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Self-Help: Extrajudicial Rights, Privileges and Remedies in Contemporary American Society

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Self-Help: Extrajudicial Rights, Privileges and Remedies in Contemporary American Society Vanderbilt Law Review Volume 37 Issue 4 Issue 4 - Symposium: The Winds of Change in Wills, Trusts, and Estate Planning Article 5 Law 5-1984 Self-Help: Extrajudicial Rights, Privileges and Remedies in Contemporary American Society Douglas I. Brandon Melinda L. Cooper Jeremy H. Greshin Alvin L. Harris James M. Head, Jr. See next page for additional authors Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Dispute Resolution and Arbitration Commons Recommended Citation Douglas I. Brandon; Melinda L. Cooper; Jeremy H. Greshin; Alvin L. Harris; James M. Head, Jr.; Keith R. Jacques; and Lea Wiggins, Self-Help: Extrajudicial Rights, Privileges and Remedies in Contemporary American Society, 37 Vanderbilt Law Review 845 (1984) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol37/iss4/5 This Symposium is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. Self-Help: Extrajudicial Rights, Privileges and Remedies in Contemporary American Society Authors Douglas I. Brandon; Melinda L. Cooper; Jeremy H. Greshin; Alvin L. Harris; James M. Head, Jr.; Keith R. Jacques; and Lea Wiggins This symposium is available in Vanderbilt Law Review: https://scholarship.law.vanderbilt.edu/vlr/vol37/iss4/5 SPECIAL PROJECT Self-Help: Extrajudicial Rights, Privileges and Remedies in Contemporary American Society - I. INTRODUCTION .................................. 849 II. -.TORT ..... ..................................... 852 A. Introduction .............................. 852 B. PersonalInterests and Self-Help Privileges.. 854 1. Bodily Harm ........................... 854 2. Reputation ............................ 855 3. Uncoerced Religious Beliefs and Deprogramming ........................ 858 C. Property Interests and Self-Help Privileges.. 860 1. Defense of Property .................... 860 2. Recovery of Property ................... 863 3. Merchant's Privilege to Detain Suspected Shoplifters ............................. 865 4. Summary Abatement of Nuisance ........ 868 D. Judicially Required Self-Help .............. 871 III. CRIMINAL LAW ................................. 872 A. Introduction .............................. 872 B. Self-Help and Criminal Liability ........... 878 1. Self-Defense ........................... 878 (a) Historical and Theoretical Back- ground .......................... 878 (b) The Limits of Self-Defense ....... 880 (c) Duty to Retreat ................. 882 2. Defense of Others and Crime Prevention . 884 3. Defense and Recapture of Property ...... 887 C. Citizen Activism and Law Enforcement ..... 890 1. Vigilantism ............................ 891 2. Citizen Action Groups .................. 894 (a) Neighborhood Watch Programs ... 894 VANDERBILT LAW REVIEW [Vol. 37:845 (b) The Guardian Angels ............ 895 D. Self-Help Concerning Police and State Action 901 1. Resisting Unlawful Arrests and Excessive Force ................................. 901 2. E scape ................................ 907 IV. SELF-HELP IN CoMMERCIAL TRANSACTIONS ......... 911 A. Introduction .............................. 911 B. Self-Help in ContractualMatters ........... 913 1. Liquidated Damages Provisions .......... 913 2. Repossession ........................... 916 (a) The Common Law and the Uniform Commercial Code ................ 916 (b) Constitutional Challenges to Self- Help Repossession ............... 920 C. Commercial Arbitration .................... 922 1. The Scope and Mechanics of Commercial Arbitration ............................ 922 (a) Advantages of Arbitration ........ 925 (b) Disadvantages of Arbitration ..... 927 2. The Federal Arbitration Act ............. 928 (a) History of the Federal Arbitration A ct ............................. 928 (b) Application of the Federal Arbitra- tion Act in Federal and State Courts .......................... 932 3. The Uniform Arbitration Act and State L aw ................................... 934 D. Sum mary ................................. 936 V. LANDLORD AND TENANT SELF-HELP ............... 937 A. Introduction .............................. 937 B. Landlord Self-Help ........................ 938 1. D istraint .............................. 938 (a) The English Rule ................ 938 (b) The Right of Distraint in Contem- porary America .................. 942 (c) Contitutionalityof Distraint...... 944 2. Self-Help Eviction ...................... 946 (a) The English Rule ................ 946 (b) American Approaches to Self-Help E viction ........................ 949 (c) Constitutionality of Self-Help E viction ........................ 1984] SELF-HELP C. Tenant Self-Help .......................... 954 D. Analysis .................................. 960 E. Summary ................................. 962 VI. FAMILY LAW ................................... 963 A. Antenuptial Agreements ................... 963 1. Introduction ........................... 963 2. Antenuptial Agreements Contingent Upon Divorce-Traditional Reasoning Versus Current Realizations .................... 964 (a) The Agreements Tend to En- courage Divorce ................. 966 (b) The Agreements Interfere with the Spousal Duty of Support ......... 968 (c) The Agreements Commercialize MarriageRelationships ........... 971 3. Summ ary .............................. 971 B. Divorce Mediation ......................... 972 1. Criticisms of the Traditional Adversarial D ivorce ................................ 973 2. Advantages of Divorce Mediation ........ 976 3. Summ ary .............................. 979 VII. THE ROLE OF THE LEGAL PROFESSION ............. 979 A. Alternatives to Litigation: The Attorney's Role and the Legal Profession's Reaction .... 979 1. Introduction ........................... 979 2. Reasons for Lawyer Participation in Medi- ation .................................. 982 3. Arguments Against Lawyer Participation in Mediation ............................. 984 (a) Incompatibility of Mediation and Traditional Dispute Resolution Practices of Attorneys ............ 984 (b) Mediation Impairs Attorneys' Pre- sent and Future Economic Status. 986 (c) Attorneys Receive Inadequate Training for Mediation Practice .. 987 (d) Non-Attorney Mediators Are Prac- ticing Law Illegally .............. 988 (e) Attorneys as Mediators May Vio- late ProfessionalEthics .......... 990 B. The Attorney's Role in the Mediation Process: Ethical Concerns .......................... 991 VANDERBILT LAW REVIEW [Vol. 37:845 1. Attorneys as Sole Mediators ............. 991 (a) The Practice of Two Professions .. 992 (b) Canon Five Considerations ....... 993 (1) Canon Five Prohibits an Attor- ney From Being a Marriage M ediator ................... 993 (2) Canon Five Permits an Attor- ney to Become a Marriage Me- diator ...................... 996 (c) Canon Four Considerations....... 998 (d) Canon Nine Considerations....... 999 2. Attorneys as Joint Mediators ............ 1000 3. Attorneys as Impartial Legal Advisors in M ediation ............................. 1002 4. The Attorney's Role in Mediation Under the Model Rules of Professional Conduct. 1006 (a) Rule 2.2........................ 1006 (b) Other Pertinent Provisions ....... 1011 5. Lange v. Marshall...................... 1012 6. Summ ary .............................. 1013 VIII. ALTERNATIVE METHODS OF DISPUTE RESOLUTION .... 1014 A. Introduction .............................. 1014 B. Rent-a-Judge.............................. 1015 1. The Rent-a-Judge Procedure ............ 1015 2. Advantages of the Rent-a-Judge Procedure 1017 3. Constitutional Objections to Rent-a-Judge Procedures ............................ 1019 (a) Equal Protection ................ 1021 (b) Due Process ..................... 1023 (c) First Amendment Right of Access to Judicial Proceedings .......... 1024 (1) Applicability of the Right of Access to Civil Trials ........ 1025 (2) Applicability of the Right of Access to Rent-a-Judge Pro- ceedings .................... 1026 4. Policy and Practical Objections to Rent-a- Judge Procedures ...................... 1028 5. Summ ary .............................. 1030 C. The Ombudsman .......................... 1031 1. The Role of the Ombudsman ............ 1031 2. State and Local Government Ombudsmen 1034 19841 SELF-HELP 849 3. The Institutional Ombudsman ........... 1037 4. The Media Ombudsman ................ 1038 5. Summ ary .............................. 1039 IX. CONCLUSION ....................................... 1040 The notion that most people want black-robed judges, well dressed lawyers and fine-paneled courtrooms as the setting to resolve their disputes is not correct. People with problems, like people with pains, want relief, and they want it as quickly and inexpensively as possible., ...[I]n the fair administration of justice no man can be judge in his own case, however exalted his station, however righteous his motives, and irre- spective of his race, color, politics, or religion. This Court cannot hold... petitioners ... constitutionally free to ignore all the procedures of the law and carry their battle to the streets . [R]espect for judicial process is a small price to pay'for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.2 I. INTRODUCTION Self-reliance, perserverance, ingenuity, and the noble notion of rugged individualism have been pervasive themes in the American lifestyle since the precolonial
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