Professor E. Gary Spitko is the Presidential Professor of Ethics and the Common Good and Professor of Law at the Santa Clara University School of Law. He has authored more than thirty publications in the areas of arbitration, donative transfers, employment law, and family law. He is the author of “Antigay Bias in Role-Model Occupations” (University of Pennsylvania Press) which explores how employment discrimination has been used to reinforce social understandings about the inferior nature of gay people by disassociating gay people from certain positive qualities and values while strengthening the association between these qualities and values and the heterosexual majority and its institutions. Professor Spitko’s scholarship has appeared in the Cornell Law Review (forthcoming), the Washington University Law Review, the U.C. Davis Law Review (twice), the Iowa Law Review, the Florida Law Review (twice), the Georgia Law Review, the Washington and Lee Law Review, the Indiana Law Journal, the Arizona Law Review (twice), and the University of Colorado Law Review, among others. In 2017, Santa Clara University named Professor Spitko the recipient of its University Award for Recent Achievement in Scholarship, an honor given annually to only one faculty member across the university.
Professor Spitko previously served as the Law School’s Associate Dean for Research (2019-2021) and as the Faculty Director of the Law School’s Conflict Resolution Program (2017-2020). He is an Academic Fellow of the American College of Trust and Estate Counsel. He is a past Chair of the AALS Section on Donative Transfers and previously served on the Executive Committee of the AALS Section on Dispute Resolution. Since 2011, Professor Spitko has served as an arbitrator on rosters of the American Arbitration Association.
Professor Spitko earned his A.B., with distinction in all subjects, from Cornell University and his J.D., with high honors, from the Duke University School of Law, where he was elected to Order of the Coif. While a law student at Duke, he served as an editor of the Duke Law Journal and as the founding executive editor of the Duke Environmental Law and Policy Forum. Following law school, he served as a law clerk for the Honorable Gerald Bard Tjoflat, who was then Chief Judge of the U.S. Court of Appeals for the Eleventh Circuit. He practiced law for several years as an associate at Covington & Burling in Washington, D.C., and at Paul Hastings in Atlanta, Georgia where his practice focused exclusively on employment law. Prior to joining the Santa Clara University School of Law faculty in 2002, Professor Spitko was an assistant professor and then an associate professor at the Indiana University McKinney School of Law. He also has taught as a visiting professor at the Ohio State University Moritz College of Law and the University of California College of the Law, San Francisco.
J.D., with high honors, Order of the Coif, Duke University School of Law, 1991
A.B., with distinction in all subjects, Cornell University, 1987
Arbitration, Donative Transfers, Employment Discrimination, and Employment Law
Faculty Scholar, Markkula Center for Applied Ethics
Academic Fellow, American College of Trust and Estate Counsel
Executive Committee, Section on Dispute Resolution, Association of American Law Schools, 2015-2018
Arbitrator, American Arbitration Association (Roster of Neutrals for employment law cases), 2011-present
Director, Santa Clara Law Study Abroad Program in Oxford, U.K., 2016; Sydney, Australia, 2006-07
Chair (2006), Program Chair (2005), Executive Committee (2003-08), Section on Donative Transfers, Association of American Law Schools
Books
Antigay Bias in Role-Model Occupations. University of Pennsylvania Press (2017) | Link to Library Catalog
Wills, Trusts, and Estates: Exam Pro with Cain. Thomson/West (2006) | Link to Library Catalog
California and Uniform Trust and Estate Statutes: Selected Provisions with Waggoner. 2004-2005 ed. through 2007-2008 ed. Thomson/West (2004-2007)
Chapters
A Critique of the American Arbitration Association’s Efforts to Facilitate Arbitration of Internal Trust Disputes in Arbitration of Trust Disputes: Issues in National and International Law. S.I. Strong, editor. Oxford University Press (2016)
California Dreamin’: The Rise of the Iskanian Exception and the Fall of the State Effective-Vindication Exception to Federal Arbitration Act Preemption of State Employment Arbitration Doctrine in Arbitration 2015: Privacy, Transparency, Legitimacy: National Academy of Arbitrators (NAA) Annual Proceedings 2015. Katherine J. Thompson, editor. Bloomberg BNA (2016)
Articles
Arbitration Secrecy, 109 Cornell Law Review ___ (forthcoming 2023)
Integrated Nonmarital Property Rights, 75 SMU Law Review 151-186 (2022) | Link to Digital Commons
How Should Non-Probate Transfers Matter in Intestacy?, with Fellows, 53 U.C. Davis Law Review 2207-2268 (2020) (Symposium on Empirical Analysis of Wealth Transfer Law) | Link to Digital Commons
Reputation Systems Bias in the Platform Workplace, 2019 BYU Law Review 1271-1331 (2020) | Link to Digital Commons
Intestate Inheritance Rights for Unmarried Committed Partners: Lessons for U.S. Law Reform from the Scottish Experience, 103 Iowa Law Review 2175-2203 (2018) (Symposium on Wealth Transfer Law in Comparative and International Perspective) | Link to Digital Commons
A Structural-Purposive Interpretation of “Employment” in the Platform Economy, 70 Florida Law Review 409-446 (2018) | Link to Digital Commons
"Undemocratic" Trusts and the Numerus Clausus Principle , 43 ACTEC Law Journal 325-331 (2018) (solicited review essay) | Link to Digital Commons
A Reform Agenda Premised Upon the Reciprocal Relationship Between Anti-LGBT Bias in Role Model Occupations and the Bullying of LGBT Youth, 48 Connecticut Law Review 71-117 (2015) | Link to Digital Commons
The Will as an Implied Unilateral Arbitration Contract, 68 Florida Law Review 49-99 (2016) | Link to Digital Commons
Federal Arbitration Act Preemption of State Public-Policy-Based Employment Arbitration Doctrine: An Autopsy and an Argument for Federal Agency Oversight, 20 Harvard Negotiation Law Review 1-60 (2015) | Link to Digital Commons
Don't Ask, Don't Tell: Employment Discrimination As a Means for Social Cleansing, 16 Employee Rights and Employment Policy Journal 179-209 (2012) (Symposium on the Workplace Law Agenda of the Obama Administration) | Link to Digital Commons
An Empirical Assessment of the Potential for Will Substitutes to Improve State Intestacy Statutes, with Fellows and Strohm, 85 Indiana Law Journal 409-448 (2010) | Link to Digital Commons
Exempting High-Level Employees and Small Employers from Legislation Invalidating Predispute Employment Arbitration Agreements, 43 U.C. Davis Law Review 591-653 (2009) | Link to Digital Commons
Open Adoption, Inheritance, and the "Uncleing" Principle, 48 Santa Clara Law Review 765-804 (2008) (Symposium on the Transforming Structure of American Households) | Link to Digital Commons
The Constitutional Function of Biological Paternity: Evidence of the Biological Mother's Consent to the Biological Father's Co-Parenting of Her Child, 48 Arizona Law Review 97-147 (2006) | Link to Digital Commons
Navigating Dangerous Constitutional Straits: A Prolegomenon on the Federal Marriage Amendment and the Disenfranchisement of Sexual Minorities, with Krotoszynski, 76 University of Colorado Law Review 599-652 (2005) | Link to Digital Commons
From Queer to Paternity: How Primary Gay Fathers Are Changing Fatherhood and Gay Identity, 24 Saint Louis University Public Law Review 195-220 (2005) (Symposium on the Legal Issues of Sexual Orientation) | Link to Digital Commons
Arbitration and the Batson Principle, with Cole, 38 Georgia Law Review 1145-1240 (2004) | Link to Digital Commons
An Accrual/Multi-Factor Approach to Intestate Inheritance Rights for Unmarried Committed Partners, 81 Oregon Law Review 255-349 (2002) | Link to Digital Commons
Reclaiming the "Creatures of the State": Contracting for Child Custody Decisionmaking in the Best Interests of the Family, 57 Washington and Lee Law Review 1139-1212 (2000) | Link to Digital Commons
Judge Not: In Defense of Minority-Culture Arbitration, 77 Washington University Law Quarterly 1065-1085 (1999) | Link to Digital Commons
The Expressive Function of Succession Law and the Merits of Non-Marital Inclusion, 41 Arizona Law Review 1063-1107 (1999) | Link to Digital Commons
Gone But Not Conforming: Protecting the Abhorrent Testator from Majoritarian Cultural Norms Through Minority-Culture Arbitration, 49 Case Western Reserve Law Review 275-314 (1999) | Link to Digital Commons
He Said, He Said: Same-Sex Sexual Harassment Under Title VII and the "Reasonable Heterosexist" Standard, 18 Berkeley Journal of Employment and Labor Law 56-97 (1997) | Link to Digital Commons
A Biologic Argument for Gay Essentialism-Determinism: Implications for Equal Protection and Substantive Due Process, 18 University of Hawai'i Law Review 571-622 (1996) | Link to Digital Commons
A Critique of Justice Antonin Scalia's Approach to Fundamental Rights Adjudication, 1990 Duke Law Journal 1337-1360 (1990) | Link to Digital Commons