Buffalo Law Review Volume 53 Number 1 Article 4 1-1-2005 Casting Lots: The Illusion of Justice and Accountability in Property Allocation Carol Necole Brown The University of Alabama School of Law Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview Part of the Civil Rights and Discrimination Commons, and the Property Law and Real Estate Commons Recommended Citation Carol N. Brown, Casting Lots: The Illusion of Justice and Accountability in Property Allocation, 53 Buff. L. Rev. 65 (2005). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol53/iss1/4 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. Casting Lots: The Illusion of Justice and Accountability in Property Allocation CAROL NECOLE BROWNt CONTENTS I. Introduction .......................................................... 66 II. An Early Case of Casting Lots: A Retrospective on The Antelope Case ................................................. 74 III. An Analysis of Casting Lots and The Antelope Case ................................................. 88 A. Understanding First- and Second-Order D ecisions ........................................................... 91 B. Understanding The Antelope as Impacted by First- and Second-Order Decisions .................. 95 IV. Achieving Distributive Justice .............................. 99 A. Distributive Justice and Property Law ........... 99 B. The Antelope and Distributive Justice ................ 105 tAssociate Professor of Law, The University of Alabama School of Law. A.B., Duke University, 1991; J.D., Duke University, 1995; LL.M., Duke University, 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. 66 BUFFALO LAWREVIEW [Vol. 53 V. Contemporary Examples of Casting Lots: The Masking Function and the Deceptiveness of the Notion of Justice by L ottery .................................................................. 114 VI. The Alternative to Randomness ............................... 125 V II. C onclusion ............................................................... 127 A ppen dix .......................................................................... 130 I. INTRODUCTION When does resorting to random selection by casting lots produce a just distribution or allocation of property?' Some lots, asserting that it argue generally in support of casting 2 is a viable substitute for equal distribution of property. 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 dephysicalized 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, 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. JOHN 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, 3 WORKING PAPERS FOR A NEW SOCIETY 37, 39 (1975) (stating that "[lJotteries are cheap, equitable, and incorruptible (or can be made so with little effort)"); see also Metro Broad., Inc. v. FCC, 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 2005] CASTING LOTS 67 Others argue against casting lots, contending that it un- dermines distributive justice. 3 This article considers in- stances of casting lots from the nineteenth century 4 to the present 5 and explains why the latter view is the better view. 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., Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986); RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 313 (1990); GUIDO CALABRESI & PHILIP BOBBITT, TRAGIC CHOICES 42 (1978). 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. Wygant, 476 U.S. 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 274-76. 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 1970s. 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 goal." Id. at 310. 4. E.g., The Antelope, 23 U.S. (10 Wheat.) 66 (1825). Lotteries were frequently employed when there was a need to sacrifice an individual in times of extreme danger. See, e.g., 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); The Queen v. Dudley & 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 resources such as transportation rights for natural resources, entitlement to real property and improvements, cellular licenses, admission into educational institutions, employment opportunities, and immigration visas. Lotteries are used to allocate rights to transport natural gas through limited space in natural gas pipelines. E.g., Duke Energy Trading & Mktg., L.L.C. v. FERC, 315 F.3d 377 (D.C. Cir. 2003); PG&E Transmission v. FERC, 315 F.3d 383 (D.C. Cir. 2003). The following cases provide information on the use of lotteries to allocate "traditionally" recognized real and personal property rights. E.g., Brotherton v. Point on Norman L.L.C., 577 S.E.2d 361 (N.C. Ct. App. 2003), reh'g denied, 582 68 BUFFALO LAWREVIEW [Vol. 53 S.E.2d 28 (N.C. 2003)