Opting Out of Discovery.

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.