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This chapter explores the ideas of representation, the first broad solution to the legitimacy problems in deliberative democracy. It considers the nature, strengths, and weaknesses of three different types of representation claims made by participants in the cases, namely random selection, self-selection, and elected representation. It argues that elected representatives have the strongest claims simply because they can be removed from decision-making posts, but this strength depends on there being strong communicative relationships between representatives and the represented. It concludes that while representation claims are important, no one kind of representative has perfectly legitimate authority.

This chapter defines a lottery as a process capable of generating a set of outcomes in which the particular outcome to be expected whenever the process occurs is unpredictable given available information. (This is, according to the argument given here, equivalent to saying that the outcome is random.) One implication of this decision is that whenever a decision is made by lot, the decision cannot be made on the basis of reasons. The chapter then argues that lotteries can occasionally prove desirable in decision-making precisely because they prevent decision-making on the basis of reasons. Sometimes an agent faces indeterminacy, in which the good reasons available to the agent prove indeterminate, and there is the danger that bad reasons may enter into the process. Lotteries prevent this by ensuring that the final decision is made on the basis of no reasons. Lotteries can thereby sanitize decision-making. This is called the lottery principle.

Random selection in the organization of citizen assemblies was adopted to create an assembly that was as representative as possible of the population. At the same time, only those who expressed an interest could take part. Self-selection may have led to distortions of the ‘mirror image’ of the electorate that the assemblies were intended to be. This chapter explores where the idea of representativeness comes from, and why it was important. It also shows the extent to which assemblies represented the general public. In the chapter, it is argued that representation by lot is by no means a new form of political representation and that it derives its representative character from sources different from elections. Largely as a consequence of self-selection, however, assemblies were not entirely ‘representative’. Nevertheless, it is shown that there is no persuasive evidence that the outcomes of the citizen assemblies would have been any different had these departures from perfect representativeness not existed.

Randomization rests at the heart of the Anglo-American jury system. Apart from jury selection, and leaving aside the fact that lotteries are often used for the purpose of raising state revenue, there appear to be no other areas of social life in which sortition is the preferred method of reaching decisions or allocating tasks and resources. This chapter argues that the blindness of the lottery does not have to be viewed entirely negatively. But it also illustrates how random selection might be unintentionally compromised by citing a number of court cases. Random selection is intended to provide defendants and litigants with the opportunity to be tried by a representative cross-section of the population. The issue is whether juries ought ideally to be cross-sectionally or proportionally representative — whether fairness requires that all citizens be equally eligible for jury duty or that there should be demographic balance in the jury rolls. The basic point of this chapter has been to try to identify the primary advantages of chance and randomization (and hence, luck) for social decision-making purposes.

This book has illustrated the advantages and drawbacks of chance and randomized social decision-making, claiming that arguments concerning such decision-making more often than not require qualification. Detailed scrutiny of randomized legal decision-making compels us to confront difficult, sometimes uncomfortable, questions concerning the role of reason in law and how we conceptualize justice. Although we are often understandably wary of resorting to lotteries to determine outcomes of legal significance, the idea that randomization might be employed more extensively within legal decision-making contexts ought not to be dismissed cursorily. 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.

This chapter focuses on Wendell Arthur Garrity, Jr., the federal district court judge who decided the Boston case and who had been assigned it from among a number of judges by a process of random selection. It is doubtful, however, that the luck of the draw would have made the basic finding any different. Any other judge, given the twenty-year history of Supreme and lower-court decisions preceding Morgan v. Hennigan, also would probably have found the Boston School Committee guilty of maintaining a dual, segregated school system. However, the distinct personality of Garrity had much to do with the timing of the decision and with the remedies applied. That Garrity's father had been named by his grandmother after the well-known nineteenth-century Boston Brahmin abolitionist and reformer, Wendell Philips, signified much.