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 view.
The 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 court's recommendation of casting lots to decide competing claims. Instead, the Court endorsed a more individualized, merit-based assessment for determining competing property rights. The Antelope is thus an excellent beginning point to consider contemporary issues surrounding lotteries and questions of distributive justice.
The 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 pre-lottery 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.
Carol Necole Brown, Casting Lots: The Illusion of Justice and Accountability in Property Allocation, 53 Buff. L. Rev. 65 (2005).