Rather than deciding the matter, Judge Presnell ordered each attorney to the steps of the federal courthouse on June 30, 2006, accompanied by a paralegal witness, to play one dispositive round of rock, paper, scissors – with the winner to choose the location for the deposition so long as it was in Hillsborough County, Florida. Apparently intimidated by the threat of playing rock, paper, scissors, the World RPS Society (www.worldrps.com) reported on June 9th that “the attorneys have worked out our differences by agreement. We will not have to resort to combat by RPS." The judge has since withdrawn its order.
One may think that the “Rock, Paper, Scissors" game is an “arbitrary" way to make decisions. In Hindson v. Allstate Ins. Co., 694 A.2d 682, 685 (R.I. 1997) the court was faced with allocating coverage among various insurance carriers where none would admit to primary coverage. The court considered using a “rock, paper, scissors" approach to determine which carriers should provide primary coverage to the claims at issue, but considered that approach to be “arbitrary." In that case, the court opted to “halt the incessant ‘battle of the draftsmen’ waged by, between, and among the various insurance companies" by finding that the coverage responsibilities of all insurers should be shared on a pro-rata basis.
Notwithstanding the reluctance of the Rhode Island court to use “rock, paper, scissors," variations of “rock, paper, scissors" have been used for dispute resolution for more than 50,000 years, according to Wikipedia, the free online encyclopedia. According to the Official Rock, Paper, Scissors Strategy Guide (available at Amazon.com), early Homo sapiens played a predecessor game about 50,000 B.C. “to resolve food and mating disputes." This game only involved a rock (scissors were not invented until sixth century Italy). The ‘thrower’ tried to place the fist-rock on the ‘catcher’s’ body, while the ‘catcher’ tried to avoid this by positioning his hand to catch the rock. After switching positions, the ‘thrower’ who placed the most rocks on the ‘catcher’s’ body won.
In any event, it is clear that Judge Presnell was not the first to use rock, paper, scissors to resolve commercial disputes in modern time. The August 2005 newsletter published by the Institute for Conflict Management (http://www.icmneutrals.com/news.html) describes a 75 year-old Japanese businessman who was trying to choose between Christie’s and Sotheby’s to auction off his $17.8 million art collection – for a commission of more than $2 million to the successful firm. Believing that both companies were equal and not wanting to insult either, he said that the winner would be determined by a game of rock, paper, scissors. That way, the loser would be considered “unlucky," not “unworthy." Sotheby’s said that “this is a game and we really didn’t give it that much thought. We had no strategy in mind."
Needless to say, rock, paper, scissors may not not be a suitable method to resolve all disputes but working in a multiparty setting.
However I find that it is not possible to ignore the fact the there is a sence of what is a perfectly even power balance between the three elements. That is, the simple principle that not one power is absolute - the fact is - where there are 3 powers involved it creates a perfect balance in the universe.
This considered an important part of 'western' democracy and constitutional concepts - the principle is founded on the premise of "Power corrupts; absolute power corrupts absolutely". The concentration of all powers into the hands of one individual or group must place them in a position to abuse that power and thus to instil fear into the common man. For those keen on delineation of power and constitutional law read on...
Power, by its very nature, can only be checked or regulated by power. Therefore, in order to guard liberty against the abuse of power, it is necessary to distribute powers into many independent (or at least semi-independent) centres. When this is done the party that holds power must fear the reaction of other power centres to any abuse of power by him. He must fear the capacity of his potential victims to seek the aid of his rivals. He must especially fear the reaction of his rivals to any attempt by him to expand his powers at their expense. His ability to hide his own transgressions or to intimidate his opposition must be less. He will be vigilant to protect the proper sphere of his own office from encroachments. His policies must be acceptable to the community and the temptations which beset him must be less. He will be more likely to take pride in the regular and proper conduct of the duties appropriate to his office.
Furthermore, the distribution of power enables the authorities responsible for each power to be constituted in different ways so as to suit the particular nature and demands of each office. For example, the judicial power requires a depth of technical legal learning and a mind trained in the processes of adjudication and legal reasoning, a professional integrity and ethos and the existence of a professional corps which is not necessarily appropriate to executive or legislative power. In the same way, the demands of executive government for leadership- resolve, strength, dispatch, continuity and consistency require one person or a small compact group, while the requirements of legislation for wide and extensive consideration and generality of conception would demand a legislature consisting of many, with representatives of every section of the nation. Because each kind of power requires different methods, the combination of them in one person or body must suffer the detriment of the unsuitability of that body, constituted in one way, to the methods required for the proper use of each power.
A system of checks and balances retards both corruption and the improper conduct of the several affairs of the state.
The system of checks and balances begins with the separation of judicial, executive and legislative powers, as Montesquieu envisaged.
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