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INTRODUCTIONAs the recurring efforts to reform the discovery rules over the past thirty-five years attest, (1) discovery is controversial. The basic critiques--costliness and, relatedly, potential for abuse--are a by-product of [...], This Article proposes a system in which both parties are provided an opportunity to opt out of discovery. Aparty 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.

This Article uses two recent decisions—one prohibiting incentive awards to class representatives and one permitting disgorgement of side payments to class objectors—to explore deeper connections between classaction settlements and the law of restitution. The failure to correctly apply the law of restitution led both courts astray. First, courts can approve incentive awards, as long as an award properly reflects the benefit that the representative’s efforts bestowed on the class. Second, restitution provides a basis to disgorge improper side payments to objectors, but only under conditions different from those that the court described. More broadly, attention to the substantive and remedial principles of restitution can provide useful solutions to vexing problems of class-action practice. [ABSTRACT FROM AUTHOR]

B. How Budgets Control the Incentive to Overspend As we have seen, in some cases a party's incentive to spend excessively on litigation is rational: because the party does not [...]

Abstract Although class actions promise better deterrence at a lower cost, they are infected with problems that can keep them from delivering on this promise. One of these problems occurs [...]

This Article examines the relationship between procedure and substance, and the way in which that relationship affects Erie questions. It first suggests that "procedure" should be understood in terms of [...]

The article discusses the proposed resurrection of a trial by statistics (TBS) program in America which allows a judge to hear a small amount of the total number of cases and resolve mass disputes with varying amounts of individual damages. According to the article, the U.S. Supreme Court unanimously disapproved of TBS in the 2011 case Wal-Mart Stores Inc. v. Dukes. American class action litigation and liability are examined, as well as legal settlements and trials in the U.S.

This Article examines the problem of cy pres relief in class actions through the lens of optimal claim structure and class membership. It finds that the present cy pres doctrine does little to advance the creation of optimal class actions, and that it may do some harm to achieving that goal. The Article then proposes an alternative "nudge" to induce putative class counsel to structure class actions in an optimal way: setting attorneys' fees so that counsel is compensated through a combination of an hourly market rate and a percentage of the net recovery to the class itself. The Article demonstrates that this approach to attorneys' fees aligns the interests of the class in maximizing its recovery, class counsel in obtaining a profitable and reasonable fee, and society in certifying the class action with the greatest expected net benefit. This approach also eliminates many of the agency-cost problems associated with class counsel failing to attend to the interests of the class. Finally, this approach eliminates most of the incentive for class counsel to seek cy pres relief, although in some cases cy pres relief may yet be appropriate. [ABSTRACT FROM AUTHOR]

One of Professor Redish's many important contributions to legal scholarship is his recent work on class actions. Grounding his argument in the theory of democratic accountability that has been at the centerpiece of all his work, Professor Redish suggests that, in nearly all instances, class actions violate the individual autonomy of litigants and should not be used by courts. This Essay begins from the opposite premise: that class actions should be grounded in the notion of social utility rather than autonomy so that class actions should be used whenever they achieve net social gains. This idea of "superiority" presents some difficulties, not the least of which is the capacity of a court to determine whether a class action is indeed superior to other forms of dispute resolution. The Essay proposes a series of presumptions that give effect to superiority and make an inquiry into superiority easier for courts to conduct. When the results obtained by these presumptions are examined, they do not result in the near-absolute position against class actions that Professor Redish favors, but surprising convergences in the autonomy and utility approaches emerge. [ABSTRACT FROM AUTHOR]

This Article addresses an increasingly important question: When, if ever, should foreign citizens be included as members of an American class action? The existing consensus holds that courts should exclude from class membership those foreign citizens whose country does not recognize an American class judgment. Our analysis begins by establishing that this consensus is flawed. Rather, to minimize the costs associated with relitigation in a foreign forum, we must distinguish between foreign claimants who are likely to commence a subsequent foreign proceeding from those who are unlikely to do so; distinguishing between those who come from recognizing and nonrecognizing countries creates needless inefficiency. Using standard tools of economic analysis, we examine the benefits and costs of the consensus rule and compare them to the costs and benefits of other possible rules. In this comparison, the consensus rule tends to perform poorly. As a matter of theory, the most efficient rule for deciding which foreign citizens to include and exclude is evident, but real-world informational constraints frustrate the application of this rule in practice. Because no rule regarding the inclusion and exclusion of foreign citizens is the most efficient in all situations, we propose that courts use rebuttable presumptions: include foreign citizens with claims that are not individually viable and exclude foreign citizens with claims that are viable. [ABSTRACT FROM AUTHOR]

An introduction is presented in which the editor discusses various reports within the issue on topics including the examination of the jurisprudential commitments underlying the Erie doctrine, difficulties of the rule interpretation and statutory in the Erie context, and relationship between concerns for federalism and procedural Erie doctrine.

The article discusses the right of class members to opt out of a class action. It notes that the majority of class actions are opt-out class actions, wherein class members can leave the class and mandatory class actions prevent members from excluding themselves. It states that class actions that mainly seek monetary relief are opt-out class actions, while class actions that mainly seek injunctive relief are mandatory.

A foreword to the December 2008 issue of "Notre Dame Journal of Law, Ethics & Public Policy" is presented.