinafter GILLERS, TEACHER’S MANUAL] (commentary on problem). In the hypothetical, a matrimonial lawyer is faced with
a low-ball offer, in the ballpark for first offers but low and obviously an invitation for a counteroffer. I presented the offer to [the client] because I’m supposed to and told her not to be offended it’s so low . . . . What she said next
blew me away. “Take it.” She doesn’t want to negotiate, not even if she assumes—as I told her based on my experience she should—that I can get another $250,000 on the property division and $35,000 a year more on the support. Maybe more.
GILLERS, REGULATION OF LAWYERS, supra, at 86.
Professor Gillers concludes that the lawyer may continue to advise the client, implore
her not to settle so quickly, and even withdraw (pursuant to Model Rule of Professional
Responsibility 1.16(b)(3)) because he finds the client’s decision “repugnant or imprudent.”
GILLERS, TEACHER’S MANUAL, supra, at 40. The lawyer may not, however, obstruct or
sabotage the settlement if the duly informed client continues to insist on the low-ball offer.
Although mediators are not lawyers and do not represent the parties (and therefore
should not give “legal advice” to the parties), it seems incongruous that a mediator who
presides over the case due to court order has, under the facilitative model, so little discretion to attempt to prevent foolish settlements. The lawyer can not only advise the client,
but also can fire a warning shot across the client’s metaphorical bow by threatening to
withdraw. The mediator can withdraw but not advise. Undoubtedly, the mediator can also
ask the probing questions noted in the text. At some point, however, probing questions
may become tantamount to advice or evaluation. Fans of the facilitative model would forbid this. I would not only endorse it in situations such as the lopsided divorce-settlement
hypothetical, but would also urge that mediators be permitted to leapfrog the indirect approach, at least when a disputant has no counsel or has inadequate counsel. Ultimately,
however, the mediator, like the lawyer or judge, probably must permit competent parties
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Of course, if the mediator’s conduct unfairly favors one side or
otherwise results in injustice, courts should police the mediation
process by setting aside or modifying agreements tainted by improper mediation. Nevertheless, mediation is not improper simply
because it contains evaluative components. On the contrary, as this
brief example underscores, nonevaluative mediation can improperly
assist injustice. By simply “facilitating” the hypothetical divorce
without editorial comment, the mediator is giving tacit legitimacy to
the husband’s efforts to unfairly impoverish his spouse and children
in a manner no court would tolerate.16
The standard facilitative response to this scenario—and it is a
good one—posits that the good mediator first tries to raise party
awareness and permit the parties to obtain evaluative expertise.
Parties are advised of the right to legal counsel, or are even urged to
get counsel.17 The parties are encouraged to grasp the implications
that would become apparent if an evaluation occurred through the
mediator asking, for example, whether the wife has thought about
the children’s college educations, private versus public primary and
secondary school, family vacations, summer camps, childcare while
she seeks to return to work, tuition if she finishes or continues college training, and so on. Although these techniques may be very effective in most mediations, they may be woefully ineffective in dealing with party imbalances of power, sophistication, or funding, particularly in the case of spouse driven by guilt, exhaustion, frustration, or impatience. Suggesting that a party seek out a lawyer may
salve the mediator’s conscience and that of the system as well, but
this does little real good when a party irrationally resists legal counsel, or when poverty or time pressure preclude legal advice or result
in substandard legal advice.
The anti-war bromide of the 1960s that “not to decide is to decide”
remains apt, whatever one’s historical views of U.S. foreign policy.
When mediators are too studiously “neutral,” there exists significant
to enter into even foolish settlements, unless the proposed agreement is not just unwise
but unconscionable.
16. At least I hope no court would tolerate it, although the settlement might be
deemed unwise but not unconscionable or violative of public policy. If the settlement imperils the children’s well-being, a court would presumably have authority to reject it (if in
midtrial) or modify it on later motion. Whatever the trial court’s decision, it would be
subject to reasonably rigorous appellate review that would be likely to correct at least
gross errors of law, procedure, or equitable distribution. By contrast, judicial review of
private settlements or mediated settlements is highly deferential. A court at either the
trial or appellate level is unlikely to disturb any but the most facially unconscionable mediated settlements.
17. See Craig A. McEwen et. al, Bring in the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce Mediation, 79 MINN. L. REV. 1317, 1322-23,
1358-62 (1995) (concluding that the presence of attorneys substantially reduces the possibility that one party will take advantage of the other in family law mediation).
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danger that they will favor the stronger, more sophisticated, meaner,
or more deceptive party. Proponents of the facilitative approach tend
to ignore or underappreciate this aspect of disputing activity. For
example, Professor Lela Love criticizes the evaluative approach because
[i]n mediation, little protection exists from a mediator’s inadequately informed opinion. . . . The mediator’s opinion that one of
the parties should buy a carpet to lessen the impact of sounds
heard by a neighbor or that one of the parties does not have
standing to bring a particular claim in court carries enormous
weight.18
However, the mediator’s silence also carries enormous weight. When
the parties announce a settlement, the mediator’s lack of editorial
comment or other activity (other than wrapping up the case) suggests to the parties that their settlement falls within the legal system’s zone of acceptability. If our hypothetical wife being taken to
the financial cleaners by her investment-banker husband had any
misgivings about the adequacy of his proposed settlement, those
misgivings are effectively erased when the mediator—on the case because of the coercive power of the state—tacitly blesses the settlement. Professor Love and others are correct in highlighting the need
to supervise the mediator’s influence through action, but they err in
overlooking the mediator’s influence through inaction.
An illustrative, if absurd, example underscores the point. Imagine
mediating between Pol Pot and Mother Theresa,19 with neither represented by counsel.20 Can anyone seriously suggest that the pure facilitative model, applied with inflexible formalism, is really the appropriate approach? (“You know, Mother Theresa, there may be
some legal issues in this case and you might want to consult a lawyer, but otherwise if you and Mr. Pot want to agree that all relief aid
18. Love, supra note 8, at 942-43.
19. This scene should probably be avoided by the statutory authority of courts to direct disputes away from mediation when it is deemed futile. Stranger things have happened, however. See Albert W. Alschuler, Mediation with a Mugger: The Shortage of Adjudicative Services and the Need for a Two-Tier Trial System in Civil Cases, 99 HARV. L.
REV. 1808, 1809-11 (1986) (describing a failed victim-offender mediation attempt involving
mugging victim Bernhard Goetz, who later became notorious for the shooting of men intimidating him on a New York City subway train); Jennifer Gerarda Brown, The Use of
Mediation to Resolve Criminal Cases: A Procedural Critique, 43 EMORY L.J. 1247, 1273
(1994) (finding victim-offender mediation widespread but ill-advised in criminal matters).
20. When disputants have competent counsel, many of the concerns attending mediation or any other form of dispute resolution are greatly allayed. See McEwen, supra note
17, at 1322-23, 1346-47, 1358-62 (concluding that potential unfairness due to imbalances
of power or sophistication are greatly reduced when parties have counsel). Unfortunately,
a high percentage of parties participating in court-mandated ADR do so without lawyers.
See id. at 1344-52; see also Nolan-Haley, supra note 5, at 82-83, 94-95 (noting that many
or perhaps most disputants in mandatory mediation participate without counsel).
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stops at the border and is delivered to Khmer Rouge soldiers, then
we have a settlement.”21) To be sure, a facilitative mediator may enable these two disputants to reach an agreement, but will the
agreement be sufficiently fair that the judicial system should embrace it?22
In my view, even the commentators most associated with the facilitative and nonevaluative perspective23 recognize this when applying their model of facilitative mediation to situations of unequal
parties or strategic behavior.24 Similarly, proponents of the evaluative mediation approach realize that mediation becomes a charade if
the first meeting of the parties results in an immediate decree by the
mediator.25 Consequently, the debate in the literature is more complex than can be captured by the “facilitative versus evaluative” de21. Jim Alfini, graciously commenting on this Article, found the hypothetical jarring
and over-the-top in its absurdity. Although his grasp of reality is probably better than
mine, I disagree with Alfini: if we had better information about characteristics of the parties, I predict we would find many mismatches between a disputant who is essentially fair
and one who is ruthlessly selfish. Part of the lawyer’s role is to level the playing field.
For a dispiriting example of attempted facilitative mediation when the parties are imbalanced in resources and attitude, see Scott H. Hughes, Elizabeth’s Story: Exploring
Power Imbalances in Divorce Mediation, 8 GEO. J. LEGAL ETHICS 553 (1995). Notwithstanding legal representation, the wife in this divorce saga appears not to have received
either full justice or adequate voluntary resolution. See id. at 595:
Under the laws of many states, attorneys have an ethical duty to advise clients about alternative dispute resolution. Although I would have advised
Elizabeth about mediation, I would not have recommended it.
. . . [F]avorable indicators [for a positive outcome] began to melt away during
mediation as the ugly presence of the power imbalance between [her husband]
Paul and Elizabeth, seemingly dormant, began to reappear from deep within
the relationship. Even with the help of her attorney and accountant, Elizabeth
could not overcome Paul’s power. The push to settle, the persuasive presence
of the mediator, and the non-confrontational atmosphere conspired to render
Elizabeth impotent against Paul. As the mediation progressed, Paul was more
and more competitive and Elizabeth was increasingly cooperative, unconditionally so.
22. See Owen M. Fiss, Against Settlement, 93 YALE L.J. 1073, 1075 (1984) (suggesting
that even fair settlements may disserve justice by preventing full and public adjudication
of controversies). Professor Fiss is clearly correct in noting that settlement resolutions are
not necessarily wise or just. However, he is incorrect to the extent he suggests that adjudication is inevitably a preferred alternative. Courts render plenty of injustice. Disputants
should be entitled to avoid or minimize these instances by exiting the system through settlement, provided that the settlement, even if unwise, is not coerced or unconscionable.
When ADR is court-ordered, courts must be sensitive to the coercion issue lurking simply
because the parties have been ordered to mediate, arbitrate, or obtain a third-party
evaluation.
23. See, e.g., BUSH & FOLGER, supra note 7, at 18-21; see also Kimberlee K. Kovach &
Lela P. Love, “Evaluative” Mediation Is an Oxymoron, 14 ALTERNATIVES TO HIGH COST
LITIG. 31, 31-33 (1996).
24. For example, Bush and Folger, although stressing facilitation, also emphasize the
need to empower the parties and prompt them to recognize the concerns of one another.
They also advise mediators to note and compensate for differential power relationships.
See BUSH & FOLGER, supra note 7, at 70-85.
25. See, e.g., Panel Discussion, supra note 3, at 922 (comments of Jeffrey W. Stempel); id. at 924 (comments of Lawrence M. Watson, Jr.).
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scription, and panel discussions such as the present exchange invariably result in more refined analyses of specific situations with
“evaluators” and “facilitators” differing relatively little in the concrete strategies they employ or advocate for presiding over particular
situations.26 For example, in her article in this symposium, Professor
Lela Love, clearly a proponent of the facilitative approach and a
critic of evaluation, deems it good facilitative mediation when
“[m]ediators push disputing parties to question their assumptions,
reconsider their positions, and listen to each other’s perspectives,
stories and arguments. The urge the parties to consider relevant law ,
weigh their own values, principles and priorities, and develop an optimal outcome. In so doing, mediators facilitate evaluation by the
parties.”27 The activities Professor Love describes obviously have an
evaluative dimension as well as a facilitative and empowering mission; these activities simply steer clear of the heavy-handed evaluation that fundamentally alters the mediation enterprise.
III. FLORIDA’S REIFICATION OF THE FORMALIST FALSE DICHOTOMY
Unfortunately, Florida mediation law appears not to be so supple.
Although the statutory language does not require a complete ban on
evaluative mediation, the statute and the rules have been interpreted to mean codification of a rigidly facilitative perspective in
which mediators are absolutely forbidden from expressing a view regarding the merits of the dispute. Florida’s mediation statute defines
mediation as “a process whereby a neutral third person called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties.”28 The Florida Rules of Civil Procedure
and the Florida Family Law Rules of Procedure speak to the logistical administration of the mediation and even to such matters as
compensation of the mediators. However, the Rules say nothing regarding the appropriate mediation style beyond simply defining the
general principal that mediation is the facilitation of a party-driven
agreement.
The Florida Rules for Certified and Court-Appointed Mediators
are somewhat more specific. However, these Rules are largely patterned on the statutory language and thus contain a similar facilitative slant, although they do not textually foreclose some degree of
helpful evaluation in the service of mediation. Arguably, the statute
and the Rules, if properly interpreted, encourage flexibility and a
26. See generally Panel Discussion, supra note 3 (despite ideological differences
among participants, general concerns existed regarding appropriate mediator behavior in
concrete situations).
27. Love, supra note 8, at 939 (emphasis added).
28. FLA. STAT. § 44.1011(2) (1995).
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broad notion of facilitation that encompasses use of evaluative techniques in appropriate circumstances. Specifically, the Rules state:
Mediation Defined. Mediation is a process whereby a neutral
third party acts to encourage and facilitate the resolution of a dispute without prescribing what it should be. It is an informal and
nonadversarial process with the objective of helping the disputing
parties reach a mutually acceptable agreement.29
....
General Principles. Mediation is based on principles of communication, negotiation, facilitation, and problem-solving that emphasize:
(1) the needs and interests of the participants;
(2) fairness;
(3) procedural flexibility;
(4) privacy and confidentiality;
(5) full disclosure; and
(6) self determination.30
In addition to noting fairness as an essential principle of mediation, the Rules contain other language suggesting that the facilitative notion of mediation need not exclude an evaluative component.
For example, the role of the mediator as defined in the Rules “includes but is not limited to” the generally facilitative techniques of
assisting the parties to identify issues, improve communication, explore alternative resolutions, and assist the parties to reach “voluntary” agreements.31 If this broad language and the notion of a genuinely voluntary accord is treated seriously, mediation under the
Florida Rules should not forbid activist mediation that occasionally
takes an evaluative turn, particularly if this evaluation is done to
further fairness.
Other provisions in the Rules buttress this assessment. For example, mediators “shall promote mutual respect among the parties
throughout the mediation process.”32 In addition, the mediators “shall
not unnecessarily or inappropriately prolong a mediation session if it
becomes apparent that the case is unsuitable for mediation or if one
or more of the parties is unwilling or unable to participate in the
mediation process in a meaningful manner.” 33 The mixed message of
29. FLA. R. CERT. & CT.-APPTD. MEDIATORS Rule 10.020(b) (preamble) (emphasis
added); see also FLA. STAT. § 44.1011(2) (1995).
30. FLA. R. CERT. & CT.-APPTD. MEDIATORS 10.020(d) (emphasis added).
31. FLA. R. CERT. & CT.-APPTD. MEDIATORS 10.020(c).
32. FLA. R. CERT. & CT.-APPTD. MEDIATORS 10.060(f) (wording of the selfdetermination article of the Rules).
33. FLA. R. CERT. & CT.-APPTD. MEDIATORS 10.050(b) (providing that the “mediator
shall assist the parties in evaluating the benefits, risks, and costs of mediation and alternative methods of problem solving available to them”).
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mediation philosophy is to some extent encapsulated in the committee note to Rule 10.060 (Self-Determination), which provides:
While a mediator has no duty to specifically advise a party as to
the legal ramifications or consequences of a proposed agreement,
there is a duty for the mediator to advise the parties of the importance of understanding such matters and giving them the opportunity to seek such advice if they desire.34
In other words, because court-ordered mediation is nonbinding,
the mediator must advise the parties regarding the gravity of settling a dispute that would otherwise be subject to litigation and the
tacit advisability of obtaining appropriate legal advice. 35 However,
the mediator is not required to advise the parties regarding even a
one-sided settlement on which they appear to be embarking. Although the committee note expresses a useful sentiment and certainly does not foreclose the mediator from registering evaluative
sentiments in the interests of avoiding unfairness, it continues to encourage use of the facilitative model of mediation in Florida.
For example, a mediator is unlikely to ever be censured for
standing idly by while the wife in the divorce hypothetical sells her
future and that of her children down the river, as long as the mediator has given at least a boilerplate disclaimer at the start of the mediation.36
The most express recognition of fairness dangers in mediation is
found in section 44.102, Florida Statutes, which provides that “[a]
court shall not refer any case to mediation if it finds there has been a
significant history of domestic abuse that would compromise the mediation process.”37 Presumably, all such instances would be found to
undermine mediation, and therefore courts would not refer domestic
relations matters to mediation when there has been spousal or child
abuse. However, “abuse” per se hardly exhausts the lists of power,
attitude, and fairness concerns that attend mediation. For example,
in the hypothetical divorce of the investment banker and the homemaker, I posit that there has been no “abuse” as the term is commonly understood.38 Nonetheless, the wife is clearly more vulnerable
34. FLA. R. CERT. & CT.-APPTD. MEDIATORS 10.060 committee note.
35. See id.
36. For example: “Settlement of a legal dispute is an important event and becomes no
less important because the settlement results from a mediated agreement. Any settlement
you make as a result of this mediation will be legally binding and will conclude the matter
at issue. You may take time to consult with a lawyer or other professionals prior to
agreeing to any settlement that comes up during your mediation efforts.”
37. FLA. STAT. § 44.102(2)(b) (Supp. 1996).
38. I realize that many observers would characterize it as abusive for a spouse to essentially slough off all child rearing onto the other spouse and devote available time to
earning money and developing a career while the other spouse performs nanny operations
at the expense of her own education and career. Without taking a position on this issue, I
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and dependent. In a more informal setting, many commentators fear
that she will be unlikely to stand up for her rights or even those of
her children. If the mediator simply lubricates a settlement discussion, this could result in a substantially unfair settlement because of
the absence of substantive legal evaluation by the mediator.
Although the language of the statutes and Rules is susceptible to
permitting a wide range of mediation styles, it has been interpreted
to require that mediators refrain from saying or doing anything that
could be construed as evaluative. Florida’s Mediator Qualifications
Advisory Panel is occasionally asked to respond to questions posed
by certified mediators. Advisory Panel opinions from 1995 reveal a
highly restrictive Panel view of mediation—one that appears to forbid even isolated, minor, and useful evaluative action by mediators. 39
For example, in Advisory Panel opinion 95-002, the hypothetical
considered involved a creditor’s collection action against a debtor for
$1250, an amount the debtor admits owing, but for which she wishes
to arrange a graduated repayment schedule, offering to pay $110 per
month, an amount the creditor is readily willing to accept without
pursuing the matter to judgment.40 However, the note signed by the
debtor provides for an effective interest rate of 29.5% per year, while
the prevailing post-judgment interest rate is eight percent per year.
The creditor has, of course, been through these sorts of disputes before. The debtor is generally naïve about the law. In the hallway
prior to the mediation session, the mediator overheard the creditor
suggesting to the debtor that she should avoid a judgment “because
it would hurt her credit.”41
The Advisory Panel then considered whether the mediator could
ask the debtor (question 95-002A in the Panel’s classification system): “Are you aware that the monthly payments do not cover the interest as it is accruing and you will be paying on this loan forever?” 42
and (question 95-002B) “[A]re you aware that if a judgment [was] entered against you, the interest would be reduced from 29.5% to
8%?”43 The Panel declined to give an opinion as to (question 95-002C)
whether making the interest rate comparison would be “interfering
am using “abuse” to refer to more distinct and focused mistreatment of a spouse or child
by the other spouse, such as physical violence or sustained verbal attack or other psychological abuse. This connotation of abuse, which I believe to be that generally held by
judges, would not apply to cases such as the investment banker’s divorce and to other domestic relations matters in which nonevaluative mediation poses significant issues of
fairness and tacit coercion.
39. See Risette Posey, Latest MQAP Advisory Opinions, RESOL. REP., Oct. 1995, at 2
(Mediator Qualifications Advisory Panel Op. 95-002); id. at 14 (Mediator Qualifications
Advisory Panel Op. 95-005).
40. See id. at 2 (Mediator Qualifications Advisory Panel Op. 95-002).
41. Id.
42. Id. (emphasis omitted).
43. Id. at 3 (emphasis omitted).
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with a contractual relationship,” finding this a legal determination
outside the scope of the Panel’s authority. 44 In addition, the Panel
considered (question 95-002D) whether a mediator’s potential “question [can] be asked even if the framing of the question tends to advise or inform one or both of the parties involved?” 45
The Panel essentially ruled that all such activity by the mediator
violated Florida’s prohibition against mediators providing legal advice. In particular, the Panel even found the mediator’s action in
question A to be unethical in that the “you will be paying on this
loan forever” statement was a misrepresentation 46 and that simply
advising the naïve debtor (question B) of the prevailing interest rate
on judgments “violat[ed] the prohibition relating to the provision of
legal advice.”47 In response to question D, the Panel stated that “[i]t
is improper for a mediator to provide legal advice by any method”
during the mediation—even the innocuous act of questioning a party
to determine whether the party is taking foolish action with a minimal understanding of the law and the legal ramifications of the action.48 In particular, the Panel found that a mediator question “designed to advise the party about her legal options, a role that is appropriate for an attorney, [is] inappropriate for a mediator” 49 and
that “[i]t is improper for a mediator to provide legal advice by any
method within the scope of a mediation, whether such advice be by
statement, question or any other form of communication.” 50
44. Id. (emphasis omitted).
45. Id. (emphasis omitted).
46. Although the “you’ll be paying forever” statement is, of course, not literally true
for a relatively small debt (even at 30% annual interest, monthly payments of $110 will
extinguish the debt in about 18 months, at a total approaching twice the outstanding debt
principal), a more charitable Panel might have interpreted the mediator’s comment as a
figure of speech. “You’ll be paying forever” can be construed simply to suggest that the interest payments will be out of proportion to the debt if repayment occurs on a limited
piecemeal basis under a high interest rate. If the debt had been $112,500 instead of $1250,
and the settlement provided for $11,250 per month payments by the debtor, the mediator’s statement about proportionality would be even more telling. On balance, however,
this type of comment is both too exaggerated and too evaluative to be permitted absent
compelling circumstances not reflected in the hypothetical.
47. Posey, supra note 39, at 3 (summary of Mediator Qualifications Advisory Panel
Op. 95-002).
48. Id. at 5.
49. Id. at 4.
50. Id. at 5. The Panel did provide something of an escape valve for the pressure felt
by the mediator in this hypothetical situation:
The mediator may, however, often obtain the desired information if the question is framed more generally. . . . by asking the following: ‘Is interest levied on
a judgment? Do either of you know?’ These two questions set the stage for the
parties to provide information to the mediator and to each other without placing the mediator in the position of providing that information. In so doing, the
mediator assists in maximizing the exploration of alternatives, and adheres to
the principles of fairness, full disclosure, self determination, and the needs and
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Although the issues of interpreting the law 51 and the Rules are
reasonably close, I believe the Panel opinion was in error and took
an excessively restrictive view of mediator discretion under Florida
law.52 The statute prohibits a mediator’s giving of “legal advice,” an
admittedly malleable term, but hardly one that requires the expansive definition placed upon it by the Panel. As a law professor, like
most lawyers, I am frequently asked about legal problems by students and friends. Although I have yet to agree to represent any of
them (and could not do so in Florida without obtaining pro hac vice
admission because I am a member of the Minnesota bar), I feel compelled as a teacher or friend to at least alert them to the apparent legal issues and to inform them of sources of information, potential
counsel, and so on. Am I practicing law? Not at all (although some
older vintage lawyers might assert it). Am I giving legal advice? Only
in the broadest sense. Calling these sorts of informal conversations,
performed without retainer, fee, specific research, memorialized
work product, accepted assignment, or client control, legal advice is
akin to calling it investment advice if I suggest to my retiree father
that perhaps he should reconsider his commitment to the Fidelity
Magellan mutual fund (although this popular investment vehicle is
doing better of late). If one is hyperliteral, I suppose my uninspired
idea that Dad look at other investment vehicles is financial advice,
although I don’t expect a guest appearance on Wall Street Week with
Louis Rukeyser anytime soon.
In much the same way, the Panel’s broad definition of “legal advice” by a mediator is defensible but extreme. It serves the text of the
statute but not its purpose. The purpose of the prohibition, of course,
is to prevent the mediator from choosing sides, playing favorites, interfering with party-lawyer relations,53 or impeding voluntary resointerests of the participants [Rule 10.020(d)(1), (2), (5)], while honoring the
commitment to all parties to move toward an agreement [Rule 10.070(a)].
Id.
51. See FLA. STAT. ch. 44 (1995 & Supp. 1996).
52. The Panel opinion is also regarded as extreme by Professor Moberly, an architect
of the Florida mediation system, but someone with more agnosticism about evaluation
than me. See Moberly, supra note 2 (evaluation permissible as last resort if even-handed);
see also Robert B. Moberly, Ethical Standards for Court-Appointed Mediators and Florida’s Mandatory Mediation Experiment, 21 FLA. ST. U. L. REV. 701, 712-15 (1994) (stating
that mediators may evaluate but must remain impartial).
53. Despite their professed commitment to the moral high ground of noninterference,
facilitative mediators are vulnerable on this score. For example, many mediators have
taken to referring to the disputing parties as the mediator’s “clients” or “principals” rather
than merely the disputants who have retained the mediator. Although this characterization is touching in its connotative closeness, it misperceives the relationship. A disputant
does not use a mediator as an “agent” in the way in which clients or other principals use
lawyers or representatives as agents. In addition, of course, the party has no particular
claim to the mediator’s zealous advocacy (far from it). The mediator has a duty to serve
the parties and the situation in the aggregate rather than to represent either party as such.
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lution through needless, legalistic Monday-morning quarterbacking.
As long as the mediator is not frustrating the purpose of the statute
through these or similar tactics, the Panel (and the Florida dispute
resolution establishment) should accord the statutory limit on “legal
advice” the sort of constrained, common-sense view that we as lawyers would employ when determining whether our communications
rise to the level of providing representation or services. Alerting disputants to potential pitfalls and fairness concerns, even if done
through very specific questions or comments (rather than the general questions endorsed by the Panel) should not be roundly forbidden as impermissible legal advice.
Notwithstanding my disagreement, however, the Panel’s legal determination is at least debatable. Yet even if the Panel’s opinion correctly interpreted Florida mediation law and procedure, it is a disaster as a matter of public policy. In so broadly construing the notion of
legal advice and constraining the mediator, the Panel appears to
have elevated the formalist “facilitative” model of mediation above
the practical needs of disputants and the fairness concerns that
must animate decisionmaking in any government-sponsored proceeding.
Consider, for example, the practical effect of the Panel’s ruling in
the creditor-debtor case from which the opinion sprang. If the mediator follows Panel protocol and does not raise the interest rate comparison issue, the debtor blindly agrees to a settlement that is more
onerous than standing by and permitting a default judgment. In addition, a debtor with limited funds also poses a collection problem for
the creditor, especially when the debt is small. A more sophisticated
debtor or one represented by counsel might use this leverage to extract a better settlement from the creditor (e.g., “We can cash this
out now for $800 [hidden in a client’s mattress rather than a garnishable bank account] or you can spend a few hundred in counsel
fees and other collection costs trying to get all $1250 out of my client—and you may not succeed”). Although the settlement is no
panacea for the creditor (the debtor may still default on the $110per-month payments), the debtor clearly has made a worse deal than
that available to her in the absence of mediation. By failing to raise
the interest rate comparison, the mediator has allowed the debtor to
obtain demonstrably less in mediation than was available through
litigation or other forms of ADR. By raising the interest rate comparison, the mediator would have provided the debtor with the tools
to better gauge the alternatives. The debtor may well have opted for
the resulting settlement in any event to avoid further uncertainty
and inconvenience, but at least she would have been able to make a
more informed decision. The mediator’s comment would have leveled
the playing field, but would not have thwarted genuine voluntary
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resolution by the parties. Although the mediator may have been able
to achieve this benefit with the less evaluative form of question, “Ms.
Debtor, have you consulted a lawyer?,” the answer is likely to be,
“No, I can’t afford one, certainly not one whose fees will be almost as
much as the debt.” At this point, common sense compels one to wonder why the facilitative charade is necessary. Why not allow the mediator, who is on the scene only because the state requires it (for a
debt this small, neither side would be likely to voluntarily seek out
and pay a mediator), to cut to the metaphorical chase and alert the
debtor to the interest-rate pitfall?
The Panel’s absolute prohibition on anything smacking of legal
advice is more problematic. Imagine a variant of the hypothetical.
The creditor and debtor make the same agreement of settlement, but
the creditor insists on securing the repayment plan debt with a security interest in the debtor’s home, an asset that would be exempt
from execution to satisfy an ordinary judgment under Florida law. 54
However, armed with a security interest, the creditor, like a bank
providing a mortgage, can force the sale of the debtor’s home and effectively evict the debtor for missing a single $110 payment. To say
the least, it is questionable whether a sophisticated debtor or one
with counsel would accept such a condition of settlement. If the mediator says nothing or gives only a general but futile suggestion of
counsel,55 the mediator permits the debtor to strike a deal far worse
than what probably would have resulted if court-ordered mediation
had not forced the parties to “bargain.” If the mediator instead notes
the normal homestead exemption and the impact of granting a security interest, the debtor is at least given a chance to make an informed and empowered decision. Aversion to “legal advice” and allegiance to a Pollyannic view of the facilitative model should not prevent such reasonable intervention by the mediator.
54. See FLA. CONST. art. X, § 4. Indeed, Florida law is famous or perhaps infamous in
that the state’s homestead exemption has no limit. A millionaire deadbeat with a $100
million estate and a billion dollars in debts can live in the estate secure in the knowledge
that the creditors may never take any portion of the property. Most notoriously, former
baseball commissioner Bowie Kuhn and former Kidder, Peabody investment banker Martin Siegel, accused of illegal insider training, are generally perceived as having relocated
to Florida when their debt and other legal problems arose to obtain the benefit of the unlimited homestead exemption. See generally JAMES B. STEWART, DEN OF THIEVES: THE
UNTOLD STORY OF THE MEN WHO PLUNDERED WALL STREET AND THE CHASE THAT
BROUGHT THEM DOWN (1991) (describing Siegel’s move from Connecticut to Florida during
the fallout from the Dennis Levine-Ivan Boesky-Michael Milken insider trading scandals).
55. Even suggesting legal aid counsel may be futile for less sophisticated debtors who
are hesitant to approach lawyers or who, although poor, may fail to meet legal aid guidelines for obtaining free legal assistance. See Russell G. Pearce et al., Project, An Assessment of Alternative Strategies for Increasing Access to Legal Services, 90 YALE L.J. 122,
140-45 (1980) (finding, based on a statistical analysis of the ABA-ABF Survey of Legal
Needs of the Public, that the use of lawyers is reduced when individuals have no preexisting social or business contact with them).
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Subsequent Panel decisions suggest the Panel continues to cling
to a broad notion of impermissible legal advice and a crabbed notion
of mediator discretion. For example, in opinion 95-005, the Panel
was asked in question 95-005A: “What is the duty of a mediator who
is informed during a caucus of a family (dissolution of marriage) mediation that one spouse possesses an asset of which the other spouse
has no knowledge?”56 The Panel stated that “the mediator should
withdraw from the mediation unless the party discloses the asset,”
but suggested that the mediator has no authority to hint to the other
party that further investigation might be in order. 57 Although withdrawal of the mediator is obviously superior to presiding over settlement tainted by fraud, the Panel opinion turns a blind eye to the
likely second round of the dispute. There, a second mediator will
preside over negotiation and probable settlement. This time, the
spouse hiding an asset will be cagey enough not to alert the mediator
and the case will likely settle favorably for the deceptive spouse. At
this point, one wonders why mediation communications must be so
privileged. If a judge found out about incipient fraud, would the only
remedy be withdrawal rather than disclosing the hidden asset on
grounds similar to the crime-fraud exception to the confidentiality of
attorney-client communications? Although this issue is complex and
beyond the scope of this Article, the Panel’s answer to question A
remains unsatisfying in large part because it envisions a nonactivist
role for the mediator.
The Panel’s answer to question 95-005C is more unsatisfying still.
There, the question was: “Is a mediator who becomes aware that a
plaintiff in a wrongful death action is making no claim for loss of
consortium, which claim would appear to the mediator to be appropriate under the circumstances, bound to inform that party of this
matter?”58 The Panel’s response: “[I]t is an ethical violation for a mediator to give legal advice to a party.”59 Continuing, the Panel stated:
[I]t is inappropriate for a mediator to give legal advice even if a
party to the mediation is not represented by counsel. If the party is
represented by counsel, which appears to be the case in your scenario, it would be clearly inappropriate to provide such legal advice. See rules 10.070(a)(1); 10.090(a) & (b).60
Again, the Panel embraces a narrow view of mediation and an excessively broad notion of legal advice. Particularly when a party has
56. Posey, supra note 39, at 14 (Mediator Qualifications Advisory Panel Op. 95-005)
(emphasis omitted).
57. Id. at 15.
58. Id. at 14 (emphasis omitted).
59. Id. at 15.
60. Id. at 16.
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counsel, it hardly seems obstructionist if the mediator simply asks:
“Counsel, did you decide not to make a consortium claim or is it considered covered by the settlement?” If the plaintiff is pro se (almost a
per se problem with something as serious as a wrongful death action), the mediator will need to first provide some legal background,
but the same question would seem equally apt to ensure that the
parties settle with relatively complete knowledge of their options
and the consequences of the settlement. Of course, this alerts the
lawyer or party. This dollop of “legal advice,” however, is but a small
impurity in the facilitative model. In return, the legal system by this
modest mediator intervention acts to minimize unfairness or mistake.
In some instances, “evaluative” mediators undoubtedly need to be
reigned in to prevent mediation from being converted to arbitration
and to prevent the evaluative mediator who jumps to conclusions
from bullying one or both parties into an unsatisfactory resolution of
a controversy. Nevertheless, it hardly follows that all evaluative mediation is bad and all nonevaluative mediation is good. Students and
most lawyers intuitively appreciate this point. Sometimes, a little bit
of evaluation or some steering of one or both parties toward a reasonable position is required, both to prevent injustice and to facilitate settlement.
Speaking of facilitation and evaluation as polar opposites or completely separate, parallel tracks of dispute resolution oversimplifies
both the world and the analytic model. There really are no purely
“facilitative” actions and purely “evaluative” actions by mediators.
Rather, the effective mediator engages in a range of behaviors that
span the facilitative-evaluative continuum. Some actions (e.g., remarking that the husband’s settlement offer falls below the minimum legal standard) are clearly more evaluative. Other actions (e.g.,
asking the wife to detail her future goals for the children and estimating the financial resources required) are more facilitative but
have a clear evaluative agenda. Still others (e.g., suggesting a visit to
a marriage counselor) fit quite snugly within the realm of facilitation.
One’s natural impulse is to speak of the range of mediator activities as falling along various points of a continuum marked at the poles
by purely evaluative actions (“Mr. Husband, your offer is ludicrously
low. You must want to litigate this matter rather than settle it.”) and
nearly purely facilitative techniques (“Mr. Husband and Ms. Wife,
what is it that’s troubling you about your marriage?”). 61 However, the
61. Of course, efforts to encourage the parties to discuss their feelings do not inevitably provide positive catharsis. For example, if a marriage is fraught with conflict and anger, airing those feelings may only make the parties more confrontational, impeding fur-
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continuum metaphor, although common and thus comfortable, is not
really accurate. Describing mediator conduct as a continuum yields
too greatly to the false dichotomy. Many mediation actions are not
compromises between the evaluative and facilitative poles of the dichotomy, but are instead actions not fully susceptible of categorization within either school of thought. The same or similar actions may
be either essentially facilitative or primarily evaluative, depending
on the context of the dispute.
IV. THE BENEFITS OF ECLECTIC FLEXIBILITY
A. A Page of History . . . Or Reinventing the Flat Tire
Modern society is, of course, more than a bit dissatisfied with litigation. Understandably, this antipathy toward litigation fuels much
of the modern ADR movement. However, the admitted shortcomings
of traditional litigation are just that—shortcomings. They are not
indicative of an adjudicatory system rotten to the core. Consequently, a society interested in effective dispute resolution would
presumably pay some attention to effective case resolution behaviors
exhibited by judges. Among the most effective means of resolving disputes is the establishment of an early and firm trial date (which forces
the parties to sharpen their respective pencils and talk settlement).
Although the resolute trial date is not something most mediators
would characterize as facilitative activity, it in a sense functions as the
ultimate facilitative strategy, one that forces the parties to cooperate if
they wish to avoid the rigors and risks of final adjudication.
Another effective judicial technique of case resolution is cajoling
of settlement through informal conferencing with the parties, often
after establishing some guides regarding likely case outcomes
through pretrial rulings on particular claims, availability of information, or admissibility of evidence. In performing this role of a “settlement judge,” effective jurists alternately operate as both evaluators and facilitators in nudging litigants toward settlement. This
strategy and the alternating evaluative-hybrid-facilitative tactics of
the judge appear to bring about fair, effective, and lasting settlements. If there were enough such judges on the bench, the modern
ADR movement might never have blossomed.
In reality, however, not all judges are good settlement judges
(some are too arbitrary, some are too wishy-washy, some are too inefficient, and some are too unwilling to put in the time), and there are
ther mediation and settlement. Sending husband and wife to a marriage counselor is undoubtedly a facilitative strategy, but it may not lead to cooperation if during the course of
venting their frustrations, husband and wife lose whatever remaining reservoir of goodwill they possessed when first entering mediation.
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not nearly enough judges to quickly address the thousands of disputes in the judicial pipelines of state and federal courts. 62 Consequently, some delegation to ADR mechanisms seems inevitable. Just
the same, adherents of either a facilitative or an evaluative approach
would do well to realize that the flexible and eclectic behavior of
many of the most successful American judges fits neither model, although, in my view, the best judges lean toward the evaluative side
of the scale. Rather than merely drawing out the parties’ positions,
effective judges usually provide some guidance to the parties regarding the range of trial outcomes (e.g., “We’ve never had a punitive
damages verdict of six figures that’s held up on appeal”) or otherwise
put evaluative pressure on the parties (e.g., denying the defendant’s
motion to strike the plaintiff ’s punitive damages claim).
At the risk of posing a question that many regard as passé, I must
ask: Why, in designing and operating ADR programs intended to relieve the pressure on the court, would our disputing system insist
that these ADR methods ignore the judicial dispute resolution tactics
that have proven successful in the past? Of course, some of the answer is that part of the mission of the ADR movement is to provide
choices to the parties that are unavailable in litigation. Surely, however, an equally important basis of the ADR movement is encouraging the least expensive and timeliest settlement possible that also
meets minimum criteria of fairness. This ADR rationale would presumably be well-served by mimicking to some degree the judicial settlement techniques that work, techniques that seem to me to combine both the facilitative and the evaluative approach.
My suggestion that mediation learn from judicial settlement brokering rather than spurn it does not really address another justification of ADR: providing greater disputing variety than is available
through adjudication. This ADR goal is obviously important—but it
can be realized by voluntary actions by the parties, particularly more
sophisticated parties. For example, if two patent disputants want to
have the matter addressed by a panel of Nobel laureates rendering
detailed technical findings of fact, they can so stipulate and exit the
judicial system or government-annexed ADR systems such as Florida’s court-ordered mediation. Similarly, if they wanted to ensure
maximum mutual profitability without deciding the question of inventorship, they could opt for a task force of economists and marketing experts, who would craft a revenue sharing plan for the com62. See COMMITTEE ON LONG RANGE PLANNING, JUDICIAL CONFERENCE OF THE U.S.,
LONG RANGE PLAN FOR THE FEDERAL COURTS 8-13 (1995) (finding that from 1904 to 1990,
the federal appellate caseload alone increased 3868% while the number of appellate
judges increased from 27 to 167 (in 1994) and that the civil case load alone has increased
by more than 1400% since 1960, making it practically impossible for the judicial system to
resolve cases swiftly and on a steady basis).
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peting devices (including, no doubt, some lawyers on the task force to
consider the antitrust implications).
Disputants should, of course, possess varied ADR options. However, when ADR is court-ordered, such as it is in Florida’s mediation
system or the court-annexed arbitration found in many federal and
state courts,63 the need is not so much for variety as it is for dependability, effectiveness, and fairness. When, pursuant to judicial order,
a party is forced to mediate,64 the form of mediation employed should
retain the useful characteristics of the adjudication for which it substitutes. If “forced” to adjudicate rather than mediate, the parties
may of course have differing resources, sophistication, and temperament. The stronger, smarter, or meaner party may extract a
premium settlement from its opponent. When this occurs, however,
it is the result of private bargaining that, no matter how unfair the
outcome, the judicial system normally leaves undisturbed. 65 Thus,
disputants who never enter the government-operated adjudication
system or who exit that system prior to final judgment may normally
make any settlement they choose, however foolish the settlement for
one or more of the disputants.66 The courts/government take no position on most settlements and refrain from interfering with most settlements because they have played no role or only a marginal role in
bringing them about.67
However, the government’s concern is quite different when the
dispute is resolved in significant part because of the intervention of a
government-sponsored ADR program. In these cases, the government bears some responsibility for effecting the settlement, and it
also has legitimized the settlement to a large degree. Consequently,
government-mandated ADR efforts such as court-ordered mediation
63. In Florida, for example, the court may order nonbinding arbitration. See FLA.
STAT. § 44.103 (1995). However, Florida courts have ordered arbitration only infrequently
in the more than eight years of the statutory authority. For example, from 1991 through
1995, fewer than 500 cases were arbitrated, while more than 300,000 matters were mediated in county, family, and circuit court mediation programs. See Telephone Interview
with Sharon Press, Director, Fla. Disp. Resol. Ctr. (Jan. 28, 1997).
64. The court can also order arbitration, even though it, like mediation, is nonbinding.
65. This is not always so. Settlement agreements are contracts, and the judicial system has long policed contracts using the yardstick of unconscionability. Unconscionability
is generally defined as an agreement that is unreasonably favorable to one of the parties.
See E. ALLAN FARNSWORTH, CONTRACTS § 4.28, at 327-29 (2d ed. 1991).
66. Again, this freedom to make bad deals is not absolute. Class action settlements
must ordinarily be approved by the court, as must settlements involving minors or antitrust claims by the government.
67. At a minimum, however, the legal system has provided default rules that will
govern resolution of the dispute if it is litigated. This creates a “shadow of the law” under
which the parties must bargain. See Robert H. Mnookin & Lewis Kornhauser, Bargaining
in the Shadow of the Law: The Case of Divorce, 88 YALE L.J. 950, 968-70 (1979) (noting
that when reaching divorce settlements, disputants negotiate and settle cases with an eye
to the range of likely outcomes at trial if settlement is not achieved).
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must avoid not only the nonadjudicatory coercion of too much
evaluative mediating, but also the danger of state-sponsored extraction of unfair settlements by the party with more leverage, in part
due to the fastidiously facilitative efforts of the court-appointed mediator. Because the mediator is to some extent “forced” on the parties
by the court, the disputants will often have a tendency to believe
that whatever occurs under the auspices of the mediation is within
the range of outcomes that would result from litigation. If the mediator permits the parties to reach settlements that fall outside this
admittedly broad range of “adjudication default probabilities,” at
least one of the parties may pay a heavy price for the mediator’s assiduously facilitative approach.
In my view, the price is too high. The world is awash in unfairness about which the legal system can do little or that legal intervention will only make worse, often while incurring substantial additional costs. Nevertheless, when the legal system requires mediation
or other ADR, the courts have a duty to ensure that court-sponsored
ADR does not impose more unfairness than would exist in the absence of judicially imposed ADR. If the courts force parties to mediate and force the mediator to blithely facilitate unfair case resolutions, the system becomes an active wrongdoer. To minimize the
chance of these occurrences, court-ordered mediation must clearly
enable mediators to adopt styles that not only encourage resolution,
but also prevent unfairness. In addition, courts should take steps to
reduce the chances of unfair mediated outcomes by ensuring that the
mediators to whom cases are referred are not so inflexibly committed
to either pure facilitation or pure evaluation.
B. Ignoring the Market—and Reality—at Peril
By now, my disagreement with Florida’s conventional wisdom
about acceptable mediation behavior is obvious. Florida law appears
to require that mediators be the legal equivalent of Woody Allen’s
“Zelig”68 or political consultant Dick Morris: an entity that suppresses its own opinions and merely reflects the opinions of others. If
Florida law accurately captures the preference of Florida citizens,
one would expect litigants opting for or ordered into mediation to
seek out purely facilitative mediators who refrain from any evaluative feedback to the parties.
In practice, however, it appears that the most highly sought mediators are those who provide exactly this sort of evaluative feedback
to the parties and use some measure of evaluation as part of their facilitation of reasonable party dialogue leading to settlement. Each
68. See ZELIG (United Artists 1985).
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day in the field, many mediators do engage in what might be termed
evaluative behavior,69 and evaluative-style mediators, particularly
former judges, appear strongly in demand as mediators. 70 To an extent, then, the modern market for ADR exhibits a strong preference
for at least some of the evaluative tactics displayed by judges over
the years.
Defenders of the facilitative approach would undoubtedly be quick
to state that this activity, whatever its overall worth, is not true mediation.71 Although this criticism is perhaps theoretically true, it is so
in large part because the facilitation forces have defined mediation
somewhat tautologically as including only facilitation and no evaluation. A mere drop of evaluation in their view converts mediation to
med-arb (mediation combined with arbitration) or some similar
mixed process. Rather than viewing the situation from the theoretical
perspective of ex ante definition, it might be more accurate to define
mediation ex post. If, in actual use of what is generally considered mediation, participants frequently prefer mediators who bring evaluative
techniques to the process, the legal system may be bucking reality to
insist that “real” mediation lacks any evaluative component.
Obviously, there is no objectively verifiable data from which one
can accurately gauge the proportion of evaluative and facilitative activity currently occurring under the rubric of mediation. However,
the anecdotal evidence provided by participants in the system is
strongly suggestive. Mediators like Conference panelist Lawrence
Watson, Esq., and others appear to be in demand (at least for parties
with cases and resources large enough to afford the fees) not only for
their interpersonal facilitative skills, but also for their ability to
evaluate party positions and to encourage disputants to argue over
the range of the reasonable. These sorts of mediators, at least by
reputation, do not assiduously refrain from editorial comment, but
use it selectively and fairly.
Even advocates of the facilitative approach readily acknowledge
that it is not the exclusive approach to mediation as today practiced.
For example, Professor Robert A. Baruch Bush, who champions a
model of transformative and empowering mediation clearly within the
69. See Alfini, supra note 4, at 66-72 (identifying the popular tactic of “trashing” that is
highly evaluative, another “bashing” tactic that strongly incorporates evaluation, and the third
identified tactic of “hashing” that most closely resembles the facilitative model of mediation).
70. See John Lande, How Will Lawyering and Mediation Practices Transform One
Another?, 24 FLA. ST. U. L. REV. 839, 844-53 (1997); see also Margaret A. Jacobs, Renting
Justice: Retired Judges Seize Rising Role in Settling Disputes in California, WALL ST. J.,
July 26, 1996, at A1.
71. See, e.g., Panel Discussion, supra note 3, at 929 (comments of Professor Lela
Love) (“It would be a different case if the parties chose the mediator for her evaluation
abilities and specifically requested the mediator’s evaluation. In that situation, the process is ‘mixed’—not pure mediation . . . .”).
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facilitative school, also identifies several other mediation styles that
are substantially or primarily evaluative: “settlors,” “fixers” or problem-solvers, “protectors,” and “reconcilors.”72 Although one can quibble about whether all of these approaches are really mediation, it may
be more productive to accept all as legitimate forms of mediation that
vary in appropriateness according to the context of the particular case.
Although pure facilitators can make rhetorical claims that states
such as Florida have embraced facilitative mediation and no other by
force of statute and rule, this again seems overly formal and conclusory. Mediation in Florida and elsewhere should not be frozen in a
“facilitation only” model simply by historical accident, i.e., because
the facilitative model was uppermost in the minds of the profession
when it adopted mediation as its major component of courtsponsored ADR. With an additional decade of experience, we can see
that the disputing public appears to affirmatively desire some
evaluative components in mediation. Rather than fight the market
with an excessively formal commitment to the facilitative model, the
legal profession and the judiciary should regulate mediator behavior
with flexibility and restraint.
If this anecdotal evidence is correct, the market comprised of disputants is sending a powerful message in favor of hybrid mediation
that permits some use of evaluative technique. Normally, American
governments require a compelling reason for interfering in or reversing market decisions. Particularly in today’s political climate,
government intervention of this type must ordinarily be justified by
a compelling case of market failure (e.g., badly distributed investment in education or national defense or discriminatory employment
practices) or destructive choices by market participants (e.g., smoking). On this broad premise, both liberals and conservatives agree,
even if they often divide in their assessment of specific situations.
Courts, like any other arm of government, should operate under the
same general standard. Consequently, if it appears that disputants
do not want a purely nonevaluative mediator, there is no reason for
the State of Florida to require that disputants have this type of mediator when the state orders them to mediate. In this sense, current
Florida mediation law appears to ignore the actual market for dispute resolution services.
C. Distributional Concerns and the False Dichotomy
Related to the problem of differential resources is the obvious fact
that both adjudication and settlement normally result in a transfer
of wealth. Usually, both trial and settlement require at least one
72. Bush, Ethical Dilemmas, supra note 8, at 17-18; see also BUSH & FOLGER, supra
note 7, at 11-12.
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disputant to give up something to another disputant. Although creative mediation or negotiation can result in “win-win” outcomes of
disputes, even these outcomes usually require one party to give up
something in return for something surrendered by the opponent.
When the system works well, litigation, ADR, and private settlement
outcomes should largely result in at least corrective justice and perhaps even wealth creation. Adjudication is unlikely to result in distributive justice because courts exist primarily to enforce existing legal rights, most of which are based on the status quo rather than any
entitlement to distributive just deserts.73
Thus, properly performed adjudication gives the parties what
they would or should have had in the absence of the dispute. Whatever inequalities preceded the litigation remain after the litigation—
but the litigation, at least usually, does not enhance inequality.
However, favorable settlements extracted by parties with superior
leverage may accentuate distributional inequity. Such settlements
reached through court-ordered mediation that would otherwise have
proceeded through adjudication arguably result in a governmentsponsored program (mediation) that operates in some cases to enhance inequitable distribution of wealth rather than to maintain the
existing assignment of wealth in society. Put another way, courtordered mediation that allows one party to reach advantageous settlements it could otherwise not obtain serves to put the state in the
position of enhancing distributional inequities rather than holding
them steady or reducing them, the latter being the normally accepted roles of the modern industrialized nation-state.
Thus, current mediation orthodoxy lionizing the facilitative style
and criticizing even minor mediator evaluation appears to ignore
other aspects of reality as well. The cold, hard reality is that some
disputants are better situated to extract favorable settlements from
their opponents. Ironically, this probably occurs most often in the
sorts of “smaller” cases more likely to be ordered into mediation. In
larger cases, the parties are more likely to have equal financial
strength and legal sophistication. Even when one or more of the parties lacks requisite sophistication, the sheer magnitude or importance of the dispute usually ensures that lawyers will be involved in
the matter, thus tending to level the playing field of legal sophistication.74
73. There are exceptions, of course, in any modern welfare state. Medicare, Medicaid,
Social Security, public education, and the income tax can all be viewed as attempts at distributive justice, and to the extent that these programs create concrete legal rights, courts
enforcing these rights can be seen as effecting distributive as well as corrective justice.
74. See McEwen, supra note 17, at 1322-23, 1346-48, 1358-62 (suggesting that lawyer
involvement makes mediation outcomes fairer, more rational, and more in general conformity with prevailing law and policy).
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There is a glitch in this reasoning, of course: not all lawyers are
equally effective, and richer, more sophisticated disputants generally
retain more effective lawyers. However, despite the reality of differing legal talent, time, and logistical support, the presence of counsel
normally has a leavening effect. The disparity, for example, between
the average matrimonial lawyer and the best of the bar is probably
not as great as the disparity between the most sophisticated spouse
and the least sophisticated spouse. At least all the lawyers have
been to law school. Nonetheless, lawyers are at best only partial levelers, and many of the disputants are mismatched.
When mismatched parties, whether represented or pro se, are
thrown together, any resulting settlement is more likely to favor the
party with superior resources. Court-ordered mediation should operate to minimize this tendency, not enshrine it. In the absence of
court-ordered mediation, of course, mismatched parties will probably
continue to arrive at unbalanced settlements as long as the rivers
flow. By definition, however, the disputants subject to possible courtordered mediation have commenced litigation and, if not ordered to
mediate, would have the claim presented to a neutral government official and perhaps a jury of citizens as well. Although these disputants, like most litigants, will probably settle rather than litigate to
final judgment, they bargain in the shadow of the substantive law as
regulated by the procedural rules of the jurisdictions. 75 When these
same disputants are channeled into mediation, the objective of the
court’s enterprise is to obtain a brokered settlement. When government assumes an activist role encouraging settlement, it has a corresponding obligation to ensure that mediated resolutions are at
least no worse than nonmediated settlements or litigation outcomes.
My discussion, of course, proceeds with a tacit suggestion that in
court-ordered mediation, the “haves” tend to do better than the
“have-nots,” but the conventional wisdom is that this occurs in litigation as well.76 Whether that aspect of litigation should be changed
and how to change it lie well beyond the scope of this Article. My
point is simply that state-sponsored ADR should not operate to enhance inequality and that this prospect is a genuine concern when
mediator-brokered settlements contain no evaluative component.
The distributional impact can also run in the other direction. A mediated settlement may result in case resolution that would otherwise
not have occurred and may result in the richer party making to the
poorer party a wealth transfer that the latter does not “deserve” ac75. See Mnookin & Kornhauser, supra note 67, at 968.
76. See Marc Galanter, Why the ‘Haves’ Come Out Ahead: Speculations on the Limits
of Legal Change, 9 LAW & SOC’Y REV. 95, 103-04 (1974) (suggesting that experienced litigants as well as those with greater resources will generally have advantage over episodic
or poorer opponents).
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cording to the applicable law.77 This is the sort of “legal blackmail”
about which businesses complain, particularly in the context of alleged “strike” suits over securities violations. It can be a serious
problem, of course, but in the context of court-ordered mediation, it
concerns me less. The wealthier party probably has only a slight additional incentive to “buy off” the poorer disputant in court-ordered
mediation than has been provided by the pending lawsuit. To some
degree, it is also true that the poorer party has only marginally more
pressure to settle due to mediation than exists anytime one is embroiled in litigation.
D. Additional Factors Favoring a Place for Flexible and Evaluative
Approaches
1. Game Theory and the Effective Mediator
Litigation and settlement can be profitably analyzed from the
perspective of game theory. Game theory involves analysis of behavior based on the assumption that persons and entities will act strategically, seeking to “maximize their wealth given what they expect
the other party to do.”78
77. For example, under current rules requiring securities fraud to be pleaded with
heightened particularity, a disgruntled investor’s claim may not be sufficiently detailed to
survive a motion to dismiss in litigation, but New York Stock Exchange arbitrators may
hear the matter and award damages, something that quite likely would not have occurred
had strict legal formality been observed. See Marc I. Steinberg, Securities Arbitration: Better for Investors than the Courts?, 62 BROOK. L. REV. (forthcoming 1997) (noting many securities plaintiffs will do better in arbitration than in litigation).
78. MARK SEIDENFELD, MICROECONOMIC PREDICATES TO LAW AND ECONOMICS 85
(1996). Although considered a branch of microeconomics, game theory involves a significant analytic wrinkle:
Traditionally, price theory posits rational economic actors who pursue the
maximization of wealth straightforwardly in situations for which the opportunities available to one individual are considered independent of the choices of
other individuals. In reality, however, the economic opportunities available to
one actor may depend directly on the choices made by another.
Id. at 85. For further discussion of game theory, see id. at 85-89. See also DOUGLAS G.
BAIRD ET AL., GAME THEORY AND THE LAW (1994); ERIC RASMUSEN, GAMES AND
INFORMATION: AN INTRODUCTION TO GAME THEORY (1989) (game theory suggests that parties will seize opportunities for strategic behavior, at least when the “game” is not a cooperative one, but they can be at least partially restrained by enforcement of particular
rules or exposure of strategies); DONALD P. GREEN & IAN SHAPIRO, PATHOLOGIES OF
RATIONAL CHOICE THEORY: A CRITIQUE OF APPLICATIONS IN POLITICAL SCIENCE 130 (1994)
(noting literature that observed a game player to have “obtained a disproportionately
large payoff by misrepresenting her utility function in order to upset consensus on a fair
outcome”); id. at 142-44 (noting that current political science scholarship sees most games
as noncooperative rather than cooperative); Ian Ayres, Playing Games with the Law, 42
STAN. L. REV. 1291, 1295-96 (1990) (noting that even with well-defined “rules” of the
“game,” such as litigation or settlement, parties will try to take advantage of one another).
The classic illustration of game theory is the “prisoner’s dilemma” hypothetical, which
posits that two suspects have been separated by the police and offered incentives to turn
against one another and provide incriminating testimony. The first suspect to agree to co-
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A full discussion of game theory is obviously impossible in this
limited Article. However, applied to civil disputes, game theory suggests that disputants will behave strategically and seek to obtain an
advantage in the settlement or adjudication of a case based on the
opponent’s expected conduct. When operating in this strategic fashion, a game participant will attempt to achieve the best result available. Thus, to return to the hypothetical divorce between the investment banker and the homemaker, the husband who knows or suspects that the wife is desperate to end the tension of the failed marriage will use this to his advantage by proffering the low-ball settlement discussed in the hypothetical.
One might even put a variant of the prisoner’s dilemma into this
scene.79 Assume the husband has moved out and has been retaining
his paycheck, creating a cashflow problem for the wife, who must
continue to raise two children and manage a house. The husband’s
offer, an immediate cash settlement, provides perhaps an irresistible
carrot to the wife, who must otherwise wait for a substantial amount
of time in the hope of obtaining more money. If the marginal value of
a dollar is high, the wife may not be able to resist settling cheaply
but quickly, even if she knows the settlement is cheap. If the wife is
less sophisticated and does not realize the offer is low, her incentives
to cash out quickly but unwisely are heightened. In addition, the
strategically behaving husband (or his lawyer) will be likely to paint
the most excessively grim picture possible of the wife’s ultimate
chances for success should the matter be fully litigated. If both parties are without lawyers or the wife lacks a lawyer (or has a lessqualified lawyer), she is unlikely to realize that the husband has
misled her regarding likely judicial outcomes. Consequently, when
the husband and wife talk settlement, a purely nonevaluative type of
mediator facilitation is likely to result in a technically “voluntary”
settlement in which the wife and children receive an inadequate
award.
Although this may be the outcome in the absence of court-ordered
mediation, I find it more than a little troubling that mandatory mediation, even if nonbinding, holds the potential to contribute to such
operate is offered a plea bargain that involves no incarceration, while the government will
seek the maximum ten-year sentence against the noncooperating defendant. If both remain silent, the expected chance of conviction is only 10%, making the “estimated” sentence for each one year in jail if they remain firm in their noncooperation. If both cooperate, they will be convicted and the prosecutor will seek seven-year sentences. Under these
circumstances, each defendant has a powerful incentive to race to cooperate to save himself at the expense of the co-defendant. In reality, of course, the probabilities and penalties
are seldom so clear cut, but the theory works in practice (i.e., despite the adage about
honor among thieves, many criminals turn state’s evidence to obtain a lighter sentence)
and has substantial value in explaining strategic behavior.
79. For a description of the prisoner’s dilemma, see supra note 78.
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FLORIDA STATE UNIVERSITY LAW REVIEW
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outcomes by forcing the parties to work toward a resolution that is
presided over by a mediator operating under the broad auspices of
the judicial system. In addition, such a result becomes doubly tragic
because effective mediation that makes judicious use of evaluative
techniques has great potential to avoid the unfairness. For example,
the mediator could advise the wife of the mediator’s understanding
of the general parameters of applicable law and the range of likely
outcomes should the case be adjudicated, as well as the approximate time required for full litigation of the matter. In addition, and
more evaluatively, the mediator could state that the husband’s initial offer is markedly below the generally held range of permissible
settlements for cases of this type. Either of these mediator actions
would go a long way toward avoiding the unfairness that will likely
result if the mediator merely “facilitates” the husband and wife in
the direction of settlement. Unfortunately, either one of these reasonable mediator reactions appears to be forbidden by current Florida law.80
Further, game theory suggests that a party’s strategic response
will vary significantly according to intervening moves by the other
party. The dispute game is generally a dynamic one in which the
parties’ attitudes, positions, and overtures will change over time or
in response to the other party’s conduct or intervening events (for
example, the investment banker husband may be suddenly
downsized, either spouse may find another romantic and economically secure interest, one spouse may discover another’s infidelity or
child abuse). These developments may either accelerate or inhibit
party motivation to settle. They may also affect each side’s professed
terms of the settlement (an obvious example is the child abuse development, which obviously affects the child custody and visitation
issues). A mediator providing evaluative feedback to the parties in
light of the changed circumstances may be able to prevent unfair settlements in light of the changed scenario. Facilitation alone may
provide the requisite flexibility, but if it does not, the mediator
should be permitted to perform some evaluative activity.
2. Chaos Theory and the Effective Mediator
Related to the issue of dynamic game theory is the general law of
inevitable change. Things seldom stay static, and the direction and
magnitude of change is often annoyingly difficult to predict. An
emerging branch of study, generally labeled chaos theory or complexity theory, posits that unpredictably is essentially inherent because of
80. See discussion supra Part III (describing Florida law, as interpreted by Florida
Mediator Qualifications Advisory Panel, as precluding any hint of mediator evaluation).
1997]
MEDIATOR’S ROLE
981
changes not resulting in chain-like ripple effects and manifestation. 81
The weather in Nebraska will not invariably move unchanged into
Iowa. As one commentator put it, the flapping of a butterfly’s wings
may serve to prompt changes in air currents that ultimately result
in a completely unanticipated subsequent weather outcome. 82 Law,
like any other system, is nonlinear and moves in unpredictable ways
at times.83
In litigation and ADR, chaos theory is almost a given. The shape
of the dispute, the likely default outcome, and the attitudes of the
parties will surely change throughout the course of the matter. Appropriately responding to these changes requires mediator flexibility, which of course will often take the form of generally facilitative
techniques. Nevertheless, the mediator’s arsenal of appropriate
flexible responses should also contain an array of primarily evaluative techniques.
To illustrate: assume a changed version of the husband-wife hypothetical. Initially, the husband is not inclined to make a low-ball
settlement offer. Rather, racked by guilt and being a basically honest
person, he affirmatively wants to give his estranged wife and children more than their legal entitlement without the delay and expense of litigation. The initial mediation session appears to be moving in the direction of a voluntary settlement within the range of
outcomes generally regarded as acceptable by the legal system.
Then, the husband acquires a new love interest, a widow with three
children (and a dead husband who had no life insurance). Rather
suddenly, the husband’s interest in a generous divorce settlement
plummets. At the next mediation session, the husband has backtracked and now makes a low-ball offer. Still later in the process, he
is visited by his mother, who inflicts significant guilt on him for his
willingness to shortchange her grandchildren in favor of his prospective new family. Under these circumstances, the mediator obviously
should not use the same techniques that would have been in order
had the attitude of the husband not changed. Some different tactic
will be necessary. Perhaps the case is no longer apt for mediation
and should be referred back to court. Although essentially facilitative techniques may move the parties toward the acceptable range of
resolutions, the mediator may need to perform the sort of evaluative
appraisal that is appropriate had the husband begun with an adversarial, advantage-taking, low-ball initial stance.
81. See BAILEY KUKLIN & JEFFREY W. STEMPEL, FOUNDATIONS OF THE LAW: AN
INTERDISCIPLINARY AND JURISDICTIONAL PRIMER 44-45 (1994).
82. See id. at 45.
83. See J.B. Ruhl, The Fitness of Law: Using Complexity Theory to Describe the Evolution of Law and Society and Its Practical Meaning for Democracy, 49 VAND. L. REV.
1407, 1409-10 (1996).
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Florida mediation law should not unduly tie the mediator to the
purely facilitative mast. Just as important, the effective mediator
should not tie him or herself to either a predominantly facilitative or
a predominantly evaluative methodology that may become clearly
inappropriate in light of changed circumstances. The point is perhaps even more effectively illustrated by imagining that the divorce
hypothetical moves in a different direction. Assume the initially adversarial husband comes to realize that stealing a financial march on
his wife is not only unfair to her, but also only serves to hurt his
children. When a disputant has moved to a more cooperative stance
(with or without a guilt trip from grandma), it would make little
sense for the mediator to engage in heavy-handed evaluation (e.g.,
“Your offer is still five percent below the average for people in your
income bracket, Mr. Husband, when are you going to quit nickeland-diming your family?”) when a more facilitative approach seems
well-suited to the task (e.g., “Have both of you thought about the
possibility of inflation and likely increases in college tuition? What
about the chance that one of the children will want to attend graduate school?”). Because disputes are dynamic, and adjudication only
partially predictable with effects and outcomes even chaotic, mediators must be able to shift between varying hybrids of the evaluative
and facilitative modes to maximize effectiveness in spurring case
resolution without sacrificing fairness.
3. Value-Added Mediation
Recent scholarship has suggested that mediation adds value to
the disputing transaction by providing the parties with information
and structured evaluation that they cannot themselves provide. 84
This view, although more self-consciously based on economic analysis, fits comfortably with the sociological and psychological scholarship that suggests parties benefit significantly from being accorded a
relatively timely, reasonably formal opportunity to present their case
to a neutral third party and to receive a fair and reflective hearing of
the matter.85 Depending upon the orientation of the parties, the case
might ultimately be better resolved by varying degrees of neutral facilitation or neutral evaluation. However, both economic and sociological analysis tends to suggest that more value is added to the pro84. See, e.g., Ian Ayres & Jennifer Gerarda Brown, Economic Rationales for Mediation, 80 VA. L. REV. 323, 324-31 (1994).
85. See E. ALLEN LIND & TOM R. TYLER, THE SOCIAL PSYCHOLOGY OF PROCEDURAL
JUSTICE 101-06 (1988); see also McEwen, supra note 17, at 1378-84; E. Allan Lind et al., In
the Eye of the Beholder: Tort Litigants’ Evaluations of Their Experiences in the Civil Justice System, 24 LAW & SOC’Y REV. 953, 980-83 (1990) (noting that disputants have more
satisfaction with the process when they can participate and be heard before a neutral
third party).
1997]
MEDIATOR’S ROLE
983
cess when the mediator not only gives the parties a forum and assists them in new ways of assessing the dispute, but also provides
some yardstick for assessing the options and some information about
the range of default options if the matter is adjudicated rather than
settled.86
V. THE LIMITS OF EVALUATION: MEDIATION MUST BE MEDIATION—
MAYBE
Even my support of hybrid or evaluative mediation has limits.
Mediation differs from arbitration or early neutral evaluation in significant part because of the procedural and substantive expectations
of the parties. For example, in approaching mediation, the parties
may present information differently, may argue for resolution not
supported under current law, or may engage in other disputing behavior that differs rather substantially from the disputant’s posture
when he or she knows the case will be evaluated and even adjudicated by arbitrator. In these latter situations, the disputants are
more likely to present information as advocacy and less as background for negotiation or problem-solving. When properly employed
and faithfully participated in by parties genuinely desirous of exploring mediated resolution rather than adjudication, mediation offers substantial creative and transformative potential. Meditation
can then accomplish things foreclosed in litigation without diminishing fairness.
To the extent mediation veers too far from the voluntary, cooperative, facilitative assumptions that spurred its growth, it loses some of
this creative and transformative potential. Some of this is inevitable,
however, when the mediation is court-ordered or when one or more
of the parties is not approaching mediation in the cooperative spirit.
Not every dispute will be amenable to facilitative mediation, and effective mediators must respond accordingly. Sometimes (perhaps ofttimes), however, the apt response will be to cease mediation and
route the dispute toward a more adjudicatory alternative. Some disputes are simply not apt for mediation unless the mediator becomes
so evaluative or coercive as to have ceased being a mediator and become an arbitrator or the equivalent.
Although keeping mediation as mediation has strong appeal, in
seeking to implement effective ADR mechanisms, courts should give
more serious consideration to granting omnibus discretion to ADR
86. See McEwen, supra note 17, at 1378-84 (realizing that a lawyer’s contributions of
legal rules and options not only protect parties, but also add information that may increase settlement options); see also Ayres & Brown, supra note 84, at 373-85, 395 (suggesting that information imparted by the parties to the mediator, drawn from the parties
by the mediator, or contributed by the mediator may increase opportunities for an informal resolution of the conflict).
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officers. It is not at all clear that the best means of spurring dispute
resolution might not be to initially assign all such claims to a judicial
adjunct (either a corps of government employees or a panel of attorneys willing to fulfill the role) who can mediate, evaluate, arbitrate,
presumptively find fact or law, or recommend in order to seek resolution.87
As long as the parties have the option of further review by the
court that is not unduly deferential to the ADR official’s determination, this style of approach would not appear to be an impediment to
the right to a jury trial.88 Merging ADR efforts and permitting facilitation or evaluation to proceed on a case-specific basis rather than a
categorical basis may provide a more efficient means of serving both
efficiency and fairness. At a minimum, such a merged approach
would at least drive a stake (although probably not the final stake)
through the heart of the false dichotomy of facilitation versus
evaluation.
VI. CONCLUSION
The magnitude of the ADR revolution during the past decade,
particularly in Florida, has been vast indeed. But the developing
ADR infrastructure should reject, once and for all, attempts to segregate and pidgeonhole ADR devices according to particular models
of theoretical purity. Ultimately, the best guarantee of effective ADR
is the same as the best guarantee of effective adjudication: the common-law case-by-case determination of disputes through means apt
for the instant case. False dichotomies only impede this goal.
87. See Stempel, supra note 7, at 361-89 (proposing greater government operation of
ADR premised on flexible intake and initial assignment of cases according to specific
characteristics).
88. See Kimbrough v. Holiday Inn, 478 F. Supp. 566, 568 (E.D. Pa. 1979) (holding
that compulsory court-annexed arbitration did not violate the Seventh Amendment as
long as the dissatisfied party may demand a trial de novo with jury).
FACILITATIVE VERSUS EVALUATIVE MEDIATOR
ORIENTATIONS: PIERCING THE “GRID” LOCK
JOSEPH B. STULBERG*
I. INTRODUCTION ..................................................................................................
985
II. THE RISKIN GRID: AN OVERVIEW OF THE CONTROVERSY ..................................
987
III. CONSEQUENCES OF THE RISKIN GRID ................................................................ 991
A. There Is No Criterion for Critiquing Mediator Performance (Whether
Facilitative or Evaluative) Other than the Single Dimension of the
Efficiency with Which Parties Reach (or Fail to Reach) the Stated Goal
of the Mediator’s Orientation .....................................................................
991
B. The Marketplace Vision of the Delivery of Mediation Services Cannot
Do What Its Advocates Propose..................................................................
992
C. Some Orientations May Incorporate Practices That Systematically
Favor the Participation of One Party over Another ...................................
993
D. The Scope of Usefulness of the Mediation Process Is Unnecessarily
Constrained ................................................................................................ 994
IV. THE EVALUATIVE/FACILITATIVE DICHOTOMY: A FALSE VISION ........................ 995
A. The Substantive Knowledge Possessed by the Mediator............................ 996
B. The Mediator’s Preparation for and Conduct of the Mediation
Conference...................................................................................................
998
1. Mediator Preparation...........................................................................
999
2. Mediator Conduct ................................................................................ 1000
3. Implications of Preparation and Practice for the Grid ....................... 1001
V. CONCLUSION...................................................................................................... 1003
I. INTRODUCTION
Professor Leonard Riskin introduced his “grid” of mediator orientations almost two years ago.1 The vocabulary of “facilitative” and
“evaluative” mediation derives from that article and his most recent,
eloquent exposition.2
The distinction has become the focal point of constructive dialogue and controversy regarding the nature and scope of mediation.
Riskin and others contend that the range of mediation practices and
values, when properly described, encompasses a wide array of
evaluative conduct by the mediator.3 Some critics retort that
“evaluative mediation” is an oxymoron and that “facilitative mediation” is a redundancy.4 The decided benefit of the Riskin grid and its
attendant analysis, then, is that it invites us to revisit traditional
* Professor of Law and Director of Advanced Studies, University of MissouriColumbia School of Law. B.A., Kalamazoo College, 1967; J.D., New York University, 1970;
Ph.D., University of Rochester, 1975. Member, New York Bar.
1. See Leonard L. Riskin, Mediator Orientations, Strategies and Techniques, 12
ALTERNATIVES TO HIGH COST LITIG. 111, 111 (1994).
2. See Leonard L. Riskin, Understanding Mediators’ Orientations, Strategies, and
Techniques: A Grid for the Perplexed, 1 HARV. NEGOTIATION L. REV. 7, 23-24 (1996).
3. See id. at 44.
4. Kimberlee K. Kovach & Lela P. Love, “Evaluative” Mediation Is an Oxymoron, 14
ALTERNATIVES TO HIGH COST LITIG. 31, 31 (1996).
985
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questions regarding the nature of the process, its users, and its practitioners, sharpened with increased insights regarding dispute
resolution theory and the lessons of mediation’s current widespread
use.
If the debate were simply a terminological quibble about the use
of a particular term, “mediation,” then people would probably not be
so agitated by the proffered distinction. However, considerably more
is at stake. First, to embrace the grid as a descriptive account of mediation practice requires one to accept four implausible conclusions
about mediation and mediation practice. Such a description requires
us: (1) to deny our capacity to evaluate or criticize intervener performance as being capably or ineptly executed; (2) to accept a “marketplace driven” vision of the delivery of mediation services whose
rationale is inconsistent with—and, hence, defeats—the very claim
of customer preference it tries to advance; (3) to ignore how certain
mediator orientations described by the grid, especially the evaluative
approach, undermine a mediator’s neutrality by potentially incorporating practices that skew or disadvantage parties on grounds of
gender or race; and (4) to unnecessarily constrain the potential range
of process use.
Second, although each of the criticisms noted above assumes, for
argument purposes, that the definitions and descriptions contained
in the grid are correct, I ultimately believe they are materially inaccurate. To accept the accuracy of the grid’s portrayal of the key operative phrases “facilitative” and “evaluative” leads to an account of
mediation that distorts the techniques, strategies, and theories that
are distinctive of the mediator’s role. The grid deprives, without
theoretical justification, facilitative interveners from performing certain acts that are consistent with their theoretical conception of being a neutral intervener, while arrogating to evaluative interveners
a philosophical framework that is inconsistent with their practitioner values. In short, I argue that any orientation that is “evaluative”
as portrayed on the Riskin grid is conduct that is both conceptually
different from, and operationally inconsistent with, the values and
goals characteristically ascribed to the mediation process.
After reviewing in Part II the Riskin grid and the framework of
the debate it has generated, I offer justification for my criticisms. In
Part III, I identify and assess four implausible consequences about
mediator practice that flow from the assumption that the grid’s description of the broad range of behaviors it identifies as “mediator
behaviors” is accurate.
In Part IV, however, I turn to examine directly the proffered distinction between facilitative and evaluative mediator orientations. I
argue that the facilitative/evaluative dichotomy is a false one, but
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MEDIATOR ORIENTATIONS
987
not for reasons that will give comfort to those who have rushed to
style themselves as either “evaluative” or “facilitative.”
II. THE RISKIN GRID: AN OVERVIEW OF THE CONTROVERSY
Riskin attempts to clarify the confusion that he believes surrounds conversations about the nature of mediation. Specifically,
Riskin suggests that gaining clarity on what the range of current
mediation practices “is” will illuminate our answer to what mediation practices “ought” to be.5 Hence, in his grid, he attempts to sort
out the range of mediator orientations that have been observed in
practice or reported across a broad spectrum of substantive contexts.
He notes that two primary factors determine a mediator’s orientation: whether the mediator deploys “evaluative” or “facilitative”
strategies and techniques to achieve the goal of helping parties address and resolve the problems at issue, and whether the mediator
and parties focus the subject matter of the mediation narrowly or
broadly.6 With these two elements, the grid quickly takes shape.
Some commentators interpret Riskin’s grid to be both descriptive
of current practices and, more disturbingly, to be prescriptive in nature.7 Their concern, stated in the vernacular, is that “just because
someone says that what she is doing is mediation does not make it
mediation”; for Riskin to suggest, via the grid, that all orientations
are indeed mediator behaviors fails to keep boundaries among otherwise sharply distinguishable dispute resolution processes. Riskin
surely gives his critics language to justify such a reading. He writes:
I do not aim . . . to favor one type of mediation over another . . . . I
try to include in my system most activities that are commonly
called mediation and arguably fall within the broad definition of
the term. I know that some mediators object to such inclusiveness,
and fear that somehow it will legitimize activities that are inconsistent with the goals that they associate with mediation. Although I sympathize with this view, I also disagree with it. Usage
determines meaning. It is too late for commentators or mediation
organizations to tell practitioners who are widely recognized as
mediators that they are not . . . .
....
The grid can help in selecting a mediator because it includes virtually all activities that are widely considered mediation.8
5. Riskin, supra note 2, at 9.
6. See id.
7. See Videotape: Interview of Professor Robert A. Baruch Bush, Hofstra Law
School (Professor Lela P. Love, Clinical Professor of Law, Cardozo Law School 1995) (on
file with Professor Love).
8. Riskin, supra note 2, at 12-13, 40 (footnotes omitted).
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While Riskin clearly notes that there are strengths and weaknesses for each of the respective orientations, he endorses each approach as being legitimate mediation practice 9 and affirmatively indicates that he is trying to “categorize the various approaches to mediation so that we can better understand and choose among them.” 10
He believes that the discussion should not be about whether a particular orientation is “really” mediation.11 He would instead focus on
clarifying for the potential user what orientation a mediator actually
embraces, whether that orientation meets the preferences of the users, and whether the mediator’s training and experience reinforces
and advances that orientation.12 Some critics reject this approach.
Some argue that “evaluative mediation” (particularly, the
“evaluative-narrow” orientation) is an oxymoron. 13 They maintain
that evaluative activity by a mediator distorts the distinctive attributes of the mediation process and undermines the contribution a
mediator makes when serving the disputing parties. 14 These critics
urge that what is distinctive about mediation is its capacity to increase parties’ understanding of one another’s situation and, based
upon such understandings, to develop concrete resolutions of their
tangible concerns that are acceptable to all parties. 15 Concepts of
empowerment, participation, and the freedom to develop or reject
proposed solutions are prominently featured in the facilitative approach,16 but are denigrated and undermined when the intervener
becomes evaluative. Hence, critics argue that anyone engaging in activity that is in the northern, evaluative sphere of the grid is not
doing “mediation.”17
That is not to say, the critics quickly note, that such persons
might not be performing a valuable service or that the service might
not be one that particular parties desire; critics insist, however, on
urging that such conduct not be labeled “mediation.” 18 They urge us
to clarify and to distinguish dispute resolution proceedings from one
another—that is, to recognize the differences between the problem9.
10.
11.
12.
13.
See id. at 13.
Id.
See id. (preferring categorization over exclusion).
See id. at 40-41.
See Kovach & Love, supra note 4, at 31. See generally ROBERT A. BARUCH BUSH &
JOSEPH P. FOLGER, THE PROMISE OF MEDIATION: RESPONDING TO CONFLICT THROUGH
EMPOWERMENT AND RECOGNITION (1994) (arguing that a problem-solving approach to mediation can lead to directives from the mediator that overshadow the goal of satisfying the
parties’ needs).
14. See Kovach & Love, supra note 4, at 31.
15. See id.
16. See id.
17. See id.
18. See Lela P. Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24
FLA. ST. U. L. REV. 937, 948 (1997).
1997]
MEDIATOR ORIENTATIONS
989
solving processes used in mediation and the evaluative processes
used in adjudicatory processes—and the consequent skills and
knowledge each intervener must bring to the respective enterprise. 19
Riskin’s proposal to label such different activities with the same
term does not, despite Riskin’s assertion, make those activities the
same (“[u]sage determines meaning”20); to characterize the critics’ response in the Wittgensteinian terms that Riskin invites, the critics
maintain that the processes described by the grid neither generate
nor bear “family resemblances”21 to one another. In short, they are
not the “same” enterprise.
Another voice and perspective in this dialogue is frequently articulated by those very practitioners whose conduct scholarly commentators attempt to describe. The practitioner perspective suggests
that the orientation of the effective mediator—with “effective” defined as someone who has an active, remunerative mediation practice—falls within several quadrants of the grid. “Sometimes I’m facilitative; sometimes I’m evaluative. Sometimes I focus narrowly;
sometimes broadly. And, in fact, it could all happen within the same
mediation!”22 Riskin appears to allow for this type of response when
he notes that some mediators can adopt whatever style the selecting
parties or counsel announce at the outset that they want. 23 Additionally, Riskin notes that sometimes during the course of the mediation
conference itself, a mediator might change her orientation based
upon the circumstances.24 While both of these dimensions seem to
capture part of the spirit of the practitioner’s insight, the practitioner still confronts the queasy feeling that something is missing in
the explanation. I will argue below that the missing piece is the inability of the grid’s analysis to assist the practitioner in knowing
why she should move or is justified in moving from one orientation to
another. The practitioner is left simply saying that “one knows what
to do when the situation arises.” That response was inadequate in
obscenity cases,25 and it fails to provide the necessary criteria for determining appropriate mediator behavior as well.
19. See id.
20. Riskin, supra note 2, at 13.
21. LUDWIG WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS para. 67, at 32e (G.E.M.
Anscombe trans., MacMillan Co. 3d ed. 1958) (1953).
22. This comment was made by several experienced civil trial mediators attending a
master class for mediators conducted by the author and Lela P. Love in St. Augustine,
Florida, from May 31 to June 2, 1995. For a statement of a similar position advocating
flexibility, see ERIC GALTON, REPRESENTING CLIENTS IN MEDIATION 4 (1994).
23. See Riskin, supra note 2, at 40-41 (discussing criteria for selecting mediators).
24. See id. at 41 (asserting that flexible mediators who are able to change orientation
as needed are available).
25. See Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring) (observing of obscenity that “I know it when I see it”).
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So what is the debate on the grid about? All participants in the
debate focus on what people do as mediators. The critics argue that
every orientation carries with it a commitment to particular visions,
values, and behaviors that the intervener is trying to promote, and
that not all visions fit consistently in the category of mediation. 26
Further, they argue that the facilitative vision embraces one of party
participation in problem-solving activities in a manner that features
party choice.27 Evaluative activity of any kind operates at crosspurposes with those goals.28 To promote clarity of choice, then, they
urge that the use of the term “mediation” (and its implementing program rules, training focus, etc.) should be reserved to the facilitative
orientation, given that such values and approaches resonate most
closely with the historical tradition and public policy associated with
it.29
The response of Riskin and practitioners agrees with the general
proposition that some orientations promote certain goals but not
others.30 However, Riskin maintains that: (1) the description of the
broader range of mediator orientations portrays more accurately
what is being done in the name of mediation; (2) clarity in mediator
orientation facilitates informed party process choice; and (3) an individual mediator can operate consistently across various quadrants. 31
I believe that the practitioner is uneasy with the critics’ perspective
because she believes that some of the evaluative behaviors described
by the grid are ones she deploys and views as essential for effective
mediation service. The facilitative approach, by contrast, seems
oblivious to the energy, temperament, force, and edge that is often
required for effective mediator interventions. I believe that the practitioner is equally uncomfortable with Riskin’s account because it
seems to license behaviors that are both inconsistent with mediation
being a consensual process and are arguably proscribed by state and
professional codes of conduct under which they operate. 32 The debate
at this level presumes that Riskin’s description of mediator orientations and strategies is accurate. In Part IV, I argue that this description is materially inaccurate; hence, the debate takes place on a
foundation of quicksand. Before turning to that argument, however,
I will analyze four unlikely conclusions about mediator practice that
result from assuming the plausibility of Riskin’s description.
26. See Kovach & Love, supra note 4, at 31.
27. See Love, supra note 18, at 939.
28. See Kovach & Love, supra note 4, at 32.
29. For a related discussion, see CHIEF JUDGE’S N.Y. STATE COURT ALTERNATIVE
DISP. RESOL. PROJECT, COURT-REFERRED ADR IN N.Y. STATE 7 (1996).
30. See Riskin, supra note 2, at 41 (allowing that each approach has potential advantages and disadvantages).
31. See id. at 38-41.
32. See Love, supra note 18, at 940-41.
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III. CONSEQUENCES OF THE RISKIN GRID
If Riskin’s overall account of mediator orientations and strategies
is correct, four troublesome consequences result.
A. There Is No Criterion for Critiquing Mediator Performance
(Whether Facilitative or Evaluative) Other than the Single Dimension
of the Efficiency with Which Parties Reach (or Fail to Reach) the
Stated Goal of the Mediator’s Orientation
Consider the evaluative mediator. She is portrayed as someone
who provides guidance to parties as to appropriate settlement terms
in light of the legal, industry, or technology considerations with
which the mediator is reasonably conversant. 33 In such circumstances, what counts as “good” or “bad” mediating? Presumably, the
assessment turns completely on whether the mediator was successful in getting the parties to accept her assessment of the outcome
and the settlement terms offered. However, that is simply to define
good and bad in terms of efficiency in reaching a settlement.
Whether the mediator listened to the parties or their counsel, captured their concerns, or crafted an agreement compatible with their
values is irrelevant. The only test of success is whether the mediator
convinced the parties to accept an outcome. To paraphrase H.L.A.
Hart’s wonderful example, mediating is simply the case of “the gunman writ large”;34 that is, if the mediator is articulate, adept with
figures, or in any other manner dangerously persuasive, then, on the
Riskin grid, such conduct is not subject to criticism if the parties
reach agreement. We may observe that the mediator could have
achieved the same results even if she had been less blustery, more
subtle, less belligerent, or less authoritative, but such observations
are simply comments about style. Nothing in principle is improper
about the mediator bullying someone into an agreement as long as
there is some operative notion that the parties “voluntarily” agreed
to the outcome (for example, they had counsel, were not compelled
under duress to accept the terms, etc.). There is no sense in which we
can say of the mediator’s performance, “You should not do that,”
where “should” appeals to some value other than whether (and how
quickly) the parties accepted (the mediator’s) proposed settlement
terms.
Similar comments hold true for evaluating the performance of the
facilitative mediator. The primary mission of the facilitative mediator,
33. See Riskin, supra note 2, at 26.
34. H.L.A. HART, THE CONCEPT OF LAW 80 (1961).
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according to Riskin, “is to clarify and to enhance communication between the parties in order to help them decide what to do.” 35 If the
mediator asked questions in carefully crafted and open-ended language, crystallized issues in neutral terms, thoughtfully designed a
discussion agenda that enabled parties to reorient and enrich their
understanding of one another, effectively but indirectly probed for
possible options, or thoughtfully prompted parties to think about the
consequences of not settling, and all of those efforts still failed to
lead the parties to an enhanced understanding of their situation or
improved communication (let alone a resolution), we cannot, according to the grid, say of that individual that she mediated well but
was not successful. All we can say is that she was not effective in
having the parties achieve the stated goal.
The general structure of this criticism, then, is that by letting a
thousand flowers bloom in the name of mediation, the grid embraces
whatever values a particular orientation espouses. Since all orientations are “mediation,” no commanding, independent analytical
framework for evaluating mediator performance emerges. By necessity, we are constrained to evaluating the conduct from the frame of
reference of the quadrant within which one finds oneself. That
evaluation reduces everything to a matter of efficiency, not propriety.
Riskin, on pain of contradiction, must be wedded to this analytical
consequence. For if he were to begin to offer some goals and values
(for example, that mediation is consensual and participatory) as being distinctive of the mediation process, thus indicating standards
against which one can evaluate mediator conduct, then the gate is
opened to ask why those values, but not others, were included. Since
the grid has no way in principle of foreclosing any values from being
acceptable, it relinquishes all claims to establishing a noninstrumental foundation on which to critique mediator conduct.
B. The Marketplace Vision of the Delivery of Mediation Services
Cannot Do What Its Advocates Propose
Some argue that the intervener should adopt the orientation that
the parties desire.36 If parties or their counsel want an evaluation,
the mediator should provide it. If they want facilitation, the mediator should act accordingly. The mediator who can service the broadest client base is that individual who adapts her orientation to market demands.37
35. Riskin, supra note 2, at 24.
36. See Riskin, supra note 2, at 39-41.
37. See id. at 40-41. This is not to say, of course, that the person who is most successful economically as a mediator or who services the largest clientele must be the most
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However, this analysis collapses in an instructive way. Consider
the situation in which Party A or her lawyer indicates that she prefers a mediator with an evaluative-narrow orientation, and Party B
or her lawyer indicates that she prefers a mediator whose orientation is facilitative-broad. If one assumes that the parties are ordered
to appear in mediation, how should the mediator proceed? The obvious answer is that the mediator must choose which orientation to
adopt. That choice might be influenced by the mediator’s convictions
about the values of conversations and settlement discussions or her
probabilistic assessments of which style will appeal to the largest
segment of the financially paying mediation clients; the reasons, at
this level, are irrelevant. The compelling insight is that the mediator
must choose which orientation to adopt, not the parties. Thus, the
market-demand analysis simply folds.
C. Some Orientations May Incorporate Practices That
Systematically Favor the Participation of One Party over Another
Assume that the grid accurately describes acceptable mediation
practices. Do the orientations share a consistency of values in their
process guidelines? I do not believe they do.
For example, recent communication literature suggests that conversational patterns among males and females are importantly different.38 Some patterns appear to be characteristic of males—for example, argumentative comments designed to assert a certain dominance in the conversational relationship—whereas other styles that
emphasize relational connections appear more congruent with female orientations.39 Acknowledging that much of the analytical and
empirical work in this area is quite tentative, I do believe that it is
sufficiently rich to at least ask the following question: In a conference conducted pursuant to the evaluative-narrow orientation, would
the structure of the conversation, with the advocates presenting the
case, submitting facts, and proffering argumentative conclusions to
the third-party intervener, operate to favor one gender over another? If
any plausibility attaches to the claim that such an argumentative flavor might favor males over females, then certainly the mediator must
revisit her claim that she is conducting a conversation that is without
bias, for the game is skewed from the outset. From this admittedly
adaptable, for it may be the case, as Riskin’s analysis suggests, that most of the users of
mediation services prefer only one type of orientation.
38. See generally DEBORAH TANNEN, YOU JUST DON’T UNDERSTAND: WOMEN AND MEN
IN CONVERSATION (1990) (explaining gender influences on communication); CAROL
GILLIGAN, IN A DIFFERENT VOICE: PSYCHOLOGICAL THEORY AND WOMEN’S DEVELOPMENT
(1993) (proposing that women and men undergo different types of psychological development because of their differing perceptions of the world).
39. See TANNEN, supra note 38, at 149.
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guarded perspective, the facilitative approach then appears to at
least leave open the possibility of a more equitable conversational
climate. In that important sense, the structure of the conversation
can either support or undermine a viable notion of power balance
and equality as being valued features of the problem-solving process.40
I recognize that the type of analysis, conversation, and conjecture
noted immediately above is a tentative and awkward one at best.
The hesitancy surfaces because the primary claims in communication theory seem so contestable and, perhaps more significantly, because we are trained to believe that one important method for “balancing inequalities” is to insist upon following a set of impartial procedures that prevent the most powerful, articulate, or domineering
individual from overwhelming the other party, irrespective of the
merits of the controversy.41 Nevertheless, I believe that the grid’s
analysis constructively compels us to pause in our skepticism of
those matters. If the findings of communication theorists are in any
way credible, then the decision to be “evaluative” rather than “facilitative” in one’s orientation has serious repercussions with respect to
the fairness of the process and the justice of the ensuing results.
D. The Scope of Usefulness of the Mediation Process Is
Unnecessarily Constrained
The image of mediation portrayed in the grid is governed by a
conception of mediation as being an alternative to some other identifiable decisionmaking procedure. To play upon the well-worn phrase,
the mediation captured by the grid is being conducted in the
“shadow of a trial.”42 If the parties do not resolve their differences in
mediation, then some other dispute resolution forum—most likely an
adjudicatory one (trial, arbitration, or administrative hearing)—will
take place.
40. For related comments and perspectives that analyze the difference in impact between a listener’s guiding a discussion and the speaker’s engaging in uninterrupted exposition, see the discussion in Freud’s autobiographical study of his change of methods from
hypnosis to psychoanalysis in THE FREUD READER 13-19 (Peter Gay ed., 1989).
41. Indeed, this is the point of the criticism advanced by ADR critics. See Owen M.
Fiss, Against Settlement, 93 YALE L.J. 1073, 1076 (1984) (arguing that inequality of resources between the parties can skew settlement proposals); see also Trina Grillo, The
Mediation Alternative: Process Dangers for Women, 100 YALE L.J. 1545, 1550 (1991) (asserting that individuals who feel compelled to maintain a connection to another person
are at a disadvantage in mediation). The argument I advance in the text suggests, contrary to these critics, that those very procedures, when used in an allegedly mediatory
context, might serve to reinforce inequalities rather than balance them, thereby undermining the common aspiration of constructing a fair environment for dialogue.
42. The phrase, “bargaining in the shadow of the law,” gained widespread currency
following the publication of Robert H. Mnookin and Lewis Kornhauser, Bargaining in the
Shadow of the Law: The Case of Divorce, 88 YALE L.J. 950 (1979).
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Mediation, however, has far more extensive uses than that—and
when one envisions its applications, some mediator orientations are
immediately deemed irrelevant. An evaluative-narrow orientation
for a peer mediator in a high school converts the peer into a school
guidance counselor. When the Department of Justice dispatches a
team of mediators to service racial conflicts or the Federal Mediation
and Conciliation Service assigns a mediator to help management
and union bargaining teams resolve a private-sector collectivebargaining impasse, the last thing parties will embrace is someone
who has come to tell them how to live their lives. In short, parties
operating in important contexts in which mediation is used have no
tolerance for the evaluative orientation. The response, “Well, for certain types of disputes, certain orientations would not be effective or
well-suited,” is not sufficient. The mismatch in orientation stems
from the fact that dissimilar values and goals make the intervention
something different. That insight leads to the more fundamental
flaw generated by the grid’s analysis, namely that the proffered distinction between evaluative and facilitative is not persuasive.
IV. THE EVALUATIVE/FACILITATIVE DICHOTOMY: A FALSE VISION
What does it mean to be evaluative or facilitative? Riskin’s initial
account asserts:
The mediator who evaluates assumes that the participants want
and need her to provide some guidance as to the appropriate
grounds for settlement—based on law, industry practice or technology—and that she is qualified to give such guidance by virtue of
her training, experience, and objectivity.
The mediator who facilitates assumes that the parties are intelligent, able to work with their counterparts, and capable of understanding their situations better than the mediator and, perhaps,
better than their lawyers. Accordingly, the parties can develop better
solutions than any the mediator might create . Thus, the facilitative
mediator assumes that his principal mission is to clarify and to
enhance communication between the parties in order to help them
decide what to do.43
From these orientations, a mediator utilizes a range of strategies
(plans) and techniques (particular moves or behaviors) to effectuate
those strategies.44 Again, the critical claims are made in Riskin’s descriptions of these choices:
A principal strategy of the evaluative-narrow approach is to help
the parties understand the strengths and weaknesses of their positions and the likely outcome of litigation or whatever other process
43. Riskin, supra note 2, at 24 (emphasis added) (footnote omitted).
44. See id. at 26.
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they will use if they do not reach a resolution in mediation . But the
evaluative-narrow mediator stresses her own education at least as
much as that of the parties. Before the mediation starts, the evalu ative-narrow mediator will study relevant documents, such as the
pleadings, depositions, reports, and mediation briefs. At the outset
of the mediation, such a mediator typically will ask the parties to
present their cases, which normally means arguing their positions,
in a joint session. Subsequently, most mediation activities take
place in private caucuses in which the mediator will gather additional information and deploy evaluative techniques . . . .45
By contrast, Riskin characterizes the approach of the facilitative
mediator in the following way:
The facilitative mediator believes it is inappropriate for the mediator to give his opinion, for at least two reasons. First, such opinions might impair the appearance of impartiality and thereby interfere with the mediator’s ability to function. Second, the mediator
might not know enough—about the details of the case or the rel evant law, practices or technology— to give an informed opinion.46
The facilitative-narrow mediator . . . does not use his own assessments, predictions, or proposals. Nor does he apply pressure. He
is less likely than the evaluative-narrow mediator to request or to
study relevant documents.47
This picture of mediator orientations, however, is significantly distorted and supports mediator stereotypes that are not helpful. It ascribes attributes to facilitative mediators that render their service
ineffective from the onset. As I argue below, this picture incorporates
into the evaluative mediator’s orientation a range of behaviors that
lead quickly to transforming the mediator’s role into an adjudicatory
one.
A. The Substantive Knowledge Possessed by the Mediator
The grid and accompanying descriptions portray the evaluative
mediator as one who is knowledgeable about the law, industry practices, or technology shaping the context of the dispute. By contrast,
the facilitative mediator “might not know enough—about . . . the
relevant law, practices or technology—to give an informed opinion.” 48
The picture created is that the facilitative mediator does not have to
know about these matters to perform the mediator’s role as she env isions it.49 However, this is false for two reasons.
45. Id. at 26-27 (emphasis added) (footnotes omitted).
46. Riskin, supra note 1, at 111 (emphasis added).
47. Riskin, supra note 2, at 28 (emphasis added) (footnote omitted).
48. Riskin, supra note 1, at 111.
49. See id. at 113. Riskin suggests that because the facilitative-broad mediator “emphasizes the participants’ role in defining the problems and in developing and evaluating
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First, knowing the relevant law, industry practice, or technology
does not per se make one an “evaluative” mediator, for the issue is
how the mediator uses that knowledge during the conversation.
Surely a person unconditionally committed to assisting parties reach
a resolution that they find acceptable can be as knowledgeable about
relevant matters as the “evaluative” mediator, but yet refrain from
predicting probable litigation outcomes and the like when trying to
help parties reach agreement.
Second, according to the description, the facilitative mediator is
one who “ask[s] questions . . . to help the participants understand . . .
the strengths and weaknesses of each side’s case and the likely consequences of non-settlement, as well as the costs of litigation (including expense, delay, and inconvenience).” 50 Other techniques used
include helping the parties develop their own proposals, helping the
parties exchange proposals, and helping the parties evaluate proposals.51 However, the image created by the first distinction suggests
that all of these latter techniques are employed by the facilitative
mediator in a knowledge vacuum—that is, that she asks questions or
assesses proposed settlement offers without having any grounding in
the relevant law, legal processes (trial tactics, etc.), industry practices, or technology. In short, the image of the facilitative mediator is
that she is, by design, a “know-nothing” intervener who focuses exclusively on facilitating conversations between the contestants. This
image is misleading because it suggests that one can formulate constructive or probing questions that help create movement towards
settlement without the need to be informed about the relevant substantive and practice areas of the dispute. However, that proposition
is false as a matter of epistemology. In any context—for example,
persons mediating a case, college students participating in a classroom discussion, or friends engaging in a dialogue about matters relating to parenting practices—those persons who are most able to
ask thoughtful, insightful questions about the topic under review are
precisely those who are the most informed about the events, practices, and human behaviors that are the subject matter of conversation. The unprepared participant has the least to contribute to the
discussion. If the grid’s account of the facilitative mediator is correct,
however, then the mediator who is labeled “facilitative” is straddled
with a knowledge-vacuum that makes it impossible for her to execute her role, even as the grid defines it for her. Furthermore, if the
proposals, the facilitative-broad mediator does not need to fully understand the legal posture of the case.” Id.
50. Riskin, supra note 2, at 28 (emphasis added); see also id. at 51 n.68 (providing a
more extensive, illustrative list of the types of questions that the facilitative-narrow mediator might ask).
51. See id. at 29.
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facilitative mediator, conceptually speaking, is neither well-informed
about the context within which the parties’ concerns collide nor capable of asking questions that can probe, challenge, or illuminate the
possibilities for movement, then the mediator-practitioner’s skepticism about whether any party or her lawyer would ever hire such an
individual is certainly well-grounded. Why should the “market”
players spend time and money utilizing someone whose ability to facilitate problem-solving is severely handicapped from the outset? No
reason exists to do so, and a person wanting to earn a living as a
mediator would be committing economic suicide by presenting herself in this posture.
Intuitively, however, the facilitative mediator has a much better
case to make for herself than the grid’s analysis licenses. Although
the case elaborated below speaks to a more prominent role in her
helping parties to constructively confront the urgency and concreteness of their dispute, the facilitative mediator cannot make that case
if strapped by the qualities attributed to her by the grid.
B. The Mediator’s Preparation for and Conduct of the Mediation
Conference
The grid portrays the evaluative mediator as someone who will
study relevant documents, such as the pleadings, depositions, reports, and mediation briefs, before the first joint session and then
begin the mediation by asking the parties to present their cases,
“which normally means arguing their positions, in a joint session.” 52
Again, the implied contrast is that the facilitative mediator, minimally, refrains from all pre-mediation review of relevant documents
or orientation to the substantive controversy. The stronger implication is that the facilitative mediator would not look at these documents at any time during her service because they are not relevant
to performing her role. As to the manner in which the mediation conference is conducted, the evaluative mediator begins by having the
parties present their respective cases. Although Riskin and others do
not state how the facilitative mediator would commence the conversation, the implication is that she would begin differently.
Again, it is important to assess the picture of the facilitative mediator that emerges from these descriptions and comparisons. The picture is that of a person who does not soil her hands by immersing herself in the documents that have helped shape the case; she does not
allow parties or their representatives to present their concerns in a
manner that resembles, at least initially, the format of an adversarial
hearing or to allow for exchanges that exhibit contentious behavior
52. Id. at 26-27.
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among the parties. This picture of the ground rules that a facilitative
mediator might establish reinforces the perception of her being a
nice but ineffective person (a “Mr. Rogers,” as one person derogatorily puts it53); she is ineffective because the ground rules undermine
her capacity to influence party conversation. However, this image is
also significantly misleading. I consider each element in turn.
1. Mediator Preparation
An important question for mediator practice is whether a mediator, prior to convening the first joint session, should review documents, memoranda, or other items (for example, a mediation brief)
that set forth the background and focus of the controversy. Some
might argue for the importance of having the mediator prepare herself for the conversation with as much information as is known and
made available to her by each of the parties to the controversy. Indeed, parties can save time and money by having the mediator study
such documents prior to the first joint session. A competing perspective is that the mediator’s perception of the dispute is best developed
by having all parties to the controversy give live presentations to the
mediator while in one another’s presence. In that way, the mediator
will not impair her neutrality by prematurely developing beliefs or
attitudes about what issues are in play or by artificially restricting
the range of possible settlement options that might otherwise
emerge from her pre-hearing review and assessment of written
documents. I believe that mediator practices can legitimately vary on
this matter across the dispute arena, so that what might be appropriate and reasonable in one context (for example, litigation-based
cases in which formal documents and arguments are routinely prepared) is inapposite in another (for example, explosive community
disputes).
Although the matter of the appropriate timing for reviewing such
documents may arguably differ among contexts, it does not follow
that a facilitative mediator should not review or analyze such documents at some point in time . Moreover, what is misleading about the
image of the facilitative mediator created by the grid’s descriptions is
the suggestion that the facilitative orientation does not require the
intervener to conduct informed, careful study of documents or to perform studies that may be relevant to an increased understanding of
the operating environments of the parties. This posture is simply
implausible. Consider the person serving as a mediator in discussions between a school district representative and a parent who is
contesting the adequacy of the school’s proffered individualized
53. RICHARD H. RALSTON, DEFENSE RESEARCH INST., INC., ADR FOR THE DEFENSE
SEMINAR: “EFFECTIVE ADVOCACY AND MEDIATION” 3 (1994).
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education plan for the child who qualifies for such attention under
federal and state disabilities laws. Should the mediator ignore the
range of options licensed by the statutory provisions? Should the
mediator dismiss as irrelevant any and all evidence as to how the
school district has addressed such matters in other cases? Unless
one wants to argue the value of communicating such data in oral
form rather than in writing, it is difficult to imagine how an intervener could be helpful to the parties by refusing to bring such information into the discussion. The image that one can “wing it” or focus
primarily on process unjustifiably denigrates the skills required to
help parties reach a resolution that they find acceptable.
2. Mediator Conduct
Conducting a constructive conversation is challenging under the
best of circumstances. Conducting it when people are experiencing
stress, apprehension, or tension, as is frequently the case with parties in a dispute, is even more challenging. How should a mediator
proceed? The grid’s picture of the evaluative mediator is that of one
who orchestrates the conversation, at least initially, in a way that
resembles what we know to be a courtroom or adversary proceeding:
parties state positions, counter the opposite’s argument, and otherwise behave in a distributive fashion.54 The facilitative mediator, by
contrast, tries to conduct the dialogue so that parties focus on being
nonadversarial, look for win-win solutions, and otherwise engage in
collaborative behaviors.
Again, mediator-practitioners, particularly those working with
parties and counsel in matters of complex civil litigation, are the
first to state vehemently that participants shape and approach the
mediation session with a distributive mind-set; none of the parties to
the mediation, or their counsel, have agreed in advance to “leave
such attitudes at the door.” Surely this observation is plausible. In
short, practitioners find the rhetoric of facilitative mediators implausible or naïve because it assumes, as a condition for participation,
the very cooperation that most mediators perceive as being part of
their job to try to create.
Most people analyze and verbalize their actions over a broad
range of their interpersonal conduct through distributive language
and lenses. That does not mean that they are correct in doing so, any
more than does the observation that most Americans have too much
fat in their normal diet lead to an endorsement of such eating habits
as healthy or wise. Nor does it lock the mediator into accepting such
54. For the original, and I believe the most instructive, explanation of the distributive/integrative distinction in bargaining theory, see RICHARD E. WALTON & ROBERT B.
MCKERSIE, A BEHAVIORAL THEORY OF LABOR NEGOTIATIONS 11-183 (2d ed. 1991).
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behaviors as the only eligible framework for dialogue. All it recognizes is that when people argue about or discuss things that matter
to them, some aspects of those discussions are predictably contentious. If persons are justifiably outraged by the manner in which
they have been treated, one should not expect them to describe such
matters in a calm, sanitized, or stylized manner, nor to ignore their
attitudes of righteous indignation in favor of feelings of collaboration
and accommodation. Yet if the grid’s image of the “facilitative mediator” is that of someone who requires disputing parties to behave collaboratively, then the mediator’s imposition of those process or “orientation” values suggests an immediate disconnection between the
process orientation and the reality with which parties experience
their conflict. Again, if the market is the driving force for mediator
selection, then disputing parties and their counsel will find the facilitative mediator clueless about critical features of their situations.
3. Implications of Preparation and Practice for the Grid
What is the consequence of the above analysis of mediator preparation and conduct? Relegating the “facilitative” mediator to such an
implausibly ineffective orientation is disturbing. Why does it sting?
The answer seems apparent and speaks to what the grid’s critics
have highlighted. The central values of the mediation process appear
least congruent with the notion of the “evaluative” mediator as portrayed by the grid. In its rich, widespread history, mediation is not a
process designed for having an expert apply some external criteria to
assess the strengths and weaknesses of the parties’ cases. Mediation
is neither a process designed to marshal evidence leading to an advisory opinion by a third party, nor a rehearsal trial in front of judge
or jury. Rather, mediation is a dialogue process designed to capture
the parties’ insights, imagination, and ideas that help them to participate in identifying and shaping their preferred outcomes. It is a
process employed with an acute sensitivity, by all participants, to
the context of the initial and continuing power relationship among
the parties; it is a process in which multiple sources of criteria and
reasons are tapped to help forge possibilities for progress. As Lon
Fuller so eloquently put it, mediation is a process in which the central quality is the “capacity to reorient the parties toward each other,
not by imposing rules on them, but by helping them to achieve a new
and shared perception of their relationship, a perception that will
redirect their attitudes and dispositions toward one another.” 55 Concepts of participation and empowerment are not idle pleasantries to
be cited in Law Day speeches, but are central principles of a demo55. Lon L. Fuller, Mediation—Its Forms and Functions, 44 S. CAL. L. REV. 305, 325
(1971).
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cratic society and critical features of consensual decisionmaking processes, of which mediation is traditionally thought to be a prime example.56 Aphorisms contain kernels of truth. Yitzhak Rabin’s nowfamous “You don’t make peace with your friends, you make peace
with your enemies”57 observation signals an important difference
about the central values of bargaining and settlement that distinguish it from an alternative process of victors, à la the Versailles
Treaty, “imposing” peace terms on their enemy. Bargaining—negotiating—and mediated negotiations require conversation, dialogue,
and interaction with perceived opponents. The processes require extending a fundamental respect to one’s counterpart in order to create
the possibility for striking a deal. Evaluative mediation distorts
those values and behaviors and effectively denies their possibilities.
Nevertheless, the image of the facilitative mediator created by the
grid gives one little pause for optimism. I believe that it is not the
orientation that is wrong, but the picture or stereotype of what the
facilitative mediator does or can do that is the source of mischief.
One way to frame the fundamental question is: Given that the
overarching goals of the mediation process are to engage the disputing parties in a constructive conversation that enhances their
understanding of the situation and supports their efforts to find acceptable settlement terms, is it inconsistent to attribute to a mediator such attributes as being assertive, firm, forceful, imaginative,
creative, active, or focused? Are mediator characteristics of being
knowledgeable about the matters in dispute or informed about the
nature of the disputants incompatible with the mediator values of
promoting effective party participation and the integrity of their
right to exercise veto power over the outcome? I think most assuredly not. What is misleading about the grid’s descriptions is that
they require anyone possessing and displaying such characteristics
to be placed in the grid’s “evaluative” sphere and thereby behave and
advance goals that are inconsistent with the central premises of mediation noted above.
The image of the placid intervener—that is, a mediator embracing
the facilitative orientation—who can be helpful to the parties
reaching realistic agreements about real problems but who, in the
process, never makes a suggestion or offers an idea that might be responsive to party concerns, does not aggressively prod one or more
parties to reconsider its proposed position, does not actively restructure the bargaining agenda based upon party presentations, or does
56. For a related discussion of the relationship between negotiation processes and
democratic theory, see Joseph B. Stulberg, Cultural Diversity and Democratic Institutions:
What Role for Negotiations?, 10 MEDIATION Q. 249, 249 (1993).
57. Mr. Arafat’s Entourage, WASH. TIMES, Oct. 2, 1996, at A20.
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not challenge party proposals (perhaps in caucus) as unworkable or
misleading based upon one’s knowledge of the field and practices, is
stunningly implausible. This image is unrealistic because it suggests
that the intervener can be helpful to the parties without her having
a perceptible impact or influence on the dynamics of party interaction. However, a mediator does not simply parrot the parties’ statements; she is not a bump on a log in terms of suggesting ideas or
possibilities for resolution. A mediator does influence dialogue and
interaction—which is why mediation can be a practical contribution
in resolving disputes. It is also true, however, that an intervener can
manage that influence in a way that does not undermine party participation and their efforts at imaginative problem solving.
A related reason for rejecting the grid’s image of the facilitative
mediator is that the grid’s account rests upon a constrained vision of
how people develop ideas for settlement or otherwise engage in
problem-solving dialogue. The grid’s picture of the facilitative mediator assumes that settlement options or other constructive ideas come
exclusively from dialogue between participants. The intervener cannot offer any suggestions or insights that might spur parties to think
of other ideas or acceptable modifications of the mediator’s ideas.
The grid rules out the possibility that a mediator, without being
evaluative, could suggest an idea for settlement that the parties find
attractive or acceptable and, as a result, freely embrace it. Ideas and
options, however, can have many parents. The grid imposes a pedigree test on ideas: if it comes from the parties, the mediator remains
facilitative; if the mediator is the source of an idea, the mediator is
evaluative. However, that means that persons are autonomous
agents only if they entertain ideas for which they are the source.
That vision renders incoherent the notion of personal autonomy and
the role of voluntary decisionmaking that lies at the heart of the mediation enterprise.
V. CONCLUSION
I believe that the mediation practitioners who were uncomfortably puzzled about their observation that they moved among the
quadrants of the grid expressed that discomfort because they felt,
presumed, and acted on the conviction that it was not inconsistent
with party choice for them to be knowledgeable, resourceful, and active interveners in mediation dialogues. They reflectively acknowledge that in order for them to generate movement among parties,
they routinely deploy such techniques as having the parties evaluate
the strengths and weaknesses of their cases as well as those of their
counterparts, assess the costs of not reaching resolution, forecast the
impact of the dispute on the parties’ relationship, and expose various
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party interests that are advanced or undermined by the bargaining
agenda and proffered solutions. They do that not to tell the parties
how the mediator believes the controversy ought to be resolved, but
rather as techniques for reorienting party perspectives. I believe
there is nothing insidious about mediators doing this. Reorienting
party perspectives is constructive. It is helpful. Moreover, it can be
done in a manner that is consistent with the governing aspirations of
having parties engage in the settlement-building process. A mediator
can do this as a part of consensual decisionmaking processes.
The distinction between facilitative and evaluative behaviors is
important to maintain for many reasons. One relates to appropriate
expectations and behavior by advocates who represent parties in
mediation conferences. Advocates who prepare for and participate in
a “mediation conference” that is “evaluative” will do so as if they are
preparing for a trial. However, the most experienced advocates who
are also knowledgeable about the qualities of the mediation process
recognize what a mistake that is. They encourage advocates to prepare for mediation as though it were a “trial-plus” procedure—to
prepare for mediation as one would prepare for trial—but, in addition, to prepare to frame the dispute and orient clients so that everyone in the discussion is in a position to capitalize on the unique opportunities for problem-solving that the mediation forum offers. 58
Nevertheless, such advice is irrelevant if the dominant mediator orientation is evaluative.
Finally, even Riskin has a vision of the ideal mediator for any individual case. He writes:
The grid can help us envision an ideal mediator for any individual case. She would be sufficiently flexible to employ the most appropriate orientation, strategies, and techniques as the participants’ needs present themselves. This would require the ability (1)
to both evaluate and facilitate, and (2) to see things both narrowly
and broadly. She would have subject-matter expertise and she
would be impartial.59
However, a significant drawback to even this ideal mediator orientation is that she has no home base on the grid itself. This ideal mediator emphatically is not someone who is simply all things to all people. The key insight above—and the grid’s ultimate Achilles’ heel—is
set forth in the second sentence above: “She would be sufficiently
flexible to employ the most appropriate orientation, strategies, and
techniques as the participants’ needs present themselves .”60 The par58. See LAWRENCE M. WATSON, JR., THE FLA. BAR, ALTERNATIVE DISPUTE RESOLUTION
EFFECTIVE LEGAL REPRESENTATION IN MEDIATION 2-14 to -16 (1995).
59. Riskin, supra note 2, at 40-41 (footnote omitted).
60. Id. (emphasis added) (footnote omitted).
IN FLORIDA:
1997]
MEDIATOR ORIENTATIONS
1005
ties may exhibit their needs but not articulate them; the ideal mediator is authorized to capitalize on that distinction on her own initiative. So what Riskin allows his ideal mediator to do—namely, to
act in certain ways even if one or more parties prefers otherwise—he
denies to mediators who commit themselves to starting or operating
only within one of the grid’s quadrants. Justifying a governing conception of mediation is importantly different from simply asserting
it. The grid embraces all “assertions” made in the name of mediation, but that is not sufficient. As set out above, I believe that only
the mediator who adopts a suitably re-described facilitative orientation is in a position to ground an approach to problem-solving that
anchors the behavior and principles of her performance in a manner
consistent with consensual decisionmaking. The stability of that conception enables the parties, ultimately, to decide whether consensual
decisionmaking is what they want. In that sense, the parties’ choice
to use or not use a mediator is informed by the integrity of the mediator’s defined orientation. That vision of consensual decisionmaking, and the facilitative role required to support it, should inform the
meaning of the term “mediation” in whatever statute, rule, or program it appears, and should constitute the standards by which we
select and evaluate mediator performance. No persuasive reason exists to accept anything less.
MEDIATION QUANDARIES*
LEONARD L. RISKIN**
Transformation, there’s a goal
that everyone should seek1
But some poor souls, so I’ve been told,
often feel too meek
Bush and Folger say Empower!
I think that would be keen
But what of those, so awfully dour,
who might get downright mean?
Try recognition! they implore
’Tis better to give than receive it
But many whom we can’t ignore,
simply can’t perceive it.
So where to go from here? I think
the answer, it is hid
I hope somehow we’ll find it
looking at a grid.2
But Lela and Kim take a view that’s dim
and make a simple point:
Evaluation has to go,
or the grid they won’t anoint.3
Kovach and Love say, Stars above,
I’m using an oxymoron!
Evaluative mediation?
It’s nothing to bet the store on.4
* Copyright © 1997 Leonard L. Riskin.
** C.A. Leedy Professor of Law and Director, Center for the Study of Dispute Resolution, University of Missouri-Columbia School of Law. I am grateful to Marjorie Corman
Aaron, Melody Daily, Catherine Damme, Chris Guthrie, James Levin, Lela Love, Catherine Parke, and Josh Stulberg for helpful comments on earlier drafts.
1. See ROBERT A. BARUCH BUSH & JOSEPH FOLGER, THE PROMISE OF MEDIATION:
RESPONDING TO CONFLICT THROUGH EMPOWERMENT AND RECOGNITION (1995).
2. See Leonard L. Riskin, Understanding Mediator Orientations, Strategies, and
Techniques: A Grid for the Perplexed, 1 HARV. NEGOTIATION L. REV. 7 (1996).
3. See Lela Love and Kim Kovach, “Evaluative” Mediation Is an Oxymoron, 14
ALTERNATIVES TO HIGH COST LITIG. 31 (1996); Lela Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 FLA. ST. U. L. REV. 937 (1997). But see Dwight Golann,
Benefits and Dangers of Mediation Evaluation, 15 ALTERNATIVES TO HIGH COST LITIG. 35
(1997); James H. Stark, The Ethics of Mediation Evaluation: Some Troublesome Questions
and Tentative Questions from an Evaluative Lawyer-Mediator, 38 S. TEX. L. REV. (forthcoming 1997).
4. See generally Love & Kovach, supra note 3.
Jim Alfini says it seems unseemly
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FLORIDA STATE UNIVERSITY LAW REVIEW
[Vol. 24:1007
And then there’s Josh, who says By gosh
we must reject the grid.
It’s founded on faulty assumptions!
At least put on a lid.5
Good mediators just don't do it
Mediation’s for hashing, not trashing or bashing
If you give them the answer, you blew it.a
But see Bob Moberly, who writes quite soberly
about the Florida scene.b
His viewpoint is reasonable (for an academic, is that treasonable?):
Evaluation, sometimes, is clean.
And see John Bickerman, who says it quicker than
Anyone else who's written
Give the parties a choice, he urges
With the market, it appears, he's smitten.c
Marjorie Aaron, crisp as a clarion,
Tells when and how to do it
If you do it last, with strategic tact
it will likely be a helpful act.d
Evaluative mediation is practicing law
writes Carrie Menkel-Meadowe
And though the idea may harbor a flawf
she seems quite unwilling to let go.g
For ethical problems so serious
they’ve started a national commissionh
These dilemmas just make me delirious
For some clarification I’m wishin’.
a. See James J. Alfini, Should Lawyer-Mediators Be Prohibited from Providing Legal Advice or Evaluations?, DISP. RESOL. MAG., Spring 1994, at 8;
James J. Alfini, Trashing, Bashing, and Hashing It Out: Is This the End of
“Good Mediation”?, 19 FLA. ST. U. L. REV. 47 (1991).
b. See Robert Moberly, Mediator Gag Rules: Is It Ethical for Mediators to
Evaluate or Advise?, 38 S. TEX. L. REV. (forthcoming 1997); Robert Moberly,
Ethical Standards for Court-Appointed Mediators and Florida's Mandatory
Mediation Experiment, 21 FLA. ST. U. L. REV. 701 (1994).
c. See John Bickerman, Evaluative Mediator Responds, 14 ALTERNATIVES
TO HIGH COST LITIG. 70 (1996).
d. See Marjorie Corman Aaron, A Mediator’s Soliloquy, 14 ALTERNATIVES
TO HIGH COST LITIG. 63 (1996); Marjorie Corman Aaron, The Value of Decision
Analysis in Mediation Practice, NEGOTIATION J., Apr. 1995, at 123.
e. See Carrie Menkel-Meadow, Is Mediation the Practice of Law?, 14
ALTERNATIVES TO HIGH COST LITIG. 57 (1996).
f. See Robert Benjamin, What Is Mediation Anyway? Ethical Issues, Policy
Issues and the Future of the Profession, NIDR NEWS, July/Aug. 1996, at 9;
Bruce Meyerson, Lawyers Who Mediate Are Not Practicing Law, 14
ALTERNATIVES TO HIGH COST LITIG. 74 (1996).
g. See Carrie Menkel-Meadow, Ethics in Alternative Dispute Resolution:
New Issues, No Answers for the Adversary Conception of Lawyer’s Responsibilities, 38 S. TEX. L. REV. (forthcoming 1997).
h. In 1996, the CPR Institute for Dispute Resolution and the Georgetown
University Law Center founded a Commission on Ethics and Standards in
Dispute Resolution, which Professor Menkel-Meadow chairs. See id.
5. See Joseph B. Stulberg, Evaluative Versus Facilitative Mediator Orientations:
Piercing the “Grid” Lock, 24 FLA. ST. U. L. REV. 985 (1997).
1997]
MEDIATION QUANDARIES
The grid describes what is,6 I think
while they describe what should be7
And here is the connecting link:
the dream of all that could be.
6. Actually, it is a lot more complicated than that, but this is a poem.
7. See supra note 6.
1009
THE ADMINISTRATIVE DRIVER’S LICENSE
SUSPENSION FOR THOSE UNDER TWENTY-ONE:
AN ANALYSIS OF SECTION 322.2616, FLORIDA
STATUTES
KEVIN SNYDER*
I. INTRODUCTION ..................................................................................................
II. A BRIEF HISTORY OF STATE AND FEDERAL LAWS ENACTED TO PREVENT
DRINKING AND DRIVING.....................................................................................
A. The National Minimum Drinking Age.......................................................
B. Zero-Tolerance Legislation.........................................................................
III. SECTION 322.2616, FLORIDA STATUTES ............................................................
IV. ANALYSIS ...........................................................................................................
A. Due Process.................................................................................................
1. The Individual Interest at Stake..........................................................
2. The Risk of Erroneous Deprivation and the Governmental Interest
at Stake ................................................................................................
a. Human Error.................................................................................
b. Machine Error................................................................................
c. Preliminary Alcohol Screening Devices.........................................
B. Double Jeopardy.........................................................................................
C. Public Policy...............................................................................................
V. CONCLUSION......................................................................................................
1011
1013
1013
1014
1014
1016
1016
1018
1019
1020
1021
1022
1025
1027
1028
I. INTRODUCTION
A profound statement by United States Supreme Court Justice
Tom Clark sums up the problem of drinking and driving in the
United States: “[T]he increasing slaughter on our highways, most of
which should be avoidable, now reaches the astounding figures only
heard of on the battlefield.”1 Ironically, the Vietnam War, which divided the nation and raised its consciousness with respect to the
tragic loss of young lives, had a casualty level far short of the death
and mayhem attributable to drinking and driving. 2 Some 47,369
Americans, mostly teenagers, lost their lives in the jungles of Vietnam.3 During that same time, because of drinking and driving,
* The author thanks his wife, Sonya, for her unselfish support during the last three
years.
1. Breithaupt v. Abram, 352 U.S. 432, 439 (1957).
2. Oversight into the Administration of State and Local Court Adjudication of Driving While Intoxicated: Hearing Before the Subcomm. on Courts of the Senate Comm. on the
Judiciary, 97th Cong. 93 (1982) (statement of Dr. Alastair Conn, Medical Director, Field
Operations Program, Maryland Inst. for Emergency Med. Sys.) [hereinafter Conn Statement].
3. See THE WORLD ALMANAC AND BOOK OF FACTS 1997, at 184 (1996); see also Kenneth L. Karst, The Pursuit of Manhood and the Desegregation of the Armed Forces, 38
UCLA L. REV. 499, 582 n.133 (1991) (stating that the average age of servicemen killed in
Vietnam was 19).
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FLORIDA STATE UNIVERSITY LAW REVIEW
[Vol. 24:1011
274,000 Americans lost their lives4 in the far more deadly concrete
jungle of our nation’s streets and highways.
Attempts to curb the slaughter on our nation’s highways have
greatly increased since legislation enacted in the early 1900s made it
illegal to operate a vehicle while under the influence of alcohol. 5 In
the early 1980s, organizations like Mothers Against Drunk Driving
(MADD), Students Against Drunk Driving (SADD), and Remove Intoxicated Drivers (RID) helped raise awareness of the problem and
successfully lobbied Congress for tougher drinking-and-driving legislation.6 From laws on blood- or breath-alcohol content 7 to sobriety
checkpoints,8 the fight to stop drinking and driving has met with
overwhelming approval from the courts.
On January 1, 1997, Florida’s new administrative driver’s license
suspension law, section 322.2616, Florida Statutes, became effective,
bringing tough new penalties for individuals under the age of
twenty-one who drink and drive.9 The new law requires the suspension of driving privileges for those under twenty-one who have either
a blood- or breath-alcohol level of 0.02% or higher or who refuse to
submit to a blood- or breath-alcohol exam.10
No one would deny that laws aimed at reducing the number of fatalities attributable to drinking and driving on Florida’s and our nation’s highways are appropriate. However, such laws must be closely
scrutinized to ensure that in the process of reducing fatalities, cherished constitutional protections remain intact. This Comment analyzes Florida’s new administrative driver’s license suspension law
for its constitutional and public policy soundness. Part II provides a
brief history of recent laws designed to prevent drinking and driving,
particularly those laws aimed at individuals under the age of
twenty-one. Part III provides an overview of the new law. Part IV
provides due process, double jeopardy, and public policy analyses of
the new law. Finally, Part V concludes that the Florida Legislature
should amend the new law to correct due process problems associated with the use of alcohol screening devices and double jeopardy
problems associated with parallel criminal prosecutions.
4. See Conn Statement, supra note 2, at 93.
5. See William J. Ostrowski, Drunk Driving and Chemical Tests—A Labyrinthine
Maze, 63 N.Y. ST. B.J. 22, 22 (1991).
6. See Mark Feigl, Note, DWI and the Insanity Defense: A Reasoned Approach, 20
VT. L. REV. 161, 166 (1995).
7. See State v. Rolle, 560 So. 2d 1154, 1156 (Fla. 1990) (finding that evidence of a
blood- or breath-alcohol level of 0.10% is prima facie evidence the defendant was under
the influence to the extent his normal faculties were impaired).
8. See Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 455 (1990) (finding sobriety checkpoint law constitutional).
9. See FLA. STAT. § 322.2616 (Supp. 1996); see also Act effective Jan. 1, 1997, ch. 96272, § 3, 1996 Fla. Laws 1091, 1100.
10. See FLA. STAT. § 322.2616(2)(a) (Supp. 1996).
1997]
DRIVER’S LICENSE SUSPENSION
1013
II. A BRIEF HISTORY OF STATE AND FEDERAL LAWS ENACTED TO
PREVENT DRINKING AND DRIVING
Just as they suffered the most in the Vietnam War, the youth of
our nation have suffered the most from the lethal effects of drinking
and driving. Various studies have shown that young drivers are
killed in alcohol-related accidents at a higher rate than other drivers.11 One study showed that persons under twenty were killed at a
rate of 4.5 for every one million vehicle miles.12 The same study
showed a fatality rate of 3.38 for twenty-year-olds, 4.08 for twentyone-year-olds, 3.10 for twenty-two- to twenty-four-year-olds, and 1.50
for twenty-five- to forty-four-year-olds.13
A. The National Minimum Drinking Age
In 1982, in response to the national drinking-and-driving problem, President Reagan established the Presidential Commission on
Drunken Driving.14 The Commission, attempting to protect young
drivers, recommended that states raise the legal drinking age to
twenty-one.15 Many states, including Florida, did not follow the
Commission’s recommendation, and eventually Congress enacted a
law establishing a national minimum drinking age. 16 Congress successfully pressured states, including Florida, to adopt the national
minimum drinking age by conditioning receipt of federal highway
funds on adoption of the minimum drinking age. 17 Nevertheless, not
all states complied quietly with this strong-arm approach. South
Dakota unsuccessfully challenged the legislation as a violation of the
Twenty-First Amendment and an unconstitutional exercise of congressional spending power.18 The Supreme Court, finding this
method of federal spending constitutional, paved the way for future
drinking-and-driving legislation at the federal level.
11. See, e.g., Mark L. Weber, Note, Reyes v. Kuboyama: Vendor Liability for the Sale
of Intoxicating Liquor to Minors Under a Common Law Negligence Theory, 17 U. HAW. L.
REV. 355, 355 (1995) (citing statistics showing that the alcohol-related fatal accident
rate for 18- to 20-year-olds was twice as high per capita as the rate for those over age
21).
12. See Michael Philip Rosenthal, The Minimum Drinking Age for Young People: An
Observation, 92 DICK. L. REV. 649, 658 (1988) (citing statistics from a 1984 study conducted by the National Highway Traffic Safety Administration).
13. See id.
14. See Exec. Order No. 12,358, 47 Fed. Reg. 16,311 (1982).
15. See Rosenthal, supra note 12, at 658.
16. See Act of July 17, 1984, Pub. L. No. 98-363, §§ 6-7, 98 Stat. 435, 437-39 (codified
as amended at 23 U.S.C. § 158 (1994)).
17. See id.
18. See South Dakota v. Dole, 423 U.S. 203, 206 (1987).
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FLORIDA STATE UNIVERSITY LAW REVIEW
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B. Zero-Tolerance Legislation
Recently, Congress passed the National Highway System Designation Act of 1995,19 which requires states to enact and enforce zerotolerance laws aimed at individuals under the age of twenty-one who
have a blood-alcohol concentration of 0.02% or greater while operating a motor vehicle.20 Like the National Minimum Drinking Age Act,
this federal law requires states to pass zero-tolerance legislation as a
condition for receiving federal transportation funds. 21 A state’s failure to pass such legislation will result in a loss of five percent of federal highway funds on October 1, 1998,22 and a ten-percent loss every
year thereafter.23 To date, some thirty-four states, including Florida,24 have passed such legislation.25
Whether they have resulted in tough legislation, increased consciousness, or both, the efforts of groups like MADD have successfully
reduced the number of deaths from drunk driving.26 Nonetheless,
drunk driving is still a problem. According to MADD, in Florida, intoxicated drivers under age twenty-one were responsible for eightyfour fatalities, 1231 injuries, and 1617 vehicle accidents in 1993. 27
III. SECTION 322.2616, FLORIDA STATUTES
In light of economic pressure from Congress and lobbying by antidrinking-and-driving organizations, the Florida Legislature unanimously passed Committee Substitute for House Bill 455 during the
1996 Regular Session.28 Governor Lawton Chiles signed the bill into
law on May 29, 1996.29 In general, the statute provides for the administrative suspension of driver’s licenses for individuals under age
twenty-one who drive with a blood- or breath-alcohol level of 0.02%
or higher or who refuse to submit to a breath-alcohol exam. 30
19. Pub. L. No. 104-59, 109 Stat. 568 (codified in scattered sections of 23 U.S.C.A.
(West Supp. 1996)).
20. See id. § 320, 109 Stat at 589 (codified at 23 U.S.C.A. § 161(a)(3) (West Supp. 1996)).
21. See 23 U.S.C.A. § 161(a) (West Supp. 1996).
22. See id. § 161(a)(1).
23. See id. § 161(a)(2).
24. See Act effective Jan. 1, 1997, ch. 96-272, § 1, 1996 Fla. Laws 1091, 1091-96 (codified at FLA. STAT. § 322.2616 (Supp. 1996)).
25. See Fla. H.R. Comm. on Crim. Just., CS for HB 455 (1996) Staff Analysis 6 (final
July 1, 1996) (on file with comm.) [hereinafter Staff Analysis].
26. See Eustace T. Francis, Combating the Drunk Driver Menace: Conditioning the
Use of Public Highways on Consent to Sobriety Checkpoint Seizures—The Constitutiona
lity of a Model Consent Seizure Statute, 59 ALB. L. REV. 599, 610 (1995).
27. See Staff Analysis, supra note 25, at 2.
28. See Act effective Jan. 1, 1997, ch. 96-272, 1996 Fla. Laws 1091; see also Staff
Analysis, supra note 25, at 6.
29. See ch. 96-272, § 3, 1996 Fla. Laws at 1100.
30. See FLA. STAT. § 322.2616(2)(a) (Supp. 1996).
1997]
DRIVER’S LICENSE SUSPENSION
1015
More specifically, the statute makes it unlawful for persons under
age twenty-one to drive or be in actual physical control of a motor
vehicle when they have a blood- or breath-alcohol level of 0.02% or
higher.31 The statute provides that when a law enforcement officer
has probable cause to believe that a person under twenty-one operating a vehicle has any alcohol on his or her breath, the officer may
detain that person and request that he or she submit to a breathalcohol test.32 This test can be conducted by a breath-measurement
device as provided in section 316.1932, Florida Statutes, or by an
approved preliminary alcohol screening (PAS) device. 33 If it is determined the individual has a breath-alcohol level of 0.02% or higher,
the law enforcement officer must suspend that individual’s license
on behalf of the Florida Department of Motor Vehicles (DMV) for a
period of six months for the first offense and one year for subsequent
violations.34 If an individual refuses to submit to an exam, the officer
must suspend that individual’s license for a period of one year for a
first refusal or for eighteen months if the person has a previous suspension under the statute.35 Although any suspension is automatic,
the officer is required to issue a ten-day temporary driving permit.36
During this ten-day period, a suspended driver may request an informal or formal review of the suspension. 37
The informal procedure provides only for a review of the materials submitted by the law enforcement officer and by the person
whose license was suspended.38 A hearing officer from DMV conducts
the hearing.39 The hearing officer can sustain, amend, or invalidate
the suspension based on examination of the materials, 40 including
results from PAS devices, which are presumed accurate for both formal and informal reviews.41
If a formal review is requested, DMV conducts a hearing with any
subpoenaed witnesses and any relevant evidence. 42 The hearing officer determines by a preponderance of the evidence whether sufficient cause exists to sustain, amend, or invalidate the suspension. 43
However, the review is limited to issues of probable cause, age, and
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
See id.
See id. § 322.2616(1)(b).
See id. § 322.2616(17); see also id. § 316.1932.
See id. § 322.2616(2).
See id.
See id.
See id.
See id. § 322.2616(5).
See id. § 322.2616(5), (7)(b).
See id. § 322.2616(6).
See id. § 322.2616(17).
See id. § 322.2616(7)(b).
See id. § 322.2616(8).
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FLORIDA STATE UNIVERSITY LAW REVIEW
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whether the breath-alcohol level was 0.02% or higher.44 If the review
is based on a refusal to submit to a breath-alcohol exam, the hearing
is limited to issues of probable cause, age, and notice of implied consent to submit to a breath-alcohol exam.45 A person may appeal the
hearing officer’s decision by writ of certiorari to the circuit court in the
county where the person resides or where the hearing took place.46
Further, the statute provides that by applying for and using a
driver’s license, a person under twenty-one is deemed to have consented to the provisions of the statute.47 In addition, the statute provides that a violation is neither a criminal offense nor a traffic violation, and that any detention under the statute does not constitute an
arrest.48 Lastly, the statute prohibits the dual suspension of a
driver’s license through both its own procedures and those of section
316.2615, Florida Statutes.49 Nevertheless, a suspension under this
section does not bar prosecution under section 316.193, Florida
Statutes, for criminal drinking and driving.50
IV. ANALYSIS
A. Due Process
The Due Process Clause of the Fourteenth Amendment 51 limits a
state’s ability to restrict or interfere with an individual’s rights and
44. See id. § 322.2616(8)(a).
45. See id. § 322.2616(8)(b).
46. See id. § 322.2616(14).
47. See id. § 322.2616(16).
48. See id. § 322.2616(18).
49. See id.
50. See id.
51. See U.S. CONST. amend. XIV, § 1.
Although the Equal Protection Clause of the Fourteenth Amendment prohibits states
from denying an individual the equal protection of the laws, see id., and thus mandates
that states treat similarly situated persons similarly and not classify them based on impermissible criteria, see JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW §
14.2, at 587 (5th ed. 1995), the U.S. Supreme Court has repeatedly upheld age-based classifications when they possess a rational basis, see, e.g., Gregory v. Ashcroft, 501 U.S. 452,
470-73 (1991); Vance v. Bradley, 440 U.S. 93, 97 (1979); Massachusetts Bd. of Retirement
v. Murgia, 427 U.S. 307, 313-14 (1976). Moreover, the Court also has specifically upheld
laws regulating the rights and liberties of persons under the age of 18 as possessing a rational basis as long as the classification did not impinge upon a fundamental right. See,
e.g., Reno v. Flores, 507 U.S. 292, 302-03 (1993) (finding that minors do not have fundamental right to be in noncustodial setting). Driving is not considered a fundamental right.
See, e.g., Lite v. State, 617 So. 2d 1058, 1060 n.2 (Fla. 1993).
Nevertheless, although age classifications are not prohibited by the U.S. Constitution,
states may protect age groups through their own constitutions or legislation. See, e.g., LA.
CONST. art. I, § 3; FLA. STAT. § 743.07 (1995). The Louisiana Constitution specifies age as
a protected category in its equal protection clause. See LA. CONST. art. I, § 3. However, the
Louisiana Supreme Court has upheld drinking restrictions based on age using a heightened intermediate level of scrutiny. See Manuel v. State, 677 So. 2d 116, 125 (La. 1996). In
1973, the Florida Legislature passed a law stating that individuals over the age of 18
“shall enjoy and suffer the rights, privileges, and obligations of all persons 21 years of age
1997]
DRIVER’S LICENSE SUSPENSION
1017
ensures procedural safeguards before a person can be deprived of
certain rights. The protections apply to both civil and criminal proceedings.52 Similarly, Florida’s due process clause provides that “[n]o
person shall be deprived of life, liberty or property without due process of law, or be twice put in jeopardy for the same offense, or be
compelled in any criminal matter to be a witness against himself.” 53
Specifically, due process wears two hats. One is substantive due
process, which protects life, liberty, or property interests from unwarranted governmental interference.54 The second is procedural
due process, which requires states to provide protections, such as notice and an opportunity to be heard, before depriving an individual of
life, liberty, or property.55
There are two levels of review when determining whether a law
violates substantive due process.56 Laws restricting fundamental
rights are subject to review under the strict scrutiny standard. 57
Laws restricting nonfundamental rights are subject to review under
the highly deferential rational relationship standard. 58 Under the
administrative driver’s license suspension statute, the only substantive right at issue is the right to drive, which is not a fundamental
right.59 Accordingly, courts would review the statute under the rational relationship standard, which would only require the courts to
find that the suspension of driving privileges is rationally related to
or older.” Act effective July 1, 1973, ch. 73-21, §§ 2-3, 1973 Fla. Laws 59, 59 (codified as
amended at FLA. STAT. § 743.07 (1995)). The only exceptions to the law are those rights
that are excluded under the Florida Constitution and the state Beverage Law. See FLA.
STAT. § 743.07 (1995). Although the administrative driver’s license suspension statute
would seem to be in conflict with this law, the Florida Supreme Court would likely uphold
the statute using basic principles of statutory construction:
[A] specific statute covering a particular subject area always controls over a
statute covering the same and other subjects in more general terms. The more
specific statute is considered to be an exception to the general terms of the
more comprehensive statute. . . .
Further, when two statutes are in conflict, the later promulgated statute
should prevail as the last expression of legislative intent.
McKendry v. State, 641 So. 2d 45, 46 (Fla. 1994) (citations omitted). Nevertheless, to ensure that such a conflict does not arise, the Legislature should amend section 743.07,Florida Statutes, to include a specific exception for the new statute, just as it did after passing
the state Beverage Law. See Act Effective Oct. 1, 1980, ch. 80-74, § 5, 1980 Fla. Laws 254,
256 (codified at FLA. STAT. § 743.07(1) (1995)).
52. See NOWAK & ROTUNDA, supra note 51, § 13.1, at 511.
53. FLA. CONST. art. I, § 9.
54. See, e.g., United States v. Salerno, 481 U.S. 739, 746 (1987).
55. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 332 (1976).
56. See Zablocki v. Redhail, 434 U.S. 374, 386 (1978) (finding restrictions on the fundamental right to marry should be subject to strict scrutiny); Reno v. Flores, 507 U.S. 292,
303 (1993) (finding the right not to be placed in a custodial institution nonfundamental
and thus subject to rational relationship scrutiny).
57. See Zablocki, 434 U.S. at 386.
58. See Reno, 507 U.S. at 301-03.
59. See Lite v. State, 617 So. 2d 1058, 1060 n.2 (1993).
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FLORIDA STATE UNIVERSITY LAW REVIEW
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the objective of highway safety.60 Courts have determined that such
a relationship exists and, therefore, that suspension of driving
privileges does not violate substantive due process. 61
Procedural due process is more commonly thought of when due
process issues arise. In Mathews v. Eldridge,62 the U.S. Supreme
Court formulated a balancing test for determining whether procedural due process has been violated.63 Under the Mathews test,
courts are to balance the importance of the individual interest at
stake and the risk of erroneous deprivation of that interest against
the importance of the governmental interest, including any fiscal
and administrative burdens that additional procedures would entail.64
1. The Individual Interest at Stake
The first inquiry in determining whether the driver’s license suspension statute violates procedural due process is whether a protectable individual interest is at stake.65 “Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due
Process Clause of the Fifth or Fourteenth Amendment.” 66 The U.S.
Supreme Court has generally taken a liberal view of what constitutes a liberty or property interest:
[Liberty] denotes, not merely freedom from bodily restraint but
also the right of the individual to contract, to engage in any of the
common occupations of life, to acquire useful knowledge, to marry,
establish a home and bring up children, to worship God according
to the dictates of his own conscience, and generally to enjoy those
privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.67
Furthermore, in the early 1970s, the Court expanded the definition
of what constitutes property for procedural due process protection to
include benefits such as welfare,68 even though such benefits were
once viewed as a privilege created by the state. 69
In Bell v. Burson,70 the Supreme Court determined that a driver’s
license was a protectable interest when it found that suspending
60.
61.
62.
63.
64.
65.
66.
67.
68.
69.
70.
See id. at 1060.
See id. at 1061.
424 U.S. 319, 332 (1976).
See id. at 335.
See id.
See id. at 332.
Id.
Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
See Goldberg v. Kelly, 397 U.S. 254, 262-64 (1970).
See id.
402 U.S. 535 (1971).
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DRIVER’S LICENSE SUSPENSION
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driver’s licenses “adjudicates important interests of the licensees. In
such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment.” 71 Thus,
the continued possession of a driver’s license is a protectable interest, and a state must afford an individual procedural due process
when it revokes or suspends the individual’s driver’s license.72
After finding a protectable interest, the next step is to determine
the importance of that interest. The right to drive is considered an
important interest, but it is not a fundamental right. 73 Accordingly,
only minimal process is required before a state suspends or revokes
a driver’s license. The Bell Court found that only a hearing is necessary before a state deprives an individual of a driver’s license. 74 After
Bell was decided, the Court, in Dixon v. Love,75 determined that although a hearing is required, it does not need to be held before the
suspension.76 Furthermore, the type of hearing required is not a full
judicial hearing, but rather an administrative hearing. 77 The administrative driver’s license suspension statute meets these requirements by providing for an administrative hearing. 78 The provisions of the new law allowing for the suspension of a driver’s license
before such a hearing79 also meet due process requirements in light
of the Court’s determination in Dixon.80
2. The Risk of Erroneous Deprivation and the Governmental
Interest at Stake
After finding a protectable interest and determining its importance, courts assess the “risk of an erroneous deprivation of such interest through the procedures used.”81 Evaluating the risk of erroneous deprivation entails considering “the fairness and reliability of
the existing . . . procedures, and the probable value, if any, of additional procedural safeguards.”82
71. Id. at 539.
72. See id.
73. See Lite v. State, 617 So. 2d 1058, 1060 n.2 (Fla. 1993) (“[D]riving is not a fundamental right.”); see also Bell, 402 U.S. at 539 (“Suspension of issued licenses . . . adjudicates important interests of the licensees.”).
74. See 402 U.S. at 542.
75. 431 U.S. 105 (1977).
76. See id. at 115
77. See id.
78. See FLA. STAT. § 322.2616(2)(b)(3) (Supp. 1996) (“The driver may request a formal
or informal review of the suspension . . . .”).
79. See id. § 322.2616(2)(a) (allowing a law enforcement officer on the scene to suspend the license on behalf of DMV).
80. See 431 U.S. at 106.
81. Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
82. Id. at 343.
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Under the driver’s license suspension statute, the three procedures that could lead to erroneous deprivation are: 83 (1) the law enforcement officer’s observations giving rise to probable cause that an
individual was under the influence of alcoholic beverages or had any
level of breath alcohol;84 (2) the measurement of breath alcohol with
scientific devices;85 and (3) the screening for sobriety through the use
of PAS devices.86
Under the statute, an underage person can have his or her license
suspended for a blood- or breath-alcohol level of 0.02% or higher.87
This is a very low amount of alcohol in light of the fact that a 150pound person’s blood- or breath-alcohol level would be 0.025% after
consuming one ounce of hard liquor. 88 Thus, one alcoholic drink provides twenty percent more blood or breath alcohol than is required to
violate the statute. The small alcohol level required to violate the
statute thus increases the chance of erroneous deprivation. 89
a. Human Error
A law enforcement officer must have probable cause that a driver
under the age of twenty-one is intoxicated or has any level of breathalcohol before requesting an individual to submit to a blood- or
breath-alcohol test.90 To sustain a suspension for an individual’s refusal to submit to a blood or breath exam, a hearing officer must determine: (1) whether the law enforcement officer at the scene had
probable cause; (2) whether the driver was under age twenty-one; (3)
whether the driver refused to submit to an exam after a request; and
(4) whether the driver was informed that a refusal to submit to an
exam would result in a suspension of his or her license. 91
At the low blood-alcohol level of 0.02%, physical signs of impairment such as slurred speech or bloodshot eyes are not likely to be
83. Although officer fabrication could also lead to erroneous deprivation, this Comment does not address that issue. See Samborn v. State, 666 So. 2d 937, 938 (Fla. 5th DCA
1995) (finding that civilian breath-testing technicians routinely destroyed test-result
“print-cards” showing that the testing device may have been out of tolerance and operating in error).
84. See FLA. STAT. § 322.2616(1)(b) (Supp. 1996).
85. See id.
86. See id. § 322.2616(17).
87. See id. § 322.2616(2)(a).
88. See Myles A. Kauffman, The Coming of Subsection (a)(5) of Pennsylvania’s Drunk
Driving Law: “A Statute with a Face Only a Prosecutor Could Love,”4 WIDENER J. PUB. L.
493, 505 (1995).
89. See Robert J. DeLucia, Drug and Alcohol Testing Issues in the Airline and
Railroad Industries, SA31 A.L.I.- A.B.A. 765, 779 (1996) (stating questions of calibration of the equipment and skill of the collector are likely to arise at the low threshold of
0.02%).
90. See FLA. STAT. § 322.2616(1)(b) (Supp. 1996).
91. See id. § 322.2616(8)(b).
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present.92 Absent physical signs of impairment, the law enforcement
officer must rely on the odor of alcohol on the breath of the driver or
the presence of open containers in the vehicle for probable cause.
The low blood-alcohol level of 0.02% is difficult to detect by relying
on the odor of alcohol on the breath of the driver because such a low
blood-alcohol level results in a correspondingly low breath-alcohol
level.93 Also, there is the strong possibility that at these low levels,
the odor of alcohol from an open container or a passenger might be
mistaken for alcohol on the breath of the driver.
These possibilities of erroneous deprivation through mistaken
probable cause must be balanced against the state’s interest in
highway safety. Courts have found highway safety to be a very important interest that can outweigh the erroneous deprivation of
driving privileges.94 Nevertheless, the question arises whether there
are any serious concerns about highway safety when drivers have a
blood- or breath-alcohol level of 0.02%. In Florida, there is a presumption of sobriety at a blood- or breath-alcohol level of less than
0.05%.95 This fact arguably destroys any contention of serious safety
problems at low alcohol levels. Accordingly, in balancing the individual’s interest in erroneous deprivations by law enforcement officers
against the state’s interests, it is possible that courts could find a
violation of procedural due process.
b. Machine Error
Common sense leads one to believe that a driver not engaged in
illegal activities will be more likely to submit to a breath exam than
one who is. Accordingly, the reliability of breath measurement devices is paramount in avoiding erroneous deprivation of the driving
privileges of those who submit to breath-alcohol tests.
Errors due to the calibration of a breath-alcohol testing device or
the skill of the officer in operating the device are likely to arise at
low breath-alcohol levels such as 0.02%.96 Furthermore, breath92. See, e.g., State v. Taylor, 648 So. 2d 701, 703 (Fla. 1995) (signs of bloodshot eyes,
slurred speech, and a strong odor of alcohol used as probable cause that defendant was intoxicated). Obviously, none of these signs are present with a 0.00% blood-alcohol level.
Some experts maintain that outward signs of intoxication such as slurred speech cannot
be detected until an individual’s blood-alcohol level reaches 0.15%. See Greg K. Vitali,
Note, An In-Depth Analysis of the Development and Ramifications of New Jersey’s Social
Host Liability Statute, 20 SETON HALL LEGIS. J. 532, 562 n.82 (1996). Accordingly, the
ability to detect outward manifestations of intoxication increases as blood-alcohol levels
increase. See infra note 93 and accompanying text.
93. See, e.g., Andrew J. Schatkin, Criminal Procedure, 1994-95 Survey of New York
Law, 46 SYRACUSE L. REV. 405, 411 (1995) (stating that blood-alcohol level is directly related to breath-alcohol level).
94. See Dixon v. Love, 431 U.S. 105, 114 (1977).
95. See FLA. STAT. § 316.1934(2)(a) (1995).
96. See DeLucia, supra note 89, at 779.
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alcohol testing devices do not differentiate between alcohol from alcoholic beverages, cold medicines, or mouthwash. 97 There are some
popular cold medicines that are ten percent alcohol by volume and
some mouthwashes that are over twenty percent alcohol by volume. 98
Scenarios in which someone’s teenage son or daughter wrongfully
loses his or her driver’s license because of cold medicine or mouthwash are far from fiction.99 Lastly, all breath-alcohol testing devices
have some degree of tolerance. The Intoxilyzer 5000, which is used in
Florida, has a tolerance of 0.005%.100 Although this is a small
amount, it is one-quarter of the 0.02% breath-alcohol level required
for suspension of driving privileges under the new statute. 101
As previously discussed, with sobriety presumed at a blood- or
breath-alcohol level of 0.05%,102 it would seem difficult for the state’s
interest in highway safety to carry much weight in light of these possible sources of erroneous deprivation. However, while developing a
more accurate and discriminatory breath-alcohol testing device
would reduce the chances of erroneous deprivation, such a device
would, in all likelihood, be extremely expensive. Thus, the state’s fiscal interest would likely outweigh the individual’s interest in preventing erroneous deprivation.103
c. Preliminary Alcohol Screening Devices
Of greatest concern is the use and presumed accuracy of PAS devices.104 Specifically, the statute provides:
A breath test to determine breath-alcohol level pursuant to this
section may be conducted as authorized by s. 316.1932 or by a preliminary alcohol screening test device listed in the United States
Department of Transportation’s conforming-product list of evidential breath-measurement devices. The reading from such a device
97. See People v. Bergman, 623 N.E.2d 1052, 1054 (Ill. Ct. App. 1993) (reporting that
Listerine mouthwash and Binaca breath spray give a reading of alcohol on the breathalyzer); see also FLA. ADMIN. CODE ANN. r. 11D-8.007(2) (1996) (requiring 20-minute observation before administering a breath test to ensure that the subject does not regurgitate
or take anything by mouth).
98. The label for NyQuil cold medicine reports that the alcohol content is 10% by volume. The label for Listerine mouth wash reports that the alcohol content is 21.6% by volume.
99. See Bergman, 623 N.E.2d at 1054.
100. See FLA. ADMIN. CODE ANN. r. 11D-8.003(7)(a)(2) (1996).
101. See FLA. STAT. § 322.2616(2)(a) (Supp. 1996).
102. See supra text accompanying note 87.
103. See Mathews v. Eldridge, 424 U.S. 319, 348 (1976) (“At some point the benefit of
an additional safe-guard to the individual affected . . . to society in terms of increased assurance that the action is just, may be outweighed by the cost.”).
104. See Coniglio v. Department of Motor Vehicles, 46 Cal. Rptr. 2d 123, 133-34 (Ct.
App. 1995) (finding that due process requires a foundational showing of the reliability of
breath measurement devices and that such reliability cannot be presumed).
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DRIVER’S LICENSE SUSPENSION
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is presumed accurate and is admissible in evidence in any administrative hearing conducted under this section.105
This addition is suspect for three reasons. First, the use of such devices is not enumerated in section 322.2615, Florida Statutes, the
driver’s license suspension statute applicable to individuals of all
ages.106 Because suspensions under both statutes are based on bloodor breath-alcohol levels, it seems difficult to justify the use and presumed accuracy of PAS devices against those under age twenty-one
but not against those over twenty-one.107 Furthermore, because the
individual’s interest in additional procedural protections, which in
this instance would prohibit the use of PAS devices, must be balanced against the state’s interest in increased highway safety, PAS
devices should be used only in suspensions under section 322.2615,
Florida Statutes, which require a 0.08% blood- or breath-alcohol
level108 and are thus more closely related to highway safety. 109
Second, the issue of residual mouth alcohol causing inaccurate
measurements is more prevalent in PAS devices. 110 If mouth alcohol
is present, an inordinately high reading will result because breath
measurement devices cannot differentiate between alcohol in the
breath from respiration and alcohol present in the mouth from recent alcohol intake.111 In Florida, before administering a breath exam
using the Intoxilyzer 5000, the law enforcement officer or technician
administering the test must observe the subject for twenty minutes.112 This observation is required to ensure the subject does not
drink any alcohol or regurgitate, which causes alcohol from the
stomach to become present in the mouth.113 No similar observation
period is required before administering a breath exam using a PAS
device because they are normally used as screening tools to determine if an additional breath exam needs to be given. However, under
105. See FLA. STAT. § 322.2616(17) (Supp. 1996) (emphasis added).
106. See FLA. STAT. § 322.2615 (1995).
107. But see Coniglio, 46 Cal. Rptr. 2d at 128. Under the initial version of California’s
zero-tolerance law, a breath test was required at a testing facility. See id. However, opponents representing law enforcement associations said such procedures would take too
much time to accomplish and would be too costly. See id. The law’s final version allowed
the use of PAS devices. See id.
108. See FLA. STAT. § 322.2615(1)(a) (Supp. 1996).
109. See supra text accompanying note 95.
110. See E. John Wherry, Jr., The Rush to Convict DWI Offenders: The Unintended
Unconstitutional Consequences, 19 U. DAYTON L. REV. 429, 446-47 (1994) (stating that
mouth alcohol causes inordinately high readings if it has not dissipated and thus officers
should not give an immediate breath test). Because preliminary devices are used on the
scene, there would not be any time for mouth alcohol to dissipate if the driver had consumed alcohol within the last 20 minutes.
111. See id. at 446 n. 129 (stating that the test will multiply the breath-alcohol level it
measures by 2100).
112. See FLA. ADMIN. CODE ANN. r. 11D-8.007(2) (1996).
113. See id.
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the new statute, PAS readings are presumed accurate and are admissible as evidence in both formal and informal review proceedings.114
Third, the presumption of accuracy and reliability of PAS devices
is questionable. Although Florida has not addressed the admissibility of PAS devices, most states have determined that they do not
meet the reliability requirements for admissibility under Frye v.
United States.115 The fact that PAS devices are not generally admissible in other states raises serious concerns about their general acceptance in the scientific community.116 Like Florida, California has
a zero-tolerance law for persons under twenty-one and uses PAS device readings as admissible evidence.117 A California court reviewing
a challenge under this zero-tolerance statute ruled that the state
muse lay a foundation for the reliability of these devices. 118 The court
emphasized that “attacking the reliability of the PAS test may be the
licensee’s only real way of defending against a zero tolerance law
violation. To conclude that the DMV need not establish a foundation
for the admission of the PAS tests would severely hamper the licensee’s ability to defend.”119 Thus, California requires a showing that
the device was in proper working order and a qualified operator
properly administered the test.120
Balancing the individual’s right against erroneous deprivation
through the use of PAS devices requires returning to the issue of the
state’s interests in fiscal costs and public safety. The state apparently does not have a strong fiscal reason for the admissibility of
readings from PAS devices.121 As previously stated, the issue of public safety in relation to blood- or breath-alcohol levels as low as
0.02% would appear to carry little weight.122 With the strong possibility of erroneous deprivation through the use and presumption of
accuracy of PAS devices, it seems that the individual’s procedural
114. See FLA. STAT. § 322.2616(17) (Supp. 1996).
115. 293 F. 1013 (D.C. Cir. 1923). Frye established the “generally accepted in the scientific community” rule for determining admissibility. See id. at 1014; see also Wherry,
supra note 110, at 466. However, in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993), the U.S. Supreme Court held that the Frye standard was superseded in
federal courts by the more flexible standard of whether the evidence is based on scientific
knowledge and will assist the jury in understanding or determining a fact in issue. See id.
at 587-92. Nonetheless, Florida continues to recognize Frye as the appropriate standard.
See Flanagan v. State, 625 So. 2d 827, 828 (Fla. 1993).
116. See Flanagan, 625 So. 2d at 828.
117. See CAL. VEH. CODE § 23136 (West 1995).
118. See Coniglio v. Department of Motor Vehicles, 46 Cal. Rptr. 2d 123, 132 (Ct. App.
1995).
119. Id. at 133.
120. See id.
121. It should not cost the state any more to use the machines that are already in use
and that are admissible under sections 322.2615 and 316.1932, Florida Statutes.
122. See supra text accompanying note 95.
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due process interest would outweigh any state interest. 123 Hence, the
presumption of accuracy for PAS device readings would likely be a
violation of procedural due process.124 To remedy this problem, the
Legislature should either remove this provision altogether, amend it
to allow PAS devices to be used only as screening tools, or require
the state to lay a foundation for their reliability.
C. Double Jeopardy
Both the U.S. Constitution and the Florida Constitution ensure
that an individual will not be put in jeopardy for an offense more
than once.125 The double jeopardy guarantee consists of three constitutional protections: (1) the right not to be prosecuted for the same
crime following acquittal; (2) the right not to be prosecuted for the
same crime following a conviction; and (3) the right not to suffer
multiple punishments for the same offense. 126 Civil penalties are not
exempt from a double jeopardy analysis and may constitute a violation.127
Many have argued unsuccessfully that an administrative suspension of a driver’s license and a criminal drinking and driving prosecution that arise out of the same incident constitute a double jeopardy violation.128 While the issue is well settled, the new administrative suspension statute raises constitutional issues not present in
previous cases.
Florida courts, in analyzing double jeopardy challenges to administrative suspensions of driver’s licenses and criminal drinking
and driving prosecutions, have looked to the “primary purpose” of
the suspension statute.129 Penalties that are characterized as pri123. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 332 (1976).
124. See id.
125. See U.S. CONST. amend. V; FLA. CONST. art. I, § 9.
126. See Lippman v. State, 633 So. 2d 1061, 1064 (Fla. 1994) (citing North Carolina v.
Pearce, 395 U.S. 711, 717 (1969)).
127. See, e.g., United States v. Halper, 490 U.S. 435, 448 (1989) (“Simply put, a civil as
well as a criminal sanction constitutes punishment when the sanction as applied in the
individual case serves the goal of punishment.”).
128. See Smith v. Gainesville, 93 So. 2d 105, 106-07 (Fla. 1957) (holding the administrative suspension of driver’s license did not violate double jeopardy because the primary
goal of the statute was to protect the public and not to impose pain or punishment on the
offender); Davidson v. MacKinnon, 656 So. 2d 223, 223-25 (Fla. 5th DCA 1995) (finding no
double jeopardy violation); State v. Murray, 644 So. 2d 533, 533-35 (Fla. 4th DCA 1994)
(finding primary purpose of suspension was remedial and not punitive); Freeman v. State,
611 So. 2d 1260, 1261 (Fla. 2d DCA 1992) (finding suspension was for public protection
and not punishment).
129. See Smith, 93 So. 2d at 106-07 (stating that the statute’s “primary purpose is to
relieve the public generally of the sometimes death-dealing pain” caused by drunk drivers); Davidson, 656 So. 2d at 225 (“[W]e conclude that the administrative remedy of suspending a driver’s license . . . continues to be primarily for the purpose of enhancing safe
driving on the public highways.”); Murray, 644 So. 2d at 535 (“Because the primary pur-
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FLORIDA STATE UNIVERSITY LAW REVIEW
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marily remedial in nature do not invoke double jeopardy. 130 The
courts have broadly defined remedial civil penalties as those meant
to compensate the state for a loss or remove a danger from its citizens.131 The crux of the double jeopardy argument is that the suspension is punitive because it constitutes retribution for, or seeks to deter individuals from, driving under the influence of alcohol. 132 The
courts in Florida, however, have always found that driver’s license
suspensions are remedial rather than punitive in nature. 133 Courts
base this finding on the premise that drunk drivers are a lethal danger and the removal of such dangers enhances the safety of the public highways.134
Under the new statute, it would be difficult for the courts to find a
primarily remedial purpose for the suspension. In cases where the
courts found no double jeopardy violation, the findings were based on
the fact that the suspension was for public protection. 135 Again, however, the low levels of alcohol required for a suspension do not primarily serve the purpose of creating safer highways. 136 One is presumed legally sober with a blood- or breath-alcohol level of less than
0.05%.137 Before passage of the statute, persons under the age of
twenty-one could have their driver’s license suspended under section
322.2615, Florida Statutes, as could those over twenty-one.138 Despite
the new statute, persons under the age of twenty-one can still have
their driver’s license suspended under Section 322.2615. 139 It should
be obvious that the primary purpose of the new statute is to deter
those under twenty-one from drinking and driving at all. While this
is a laudable goal, it is untenable to maintain that removal of the
driver’s licenses for persons with blood- or breath-alcohol levels of
0.02% serves the primary purpose of public protection. 140 If the pripose of [the statute] is to provide an administrative remedy for public protection, and not
to punish the offender, a double jeopardy prohibition does not arise.”).
In United States v. Halper, the U.S. Supreme Court held that a defendant may not be
subjected to an additional civil sanction if the sanction “may not be fairly characterized as
remedial, but only as a deterrent or retribution.” 435 U.S. at 449. However, the Halper decision used the term “remedial” in the sense of reimbursing the government for actual
costs attributable to the defendant’s conduct, not for actual public protection, as the term
is used by Florida courts in suspension of driver’s licenses cases. See id. at 449; Freeman
v. State, 611 So. 2d 1260, 1261 (Fla. 2d DCA 1992) (“A driver’s license suspension . . . is
not remedial in the sense meant by the Halper decision.”).
130. See, e.g., Davidson, 656 So. 2d at 223-25.
131. See, e.g., id.
132. See id. at 224.
133. See, e.g., id.
134. See id. at 225.
135. See, e.g., id.
136. See supra text accompanying note 95.
137. See FLA. STAT. § 316.1934(2)(a) (Supp. 1996).
138. See id. § 322.2615.
139. The suspension just cannot be dual. See id. § 322.2616(18).
140. See id. § 316.1934(2)(a).
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DRIVER’S LICENSE SUSPENSION
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mary purpose were indeed public protection, it arguably should be
illegal for all drivers to have such blood- or breath-alcohol levels.
Accordingly, the primary purpose of the statute is deterrence.
Therefore, if an individual’s driver’s license is suspended under section 322.2616, Florida Statutes, and that individual is criminally
prosecuted for drinking and driving under section 316.193, a double
jeopardy issue arises. While the primary purpose of the statute as applied to a person with a blood- or breath-alcohol level of 0.05% or
higher is arguably remedial, and thus not a double jeopardy violation,
courts employing a double jeopardy analysis first look only at the statute, not how it is applied in an individual case.141 The Florida Legislature can remedy a potential problem by amending the new statute to
limit suspensions to blood- or breath-alcohol levels of 0.02 to 0.049%,
which would eliminate possible criminal drinking and driving charges.
D. Public Policy
The administrative driver’s license suspension statute presents
two conflicting public policy concerns. The first concern is the prevention of bodily harm and injury brought about by underage
drinking and driving. The second concern involves issues of fairness
and the protection of individual constitutional rights. In balancing
these two concerns, the statute gives greater weight to preventing
the harm that results from underage drinking and driving than to
issues of fairness and the protection of individual constitutional
rights. However, the harm the statute aims to prevent is marginal
and, therefore, it should not be allowed to promote an unfair public
policy and infringe on individual constitutional rights.
Intimately linked to the public policy debate over this statute is
the public policy debate over the national drinking age. At the height
of the Vietnam War, the drinking age was twenty-one. 142 However,
fairness concerns caused society to evaluate this restriction because
tens of thousands of young men were dying in the war, yet were not
old enough to drink legally.143 Accordingly, many states lowered their
drinking age from twenty-one to either eighteen or nineteen. 144
Based on similar concerns, the nation amended its Constitution—an
extremely rare event—to give those aged eighteen to twenty the
right to vote.145 In the 1980s, with the Vietnam War over and an in141. See United States v. Brown, 917 F. Supp. 780, 784 (M.D. Ala. 1996) (“[D]ouble
jeopardy analysis . . . requires that a court first inquire whether the statute’s civil sanctions
include sanctions which can be characterized as punishment.”). Following a determination
that a statute is punitive, courts generally proceed to look at the statute as applied. See id.
142. See Rosenthal, supra note 12, at 652.
143. See id. at 652-53.
144. See id.
145. See U.S. CONST. amend. XXVI.
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FLORIDA STATE UNIVERSITY LAW REVIEW
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creased national awareness of the warlike carnage resulting from
drinking and driving, the pendulum swung back towards the public
policy concern of preventing bodily harm and injury brought about
by underage drinking and driving, and the drinking age was returned to twenty-one.146
Nevertheless, with the enactment of the administrative suspension statute, the pendulum has swung too far. Society must not lose
sight of basic fairness and the protection of individual rights. First, if
the true concern of lawmakers and organizations like MADD is reducing fatalities through tough zero-tolerance legislation, why only
target drivers under twenty-one? Although drinking-and-driving statistics for this age group are generally higher per capita than for
other age groups, some groups over the age of twenty have a higher
rate of fatal accidents per vehicle mile.147
A second issue—one that is applicable to those aged eighteen to
twenty—is whether it is appropriate to treat young adults differently
than other adults. How can a society whose cornerstone is freedom
tell young adult men that at eighteen they are old enough to be
drafted and sent off to die for their country, but are neither old
enough nor responsible enough to drink alcohol? Further, how can
this age group be told that at eighteen both men and women are old
enough and responsible enough to make the decision to freely serve
the military and put themselves in harm’s way, but are not old
enough to drink alcohol? Although the body counts in Grenada, Panama, Iraq, and Somalia were not as high as those in Vietnam, the
principles of fairness that brought about the lowering of the drinking
age and the voting age remain the same, even without fresh memories of Vietnam. It is hypocritical to behave paternalistically when it
comes to the individual freedom of consuming alcohol, yet subject
this group to possible death under the guise of protecting freedom.
The nation should return to a practice of fairness and concern for individual rights and lower the drinking age to reflect the level of responsibility expected of young adults. Alternatively, the nation
should raise the age of conscription and age for enlistment to parallel society’s concern for protecting the young.
V. CONCLUSION
As shown, Florida’s new administrative driver’s license suspension statute presents both potential constitutional problems and underlying public policy concerns. The Legislature should amend or
146. See discussion supra notes 14-17.
147. See Rosenthal, supra note 12, at 658 (citing statistics showing that 21-year-olds
have a fatal accident rate of 4.08 per one million miles compared to a rate of 3.38 for 20year-olds); see also Manuel v. State, 677 So. 2d 116, 128 (La. 1996).
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remove the provision of the statute allowing readings from PAS devices as prima facie evidence of guilt or, at a minimum, require the
state to lay a foundation for the reliability of the device readings.
Additionally, the use of PAS devices as a screening tool is extremely
questionable, and thus the Legislature should reconsider their use.
Lastly, the statute should be amended to apply only to blood- or
breath-alcohol levels of 0.02 to 0.049% to avoid any potential double
jeopardy problems. All persons, whether over or under the age of
twenty-one, are still covered by section 322.2615, Florida Statutes,
for blood- or breath-alcohol levels of 0.05% or higher.
Society should strive to avoid fixing its problems by adding to the
law books. There are many nonlegal ways to make streets safer and
reduce drunk driving by the young, such as through education and
by setting an appropriate example. Sober-driver programs should be
encouraged because the underaged will continue to drink regardless
of the law. Prohibition did not stop adults from drinking alcohol in
the early 1900s, and it will not stop those under twenty-one from
drinking today or tomorrow.
Lastly, placing such restrictions on a group of young adults is
problematic and counterintuitive to our foundation of freedom. Our
nation should think hard about treating young adults differently and
possibly revisit the issue of the national drinking age or, in the alternative, the age for conscription. In a perfectly safe world, there
would be no airplane accidents, no automobile accidents, and no acts
of terrorism. However, in obtaining a perfectly safe world, we would
sacrifice most of the freedoms and protections we hold dear. The
lives of all Americans are precious, and the goals of protecting them
from the evils of drunk driving should continue. However, our freedoms and rights are precious as well, and we should be cautious
when treading on them in the name of safety.
ABROGATING THE DOCTRINE OF NECESSARIES IN
FLORIDA: THE FUTURE OF SPOUSAL LIABILITY
FOR NECESSARY EXPENSES AFTER CONNOR V.
SOUTHWEST FLORIDA REGIONAL MEDICAL
CENTER, INC.
SHAWN M. WILLSON*
I. INTRODUCTION ..................................................................................................
II. CONNOR AND THE HISTORY OF THE DOCTRINE IN FLORIDA ...............................
A. Cases Addressing the Doctrine...................................................................
B. The Florida Supreme Court’s Decision in Connor.....................................
1. The Majority Opinion...........................................................................
2. Justice Overton’s Dissent.....................................................................
III. THE CONSENSUS OF THE STATES .......................................................................
A. Joint and Several Liability........................................................................
1. Judicial Implementation of Joint and SeveralLiability.....................
2. Legislative Implementation of Joint and Several Liability.................
3. Joint and Several Liability as a Creditor’s Tool.................................
4. Spouses Living Apart...........................................................................
B. Primary Liability on the Spouse Who Incurred the Debt..........................
C. Marriage as Partnership............................................................................
D. Primary Liability on the Husband.............................................................
E. The Equal Protection Problem Persists.....................................................
F. Abrogation of the Doctrine.........................................................................
1. The Response of Other Legislatures.....................................................
2. The Effect of Abrogation ......................................................................
IV. CONCLUSION......................................................................................................
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1043
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1051
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I. INTRODUCTION
The law is not static. It must keep pace with changes in our society, for the doctrine of stare decisis is not an iron mold which can
never be changed. . . . It may be argued that any change in this
rule should come from the legislature . . . . Legislative action could,
of course, be taken, but we abdicate our own function, in a field peculiarly nonstatutory, when we refuse to reconsider an old and unsatisfactory court-made rule.1
The doctrine of necessaries is a common-law doctrine first
adopted by the Florida courts in 1895.2 The doctrine, which originated in English courts more than three hundred years ago, 3 held a
husband liable to third parties for any necessaries the third party
* The author thanks Diane K. McClellan for providing the inspiration for this
Comment.
1. Gates v. Foley, 247 So. 2d 40, 43 (Fla. 1971).
2. See Phillips v. Sanchez, 35 Fla. 187, 17 So. 363 (1895).
3. See Note, The Unnecessary Doctrine of Necessaries, 82 MICH. L. REV. 1767, 1767
(1984) [hereinafter Unnecessary Doctrine].
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provided to his wife.4 At common law, a woman’s legal identity
merged with that of her husband; she could not own property, enter
into contracts, or receive credit as an individual. 5 This condition,
known as coverture, created a need for the doctrine of necessaries
because a married woman was dependent upon her husband for
maintenance and support. By prohibiting women from obtaining
necessaries, the law forced women to look to the bounty of their husbands for food, shelter, clothing, and medical services. 6
In 1943, the Florida Legislature abrogated coverture,7 yet the necessaries doctrine remained. As late as December 1995, a husband remained liable for the necessaries incurred by his wife. 8 However, the
longstanding common-law doctrine created issues of equal protection
because women had no similar liability for their husbands’ debts.9
The Florida Supreme Court recognized the need to either abolish
the doctrine or extend liability to both spouses in Shands Teaching
Hospital & Clinics, Inc. v. Smith.10 Despite this recognition, the court
refused to decide the issue, imploring the Legislature to resolve the
question.11 In December 1995, the court faced the issue once again in
Connor v. Southwest Florida Regional Medical Center, Inc.12 The
court, believing a lack of consensus existed among the states employing the doctrine, decided to abolish the doctrine, leaving the
Legislature to codify the doctrine if it wished. 13 In dissent, Justice
Ben Overton suggested that the judiciary was too quick to pass responsibility to the Legislature.14 He believed the court’s decision was
actually in the minority, and that the doctrine should be modified to
afford primary and secondary liability.15 As it stands, the doctrine
remains uncodified by the Florida Legislature. Two bills proposing
joint and several liability between spouses were introduced during
the 1996 Regular Session, but died in committee. 16
4. See id.; see also Connor v. Southwest Fla. Reg’l Med. Ctr., Inc., 668 So. 2d 175,
175 (Fla. 1995).
5. See Connor, 668 So. 2d at 175.
6. See id.
7. See Act effective June 4, 1943, ch. 21932, 1943 Fla. Laws 484; see also FLA. STAT.
§ 708.08 (1995) (stating that a married woman has the right, without the joinder of her
husband, to contract and be contracted with as though she were unmarried).
8. See Connor, 668 So. 2d at 179.
9. See id. at 176; Webb v. Hillsborough County Hosp. Auth., 521 So. 2d 199, 202
(Fla. 2d DCA 1988) (holding that, without a reciprocal duty, the doctrine of necessaries
violates the Equal Protection Clause of the U.S. Constitution).
10. 497 So. 2d 644 (Fla. 1986).
11. See id. at 646.
12. 668 So. 2d 175 (Fla. 1995).
13. See id. at 177.
14. See id. at 177-79 (Overton, J., dissenting).
15. See id.
16. See Fla. HB 1211 (1996); Fla. SB 906 (1996); see also FLA. LEGIS., FINAL
LEGISLATIVE BILL INFORMATION, 1996 REGULAR SESSION, HISTORY OF HOUSE BILLS at 320,
1997]
NECESSARIES DOCTRINE
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Part II of this Comment examines the history of the necessaries
doctrine in Florida and provides an overview of the court’s Connor
decision. Part III explores the decisions of other states addressing
the necessaries issue. In addition, Part III discusses the options that
legislatures may consider and the need for any of these options in
today’s society. Finally, Part IV concludes that the Florida Legislature should not codify any form of the necessaries doctrine.
II. CONNOR AND THE HISTORY OF THE DOCTRINE IN FLORIDA
A. Cases Addressing the Doctrine
The doctrine of necessaries was originally adopted in Florida over
a hundred years ago in Phillips v. Sanchez.17 Ironically, Mr. Phillips
was the spouse in need of medical care.18 For the last two years of his
life, he was an almost entirely blind invalid suffering from a skin
disease.19 Mrs. Phillips kept boarders in their home and could not
care for her husband by herself due to the responsibilities of managing the household.20 She therefore retained the services of her sister to assist in Mr. Phillips’ care.21 Finding that Mrs. Phillips had
authority to act as the agent of her husband, the court stated:
As a general proposition, the wife has no authority to bind the
husband by contract unless she is his agent in fact. This well
known exception to this general rule is an incident to her right of
support from her husband, and she is, for that purpose, his agent,
and can bind him to pay for such things as are necessary for the
proper maintenance of herself and family. Domestic service in accordance with the means of the husband and social station of the
family is a necessity.22
Thus, Mr. Phillips, through his estate, was required to pay. Significantly, the court found Mr. Phillips’ medical care a necessity for his
wife.23
HB 1211; FLA. LEGIS., FINAL LEGISLATIVE BILL INFORMATION, 1996 REGULAR SESSION,
HISTORY OF SENATE BILLS at 94, SB 906.
At the time this Comment was being prepared for publication, a bill that would impose
joint and several liability for hospital bills on husbands and wives living together was
pending in the Florida House of Representatives Committee on Financial Services. See
Fla. CS for HB 349, § 12 (1997) (proposed FLA. STAT. § 395.301(7)).
17. 35 Fla. 187, 17 So. 363 (1895). For a more complete discussion of the history of
the doctrine of necessaries in Florida, see Mary Elizabeth Borja, Functions of Womanhood: The Doctrine of Necessaries in Florida, 47 U. MIAMI L. REV. 397 (1992).
18. See Phillips, 35 Fla. at 190, 17 So. at 364.
19. See id., 17 So. at 364.
20. See id., 17 So. at 364.
21. Id. at 191, 17 So. at 364.
22. Id., 17 So. at 364.
23. See id. at 192, 17 So. at 364. In his dissent in Connor, Justice Overton found
irony in the fact that the dispute in Phillips focused on necessary medical services for the
husband: “Interestingly, the case in which we established the doctrine involved circum-
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Eighty-five years later, and thirty-seven years after the Florida
Legislature abrogated coverture, a Florida court addressed for the
first time the question of whether the doctrine resulted in a wife’s liability for the necessary expenses of her husband. In Manatee Convalescent Center v. McDonald,24 the Second District Court of Appeal
extended the doctrine, holding the wife liable for medical expenses
incurred by her deceased husband.25 The court looked to actions of
the Florida Legislature, which had adopted a reciprocal and complementary burden of support between spouses. 26 For example, in
1971, the Florida Legislature changed all references to “husband”
and “wife” in the divorce laws, chapter 61, Florida Statutes, to
“spouse” or “party.”27 Additionally, the Legislature amended section
61.08, Florida Statutes, to allow alimony for either spouse.28 In light
of these changes, the McDonald court found that a modification of
the doctrine was appropriate.29 The Third District Court of Appeal
reached a similar decision soon after in Parkway General Hospital,
Inc. v. Stern.30
In 1986, the matter finally reached the Florida Supreme Court in
Shands Teaching Hospital & Clinics, Inc. v. Smith.31 The court in
Shands rejected McDonald and Stern, holding that the decision to
abrogate the doctrine of necessaries was best left to the Legislature.32 The court agreed that it was an anachronism to hold the husband liable for a wife’s debts without holding a wife similarly responsible and found merit in the arguments of both the hospital and
the wife.33 The hospital argued that the marital partnership benefits
when one spouse receives medical services. 34 These benefits, the hospital asserted, gave rise to an implied-in-law contract, and thus the
other spouse should be liable to prevent unjust enrichment. 35 However, the wife denied that she had received any benefit or unjust enrichment from her husband’s medical services. 36 She argued that the
hospital should have sought her guaranty of the medical bills before
stances where the wife, acting as an agent for the husband, incurred obligations for the
care of her invalid husband and the claim was against his estate.” 668 So. 2d at 179 (Overton, J., dissenting).
24. 392 So. 2d 1356 (Fla. 2d DCA 1980).
25. See id. at 1359.
26. See id. at 1357.
27. See id.; see also Act effective June 22, 1971, ch. 71-241, 1971 Fla. Laws 1319.
28. See McDonald, 392 So. 2d at 1357; see also ch. 71-241, § 10, 1971 Fla. Laws at
1323.
29. See 392 So. 2d at 1357.
30. 400 So. 2d 166 (Fla. 3d DCA 1981).
31. 497 So. 2d 644 (Fla. 1986).
32. See id. at 646.
33. See id. at 645.
34. See id.
35. See id.
36. See id.
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they rendered services and sought payment from the assets of her
deceased husband’s estate.37
The Florida Supreme Court hesitated to create a fixed rule of law
because it could “easily visualize instances where it would be inequitable to hold either a wife or a husband liable for medical services rendered to a spouse, just as we can visualize instances where it would be
inequitable not to hold either spouse liable for medical services received by the other spouse.”38 As such, the Shands decision focused on
the court’s desire and authority to modify a common-law rule.39
Significantly, the Florida Supreme Court’s decision in Shands did
not address the underlying equal protection issue created by the doctrine. Instead, the court held that the hospital as petitioner did not
have standing to make an equal protection argument. 40 By refusing
to decide, the court essentially left the issue open for the district
courts of appeal.
Two years after Shands, the equal protection issue came before
the Second District Court of Appeal in Webb v. Hillsborough County
Hospital Authority.41 A husband, who did not contract for medical
services provided to his wife, argued that he should not be liable for
the debt because such liability would violate his right to equal protection under the Florida and federal constitutions. 42 The court
agreed that a one-sided application of the necessaries doctrine resulted in an equal protection violation and relied on McDonald and
Stern to conclude that the doctrine should be extended. 43 The Shands
decision did not deter the Second District Court from extending the
doctrine. Instead, the court concluded that the Florida Supreme
Court’s disapproval of McDonald and Stern was based on the hospitals’ lack of standing to make equal protection claims. 44 With the
37. See id. at 646.
38. Id.
39. The court called the situation a “decisional quandary,” id., and explained why it
was hesitant to change the longstanding rule. The court stated that the issue had such
broad social implications that its resolution required input from the public in general and
that the judiciary was the branch of government least capable of receiving this input. See
id. As such, the court looked to Gates v. Foley, 247 So. 2d 40 (Fla. 1971), and Zorzos v.
Rosen, 467 So. 2d 305 (Fla. 1985), to determine what it believed to be the controlling question: whether the court was the proper institution to resolve the issue. In Gates, the court
expanded the common-law right of consortium to allow wives a cause of action. See 247
So. 2d at 45. In contrast, the Zorzos court declined to create a common-law right to sue for
parental consortium when the parent does not die, leaving the Legislature to make any
change in the law. See 467 So. 2d at 307. Unlike the parties in Gates, the parties in
Shands did not raise a valid equal protection argument. Therefore, the court distinguished the case and followed Zorzos. See Shands, 497 So. 2d at 646.
40. See Shands, 497 So. 2d at 646 n.1.
41. 521 So. 2d 199 (Fla. 2d DCA 1988).
42. See id. at 200.
43. See id. at 203.
44. See id.
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husband bringing suit in this case, no such standing issue existed. 45
Therefore, the court chose to extend the doctrine with one limitation:
“For purposes of pleading and proof by a creditor, a showing that the
spouse to whom necessaries were provided is unable to pay . . . shall
be a condition precedent to the liability of the other spouse for the
necessaries.”46 Despite the supreme court’s call to the Legislature in
Shands, the Webb court believed it had discretion to modify the rule:
[I]f a court failed to make such a choice, followed existing commonlaw by affirming a final judgment . . . which held a husband responsible for necessaries provided to his wife, left law as is that a
wife is not reciprocally responsible, and simply announced that the
choice of law is for the legislature to make, the constitutional equal
protection violation would have been ignored, which a court is not
entitled to do. Thus, it appears inevitable that there be a courtmade choice of law in order not to ignore the equal protection violation.47
Webb, however, did not end the controversy surrounding the necessaries doctrine. In Heinemann v. John F. Kennedy Memorial Hospital48 and Faulk v. Palm Beach Gardens Community Hospital,
Inc.,49 the Fourth District Court of Appeal disagreed with the Webb
court and held that a wife was not liable for the necessary expenses
incurred by her husband.50 The Fifth District Court of Appeal also
rendered a decision in direct conflict with Webb. In Waite v. Leesburg
Regional Medical Center, Inc.,51 the court simply disregarded Webb
and held that an unmodified necessaries doctrine violated neither
the federal Equal Protection Clause nor its state counterpart. 52
B. The Florida Supreme Court’s Decision in Connor
Kenneth Connor incurred medical expenses in 1992 for services
provided to him by Southwest Florida Regional Medical Center. 53
Connor was unable to pay an $85,000 outstanding balance owed to
Southwest.54 In 1993, Southwest sued Connor and his wife for the
debt, claiming a written agreement obligated the Connors to pay. 55
Mrs. Connor moved to dismiss Southwest’s complaint against her
45. See id.
46. Id.
47. Id. at 207.
48. 585 So. 2d 1162 (Fla. 4th DCA 1991).
49. 598 So. 2d 1029 (Fla. 4th DCA 1991).
50. See Heinemann, 585 So. 2d at 1162; Faulk, 589 So. 2d at 1029.
51. 582 So. 2d 789 (Fla. 5th DCA 1991).
52. See id. at 790.
53. See Connor v. Southwest Fla. Reg’l Med. Ctr., Inc., 643 So. 2d 681, 681 (Fla. 2d
DCA 1994).
54. See id.at 682.
55. See id.
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because she had not executed any agreement to pay for the services
provided to her husband.56
The trial court followed an unmodified doctrine of necessaries as
it believed existed under Shands and disregarded the Webb court’s
expansion of the doctrine.57 As a result, the court dismissed the
claim.58 Subsequently, the Second District Court of Appeal reversed
and remanded the case, recognizing that the doctrine of necessaries
in Florida was “muddied” and certifying the case to the Florida Supreme Court as being in conflict with four cases in other districts. 59
1. The Majority Opinion
The supreme court began its opinion by discussing the history of
the doctrine, highlighting McDonald, Shands, and Webb, as well as
the four cases that directly disagreed with or ignored Webb.60 Although Connor was before the court in the same posture as Shands,
the conflict in the district courts over the abrogation or extension of
the doctrine forced the court to address the equal protection issue it
had left unresolved in Shands.61
Mrs. Connor argued that the doctrine of necessaries could no
longer be justified because women could contract freely for their own
necessaries.62 The hospital argued that although the original purpose
behind the doctrine no longer existed, the continuance of the doctrine served an important function by promoting the partnership
theory of marriage.63 The hospital contended that the doctrine should
therefore be extended to create liability for both men and women to
the third-party creditors of their spouses.64
In justifying its decision to abrogate the doctrine, the court looked
to the lack of consensus among other states confronting the issue.
First, the court cited three cases that abrogated the doctrine entirely
and gave the state legislature the choice whether to enact a version
of the doctrine into law.65 It went on to cite six cases that extended
the doctrine’s application to both sexes.66
56. See id.
57. See id. at 682.
58. See id.
59. Id. at 684.
60. See Connor v. Southwest Fla. Reg’l Med. Ctr., Inc., 668 So. 2d 175, 175 (Fla.
1995).
61. See id. at 176.
62. See id.
63. See id.
64. See id.
65. See id. (citing Emanuel v. McGriff, 596 So. 2d 578 (Ala. 1992); Schilling v. Bedford County Mem’l Hosp., Inc., 303 S.E.2d 905 (Va. 1983); Condore v. Prince George’s
County, 425 A.2d 1011 (Md. 1981)).
66. See id. (citing Landmark Med. Ctr. v. Gauthier, 635 A.2d 1145 (R.I. 1994); Bartrom v. Adjustment Bureau, Inc., 618 N.E.2d 1 (Ind. 1993); St. Francis Reg’l Med. Ctr.,
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In addition, the court observed that the legislatures of four
states—Oklahoma, Kentucky, Georgia, and North Dakota—had enacted laws dealing with the doctrine.67 Both Oklahoma and Kentucky
had codified the doctrine in its original common-law form. 68 Georgia
had abolished the doctrine in 1979,69 and North Dakota had imposed
joint and several liability for debts incurred by either spouse for food,
clothing, fuel, and shelter.70 The North Dakota statute, however,
does not require a spouse to contribute to the other spouse’s medical
expenses.71
Thus, the court believed its refusal to modify the common law in
Shands was reinforced by the lack of consensus among other state
courts and legislatures.72 Similarly, the court concluded that its refusal to hold a wife liable for her husband’s necessaries was correct
in light of the Florida Legislature’s inaction since Shands.73 In turn,
equal protection concerns demanded that the court refuse to hold a
husband liable for his wife’s necessaries as well. 74 By abrogating the
doctrine, the court claimed it was actually refraining from making a
policy decision better left to the Legislature. 75
2. Justice Overton’s Dissent
In dissent, Justice Overton expressed dismay with the reasoning
behind the court’s decision to abrogate.76 While the majority relied on
the lack of consensus among other states to justify its position on the
doctrine, Justice Overton emphasized that the court’s decision to abrogate was actually in the minority.77
Justice Overton agreed that the doctrine, in its present state,
violated the Equal Protection Clause.78 Nevertheless, he felt that the
doctrine “is just as important today, under the partnership theory of
marriage, as it was when the doctrine was created under the unity
theory of marriage.”79 According to Justice Overton, abrogation
Inc. v. Bowles, 836 P.2d 1123 (Kan. 1992); North Carolina Baptist Hosps., Inc. v. Harris,
354 S.E.2d 471 (N.C. 1987); Richland Mem’l Hosp. v. Burton, 318 S.E.2d 12 (S.C. 1984);
Jersey Shore Med. Ctr.-Fitkin Hosp. v. Estate of Baum, 417 A.2d 1003 (N.J. 1980)).
67. See id. at 177.
68. See id. (citing OKLA. STAT. tit. 43, § 209 (1994)); KY. REV. STAT. ANN. § 404.040
(Banks-Baldwin 1994)).
69. See id. (citing 1979 Ga. Laws 466, 491).
70. See id. (citing N.D. CENT. CODE § 14-07-08 (1993)).
71. See id.
72. See id.
73. See id.
74. See id.
75. See id.
76. See id. (Overton, J., dissenting).
77. See id. at 179.
78. See id. at 177.
79. Id.
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“weaken[s] the obligations of marriage by eliminating the spousal
duty to care for one another,” “shift[s] the policy of this state by, in
effect, requiring each spouse to take care of himself or herself,” and
“reduces the legal obligations of the marriage contract.” 80
Justice Overton reasoned that the Legislature’s inaction implied
agreement with the judicially created policy surrounding the common-law doctrine of necessaries as it existed before Connor.81 Further, he asserted that it was within the court’s discretion to decide
the merits of the case because the incorporation of the doctrine into
Florida’s common law was originally a matter of judicial policy. 82 Interestingly, Justice Overton disagreed with the majority’s opinion
that a lack of consensus existed among the states. 83 To support this
assertion, Justice Overton tallied the number of cases addressing the
doctrine and considered their outcomes. 84
In his survey of these cases, Justice Overton discussed the options
exercised by various courts. Twelve states had extended the doctrine
in one of the following three ways: (1) by imposing joint and several
liability;85 (2) by imposing primary liability on the spouse who incurred the debt and secondary liability on the other spouse; 86 or (3)
by imposing primary liability on the husband and secondary liability
on the wife.87 Four states had abrogated the doctrine entirely, 88 and
two had simply reaffirmed the common-law doctrine without addressing the equal protection concerns.89
Further, Justice Overton argued that Florida had moved to a partnership theory of marriage, and that the doctrine was just as applicable today as it was in 1895: “[I]n many households, both spouses are
employed but only one spouse provides the medical coverage for the
entire household. Under these circumstances, the extension of the
80. Id.
81. See id.
82. See id. at 177-78.
83. See id. at 178.
84. See id.
85. See id. (citing North Carolina Baptist Hosps. v. Harris, 354 S.E.2d 471 (N.C.
1987)).
86. See id. (citing Bartrom v. Adjustment Bureau, Inc., 618 N.E.2d 1, 8 (Ind. 1983)).
Justice Overton incorrectly cited South Carolina as being under this category. See id.; see
also Richland Mem'l Hosp. v. Burton, 318 S.E.2d 12, 13-14 (S.C. 1984) (stating that the
necessaries doctrine allows third parties providing necessaries to a husband or wife to
bring an action against the other spouse).
87. See id. (citing Ohio State Univ. v. Kinkaid, 549 N.E.2d 517 (Ohio 1990) (noting
that the Ohio Legislature extended the doctrine to both parties)).
88. See id. (citing Emanuel v. McGriff, 596 So. 2d 578 (Ala. 1992); Condore v. Prince
George’s County, 425 A.2d 1011 (Md. 1981); Govan v. Medical Credit Servs., Inc., 621 So.
2d 928 (Miss. 1993); Schilling v. Bedford County Mem’l Hosp., Inc., 303 S.E.2d 905 (Va.
1983)).
89. See id. (citing Hitchcock Clinic, Inc. v. Mackie, 648 A.2d 817, 819 (Vt. 1993);
Medlock v. Fort Smith Serv. Fin. Corp., 803 S.W.2d 930, 931 (Ark. 1991)).
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doctrine fits like a glove by requiring the more able spouse to care for
the needs of the household.”90 Justice Overton stated that each
spouse is entitled to share in the fruits of the marital partnership
and cited two cases, Canakaris v. Canakaris91 and Thompson v.
Thompson,92 as involving the equitable distribution principles recognized by Florida.93 Canakaris held that spouses are considered partners for purposes of equitable distribution of marital assets upon divorce,94 while Thompson held that professional goodwill obtained after the formation of the marriage partnership was a partnership asset.95
Finally, Justice Overton cited Via v. Putnam96 as an illustration of
the court’s commitment to spousal support. Putnam was a probate
case and did not address the doctrine of necessaries. 97 However, Justice Overton quoted the Putnam court for the proposition, “The institution of marriage has been a cornerstone of western civilization for
thousands of years and is the most important type of contract ever
formed.”98
III. THE CONSENSUS OF THE STATES
A. Joint and Several Liability
1. Judicial Implementation of Joint and Several Liability
The North Carolina Supreme Court recognized joint and several
liability as a viable solution to an outdated necessaries doctrine in
North Carolina Baptist Hospitals, Inc. v. Harris.99 In Harris, the
hospital filed suit against both Mr. and Mrs. Harris to collect approximately $3000 for medical expenses incurred by Mr. Harris. 100
Mrs. Harris specifically refused to sign as guarantor at the time of
her husband’s admission to the hospital. 101 When the hospital business office gave her the form authorizing treatment for Mr. Harris,
she signed it in her husband’s name and noted that the signature
was signed by her hand.102 While the lower court granted summary
90. Id. at 179.
91. 382 So. 2d 1197 (Fla. 1980).
92. 576 So. 2d 267 (Fla. 1991).
93. See Connor, 688 So. 2d at 179.
94. See 382 So. 2d at 1203-04.
95. See 576 So. 2d at 268.
96. 656 So. 2d 460 (Fla. 1995).
97. See Connor, 688 So. 2d at 179.
98. Id. (quoting Putnam, 656 So. 2d at 465 (quoting in turn In re Estate of Yohn, 238
So. 2d 290, 296 (Fla. 1970))).
99. 354 S.E.2d 471 (N.C. 1987).
100. See id. at 471.
101. See id.
102. See id. at 472.
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judgment against Mr. Harris, it refused to hold Mrs. Harris liable,
dismissing the complaint.103 The North Carolina Supreme Court,
however, found Mrs. Harris liable for the debt in its entirety, holding
that a wife may be held responsible for the necessary medical expenses of her husband, even in the absence of an express undertaking on her part.104
The Harris court’s analysis focused primarily on the state’s trend
toward gender neutrality and the need for neutrality in the application of the doctrine.105 Although Mrs. Harris argued that abrogation
of the doctrine would achieve this objective, the court reasoned that
a reciprocal duty for both spouses would serve several beneficial
ends.106 The court observed that the doctrine had historically encouraged health care providers and facilities to provide needed medical
services to married persons.107 According to the court, the doctrine
also recognized that marriage involved shared wealth, expenses, duties, and rights.108 To allow for spousal liability, the court opined,
would be to recognize “a personal duty of each spouse to support the
other, a duty arising from the marital relationship itself and carrying with it the corollary right to support from the other spouse.” 109
The court thus adopted joint and several liability, but did not elaborate on its decision to invoke that method as opposed to primary and
secondary liability.
In Kilbourne v. Hanzelik,110 the Tennessee Supreme Court also
found that the necessaries doctrine applied to both sexes. However,
the facts of Kilbourne differ from those of Harris or any of the Florida cases discussed above. The Kilbourne court based its decision to
extend the doctrine on the since-overruled Manatee Convalescent
Center, Inc. v. McDonald.111 In Kilbourne, the group medical insurance of the appellant, Linda Kilbourne, paid $50,000 in medical expenses incurred by her husband after a car accident in which the
other driver was killed.112 She subsequently filed suit against the
administrator of the deceased driver’s estate to recover those expenses.113 The trial court granted summary judgment against Mrs.
Kilbourne based on common-law rules that did not obligate a wife to
103. See id. at 471-72
104. See id. at 475.
105. See id. at 473.
106. See id.
107. See id.
108. See id.
109. Id. at 474.
110. See Kilbourne v. Hanzelik, 648 S.W.2d 932, 934 (Tenn. 1983).
111. See id. at 932; Manatee Convalescent Ctr., Inc. v. McDonald, 392 So. 2d 1356
(Fla. 2d DCA 1980).
112. See Kilbourne, 648 S.W.2d at 932.
113. See id.
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pay for her husband’s necessaries and that denied her a right to recover for necessaries that were in fact paid by her. 114 The court of appeals affirmed the decision, but the Tennessee Supreme Court ultimately reversed and remanded, noting the existence of amended
alimony statutes that established a gender-neutral burden of support in both Florida and Tennessee.115 The supreme court adopted
the reasoning in McDonald, thereby allowing Mrs. Kilbourne a cause
of action to recover the money she, or in actuality, her insurance
company, paid.116
In his concurring opinion, Justice Harbison stated that several issues raised by the estate administrator were still open. 117 A factual
dispute existed as to whether Mrs. Kilbourne and her husband were
separated at the time of the accident.118 Justice Harbison noted that
a duty to furnish necessaries to a spouse living apart is different
from that of spouses living together.119
2. Legislative Implementation of Joint and Several Liability
A number of states currently have family expense statutes and
statutes that expressly codified an expanded doctrine implementing
joint and several liability.120 Florida legislators introduced bills in
the 1996 Regular Session aimed at doing the same. 121 Both bills
failed, dying in committee before reaching the floor. 122 Their introduction, however, illustrates the future of the doctrine in Florida and
the direction the Legislature may take in codifying an expanded doctrine. Florida House Bill 1211 and Florida Senate Bill 906 both
stated: “The husband and wife are liable jointly and severally for any
debts contracted by either, while living together, for necessary
household supplies of food, clothing, and fuel, for medical care, and
for shelter for themselves and family, and for the education of their
minor children.”123 Unlike the Virginia, Montana, and Hawaii stat114. See id.
115. See id. at 932.
116. See id. at 933.
117. See id. at 934 (Harbison, J., concurring).
118. See id.
119. See id.
120. See COLO. REV. STAT. § 14-6-110 (1995); D.C. CODE ANN. § 30-201 (1996); HAW.
REV. STAT. ANN. § 572-24 (Michie 1995); 750 ILL. COMP. STAT. ANN. 65/15 (West 1996);
MINN. STAT. § 519.05 (1995); MONT. CODE ANN. § 40-2-106 (1995); S.D. CODIFIED LAWS
§25-2-11 (Michie 1996); VA. CODE ANN. § 55-37 (Michie 1995); WASH. REV. CODE §
26.16.205 (1995).
121. See Fla. HB 1211 (1996); Fla. SB 906 (1996).
122. See FLA. LEGIS., FINAL LEGISLATIVE BILL INFORMATION, 1996 REGULAR SESSION,
HISTORY OF HOUSE BILLS at 320, HB 1211; FLA. LEGIS., FINAL LEGISLATIVE BILL
INFORMATION, 1996 REGULAR SESSION, HISTORY OF SENATE BILLS at 94, SB 906.
123. Fla. HB 1211 § 1 (1996); Fla. SB 906 § 1 (1996). Interestingly, the bill pending before the Florida House of Representatives Committee on Financial Services as this Com-
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utes, which simply create spousal liability for “necessaries,” 124 the
Florida bills specifically listed the covered expenses. North Dakota,
on the other hand, imposes joint and several liability for food, clothing, fuel, and shelter, but does not include medical expenses. 125 This
exclusion is a significant difference because most of the modern
cases dealing with the doctrine of necessaries focus on medical
costs.126
3. Joint and Several Liability as a Creditor’s Tool
Recognizing that most doctrine-of-necessaries cases today do not
involve a neglectful spouse who refuses to provide food, shelter, and
clothing to the other spouse, it becomes apparent that the doctrine
owes its continued existence to its use as a collection device for creditors. In the last fifty years, all of the Florida cases in which a party
invoked the doctrine involved unpaid medical expenses. 127 In case after case, hospitals sought to trap an unwilling spouse into making
payment on a debt for which he or she did not contract. 128
ment was being prepared for publication would impose joint and several liability only for
hospital bills. See Fla. CS for HB 349, § 12 (1997) (proposed FLA. STAT. § 395.301(7))
(“Hospital bills are considered family expenses in which the husband and wife, while living together, are jointly and severally liable for each other and their minor children.”).
124. See HAW. REV. STAT. ANN. § 572-24 (Michie 1995):
Both spouses of a marriage, whether married in this State or in some other
jurisdiction, and residing in this, shall be bound to maintain, provide for, and
support one another during marriage, and shall be liable for all debts contracted by one another for necessaries for themselves, one another, or their
family during marriage . . . .
See also MONT. CODE ANN. § 40-2-106 (1995):
Neither husband nor wife, as such, is answerable for the acts of the other or
liable for the debts contracted by the other; provided, however, that the expenses for necessaries of the family and of the education of the children are
chargeable upon the property of both husband and wife, or either of them, and
in relation thereto they may be sued jointly or separately.
See also VA. CODE ANN. § 55-37 (Michie 1995):
Except as otherwise provided in this section, a spouse shall not be responsible for the other spouse’s contract or tort liability to a third party, whether
such liability arose before or after the marriage. The doctrine of necessaries as
it existed at common-law shall apply equally to both spouses, except where
they are permanently living separate and apart, but shall in no event create
any liability between such spouses as to each other . . . .
125. See N.D. CENT. CODE § 14-07-08 (1995).
126. See Borja, supra note 17, at 423 n.162; Unnecessary Doctrine, supra note 3, at
1784; see also generally Alan P. Woodruff & Arthur H. Lester, Claims for Medical Expenses Under the Doctrine of Necessaries,FLA. B.J., Dec. 1993, at 30.
127. See Borja, supra note 17, at 423 n.162.
128. See, e.g., Connor v. Southwest Fla. Reg’l Med. Ctr., Inc., 668 So. 2d 175 (Fla.
1995); Schilling v. Bedford County Mem’l Hosp., 303 S.E.2d 905 (Va. 1983); Jersey Shore
Med. Ctr.-Fitkin Hosp. v. Estate of Baum, 417 A.2d 1003 (N.J. 1980); Webb v. Hillsborough County Hosp. Auth., 521 So. 2d 199 (Fla. 2d DCA 1988). The spouses in these cases
were unwilling to pay for the debts of their living spouses. A spouse who refuses to pay
when the estate of the deceased spouse is either insufficient to cover the debt or not subject to probate is another factual scenario prevalent in doctrine-of-necessaries cases. See,
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A doctrine providing for joint and several liability allows a hospital or other creditor unfettered discretion in the collection of a debt
because those creditors may seek payment from either spouse, regardless of which spouse actually incurred the debt. 129 The New Jersey Supreme Court noted that such an extension of the doctrine
treats spouses equally, but characterized the rule as “equality with a
vengeance.”130 The court stated:
The rule would result in the immediate exposure of the property of
one spouse for a debt incurred by the other spouse. A creditor
would receive the same benefits as if both spouses had agreed to
joint liability. Neither equity nor reality justifies imposing unqualified liability on one spouse for the debts of the other or exempting one spouse from liability for the necessary expenses of the
other.131
The entire purpose of the original necessaries doctrine—to provide
for a spouse who cannot provide for her or himself—is further undermined because joint and several liability allows a creditor to proceed against a nondebtor spouse regardless of whether the financial
resources of the debtor spouse are sufficient to cover the debt. 132 In
other words, the doctrine, touted as a device that encourages marital
care and support, is reduced to a creditor’s remedy. 133
4. Spouses Living Apart
Some state laws recognize that a support duty may not exist if
spouses are not living together.134 The recent Florida bills and the
Virginia statute state this exception;135 other states’ statutes do not
expressly make a distinction, but rather clarify it through case
law.136 Without this distinction, a spouse who is not living with the
debtor at the time the debt is incurred and who awaits final dissolution of the marriage could be liable for the debt.
e.g., Landmark Med. Ctr. v. Gauthier, 635 A.2d 1145 (R.I. 1994); Marshfield Clinic v. Discher, 314 N.W.2d 326 (Wis. 1982); Condore v. Prince George’s County, 425 A.2d 1011 (Md.
1981); Heinemann v. John F. Kennedy Mem’l Hosp., 585 So. 2d 1162 (Fla. 4th DCA 1991).
129. See Marcus L. Moxley, North Carolina Baptist Hosps., Inc. v. Harris: North Carolina Adopts a Gender-Neutral Approach to the Doctrine of Necessaries, 66 N.C. L. REV.
1241, 1246-47 (1987).
130. Baum, 417 A.2d at 1009.
131. Id.
132. See Moxley, supra note 129, at 1250-51.
133. See id.
134. See, e.g., MINN. STAT. § 19.05 (1995); S.D. CODIFIED LAWS § 25-2-11 (Michie 1996);
VA. CODE ANN. § 55-37 (Michie 1995).
135. Fla. HB 1211 (1996); Fla. SB 906 (1996).
136. See COLO. REV. STAT. § 14-6-110 (1995); O’Brien v. Galley-Stockton Shoe Co., 173
P. 544, 544 (Colo. 1918) (holding that the statute making a husband and wife jointly liable
for family expenses does not apply where the husband and wife have separated and are
living apart).
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In Bartrom v. Adjustment Bureau, Inc.,137 the Supreme Court of
Indiana held that the duty of spousal support continues until the
marital relationship is dissolved.138 Finding irrelevant an Indiana
statute allowing equitable distribution to take place at the date of final separation, the court cited a case that held that an estranged
spouse may look to the other spouse for support pending the date of
final dissolution.139 Due to a lack of precedent that might suggest
spousal support could be terminated prior to divorce, the court held
that Mrs. Bartrom was liable for expenses incurred by her husband
after the couple filed for divorce, but before the final dissolution. 140
The inequity of such a situation was recognized by the sponsors of
the Florida bills.141
B. Primary Liability on the Spouse Who Incurred the Debt
Other courts have elected to extend the necessaries doctrine to
both spouses by imposing primary liability on the spouse who incurred the debt and secondary liability on the other. 142 As discussed
above, the New Jersey Supreme Court found joint and several liability an inequitable solution because it gave the same rights to a creditor who contracted with one spouse as it gave to a creditor who held
an agreement with both.143 Nevertheless, the court recognized marriage as a “shared enterprise [and] a joint undertaking” that is “akin
to a partnership.”144 As a result, the court held that a creditor who
provides necessaries to one spouse can assume that the financial resources of both spouses may be used for payment; however, one
spouse may only become liable for the debt when the resources of the
other spouse who incurred the debt are insufficient. 145 The court justified its position by stating, “Marshaling the marital resources in
that manner grants some protection to a spouse who has not expressly consented to that debt.”146 Relying on the partnership theory
of marriage, the court chose an alternative somewhat less extreme
than either joint and several liability or abrogation. 147
137. 618 N.E.2d 1 (Ind. 1993).
138. See id. at 9.
139. See id. at 8 (citing Welling v. Welling, 272 N.E.2d 598 (Ind. 1971)).
140. See id.
141. Fla. HB 1211 § 1 (1996); Fla. SB 906 § 1 (1996).
142. See Landmark Med. Ctr. v. Gauthier, 635 A.2d 1145, 1148 (R.I. 1994); Bartrom,
618 N.E.2d at 8; St. Francis Reg’l Med. Ctr., Inc. v. Bowles, 836 P.2d 1123, 1128 (Kan.
1992); Jersey Shore Med. Ctr.-Fitkin Hosp. v. Estate of Baum, 417 A.2d 1003, 1010 (N.J.
1980).
143. See Baum, 417 A.2d at 1009.
144. Id. at 1010.
145. See id.
146. Id.
147. See id.
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C. Marriage as Partnership
In Connor, Justice Overton stressed the importance of the partnership theory of marriage.148 He stated that under the partnership
theory, each spouse is entitled to share in the financial fruits of the
marriage, a concept he believed Florida recognized in its equitable
principles of distribution.149 As Justice Overton suggested, the
shared financial success or failure of a couple is an important aspect
of marriage.150 Nevertheless, marriages and business partnerships
are not sufficiently analogous; the ultimate goal of marriage is not
financial enterprise and profit.151 Significantly, the cases mentioned
in Justice Overton’s dissent involved dissolution of marriage and allowed for a case-by-case determination of how much each spouse contributed to the marriage and how much each might take away. 152
These cases suggest that the law must step into the boundaries of
the marriage institution to make sense of the chaos that a separation
of such a partnership creates.153 While applying the principles of
partnership and equitable distribution are necessary when a marriage ends,154 the application of these principles to the marriage itself
is less appropriate.
The partnership theory of marriage casts onto all married couples
one belief: two individuals are united as one financial entity. 155 However, some couples choose to join their lives without joining their re148. See 668 So. 2d at 179 (Overton, J., dissenting).
149. See id.
150. See id. at 178; see also Thompson v. Thompson, 576 So. 2d 267, 270 (Fla. 1991)
(holding that the court should consider goodwill accumulated during a marriage as a
marital asset); Canakaris v. Canakaris, 382 So. 2d 1197, 1203-04 (Fla. 1980).
151. See Unnecessary Doctrine, supra note 3, at 1791-94. But see Borja, supra note 17,
at 429-35.
152. See Connor, 668 So. 2d at 178-79, (citing Canakaris, 382 So. 2d at 1203-04;
Thompson, 576 So. 2d at 268).
153. See Canakaris, 382 So. 2d at 1204 (stating that a trial court must ensure that
neither spouse passes automatically from misfortune to prosperity or from prosperity to
misfortune, and, in viewing the totality of the circumstances, one spouse should not be
“shortchanged.”).
154. See Thompson, 576 So. 2d at 270; Canakaris, 382 So. 2d at 1204. The Thompson
court quoted Prahinski v. Prahinski, 540 A.2d 833 (Md. Ct. Spec. App. 1988), for the
proposition that it would be inequitable to ignore goodwill attributable to a spouse if in
fact it exists. See 576 So. 2d at 270 (quoting Prahinski, 540 A.2d at 841).
155. See Jersey Shore Med. Ctr.-Fitkin Hosp. v. Estate of Baum, 417 A.2d 1003, 1105
(N.J. 1980) (stating that marriage is a partnership and that in most marriages, a husband
and wife consider themselves a financial unit); Unnecessary Doctrine, supra note 3, at
1793 (stating that the partnership theory of marriage is superficially tempting because
most spouses, like business partners, pool their assets); see also Judith Treas, Money in
the Bank: Transaction Costs and the Economic Organization of Marriage, 58 AM. SOC.
REV. 723, 723 (1993) (stating that Americans expect married couples to pool their income
and assets and discussing a study in which 69% of wives and 75% of husbands favored
pooling when asked whether spouses should combine all their income and assets).
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sources.156 Some spouses enter into premarital agreements to protect
assets each brings into the marriage and maintain separate bank accounts and credit cards.157 This arrangement is not yet the norm, but
the trend illustrates a changing society upon which neither the legislature nor the judiciary should cast antiquated beliefs. The unity
theory of marriage that prevailed a century ago and a doctrine of
necessaries that required no reciprocal duty for a woman to support
a man seem absurd and outdated now.158 How long is it before a
partnership theory of marriage no longer fits the needs of modern
society?
Allowing the law to interfere with the marriage itself—to dictate
that an individual can no longer contract as an individual but rather
only as an entity—goes far beyond the state's interest in promoting
marital support.159 The doctrine of necessaries undermines the rights
of the individual because it attaches liability to one individual for the
debts of another. Mrs. Harris had a reason for refusing to guarantee
her husband’s medical expenses, although we can only speculate as
to what that reason was.160 When courts or lawmakers interfere with
156. See Unnecessary Doctrine, supra note 3, at 1795-97:
Superficially, the interest that married people have in apportioning support
obligations for themselves may seem to be simply an economic one. The implications of this decision, however, transcend family economics. The choice of
support obligations affects the emotional character of the marital relationship
and the internal power structure of the family.
157. See Treas, supra note 155, at 723. Treas states:
Despite general support for common ownership, some married individuals hold
money back from the common pot as demonstrated by studies of British
working class couples, of readers of an American women’s magazine, and of
dual career couples in Chicago. In extreme cases, all money is segregated and
common expenditures are met according to an agreed upon formula or end-ofthe-month bargaining. Separate accounting systems are apparently on the
rise-the proportion of married women with checking or savings accounts in
their own names nearly doubled between 1972 and 1980.
Id. (emphasis added).
158. Very few courts deny that the original common-law doctrine of necessaries has no
place in modern society. As the court in Manatee Convalescent Ctr., Inc. v. McDonald
stated, “Changing times demand reexamination of seemingly unchangeable legal dogma.
Equality under law and even handed treatment of the sexes in the modern market place
must also carry the burden of responsibility which goes with the benefits.” 392 So. 2d
1356, 1358 (Fla. 2d DCA 1980).
159. With respect to the state’s interest in promoting stable marriages, one commentator writes:
Spousal support obligations, it is argued, benefit spouses and society by encouraging sharing and mutual support in marriage. This behavior is thought
to foster individual contentment which in turn promotes social harmony. The
problem with applying this reasoning to the necessaries doctrine is that law
cannot coerce these benefits; sharing produces cooperation and happiness only
when it is voluntary. The necessaries doctrine forces sharing on reluctant partners and thus seems unlikely to promote the State’s goal of marital happiness.
Unnecessary Doctrine, supra note 3, at 1795 (footnotes omitted).
160. See North Carolina Baptist Hosps., Inc. v. Harris, 354 S.E.2d 471, 472 (N.C.
1987); see also supra text accompanying notes 101-02.
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a spouse’s decision by allowing the doctrine of necessaries to stand,
they succumb to a paternalistic attitude that ignores a basic principle: One can decide when and how one will contract for liability and
whose debts one will guarantee.161
Furthermore, Florida is not a community property state. Therefore, marital property is owned separately, and neither spouse has a
legal interest in the assets or income of the other. This fact further
undermines the analogy between marriage and business partnerships. The doctrine of necessaries in effect leads to a system of community property by imposing liability for each spouse’s debts on the
other.162 As such, neither form of the doctrine of necessaries—joint
and several liability or primary and secondary liability—is an adequate alternative.
Finally, Justice Overton argued that “in many households, both
spouses are employed but only one spouse provides the medical coverage for the entire household. Under these circumstances, the extension of the doctrine fits like a glove by requiring the more able
spouse to care for the needs of the household.” 163 If both spouses are
earning wages that could be contributed to potential medical expenses, one can only assume Justice Overton is referring to health
care insurance that may be a benefit of one spouse’s job and not the
other. However, doctrine-of-necessaries cases that involve any mention of insurance disputes are practically nonexistent. 164 Therefore,
Justice Overton’s example is inapt because the necessaries doctrine
is generally utilized only in cases in which an individual is indebted
to a health care provider outright.165
D. Primary Liability on the Husband
The Wisconsin Supreme Court extended the doctrine to place
primary liability on the husband and secondary liability on the wife,
regardless of who incurred the debt.166 The court found that joint and
several liability was not an appropriate alternative because, statisti161. The controversy surrounding the doctrine of necessaries is evidence of the courts’
reluctance to create an exception to this principle.
162. See Unnecessary Doctrine, supra note 3, at 1792. To ensure that a spouse’s separate property may be applied to debts for necessaries incurred by the other spouse, some
community property states have statutes expressly codifying the doctrine to impose joint
and several liability. See CAL. FAM. CODE § 94 (West 1996); NEV. REV. STAT. § 123.090
(1995).
163. Connor, 668 So. 2d at 179.
164. One of the few doctrine-of-necessaries cases that involves an insurance dispute,
Kilbourne v. Hanzelik, 648 S.W.2d 932 (Tenn. 1983), is discussed above. See supra text accompanying notes 110-19.
165. See, e.g., Connor, 668 So. 2d at 175; St. Francis Reg’l Med. Ctr., Inc. v. Bowles,
836 P.2d 1123, 1124 (Kan. 1992); Harris, 354 S.E.2d at 471.
166. See Estate of Stromsted v. St. Michael Hosp. of Franciscan Sisters, 299 N.W.2d
226, 230 (Wis. 1980).
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cally, the majority of married women were not the primary wage
earners in their respective families and were partially dependent on
their husbands.167
This modification did not present a gender-neutral solution, however, and the equal protection issue came before the Wisconsin Supreme Court two years later in Marshfield Clinic v. Discher.168 In
that case, the court cited several United States Supreme Court cases
that held that a gender-based rule does not violate the Equal Protection Clause if it serves important governmental objectives and the
means employed are substantially related to the achievement of
those objectives.169 In light of these cases, the court upheld the doctrine it had modified earlier, stating that imposing primary liability
on the husband serves several important goals:
The rule benefits families by making it more likely that they will
obtain necessary and appropriate goods and services. It enables
wives to obtain credit more easily, rather than having to depend on
their husbands to make necessary purchases. It also protects wives
from economic hardship by placing primary liability on husbands.
This is significant because . . . wives have made substantial economic gains in the past decade, but substantial economic disparities still persist between husbands and wives.170
At the same time, the court recognized the rule would become outmoded in a society in which women are equal with men on an income-producing level. The court stated:
In the future it may be that wives will achieve greater equality
with their husbands in terms of their relative financial strength. If
that occurs then this rule may need to be modified, but for the present it is well suited to the relative economic status of the typical
husband and wife.171
Marshfield was decided in 1982, and the necessaries doctrine has not
been modified further by the Wisconsin Legislature.
E. The Equal Protection Problem Persists
It is generally agreed that placing primary liability on the husband is a poor solution because it does little to correct any disparities
between the sexes.172 It is not a gender-neutral alternative and is
167. See id. at 230-31.
168. 314 N.W.2d 326 (Wis. 1982).
169. See id. at 328 (citing Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 150
(1980); Califano v. Westcott, 443 U.S. 76, 85 (1979); Orr v. Orr, 440 U.S. 268, 279 (1979)).
170. Id.
171. Id. at 331.
172. See Mark S. Brennan, Comment, The New Doctrine of Necessaries in Virginia, 19
U. RICH. L. REV. 317, 328-29 (1985); Unnecessary Doctrine, supra note 3, at 1777-78.
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still subject to constitutional attack.173 At least one commentator argues that the decision of the Wisconsin Supreme Court was simply
wrong.174 Furthermore, although extending the doctrine in this way
may take statistics into account, it panders to a view of wives as dependent and inferior and thus perpetuates a stereotype that a forward-looking judiciary or legislature should seek to avoid. 175 The
minimal protection such a rule affords women does not outweigh the
societal harm it may cause to the gender.
F. Abrogation of the Doctrine
Four states abolished the doctrine of necessaries before Florida. 176
The high courts in three of these states concluded that extending the
necessaries doctrine represented a fundamental change in policy
with broad social implications, and was therefore a decision better
left to the legislature.177 The Florida Supreme Court reached the
same conclusion in Connor and explicitly stated, “We do not make a
judgment as to which is the better policy for the state to adopt.” 178
The Mississippi Supreme Court is the only court to make a definite
comment on the wisdom of its decision and not implore legislators to
rectify the problem.179 However, the court’s explanation was brief,
stating:
Nothing in our jurisprudence obligates one spouse to be liable to a
third party for the debts of the other without express consent. To
hold otherwise would violate art. 4, § 94 of the Mississippi Constitution and open the door for either spouse to control or deplete the
other’s separate estate.180
173. See Brennan, supra note 172, at 329.
174. Arguing that Wisconsin’s necessaries rule remains unconstitutional under Orr. v.
Orr, 440 U.S. 268 (1979), the commentator observes:
Using an intermediate level of scrutiny, the Court held that although the legislative purpose—help for “needy spouses”—was an important governmental
objective, there was no justification for using sex as a proxy for need when individualized hearings to ascertain need were already part of the procedure for
awarding alimony. Similarly, the Wisconsin and traditional necessaries rules
have aid for needy spouses as their primary purpose and require individual
hearings to determine liability. By analogy to Orr, this use of sex as a proxy for
need appears to be unconstitutional.
Unnecessary Doctrine, supra note 3, at 1777 (footnotes omitted).
175. See Brennan, supra note 172, at 329.
176. See Govan v. Medical Credit Servs., Inc., 621 So. 2d 928, 931 (Miss. 1993);
Emanuel v. McGriff, 596 So. 2d 578, 580 (Ala. 1992); Condore v. Prince George’s County,
425 A.2d 1011, 1019 (Md. 1981); Schilling v. Bedford County Mem’l Hosp., Inc., 303 S.E.2d
905, 908 (Va. 1983).
177. See Emanuel, 596 So. 2d at 580; Condore, 425 A.2d at 1019; Schilling, 303 S.E.2d
at 908.
178. 668 So. 2d at 177.
179. Govan, 621 So. 2d at 931.
180. Id. at 931.
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The Mississippi Legislature has allowed the supreme court’s decision
to stand.
1. The Response of Other Legislatures
Presently, only one legislature has accepted a court’s challenge to
codify some form of the doctrine of necessaries. 181 One year after the
Virginia Supreme Court abrogated the doctrine,182 the Virginia Legislature responded by amending the chapter entitled “Property Rights of
Married Women.”183 The statute provides: “The doctrine of necessaries
as it existed at common-law shall apply equally to both spouses, except
where they are permanently living separate and apart . . . .”184 However, the statute does not specify whether the courts should apply joint
and several liability or primary and secondary liability.
2. The Effect of Abrogation
Creditors unable to collect from wealthy spouses may find abrogation a harsh policy.185 Creditors that provide goods or services to a financially dependent spouse cannot collect the debt from the financially independent spouse and may remain unpaid. However, most
creditors ask for a guarantor before services are provided as a means
to protect themselves from this outcome.186 Judging from the small
number of doctrine-of-necessaries cases in Florida, most creditors
have little difficulty obtaining the guarantee of the other spouse.
Most spouses would seem to have little problem signing an express
contract for necessary medical services provided to their husbands or
wives. Even if a spouse were aware that his or her refusal to guarantee would free that spouse from individual financial responsibility,
most would not choose this tactic for fear that their failure to sign
might jeopardize the other spouse’s chances of obtaining treatment.
By allowing spouses to cover their individual debts, abrogation of the
doctrine permits those spouses who have a reason to refuse or who
maintain separate finances to structure their marriage and finances
as they choose, rather than structure them upon the philosophy of
the legislature or the judiciary.187
181. Other states have codified some form of the doctrine or created family expense
statutes without prompting by a court. See supra notes 68, 74, 124 and accompanying text.
182. See Schilling, 303 S.E.2d at 908.
183. VA. CODE ANN. §§ 55-37 to -47 (Michie 1996).
184. Id. § 55-37.
185. See Brennan, supra note 172, at 329-30 (arguing that such a modification of the
doctrine would leave creditors no recourse to collect debts).
186. See Unnecessary Doctrine, supra note 3, at 1791 (arguing that creditors do not
need the protection the necessaries doctrine affords them because creditors can protect
themselves through their own actions).
187. See id. at 1795-97.
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Because the state cannot know what financial structure is best for
an individual family, it has been suggested that an unenforceable
support duty should be enacted to promote the stability of families. 188
A symbolic law would allow the state to encourage marital support
without legally interfering in a couple’s financial decisions. 189 Even
this, however, seems unnecessary because married couples will continue to share expenses and support one another out of love and tradition, regardless of any input from the state. “No one contends that
the threat of liability under the doctrine of necessaries motivates
spouses to provide for one another. Surely only a very few spouses
know that it exists.”190
IV. CONCLUSION
While abrogation of the necessaries doctrine may seem a harsh
result to creditors and an unromantic view of spousal support, it affords more respect to the rights of married individuals than the alternatives. First, imposing joint and several liability provides far
more protection to creditors than to families. It allows creditors complete discretion when collecting a debt because liability attaches to
either spouse, no matter which spouse incurred the expenses. Likewise, imposing primary liability on the spouse who incurred the debt
is an inadequate alternative because it relies too heavily on the
partnership theory of marriage, a theory that ignores the autonomy
of the individual and family in allocating financial resources. Lastly,
imposing primary liability on the husband is also inappropriate because it ignores the equal protection issue created by a gender-based
rule.
The Florida Supreme Court was correct in its assertion that a
lack of consensus existed regarding the doctrine of necessaries. Although the court stated that its decision was not a comment on
which policy the state should adopt, the Florida Legislature should
consider abrogation to be the best alternative and refuse to codify
any form of the doctrine. While Florida’s decision to abrogate may
place it in the minority, the Florida Legislature would not be alone
in refusing to codify the doctrine. Furthermore, those states that
have reaffirmed or codified the doctrine in its original form should
188. See id. at 1798.
189. See id.:
People obey symbolic laws not for fear of legal sanction, but because they are
backed by the consensus of society and the force of major social institutions.
This symbolic or instructional effect of law is probably strongest in areas of
traditional morality . . . . According to this system of analysis, legal endorsement of spousal support has a real, if unmeasurable, impact on spousal behavior.
190. Id.
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follow Florida’s lead by abolishing this outdated and unnecessary
law. No form of the doctrine, whether it imposes joint and several liability, primary liability on the spouse who incurred the debt, or
primary liability on the husband, is an acceptable alternative in a
rapidly changing society in which families should be free to merge or
separate their financial resources as they deem fit.
CONSTITUTIONAL CHALLENGES TO COURTORDERED ARBITRATION
KIMBERLY J. MANN*
I.
II.
III.
IV.
V.
VI.
VII.
INTRODUCTION ..................................................................................................
TRIAL BY JURY ...................................................................................................
DUE PROCESS ....................................................................................................
SEPARATION OF POWERS....................................................................................
EQUAL PROTECTION...........................................................................................
ACCESS TO COURTS ............................................................................................
CONCLUSION......................................................................................................
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I. INTRODUCTION
Legislatures and courts encourage, and sometimes require, parties to resolve their disputes using various alternatives to litigation.
These alternative methods have the potential to increase the parties’
satisfaction with the process and relieve stress on the court system.
Court-ordered, nonbinding arbitration1 is one such alternative.
This method requires parties to present their dispute to an arbitrator or a panel of arbitrators for resolution. When parties are ordered
to arbitrate, however, they face the possibility of losing their day in
court. For example, some jurisdictions have allowed judges to deny
motions for a trial de novo when a party can show that it did not
adequately participate in the arbitration.2 Moreover, although parties may request a trial de novo if they are not satisfied with an arbitration result, those who do so are sometimes penalized if the result of
the new trial is not more favorable than the arbitration decision.3
Parties who feel that mandatory, nonbinding arbitration deprives
them of their day in court have challenged such arbitration on a variety of federal and state constitutional grounds. This Comment ex* The author thanks Professor Jean R. Sternlight and Florida Dispute Resolution
Center Director Sharon Press for their assistance in reviewing this Comment.
1. This Comment uses the term “arbitration” to refer to this variety of dispute
resolution. Court-ordered, nonbinding arbitration is distinguishable from voluntary,
binding arbitration. Binding arbitration is typically a contractual obligation through
which parties place the final disposition of their dispute in the hands of an arbitrator or
arbitration panel. See FLA. STAT. § 44.104 (1995) (permitting parties in a civil action to
submit their dispute to a court-appointed arbitrator). The United States Supreme Court
has upheld the validity of binding arbitration agreements in order to advance new forms
of dispute resolution. See Walters v. National Ass’n of Radiation Survivors, 473 U.S. 305,
322-26 (1985). Nonbinding arbitration leaves the option of court action open by allowing
the parties to appeal an arbitration decision through a motion for a trial de novo. See FLA.
STAT. § 44.103(5) (1995).
2. See, e.g., New England Merchants Nat’l Bank v. Hughes, 556 F. Supp. 712, 715
(E.D. Pa. 1983).
3. See, e.g., FLA. STAT. § 44.103(6) (1995) (allowing the assessment of arbitration
costs, court costs, and attorney’s fees when the trial outcome is not more favorable than
the arbitration).
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amines the relative merits of these challenges. Part II explores
claims that arbitration deprives parties of their constitutional right
to a jury trial. Part III examines due process challenges to arbitration. Part IV considers claims that arbitration violates the doctrine
of separation of powers, while Part V explores claims that arbitration violates the Equal Protection Clause. Part VI considers whether
parties who are ordered to arbitration are denied access to the
courts. Finally, Part VII concludes that constitutional challenges
against arbitration programs are unlikely to succeed because such
programs generally do not place sufficiently heavy burdens upon
litigants to violate the Constitution.
II. TRIAL BY JURY
The right to a jury trial is a fundamental common-law right preserved by the Framers of the Constitution.4 In England, jury trials
were guaranteed to parties litigating legal claims, although not equitable or admiralty claims.5 In the United States, the right is preserved
for claims whose origins can be traced to a common-law cause of action
that carried a jury trial right,6 or for legislatively created causes of action that resemble those at common law.7 The Seventh Amendment’s
jury trial mandate applies only to actions brought in federal court; 8
however, most state constitutions also contain jury trial guarantees. 9
The United States Supreme Court has never addressed how the
Seventh Amendment applies to challenges to nonbinding alternative
dispute resolution. The Supreme Court has, however, addressed
whether a party who is forced to participate in a program analogous
to nonbinding arbitration is denied the right to a jury trial. In Capital Traction Co. v. Hof ,10 a corporation challenged a District of Columbia law that allowed justices of the peace to conduct jury trials in
4. See U.S. CONST. amend. VII (“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved . .. .”).
5. See Capital Traction Co. v. Hof, 174 U.S. 1, 8-9 (1899).
6. See Chauffeurs, Teamsters and Helpers Local No. 391 v. Terry, 494 U.S. 558, 564
(1990); see also generally Dwight Golann, Making Alternative Dispute Resolution Mandatory: The Constitutional Issues, 68 OR. L. REV. 487, 503 (1989). As with many rights, the
right to a jury trial can be waived. See Capital Traction, 174 U.S. at 21. An argument
claiming denial of this right after it has been waived is moot.
7. See Terry, 494 U.S. at 564-65 (holding that a jury trial is required for an action
brought under the National Labor Relations Act).
8. See Edwards v. Elliott, 88 U.S. 532, 557-58 (1874); see also Curtis v. Loether, 415
U.S. 189, 192 n.6 (1974) (“The Court has not held that the right to jury trial in civil cases
is an element of due process applicable to state courts through the Fourteenth Amendment.”); Golann, supra note 6, at 503.
9. See, e.g., FLA. CONST. art. I, § 22. The authors of one treatise found that 48 states
provide for jury trials in their constitutions. See 2 RONALD D. ROTUNDA ET AL., TREATISE
ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE § 17.8 n.12 (1986).
10. 174 U.S. 1 (1899).
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cases with amounts in controversy over twenty dollars. 11 Although
the statute allowed parties to appeal cases decided by justices of the
peace,12 Capital Traction was concerned that it would be denied a
proper jury trial in the District of Columbia’s supreme court. 13 This
concern was based upon the portion of the Seventh Amendment that
prohibits a fact determined by a jury from being re-examined. 14
The Supreme Court held that a decision made by twelve men in
the presence of a justice of the peace did not constitute a trial by jury
within the meaning of Seventh Amendment. 15 The Court concluded
that the facts determined by the jury before the justice of the peace
could be re-examined by a jury before a judge in the District’s supreme court, thus preserving Capital Traction’s right to a trial by
jury.16 The Court reasoned that the justice of the peace lacked the
judicial power traditionally present during common-law actions. 17
Specifically, the Court found that unlike a judge, a justice of the
peace did not have the power to instruct the jury on the law, advise
it on the facts, or set aside the jury’s verdict if it was not supported
by the weight of the evidence.18
Courts have subsequently cited Capital Traction in support of the
proposition that arbitration does not violate the Seventh Amendment
because a party’s right to have his or her claim heard by a jury is preserved by the guarantee of a trial de novo.19 However, as the following
cases illustrate, parties have argued that while de novo jury trials may
protect constitutional rights, the delays and penalties suffered by parties ordered to arbitration effectively impinge upon these rights. 20 Delays appear in the form of preconditions to trial imposed on the parties.21 The fact that litigants are required to participate in arbitration
before being allowed to seek a jury trial is used as an example of a precondition that effectively strips away a party’s right to a jury. 22
In In re Smith,23 a case brought under the Pennsylvania Constitution, the Pennsylvania Supreme Court held that a local rule requir-
11. See id. at 3.
12. See id. at 4.
13. See id. at 3-4.
14. See id. at 7-8. The Seventh Amendment provides that “no fact tried by a jury
shall be otherwise re-examined in any Court of the United States, than according to the
rules of the common law.” U.S. CONST. amend. VII.
15. See id. at 45.
16. See id.
17. See id. at 38.
18. See id. at 38-39.
19. See, e.g., In re Smith, 112 A.2d 625, 629 (Pa. 1955).
20. See generally Golann, supra note 6, at 505.
21. See id.
22. It should be noted, however, that considerable delays are also imposed upon trial
participants in the form of a mandatory discovery process. See, e.g., FED. R. CIV. P. 26.
23. 112 A.2d 625 (Pa. 1955).
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ing parties to go to arbitration did not violate Pennsylvania’s jury
trial guarantee.24 The court found that the guarantee was intended
to secure the right to a jury trial at some point before the issues were
finally determined.25 The court reasoned that the right to a jury trial
was kept intact because the courts remained open to litigants who
wished to appeal arbitration decisions.26 If onerous conditions were
placed on the availability of that right, however, the court felt that
the state’s guarantee of a jury trial would be effectively denied. 27
A frequently litigated issue in right-to-jury-trial claims is whether
a penalty or precondition burdens the right to a jury trial. Two penalties and preconditions frequently challenged are those that shift
costs to unsuccessful appellants and admit arbitration results in the
de novo trial. For example, in Eastin v. Broomfield ,28 the petitioner
argued that mandatory arbitration violated the jury trial right in the
Arizona Constitution.29 The petitioner argued that the admission of
arbitration findings would unduly influence the jury and effectively
eliminate the petitioner’s right to a trial by jury.30 The court held
that because the arbitrator’s decision could be appealed to a jury, the
right to a jury trial was not jeopardized.31 The court also held that
admission of the arbitration panel’s findings did not violate the right
to a jury trial because both parties had the opportunity to impeach
the findings by presenting their own evidence. 32 The court analogized
the panel’s findings to the testimony of an expert witness, which is
rebuttable through the introduction of other expert testimony.33
The plaintiffs in Firelock Inc. v. District Cour t 34 argued that
shifting litigation costs to unsuccessful litigants created an onerous
condition that interfered with the party’s right to a jury trial.35 The
Colorado Supreme Court held that requiring a prevailing party to
pay arbitration costs when the trial judgment was not ten percent
higher than the corresponding arbitration result was not unreasonable.36 The court recognized that prerequisites for a jury trial were
24. See id. at 629-31 (citing PA. CONST. art. I, § 6).
25. See id.
26. See id.
27. See id.
28. 570 P.2d 744 (Ariz. 1977).
29. See id. at 747 (citing ARIZ. CONST. art. II, § 23).
30. See id. at 748.
31. See id.
32. See id. at 748-49.
33. See id. at 749; cf. Meeker v. Lehigh Valley R.R., 236 U.S. 412, 430 (1915) (holding
that the introduction of an Interstate Commerce Commission report did not abridge the
right to trial by jury). But see Simon v. St. Elizabeth Med. Ctr., 355 N.E.2d 903, 907-09
(Ohio Ct. C.P. 1976) (holding that the introduction of an arbitration panel report violated
the right to trial by jury).
34. 776 P.2d 1090 (Colo. 1989).
35. See id. at 1095-96.
36. See id. at 1096.
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common and, in the case of jury fees, were imposed in every case
tried before a jury.37
Although the Firelock court found that the penalty of paying arbitration costs was reasonable, such a penalty can act as a deterrent.
Parties who face such a penalty may be hesitant to risk losing their
money even though they have a meritorious appeal. If a penalty is
unusually severe and deters more people from appealing than it was
meant to, it may be held unconstitutional as a barrier to the right to
a jury trial.
III. DUE PROCESS
The Fifth and Fourteenth Amendments guarantee due process of
law in federal and state court proceedings. 38 These amendments prevent the government from depriving an individual of life, liberty, or
property without due process of law. A legal cause of action has traditionally been construed as a property right that is protected by the
Due Process Clause.39 The U.S. Supreme Court has noted that “[t]he
hallmark of property is an individual entitlement grounded in state
law, which cannot be removed except ‘for cause.’ ” 40 If courts do not
find that the arbitration process itself sufficiently protects parties’
due process rights,41 the option of a de novo appeal creates an alternative that should survive any due process challenge. 42
In United States v. Raddatz ,43 the Supreme Court heard a due
process challenge to a federal statute that allowed magistrates to
preside over certain preliminary motions.44 In rejecting the petitioner’s due process argument, the Court emphasized that the magistrate’s recommendation was not a final decision. 45 Instead, the final
judgment was made by a judge, who could either accept the recommendation of the magistrate or rehear testimony to decide the is37. See id. at 1097.
38. See U.S. CONST. amend. V. (“No person shall . . . be deprived of life, liberty, or
property, without due process of law . . . .”); id. amend. XIV (“[N]or shall any State deprive
any person of life, liberty, or property, without due process of law . . . .”).
39. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982); see also Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950).
40. Logan, 455 U.S. at 430 (citations omitted).
41. Traditional aspects of due process include formal testimony and the right to
cross-examine witnesses. See Golann, supra note 6, at 540 n.238; see also Goldberg v.
Kelly, 397 U.S. 254, 268-70 (1970) (holding that a pre-termination hearing is necessary to
provide due process to welfare recipients who are losing their benefits). However, the Supreme Court has held that less formal procedures may be sufficient to protect due process.
See Hardware Dealers’ Mut. Fire Ins. Co. v. Glidden Co., 284 U.S. 151, 158 (1931) (upholding use of mandatory binding arbitration to resolve amount of loss in fire insurance
claim).
42. See Golann, supra note 6, at 540.
43. 447 U.S. 667 (1980).
44. See id. at 669.
45. See id. at 673.
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sue.46 The Court held that Raddatz’s due process rights were not
violated because the magistrate was hearing a motion rather than
conducting a full trial, and because the judge had the freedom to accept or deny the magistrate’s recommendation. 47
The question raised in Raddatz can be compared with the due
process issues raised by arbitration. The power of an arbitrator is
similar to that of a magistrate. An arbitrator can make a decision
and file it with the court, but the ultimate decision lies with the
judge if the dissatisfied party elects to appeal. 48
Courts have found that a party is denied due process when aspects of the appeals process become too burdensome. In Logan v.
Zimmerman Brush Co. ,49 the Supreme Court held that Logan was
denied due process because of a procedural mistake on the part of
the Illinois Fair Employment Practices Commission. 50 Specifically,
the Commission had failed to schedule a hearing on Logan’s discrimination charges within the 120 days required by Illinois law. 51
The Illinois Supreme Court had held that this mistake deprived the
Commission of jurisdiction to hear Logan’s charge. 52 The court had
also ruled that Logan could not refile his claim because such an action would circumvent the Illinois Fair Employment Act’s purpose of
just and expeditious resolutions of employment disputes. 53 The U.S.
Supreme Court held that Logan’s interest in his cause of action was
protected by the Due Process Clause and that he was entitled to
some sort of hearing on the merits before being deprived of his property, i.e., his cause of action.54 The Court pointed out that Logan
could not appeal the Commission’s action.55 The Court cautioned
that the process of randomly depriving potential claimants of their
right to assert their claims presented an unjustifiably high risk of
terminating meritorious claims.56
Issues similar to those in Logan arose in challenges to medical
dispute resolution statutes in Florida and Pennsylvania. Those
46. See id. at 680-81.
47. See id. at 683-84.
48. See id. at 680-81.
49. 455 U.S. 422 (1982).
50. See id. at 437.
51. See id. at 426.
52. See id. at 427.
53. See id. (citing Zimmerman Brush Co. v. Fair Employment Practices Comm’n, 411
N.E.2d 277, 282-83 (Ill. 1980)).
54. See id. at 433-34; see also Board of Regents v. Roth, 408 U.S. 564, 578 (1972)
(finding that a university professor’s interest in renewing his employment contract was
not sufficient to be protected by the Due Process Clause).
55. See Logan, 455 U.S. at 434.
56. See id. at 434-35; cf. Parratt v. Taylor, 451 U.S. 527, 542 (1981) (holding that inadvertent withholding of property did not deny due process when state tort law provided
an adequate remedy), overruled on other grounds by Daniels v. Williams, 474 U.S. 327
(1986).
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states’ respective supreme courts originally upheld both statutes. 57
The statutes required medical-related disputes to go to mediation before proceeding to court.58 Both supreme courts felt that the state interest in keeping medical malpractice costs to a minimum was strong
enough to allow the legislature to require parties to mediate before
going to court.59 However, both courts ultimately overturned their
earlier rulings.60 The Florida Supreme Court did so because the process established by the statute proved too “arbitrary and capricious
in operation.”61 The Pennsylvania medical arbitration program
caused such lengthy delays that only 134 of the 2909 cases filed between April 1976 and December 1979 received a certificate of readiness.62 Similarly, the Florida program caused delays beyond the
statutory time limits for mediation and led many Florida courts to
deprive parties of their right to mediation. 63 Facially, the statutes
survived challenges on due process grounds. 64 In operation, however,
the statutes proved too burdensome on litigants to satisfy due process requirements.65 Thus, the Pennsylvania Supreme Court finally
addressed the concern about onerous conditions that it had first articulated nearly twenty-five years earlier in Smith.66 Both the Pennsylvania and Florida decisions demonstrate that a statute that imposes onerous conditions in operation may be struck down even
though it facially complies with due process requirements. 67
57. See Carter v. Sparkman, 335 So.2d 802, 808 (Fla. 1976); Parker v. Children’s
Hosp. of Philadelphia, 394 A.2d 932 (Pa. 1978).
58. See Carter, 335 So. 2d at 805 (citing FLA. STAT. § 768.133 (1975)); Parker, 394
A.2d at 935-36 (citing PA. CONS. STAT. § 1301.101 (Supp. 1977)).
59. See Carter, 335 So. 2d at 805; Parker, 394 A.2d at 936.
60. See Aldana v. Holub, 381 So. 2d 231 (Fla. 1980); Mattos v. Thompson, 421 A.2d
190 (Pa. 1980).
61. Aldana, 381 So. 2d at 238. The Pennsylvania Supreme Court cited the lengthy
delays caused by the arbitration system. See Mattos, 421 A.2d at 195.
62. See Mattos, 421 A.2d at 194.
63. See Aldana, 381 So. 2d at 236-37. Among the reasons cited for the delays were
the death of a mediation panel member, clerical mistakes, and failure to select a panel in
time. See id.
64. See id. at 237-38; Mattos, 421 A.2d at 192.
65. See Aldana, 381 So. 2d at 238; Mattos, 421 A.2d at 196.
66. See supra text accompanying note 27.
67. See Aldana, 381 So. 2d at 237 (“While we originally upheld the facial validity of
the medical mediation act . . . the practical operation and effect of the statute has rendered it unconstitutional.”); Mattos, 421 A.2d at 190 (“[W]e . . . must regrettably conclude
that the lengthy delay occasioned by the arbitration system . . . does in fact burden the
right of a jury trial.”).
Other grounds for due process challenges have included the admission of arbitration decisions as evidence in subsequent proceedings and bond requirements for appeals. See
Eastin v. Broomfield, 570 P.2d 744, 748-49 (Ariz. 1977) (holding that an arbitration panel’s
finding constitutes an expert opinion that is rebuttable through introduction of competent
evidence, but that the $2000 bond required for appeal denied access to Arizona’s courts).
The arguments surrounding these challenges do not shed light on the other arguments
made on due process grounds and are not given in-depth treatment in this Comment.
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IV. SEPARATION OF POWERS
The Constitution is premised on the doctrine of separation of
powers.68 Specifically, the Constitution establishes a tripartite system of government in which the legislative, executive, and judicial
branches are equal and must generally refrain from intruding upon
each others’ domains.69 Mandatory arbitration has been challenged
on the ground that it violates separation of powers. The argument in
such challenges is that the legislative branch has intruded upon the
power of the judicial branch by creating a system that usurps judicial authority.
Article III of the Constitution provides protection to federal
judges by providing them with life tenure, thereby eliminating salaries and job security as devices for leverage by the other branches of
government.70 Separation-of-powers arguments are often premised
on a contention that one of the other branches has attempted to
thwart this security by depriving the court of jurisdiction in order to
weaken the judiciary’s influence.71 Mandatory proceedings such as
arbitration have been criticized because arbitrators are not insulated
from possible coercion from the other branches of government. 72
The Supreme Court addressed the scope of Article III’s protection
of federal judges in Northern Pipeline Construction Co. v. Marathon
Pipe Line Co. 73 The Court held that an act of Congress amending the
Bankruptcy Act was unconstitutional because the judges sitting on
bankruptcy courts did not have Article III protection, yet the Act allowed them to resolve disputes involving individuals’ private
rights.74 The Act also allowed a bankruptcy judge to pass final
judgment on a case without bringing it before a district judge. 75 The
appellants argued that the Act did not violate Article III because the
68. See JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW § 3.5, at 129
(5th ed. 1995).
69. See id.
70. See U.S. CONST. art. III, § 1. (“The Judges . . . shall hold their Offices during good
Behavior, and shall . . . receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”).
71. See, e.g., Firelock Inc. v. District Court, 776 P.2d 1090, 1093 (Colo. 1989) (separation of powers challenge made under the Colorado Constitution).
72. See Golann, supra note 6, at 523 (discussing the possible pressures that can be
used to induce mediators and arbitrators to resolve cases quickly).
73. 458 U.S. 50 (1982).
74. See id. at 67-72, 76. Bankruptcy is a public right, which is a “matter[ ] arising ‘between the Government and persons subject to its authority.’ ” Id. at 67-68 (quoting Crowell v. Benson, 285 U.S. 22, 50 (1932)). “In contrast, ‘the liability of one individual to another under the law as defined,’ is a matter of private rights.” Id. at 69-70 (quoting Crowell, 285 U.S. at 50). The litigation of public rights requires neither a jury trial nor an Article III judge, whereas the litigation of private rights requires both. See Granfinanciera,
S.A. v. Nordberg, 492 U.S. 33, 51-52 (1989).
75. See Northern Pipeline, 458 U.S. at 77-81.
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bankruptcy courts were adjuncts to the district courts. 76 The Court
rejected this argument because approved adjuncts previously had
limited power and were required to apply to the district courts for
enforcement of their findings, thus providing at least some measure
of review.77 Had Congress not given bankruptcy judges final authority over private rights, the Court probably would have found the
amended Bankruptcy Act constitutional.
Although Northern Pipeline did not expressly address arbitration,
comparable principles are involved. Arbitrators do not exercise the
amount of power that Congress had given the bankruptcy judges in
Northern Pipeline. Moreover, the nonbinding decision of an arbitrator may vanish if one of the parties requests a trial de novo. 78 Further, arbitrators in a nonbinding case may not enter a final judgment; rather, a party must apply to the local court for final judgment.79 If a state legislature were to mandate binding arbitration in
private cases, however, the constitutionality of such a requirement
would be questionable under Northern Pipeline. Nevertheless, absent application to private cases, arbitration is likely to survive
separation-of-powers challenges.
A separation-of-powers argument can only be raised under a state
constitution if that constitution contains an explicit separation of
powers clause.80 For example, the plaintiff in Firelock claimed that
the power exercised by the arbitration panel usurped the judiciary’s
power and therefore violated the state constitution. 81 The Colorado
Supreme Court rejected the claim, however, holding that the panel
was not exercising sovereign authority because the decision was
nonbinding.82 The limited authority given to those who preside over
nonbinding arbitration bodes well for arbitration’s insulation from
challenges based on separation-of-powers arguments.
76. See id. at 77. Adjuncts generally handle certain fact-finding functions to assist
the federal courts. See id.
77. See id. at 77-87 (citing Crowell, 285 U.S. at 54 (holding that the use of administrative agencies to determine issues of fact was constitutional because the sole power to
enforce the findings was with the district courts); United States v. Raddatz, 447 U.S. 667,
681 (1980) (holding that the use of magistrates to determine certain pretrial motions did
not violate Article III because the process was under the complete control of the judiciary)).
78. See, e.g., FLA. STAT. § 44.103(5) (1995).
79. See id.
80. The Florida Constitution contains such a clause. See FLA. CONST. art. II, § 3
(“The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining
to either of the other branches unless expressly provided herein.”).
81. 776 P.2d 1090, 1093 (Colo. 1989).
82. See id. at 1094; see also Eastin v. Broomfield, 570 P.2d 744, 750 (Ariz. 1977). But
see Wright v. Central Du Page Hosp. Ass’n, 347 N.E.2d 736, 740 (Ill. 1976) (holding that
allowing nonjudicial members of medical review panels to exercise judicial functions violated Illinois’ separation of powers doctrine).
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V. EQUAL PROTECTION
No citizen of the United States may be denied the equal protection of the laws.83 The Fourteenth Amendment not only guarantees
that the laws of the United States will be applied without illegitimate distinctions based on gender or race, but also precludes discriminatory application of laws based on arbitrary classifications. 84
Not all classifications are unconstitutional, however. Courts apply a
strict scrutiny test to determine the validity of laws that harm a
suspect class or deprive people of fundamental rights. 85 When laws
do not involve a suspect class or fundamental right, courts usually
uphold them unless they lack a rational basis. 86
Courts have generally refused to void arbitration on equal protection grounds, holding that no suspect class or fundamental right is
at issue and that the arbitration requirement is rational. For example, the plaintiffs in Firelock and Eastin argued that arbitration
violated the Equal Protection Clause because only certain litigants
were forced to go to arbitration.87 In Firelock, a Colorado law required arbitration of lawsuits for less than $50,000 in damages. 88 In
Eastin, an Arizona statute required all medical malpractice suits to
go to arbitration.89 Both courts applied a rational basis test because
neither statute grouped litigants according to suspect classifications.90 Both courts found that the classifications were rationally related to a legitimate state interest.91 The Colorado Supreme Court
83. See U.S. CONST. amend. XIV (“[N]or shall any State . . . deny to any person
within its jurisdiction the equal Protection of the laws.”).
84. See Romer v. Evans, 116 S. Ct. 1620, 1627-29 (1996) (holding that Colorado’s
state constitutional amendment prohibiting governmental action to protect homosexuals
violated the Equal Protection Clause); Morey v. Doud, 354 U.S. 457, 467-69 (1957) (holding that the creation of a closed class receiving differential treatment violated the Equal
Protection Clause).
85. See, e.g., Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 356 (1978) (Brennan, J.,
concurring in part and dissenting in part).
86. See, e.g., Village of Belle Terre v. Boraas, 416 U.S. 1, 7-8 (1974); see also Evans,
116 S. Ct. at 1627-29.
87. See Firelock Inc. v. District Court, 776 P.2d 1090, 1097 (Colo. 1989); Eastin v.
Broomfield, 570 P.2d 744, 747 (Ariz. 1977).
88. See 776 P.2d at 1092-93. In Florida, courts are permitted to send almost any type
of dispute to nonbinding arbitration, regardless of the amount in controversy. See FLA.
STAT. § 44.103(2) (1995); FLA. R. CIV. P. 1.700(a), 1.800 (establishing that courts can refer
any case or portion thereof to arbitration except bond estreatures, habeas corpus or other
extraordinary writs, bond validations, civil or criminal contempt, and other matters specified by the chief judge).
89. See 570 P.2d at 750-51.
90. See Eastin, 570 P.2d at 751; Firelock, 776 P.2d at 1098.
91. See Eastin, 570 P.2d at 750-51; Firelock, 776 P.2d at 1098-99; see also Dandridge
v. Williams, 397 U.S. 471, 485 (1970) (holding that imperfect classifications do not offend
equal protection if the classification has some reasonable basis); McGowan v. Maryland,
366 U.S. 420, 425-26 (1961) (holding that the safeguard of equal protection is offended
1997]
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held that the use of a dollar amount was not irrational.92 The court
cited several other situations in which monetary classifications are
used, including the limitation on diversity jurisdiction in federal
court.93 The court also found that the Legislature had a legitimate
interest in examining the effects of arbitration.94
The Arizona Supreme Court’s conclusion in Eastin was tied to the
Legislature’s interest in curbing the costs of medical malpractice insurance.95 The court held that because premiums for such insurance
were doubling every three years, the Legislature had a legitimate interest in treating malpractice litigants differently. 96 The classification that required malpractice litigants to use arbitration before they
went to court was held to be rationally related to the interest in
keeping malpractice costs down.97 The arbitration system created an
opportunity to separate meritorious claims from frivolous ones, 98
thereby reducing the amount of malpractice litigation. Other courts,
however, have found that the differential treatment of medical malpractice cases serves no legitimate legislative purpose, “unless it [can]
be argued that any segment of the public in financial distress be at
least partly relieved of financial accountability for its negligence.”99
Penalties and preconditions on appeals that act as barriers to
prospective appellants have also been challenged on equal protection
grounds.100 However, the practice of shifting arbitration costs to unsuccessful parties is likely to withstand most equal protection challenges based upon the U.S. Supreme Court’s decision in Bankers Life
& Casualty Co. v. Crenshaw.101 In Crenshaw, the Court upheld a
Mississippi statute that levied a penalty on unsuccessful appellants
from money judgments.102 The penalty was fifteen percent of the total damages owed by the unsuccessful appellant, which in this case
was $243,000.103 The appellant argued that the penalty statute sinwhen the state creates a classification that bears no rational relation to the object of the
legislation). But see Simon v. St. Elizabeth Med. Ctr., 355 N.E.2d 903, 906-07 (Ohio Ct.
C.P. 1976) (holding that compulsory arbitration discriminates against medical malpractice
claimants).
92. See Firelock, 776 P.2d at 1098-99.
93. See id. at 1099 (citing 28 U.S.C.A. § 1332 (West Supp. 1989)).
94. See id. at 1099. The program scrutinized by the court was a pilot program used in
only a few district courts across Colorado. See id. at 1098.
95. See 570 P.2d at 751.
96. See id.
97. See id.
98. See id.
99. Graley v. Satayatham, 343 N.E.2d 832, 836-37 (Ohio Ct. C.P. 1976) (holding that
rules requiring listing of collateral benefits in complaint and deducting certain collateral
benefits from medical claim awards violated the Equal Protection Clause).
100. See, e.g., Bankers Life & Cas. Co. v. Crenshaw, 486 U.S. 71, 80-81 (1988).
101. 486 U.S. 71 (1988).
102. See id. at 85.
103. See id. at 75.
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gled out appellants from money judgments and penalized those who
were unsuccessful, regardless of the merit of their appeal. 104 In upholding the statute, the Court endorsed as legitimate the five state
interests the Mississippi Supreme Court had earlier detailed the
statute as serving: (1) discouraging frivolous appeals; (2) providing
compensation for the appellee for having endured the tribulations of
successful litigation; (3) protecting the integrity of the judgment by
discouraging the parties from seeking a more favorable settlement; (4)
impressing upon litigants the significance o