75 Am. U. L. Rev. 739 (2026).

Abstract

Civil litigation suffers from a paradox that is at once self-evident, unfair, and overlooked: the trial process promises equality between plaintiffs and defendants under the preponderance-of-the-evidence standard, even as the pretrial process is skewed dramatically in defendants’ favor. At trial a plaintiff needs only “50% plus a feather” to tip the scales and prevail, reflecting a commitment to equal treatment of the parties. Pretrial, however, the playing field tilts steeply: plaintiffs alone must navigate a procedural gauntlet of motions that impose pleading and production burdens for which defendants face no equivalent. This entrenched asymmetry in pretrial practice has become so routine that it escapes serious scrutiny, despite its obvious implications for fairness and the legitimacy of outcomes. This Article exposes the dissonance between trial and pretrial burdens and proposes two paths toward restoring procedural balance: “leveling down,” by rolling back onerous pretrial hurdles and returning to a more permissive landscape, or “leveling up,” by subjecting defendants to the same rigorous pleading and proof standards that plaintiffs endure. By illuminating and challenging what has long been taken for granted, this Article forces a reexamination of fundamental judicial assumptions and calls into question the legitimacy of a civil adjudicatory system that tolerates such one-sided burdens.

* William S. Boyd Professor of Law, William S. Boyd School of Law, University of Nevada, Las Vegas. Thanks to Greg Pingree, Kevin Clermont, and John Leubsdorf for their comments on early drafts, and to Paula Main, Dean Grinvald, Dean Chang, Dean Hanan, and Lena Rieke for research and other support. Thanks also to Caitlen Moser, Mary Reagan Phillips, and the American University Law Review staff. Finally, this Article is dedicated to Stephen N. Subrin, my hero, mentor, co-author, and friend. Any merit found in these pages, and in my work as a whole, is a testament to his brilliance and his heart.