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I would like to thank the Law Review for their generous invitation to participate in this symposium about the future of discovery in our civil justice system. Before starting, let me mention that the comments that I express here today are mine alone. Let me begin with a few words about my perspective. I began my legal career as a prosecutor in the Army. When I got off of active duty, I became a local county prosecutor. In criminal law, we didn't have discovery problems. We had an "open file" policy, where we disclosed all the evidence we had, and we either worked out a plea or tried the case. There were lots of both. Then I became an assistant attorney general in This Article proposes a system in which both parties are provided an opportunity to opt out of discovery. A party who opts out is immunized from dispositive motions, including a motion to dismiss for failure to state a claim or a motion for summary judgment. If neither party opts out of discovery, the parties waive jury-trial rights, thus giving judges the ability to use stronger case-management powers to focus the issues and narrow discovery. If one party opts out of discovery but an opponent does not, the cost of discovery shifts to the opponent. This Article justifies this proposal in both historical and efficiency terms and concludes by considering objections to the proposal. [ABSTRACT FROM AUTHOR]

Because of fears that litigation is too costly, reduction of litigation expenses has been the touchstone of procedural reform for the past thirty years. In certain circumstances, however, the parties have incentives--both rational and irrational--to spend more on a lawsuit than the social benefits that the case provides. Present and proposed reform efforts do not adequately address these incentives, and, in some instances, exacerbate the parties' incentives to overspend. The best way to ensure that the cost of a lawsuit does not exceed the benefits that it provides to the parties and society is to control spending directly: to require the parties to file and live within litigation budgets. These "costs budgets," which are already in use in the United Kingdom, help to ensure that the costs of litigation remain less than the benefits. After describing the workings of a costs-budget system, the Article considers practical, political, and constitutional critiques. None of these concerns is disabling. American rulemakers who are serious about containing the litigation costs should grant courts the power to use costs budgets. [ABSTRACT FROM AUTHOR]

The article focuses on the proposition of a principle explaining the results of the Enabling Act and procedural Erie cases in the U.S. Supreme Court. It avoids the efficiency-based or rights-based arguments with discussions on procedure. It investigates the tests used in identifying when the federal courts should apply a state-based rule. It also assumes that the Act and the Erie cases are good as they reflect the proper rulemaking authority allocation between the state and the federal systems.