179 pp.

Reviewed by Jonathan L. Entin, School of Law and Department of Political Science, Case Western Reserve University.

The notion that judges or juries might decide cases by tossing coins seems the very antithesis of the rule of law. Neil Duxbury believes that random decisions can have a place in a healthy legal system. Unfortunately, his argument is so qualified and abstract that it is unlikely to persuade any but the already committed reader.

Much of the problem is organizational. The first substantive chapter explains the decline of reliance on chance as the basis for social decision-making. Then comes a chapter nominally devoted to the advantages of lotteries for modern legal problems, but the presentation is so hedged that the benefits might be regarded as problematic. For example, Duxbury contends that the impersonality of lotteries can be an advantage, but his position is captured in the following sentence. "The argument here is not that the blindness of the lottery should be regarded wholly favorably, but that this blindness does not have to be viewed entirely negatively" (p. 53). The difficulty is that Duxbury never explains how to balance the positive and negative aspects of this blindness, nor does he provide specific examples to illustrate how he would strike the balance.

Similar difficulties appear in the following chapter, which purports to assess the drawbacks of random decision-making. This chapter suggests that the problems with legal lotteries might have been exaggerated, but he does not come to closure on the crucial issues. So, for instance, after describing the difficulties of using the "best interests of the child" standard in custody disputes, Duxbury asks, "Might there, then, be a case for

replacing a decision-making process which is driven by indeterminacy with one which is driven by randomness?" (p. 92). When he returns to the subject more than thirty pages later, Duxbury opines that it might be "rational" to resolve custody disputes through random decisions (p. 127), but then admits that, "[t]he effectiveness of introducing the threat of resort to a lottery in order to reduce the likelihood of litigation will, in most instances, be undermined by the complexity of the dispute" (p. 128).

The difficulty is not entirely structural, though. When he finally gets to specific applications of random decision-making, Duxbury never specifies the circumstances in which using lotteries as decision tools might be appropriate. Should we decide randomly if the time for discussion expires without a final resolution? Duxbury concludes only that, "while the non-weighted lottery is by no means the only appropriate device of last resort in legal decision-making contexts, it may be that it is sometimes the best last resort because of the difficulty of predicting what the randomized outcome will be" (p. 164). Moreover, his attention sometimes wanders. The discussion of conscription contains an extended digression on the

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purchase of exemptions. Whatever might be said for the economic efficiency of such a system (and the author makes a good case for this proposition), Duxbury concedes that allowing people to buy their way out of military service has always been very unpopular. The argument has implications for debates about private education and health insurance, but those implications are not explored in any detail, either.

The book's problems are especially troublesome because, as Duxbury notes at the beginning of chapter 3, random selection is widely used in many legal contexts. Among them are jury selection and judicial assignment. There has been a surprisingly large amount of jurisprudence on these subjects, as the American cases on the fair cross-section requirement for juries in criminal trials, peremptory challenges, and judge shopping attest. The sensitivity of the topic is further reflected in the uproar over allegations of manipulation of appellate panels and three-judge courts in civil rights cases forty years ago. Randomness is also an aspect of the regulatory process, from the allocation of scarce resources (such as broadcast licenses and organs for transplantation) to the setting of enforcement priorities (such as choosing inspection sites), and may also arise in commercial disputes where the quality of tendered goods is at issue. Also, although the author does not directly address the point (though he does consider other uses of randomness in the political process), random sampling can also affect ballot access in jurisdictions where the number of valid signatures on nominating or initiative petitions is questioned.

The extent to which the law requires strict compliance with random selection varies, as Duxbury notes in his review of the controversy about the U. S. draft lotteries during the Vietnam era. The author neither develops these points nor analyzes why departures from randomness might be more tolerable in some situations than in others. The point is assuredly not that the author should have written a different book, but rather that he should have done a better job of writing the book that he claims to have set out to

write.

Perhaps the strongest argument supporting decision-making by lot is that the law fetishizes reason. Duxbury sympathizes with this argument, but only so far. He rejects critical attacks on legal reasoning in general (pp. 16, 142-44). At the same time, he denies that his project is normative. Instead, he seeks to "encourage reflection on a theme" rather than to persuade the reader to support wider use of random decision-making in any particular setting (p. 175). Although he canvasses an impressive array of

relevant literature from several disciplines, I am not sure that he succeeds in fulfilling even this modest goal.