E. Gary Spitko

Professor of Law


Professor E. Gary Spitko has published extensively in the areas of arbitration, donative transfers, employment law, and law & sexuality.  His scholarship has appeared in leading law reviews including the Arizona Law Review (twice), the University of Colorado Law Review, the U.C. Davis Law Review, the Georgia Law Review, the Indiana Law Journal, the Washington & Lee Law Review, and the Washington University Law Quarterly as well as top specialty and peer-reviewed journals in his areas of scholarly interest such as the Berkeley Journal of Employment and Labor Law, the Employee Rights and Employment Policy Journal, and the Harvard Negotiation Law Review (forthcoming).  His scholarship has been cited in several hundred law review articles as well as various casebooks and treatises.  The Supreme Court of New Jersey approvingly quoted Professor Spitko’s scholarship arguing in favor of a “likelihood of harm to the child” standard for reviewing arbitration awards respecting child custody and visitation rights in becoming the first state high court in the nation to adopt such a standard.

 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.  While a law student at Duke, he served as an editor of the Duke Law Journal and as the 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, Janofsky & Walker 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 School of Law.  He also has taught as a visiting professor at the Ohio State University College of Law.  Since 2011, Professor Spitko has served as an arbitrator in employment arbitrations administered by the American Arbitration Association.


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

Areas of Specialization

Arbitration, Donative Transfers, Employment Law, Law & Sexuality

Affiliations and Honors

Arbitrator, American Arbitration Association (Roster of Neutrals for employment law cases)

Director, Santa Clara Law Study Abroad Program in Sydney, Australia, 2006-07

Chair, Association of American Law Schools Donative Transfers Section, 2006

Member, Executive Committee of the Association of American Law Schools Donative Transfers Section, 2003-08



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) | Link to Library Catalog


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 (forthcoming) (2015)

Don't Ask, Don't Tell: Employment Discrimination As a Means for Social Cleansing, (Symposium on the Workplace Law Agenda of the Obama Administration), 16 Employee Rights and Employment Policy Journal 179-209 (2012) (peer-reviewed journal; solicited for symposium) | Link to Full Text

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, (Symposium on the Transforming Structure of American Households), 48 Santa Clara Law Review 765-804 (2008) (solicited for symposium) | 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, (Symposium on the Legal Issues of Sexual Orientation), 24 Saint Louis University Public Law Review 195-220 (2005) (solicited for symposium) | 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

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

The Expressive Function of Succession Law and the Merits of Non-Marital Inclusion, 41 Arizona Law Review 1063-1107 (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

Currently Teaching:

Fall 2014

Wills and Trusts

Mon & Wed