The question of how to resolve lawsuits has long preoccupied scholars. Indeed, given the centrality of lawsuits in our legal system, it is the critical question that any theory of litigation must confront. To date, scholars have split in their answers. Some have argued that the plaintiff should win; others have argued that the defendant should prevail. Those who favor plaintiffs (the “pro-Ps” for short) have pointed to the distributive justice advantages of allocating resources to those members of society desperate enough to file suit. In reply, however, those who favor defendants (the “pro-Ds” for short”) point to the enormous administrative cost savings of a rule that would terminate all lawsuits as soon as they are filed. Both sides have produced innumerable models to justify their positions, but the debate has raged on.
This Article shows that both groups are right—and both are wrong. It introduces a new theory, called Weighted Judging, which moves beyond the false dichotomy of the pro-P/pro-D debate by integrating both their positions into a single coherent whole. Sometimes the pro-Ps are right, and the plaintiff should win. Sometimes, however, the pro-Ds are right, and the defendant should win. To resolve this tension, Weighted Judging says that courts should adopt a rule that combines the pro-P and pro-D rules: decide in favor of the party that supplies more total evidence. When the plaintiff supplies more evidence, Weighted Judging reduces to the pro-P rule. When the defendant supplies more evidence, Weighted Judging reduces to the pro-D rule. It therefore combines the best features of both pro-P and pro-D theories, while supplying courts with a simple-to-administer rule that gives both parties to a lawsuit the proper incentive to maximize the supply of evidence.
In Part I, this Article examines the history of the Pro-P/Pro-D debate. …