Luck in the Courts

Abstract

A situation in which luck determines what happens in our lives is composed of two elements: (1) the existence of a multiplicity of possible outcomes, and (2) lack of control over the situation, namely that we have no way, or at least no meaningful way, to affect the outcome. Adjudication is a luck situation: law is indeterminate and in a decent society litigants are not supposed to have control over their judges. Can we minimize luck in adjudication? The primary way to do this is to make every decision given in the system resemble as much as possible the decision that would have been reached by the majority of the judges active in the system had they all been given the opportunity to decide the case at hand as a group. Put differently, luck in judicial decisions can be lessened by increasing the number of judges in panels. Even though in a decent society the option of controlling the conduct of judges is out of the question, several means do exist for litigants to employ some control over the identity of the persons who are to resolve their disputes.