Casting Lots: the Illusion of Justice and Accountability in Property Allocation
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Alabama Law Scholarly Commons Working Papers Faculty Scholarship 9-9-2005 Casting Lots: The Illusion of Justice and Accountability in Property Allocation Daniel M. Filler Drexel University - Thomas R. Kline School of Law, [email protected] Carol Necole Brown University of North Carolina (UNC) at Chapel Hill - School of Law, [email protected] Follow this and additional works at: https://scholarship.law.ua.edu/fac_working_papers Recommended Citation Daniel M. Filler & Carol N. Brown, Casting Lots: The Illusion of Justice and Accountability in Property Allocation, (2005). Available at: https://scholarship.law.ua.edu/fac_working_papers/29 This Working Paper is brought to you for free and open access by the Faculty Scholarship at Alabama Law Scholarly Commons. It has been accepted for inclusion in Working Papers by an authorized administrator of Alabama Law Scholarly Commons. THE UNIVERSITY OF ALABAMA SCHOOL OF LAW Casting Lots: The Illusion of Justice and Accountability in Property Allocation Carol Necole Brown 53 Buffalo. L. Rev. 65, Winter 2005 This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection: http://ssrn.com/abstract=800524 Buffalo Law Review Casting Lots: The Illusion of Justice and Accountability in Property Allocation Carol Necole Brown 53 BUFF. L. REV. 65 Winter 2005 University at Buffalo Law School BROWN.DOC 9/9/20052/19/2005 9:23 AM5:31:34 PM CASTING LOTS: THE ILLUSION OF JUSTICE AND ACCOUNTABILITY IN PROPERTY ALLOCATION BY CAROL NECOLE BROWN I. Introduction...............................................................................2 II. An Early Case of Casting Lots: A Retrospective on The Antelope Case ..............................................................................9 III. An Analysis of Casting Lots and The Antelope Case..............24 A. Understanding First- and Second-Order Decisions.................27 B. Understanding The Antelope as Impacted by First- and Second-Order Decisions..........................................................31 IV. Achieving Distributive Justice.................................................36 A. Distributive Justice and Property Law.....................................36 B. The Antelope and Distributive Justice .....................................43 V. Contemporary Examples of Casting Lots: The Masking Function and the Deceptiveness of the Notion of Justice by Lottery ................................................................................53 VI. The Alternative to Randomness ..............................................63 VII. Conclusion...............................................................................66 Appendix ...........................................................................................69 BROWN.DOC 9/9/20052/19/2005 9:23 AM5:31:34 PM 2 BUFFALO LAW REVIEW [Jrnl Volume Casting Lots: The Illusion of Justice and Accountability in Property Allocation * CAROL NECOLE BROWN I. INTRODUCTION When does resorting to random selection by casting lots produce a just distribution or allocation of property?1 Some argue generally in support of casting lots, asserting that it is a viable substitute for equal distribution of property.2 Others argue against casting lots, * Carol Necole Brown, Associate Professor of Law, The University of Alabama School of Law. A.B., Duke, 1991; J.D., Duke, 1995; LL.M., Duke, 1995; I would like to thank William S. Brewbaker, III, Alfred L. Brophy, Dorothy A. Brown, Daniel H. Cole, Frank Rudy Cooper, Mark A. Drumbl, Bryan K. Fair, Daniel M. Filler, Michelle Goodwin, Wythe W. Holt, Jr., Timothy Stolzfus Jost, Utz L. McKnight, Blake D. Morant, Martha I. Morgan, Carla Pratt, Susan L. Randall, Simone A. Rose, Neil G. Williams, Serena M. Williams, the Midwestern People of Color Legal Scholarship Conference, the Mid-Atlantic People of Color Legal Scholarship Conference, and the Southeastern Association of Law Schools for their helpful comments. I also thank the National Archives and Records Administration— Southeast Region (Atlanta), Felecia Linton, Dean Kenneth C. Randall, the University of Alabama Law School Foundation, and the William H. Sadler Fund for their generous research support. Special thanks are owed to Patty Lovelady Nelson for valuable time and editorial assistance. I especially thank my parents, Allen S. Brown and Valerie J. Brown. 1 Throughout this article, the term “property” is used in its broadest sense and includes not only traditionally held notions of property but also an expanded definition, broad enough to include the concept of dephysicialized property. See, e.g., Kenneth J. Vandevelde, The New Property of the Nineteenth Century: The Development of the Modern Concept of Property, 29 BUFF. L. REV. 325 (1980). Professor Vandevelde discusses the “dephysicalization” of property and the resultant broadening of property law to include valuable interests not traditionally treated or considered as property. Professor Charles A. Reich makes the case that government has emerged as a major source of wealth thereby displacing “traditional forms of wealth—forms which are held as private property.” Charles A. Reich, The New Property, 73 YALE L.J. 733 (1964). He concedes that “government largess” is not necessarily property and also advocates for the recognition of an expansion of traditional notions of private property to include a “new property.” Id. According to Professor Reich, this new and expanded understanding of property is important in safeguarding individual liberty against government overreaching. Id. at 739, 787. John Brigham, arguably advocates for an even more expansive conception of property. capsJohn Brigham, Property and the Politics of Entitlement 39 (1990). He observes that property claims generally concern citizen held expectations that are derived from promises made or obligations undertaken by government. 2 E.g., BARBARA GOODWIN, JUSTICE BY LOTTERY 93 (1992) (stating generally that the lottery as an organizational principle “is a natural ally of democracy” and could justifiably be used by government as part of its policy-making process); Fred Hapgood, Chances of a Lifetime, BROWN.DOC 9/9/20052/19/2005 9:23 AM5:31:34 PM Date of Journal]DESKTOP PUBLISHING EXAMPLE 3 contending that it undermines distributive justice.3 This article considers instances of casting lots from the nineteenth century4 to the present5 and explains why the latter view is the better view. BERKELEY J. SOC. WORKING PAPERS 39 (1975) “Lotteries are cheap, equitable, and incorruptible (or can be made so with little effort).” Metro Broadcasting, Inc. v. Federal Communications Comm’n, 497 U.S. 547 (1990) (upholding the constitutionality of a lottery as part of the Federal Communications Commission minority preference policy). In enacting the lottery statute [47 U.S.C. § 309(i)(3)(A)], Congress explained the “current comparative hearing process” had failed to produce adequate programming diversity and that “[t]he policy of encouraging diversity of information sources is best served . by assuring that minority and ethnic groups that have been unable to acquire any significant degree of media ownership are provided an increased opportunity to do so.” . Only in this way would “the American pubic [gain] access to a wider diversity of information sources.” Id. at 590 (citations omitted). 3 E.g., GUIDO CALABRESI & PHILIP BOBBITT, TRAGIC CHOICES 42 (1978); RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 313 (1990); Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986). In Wygant, plaintiffs, nonminority teachers who were laid off pursuant to Article XII of the collective-bargaining agreement between the Jackson Board of Education and the teachers’ union, claimed that they were laid off because of their race in violation of the Fourteenth Amendment’s Equal Protection Clause. Id. at 270. Article XII provided that teachers with the most seniority would be retained and provided a racial preference for minority teachers so that in some instances, minority teachers were retained while nonminority teachers with greater seniority were laid off. Id. The Court held that the Board’s plan violated the Equal Protection clause as less intrusive means were available to achieve the legitimate goal of racial equality. Id. at 274-75. Justice Marshall, writing for the dissent, stated that Article XII was narrowly tailored to preserve the degree of faculty integration that the school system managed to achieve through affirmative action hiring policies adopted in the 1970’s. Id. at 303, 309 (Marshall, J., dissenting). Justice Marshall stated that determining layoffs by casting lots would be an alternative to Article XII, but a less narrowly tailored one. “A random system . would place every teacher in equal jeopardy, working a much greater upheaval of the seniority hierarchy than that occasioned by Article XII; it is not at all a less restrictive means of achieving the Board’s goals.” Id. at 310. 4 E.g., The Antelope, 23 U.S. 66 (1825). Lotteries were frequently employed when there was a need to sacrifice an individual in times of extreme danger. United States v. Holmes, 26 F. Cas. 360 (E.D. Penn. 1842) (No. 15,383) (discussing the virtue of the lot in admiralty situations as a means of selecting an individual to be sacrificed in a perilous and emergency situation); Regina v. Dudley and Stephens, 14 Q.B.D. 273 (1884) (discussing the drawing of lots by starving sailors to determine who should be the victim of cannibalism). 5 For example, lotteries are presently used to allocate