Flipping a coin to decide a case is among the most serious forms of judicial misconduct. Yet judges react quite differently to other types of lotteries. Judges tend to tolerate or encourage deliberately random decisions in nonjudicial settings ranging from military drafts to experimental welfare requirements. Equally striking, most adjudicators now embrace randomization within their own institutions: they commonly use lotteries to assign incoming cases to each other. This practice creates a remarkable tension. Because adjudicators vary in competence and ideology, randomizing their case assignments will effectively randomize outcomes in a subset of merits decisions. We might then ask whether the typical adjudicative system is sometimes at war with itself, condemning courtroom coin flips while operating backroom lotteries with similar effects.
This Article attempts to defend the judicial treatment of randomized decisions. The Article begins by investigating the concept of randomization and the leading justifications for randomizing social decisions. It then offers a consequentialist defense for the pattern of judicial reactions to official lotteries. This defense admits that case-assignment lotteries have merits-randomizing effects, and it accepts that a merits-randomization ban might be the best rule for fallible judges facing public relations problems. Even so, random case assignment can be justified based on three consequences, aside from the convenience of judges: (1) fairly allocating to litigants the tragically scarce and indivisible resource of judicial excellence, (2) roughly honoring the politics of the judicial appointments process, and (3) continuing a natural experiment on the determinants of judicial behavior. These arguments cannot explain why adjudicative institutions developed as they did. But they can exploit various social benefits that the system has produced, in a sense, randomly.
TABLE OF CONTENTS INTRODUCTION I. UNDERSTANDING RANDOMIZATION A. Three Concepts of Randomization B. Randomization's Features and Justifications 1. Equal Opportunity and Other Features 2. Overlapping Justifications a. Equal Claims and Indivisibility b. Pragmatism and Incentives c. Information and Experimentation 3. Three Examples in Government II. RANDOMIZATION AND THE JUDICIARY A. Judicial Self-Regulation 1. Sanctions and General Opposition 2. Problems with a Randomization Ban B. Judicial Oversight 1. Possibilities for Global Opposition 2. Litigation over Randomization C. The Case Assignment Puzzle III. DECISION MAKERS, DECISIONS, AND RANDOMIZATION A. Is the System Effectively Randomizing the Merits? 1. Connecting Assignments with Outcomes 2. On Minimizing the Significance of Assignment B. Is the System Optimally Randomizing the Merits? C. Can the Arrangement Be Defended? 1. Forbidding Merits Randomization 2. Justifying Assignment Randomization a. An Internal Account b. An Outsider Defense c. A Political Allocation Alternative CONCLUSION INTRODUCTION
A perceived divide between randomization and justice is centuries old in the Western world. Both the Goddess of Fortune and the Goddess of Justice have been depicted as blindfolded, but Justitia holds a scale while Fortuna scatters her rewards without any such guide. (1) The cultural situation is not radically different today. In the United States, the favored icon for justice remains the same: a decision maker veiled from irrelevant facts and attuned to law rather than whim or chance.
Randomization has a poor reputation in judicial rhetoric as well. As early as 1811 an American judge wrote that "[t]he decision of a contested case by lot or chance must be reprobated by every honest man." (2) More recently, judges have sanctioned other judges for flipping coins to resolve disputes, intimated that executive discretion should not extend to decision by lot, and invalidated an entire system of capital punishment for resembling random lightning strikes. (3) Although rolling dice may entertain or guide individuals in their personal lives, (4) it might be considered inconsistent with the rudiments of a just government.
Despite these first impressions, judicial opposition to randomization turns out to be modest. It is nearly impossible to locate a case invalidating an official decision because it was deliberately randomized. True, pervasive randomization would often bump into generally accepted judicial commitments; flipping coins to determine guilt in every criminal case is incompatible with a commitment to judgments based on legally relevant evidence. But such incidental conflicts do not entail judicial opposition to randomization per se. In fact, courts might be as likely to order randomization as to forbid it. Apparently no one even asked a judge to condemn the 1969 Vietnam military draft lottery for relying on randomization-but this lottery actually was challenged for being not random enough, and a federal judge took the complaint quite seriously. (5)
Is it possible to distinguish situations in which courts are likely to resist randomization (for example, capital sentencing) from those in which they are likely to be indifferent or even promote it (far example, military drafts)? High stakes cannot be the distinguishing feature; randomization is sometimes tolerated in matters of life and death. A far better predictor, I will argue, is institutional location. Although relevant cases are few, judicial opposition to randomization looks parochial. Judges strongly condemn randomization for their own merits decisions to the point of imposing professional sanctions, yet judges are likely to retreat when other officials consciously randomize. If this is the pattern, then judicial opposition to randomization is restricted to self-regulation.
The question is whether judges are right to expel randomization from their merits decisions and not elsewhere. A defense of this pattern has become more challenging because, in an important respect, adjudication is now shot through with randomization. The decision makers themselves--judges and jurors--are typically assigned their cases through lotteries. Random case assignment takes place hundreds of thousands of times every year in courts across the country, and many administrative agencies follow suit. (6) Only later stages of adjudication provoke allergies to randomization. But because the pool of decision makers differs in competence and ideology, random case assignment will influence an untold number of case outcomes. (7) The greater the diversity across decision makers, the greater the likely influence of a case assignment lottery. This is true even if the system is dead-set against overtly randomizing merits decisions. In the least charitable terms, then, courts have come to exemplify what they so loudly condemn.
Can we defend an adjudicative system that habitually randomizes its decision makers but never their decisions? (8) The question is worth asking because we can imagine a system closer to the opposite of the status quo. Cases could be assigned to judges based on their perceived expertise, or the combined preferences of the litigants, (9) and these nonrandom assignment systems could be accompanied by a modest domain of merits decisions that are concluded by lot. If there is a convincing defense of the current arrangement, moreover, it should rest on more than judges' preferences. Random case assignment ignores important differences among judges, while refusing to randomize merits decisions encourages the proliferation of other contestable tiebreakers. (10)
My defense of the system's design comes in several steps. As to the ban on randomizing merits decisions, it is the only acceptable flat rule for when to randomize and, I will suggest, a flexible standard is problematic. This conclusion is not firm but it draws on a reasonable view of imperfect judges and their public relations challenges. Opposing merits randomization, however, only complicates the argument for assignment randomization. One response is to cut the tension by claiming that randomizing judges does not count as randomizing merits decisions, whatever the effect on outcomes. But there are other defenses. First, we should view the assignment process as matching judges to litigants, not only cases to judges. This outsider perspective can accept randomization as a fair method for allocating a scarce and indivisible resource: judicial excellence. Second, we should expand our frame of analysis further to consider the appointments process. The larger system of matching judges to litigants includes the random assignment process now popular with judges as well as the appointments process that gave them their offices. Randomizing at the assignment stage can rightly bow to decisions at the appointments stage regarding the proper mix of adjudicators. Third, random assignment creates a natural experiment. Trustworthy empirical study may depend on such lotteries for insight into judicial behavior. Indeed, these studies are one way to better learn how judges are different and, therefore, how the judge assignment system can drive case outcomes.
Part I is largely theoretical and continues modern efforts to demystify randomization. The discussion highlights several overlapping justifications for lotteries and examples of their use in social decisions. Part II sorts out the judicial position on randomization. Judicial skepticism of randomization in other institutions is difficult to find, and judges regularly adopt modified lotteries to assign cases among themselves. Yet judges almost never overtly randomize their merits decisions, and those who do risk sanctions beyond reversal. Part III offers a functional defense for this pattern. (11) The analysis in this Part accepts that randomizing decision makers effectively randomizes outcomes for a class of cases, and it admits that the affected class does not match the ideal domain for merits randomization indicated by...