Document Type

Working Paper

Publication Date

9-9-2005

SSRN Discipline

Legal Scholarship Network; PRN Subject Matter eJournals; PSN Subject Matter eJournals; Philosophy Research Network; Political Economy - International eJournals; Political Economy - Comparative eJournals; Law School Research Papers - Legal Studies; LSN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Humanities Network; Political Science Network

Abstract

When does resorting to random selection by casting lots produce a just distribution or allocation of property Some argue generally in support of casting lots asserting that it is a viable substitute for equal distribution of property Others argue against casting lots contending that it undermines distributive justice This article considers instances of casting lots from the nineteenth century to the present and explains why the latter view is the better viewThe Antelope is one of the earliest United States Supreme Court cases addressing distribution of property by casting lots It chronicles a dispute over the allocation of captured Africans as part of the international slave trade The Supreme Court rejected the lower courts recommendation of casting lots to decide competing claims Instead the Court endorsed a more individualized meritbased assessment for determining competing property rights The Antelope is thus an excellent beginning point to consider contemporary issues surrounding lotteries and questions of distributive justiceThe significance of casting lots to distribute property is not relegated to the past In recent years courts have considered the legitimacy of casting lots to achieve distributive justice in educational opportunities My thesis is that casting lots frequently results in unjust distributions of property My critique has two parts First casting lots is deceptive because although lotteries purport to be random they are frequently preceded by nonrandom decisions that result in important distributional effects that the lottery masks Second even if government acknowledges that most lotteries are not completely random because of nonrandom prelottery decisions casting lots is often unfair because it does not account for individual merit and characteristics such as need fitness desert status and position Essentially casting lots obscures the decision to avoid making difficult choices

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