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This article examines proposals to reduce the cost of American discovery. It focuses on recent proposals and rules amendments to shift the entire cost of discovery to the party requesting discovery and then examines the idea of mandatorily shifting discovery costs in all cases. The article identifies a number of potential flaws with mandatory cost shifting. It then evaluates several proposals that might achieve the same end with fewer side effects, finding that two of them deserve consideration and, ideally, real-world experimentation. [ABSTRACT FROM AUTHOR]

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]

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]

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.

The article focuses on the principle of adequate representation. It explores class actions and adequate representation within the pattern of U.S. adversarialism. It argues that representation by class representatives is adequate if and only if the representation puts class members in a better position that if they had engaged in individual litigation. It attempts to respond to oppositions against such an argument and explains how such hypothesis averts any tension between the use of class treatment and the demands of adequate representation.