An Introduction I’d Like to Read

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. …

Love love love this idea. Perhaps a whole calvinoesquelike series of short intro^2’s?

Also: Lawmeme’s main links are down, not even redirects; that’s no way to shutter a long-useful web service! But pages like this one, a deeplink to an essay about how not to shutter web services, are still up (with key links within them broken, however):

Who will salv. this sit. from the pit of desp.?

Lawmeme was actually shuttered for about two years after the PHP-Nuke install it ran on was hacked. The sysadmins disabled access; the database was so badly corrupted that we weren’t able to recover the site contents from it. I eventually went to the Internet Archive, grabbed all the pages I could, uploaded them as static HTML, and created a .htaccess file to make the old deep links work. What should we do in addition? It would be plausible to create an index page, but I think fixing the old links may be a hopeless task (unless you have some clever ideas there?).

Brilliant. And easy to finish the intro:

Part II shows why both the Pro-P and the Pro-D positions fail. Part III proposes a new method, “Weighted Judging,” and explains why this method is superior to both the Pro-P and Pro-D positions and is also practical and easily implemented. Part IV addresses objections to Weighted Judging and demonstrates that none of these objections is sufficient to outweigh the benefits of Weighted Judging. Part V concludes.