Jay Tidmarsh (Notre Dame Law School) has posted Opting Out of Discovery (72 Vanderbilt Law Review, Forthcoming) on SSRN. Here is the abstract:
This Article proposes a system in which both parties are provided an opportunity to opt out of the discovery system. 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 chooses to opt out of discovery, they 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. The Article justifies this proposal in both historical and efficiency terms, and concludes by considering objections to the proposal.
Recommended.