Randomization in Adjudication

ABSTRACT 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. …