Lots, Lotteries, and Sortition in Law & Politics

       

“There are two main questions we can ask ourselves with respect to the use of lotteries. First, under which conditions would they seem to be normatively allowed or prescribed, on grounds of individual rationality or social justice? Second, in which cases are lotteries actually used to make decisions and allocate tasks, resources and burdens? There is no reason, of course, to expect the answers to these questions to coincide. Hence we can generate two further questions. What explains the adoption of lotteries when normative arguments seem to point against them? What explains the non-adoption of lotteries in situations where they would seem to be normatively compelling? The last question is perhaps the most intriguing and instructive one. I shall argue that we have a strong reluctance to admit uncertainty and indeterminacy in human affairs. Rather than accept the limits of reason, we prefer the rituals of reason.” — Jon Elster, Solomonic Judgements: Studies in the limitations of rationality (Cambridge University Press, 1989): 36-37.

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“Rigid application of some particular decision-making criterion to settle disputes might render adjudication less fraught with complexity and ambiguity. Depending on the criterion used, such application might even make the process of adjudication less partial. If the criterion is easy to apply, moreover, the costs of decision-making are likely to be reduced. One criterion which offers all of these qualities is random selection. Decision-making by lot is likely to be simple, objective, and cheap. ‘Cast lots and settle a quarrel, and so keep litigants apart’ (Proverbs 18: 18). Randomized decision-making will be, however, unreasoned. If a single argument rests at the heart of this book it is that, in law, faith in reason is sometimes maintained at too high a cost. The lottery, probably more than any other decision-making device, demands that this argument be accorded serious consideration.” — Neil Duxbury, Random Justice: On Lotteries and Legal Decision-Making (Oxford University Press, 1999): 175.

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“Randomness is indistinguishable from complicated, undetected, and undetectable order; but order itself is indistinguishable from artful randomness.” — Nassim Nicholas Taleb, The Bed of Procrustes: Philosophical and Practical Aphorisms (Random House, 2010): 58.

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As I noted in the comments to my syllabus that revolved largely around Athenian democracy in classical Greece, one of the topics prompted by that reading and research was “democratic rhetoric,” at least in its contemporary incarnation. I hope to compile a list for that subject soon. Meanwhile, I’ve completed another brief bibliography, once more, limited to twenty-five items (yet this list includes several journal articles), and likewise provoked by the aforementioned reading and research. With Professor of Law Neil Duxbury, I first became intrigued by this subject upon reading Jon Elster’s Solomonic Judgments: Studies in the Limitations of Rationality (Cambridge University Press, 1989), although it is also an important part of his later volume, Local Justice: How Institutions Allocate Scarce Goods and Necessary Burdens (Russell Sage Foundation, 1992).

       
Lots, Lotteries, and Sortition in Law and Politics: a very select bibliography

• Abramson, Jeffrey. We, the Jury: The Jury System and the Ideal of Democracy (Harvard University Press, 2000).
• Amar, Akhil Reed. “Lottery Voting: A Thought Experiment,” University of Chicago Legal Forum, Vol. 1995: 193-204 (essay for Symposium on Voting Rights).
• Amar, Akhil Reed. “Choosing Representatives by Lottery Voting,” The Yale Law Journal, Notes, (1984) Vol. 93, 1283-1308.
• Barnett, Anthony and Peter Carty. The Athenian Option: Radical Reform for the House of Lords (Imprint Academic, revised ed., 2008).
• Bouricius, Terrill G. “Democracy Through Multi-Body Sortition: Athenian Lessons for the Modern Day,” Journal of Public Deliberation (2013) Vol. 9, Issue 1, Art. 11.
• Burnheim, John. Is Democracy Possible? The alternative to electoral politics (University of California Press, 1985).
• Callenbach, Ernest and Michael Phillips. A Citizen Legislature (Banyan Tree Books/Clear Glass, 1985).
• Carson, Lyn and Brian Martin. Random Selection in Politics (Praeger Publishers, 1999).
• Coote, Anna and Jo Lenaghan. Citizens’ Juries: Theory into Practice (Institute for Public Policy Research, 1997).
• Dowlen, Oliver. The Political Potential of Sortition: A Study of the Random Selection of Citizens for Public Office (Imprint Academic, 2008).
• Duxbury, Neil. Random Justice: On Lotteries and Legal Decision-Making (Oxford University Press, 1999).
• Elster, Jon. Solomonic Judgements: Studies in the Limitations of Rationality (Cambridge University Press, 1989).
• Elster, Jon. Local Justice: How Institutions Allocate Scarce Goods and Necessary Burdens (Russell Sage Foundation, 1992).
• Gastil, John and Erik Olin Wright, eds. Legislature by Lot: Transformative Designs for Deliberative Governance (Verso, 2019).
• Goodin, Robert E. Innovating Democracy: Democratic Theory and Practice After the Deliberative Turn (Oxford University Press, 2008).
• Goodwin, Barbara. Justice by Lottery (Imprint Academic, 2^nd, 2005).
• Hansen, Mogens Herman (J.A. Crook, trans.) The Athenian Democracy in the Age of Demosthenes (Blackwell, 1991).
• Lafont, Cristina. “Deliberation, Participation, and Democratic Legitimacy: Should Deliberative Mini-publics Shape Public Policy?” The Journal of Political Philosophy, Vol. 23, No. 1 (2015): 40-63.
• Landemore, Hélène. “Deliberation, Cognitive Diversity, and Democratic Inclusiveness: An epistemic argument for the random selection of representatives,” Synthese (2013) 190:1209–1231.
• Landemore, Hélène. Democratic Reason: Politics, Collective Intelligence, and the Rule of the Many (Princeton University Press, 2013).
• Landemore, Hélène. Open Democracy: Reinventing Popular Rule for the Twenty-First Century (Princeton University Press, 2020).
• Landemore, Hélène and Jon Elster, eds. Collective Wisdom: Principles and Mechanisms (Cambridge University Press, 2012).
• Stone, Peter. The Luck of the Draw: The Role of Lotteries in Decision-Making (Oxford University Press, 2010).
• Stone, Peter, ed. Lotteries in Public Life: A Reader (Imprint Academic, 2011).
• Threlkeld, Simon. “Let Legislative Juries Decide Laws,” Dissident Voice, June 22, 2020.