I. Introduction Hypothetical Rule 1. Scope and Purpose of Rules These rules govern the procedure in the United States district courts in all suits of a civil nature whether cognizable as cases at law or in equity or in admiralty, with the exceptions stated in Rule 81. Except to the extent otherwise stipulated or directed by order or local rule, they shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.     This Article examines a much exploited aspect of Rule 26: n1 Its explicit authorization for both federal district courts and practitioners to abrogate its provisions either wholesale by local rule or on a case by case basis. n2 While this aspect of Rule 26 bears some resemblance to other Rules, n3 it is unprecedented in authorizing each federal district court to excuse all attorneys within the court's jurisdiction from many of the obligations Rule 26 imposes, particularly that of mandatory early disclosure. n4     Historically, a set of uncontroversial principles guiding procedural decisionmaking would certainly have included the goal of uniformity in national procedure. n5 While many recent articles demonstrate the gap between uniformity as a goal and a practice, n6 I nevertheless find startling the explicit rejection of the uniformity principle in the text of a civil rule regulating lawyers' work. I find this abandonment especially surprising with respect to Rule 26(a)(1) because it suggests a lack of commitment by the Advisory Committee to a controversial rule and because it represents starkly the lack of consensus about even the most fundamental aims of our procedural system. n7     In this Article, I examine the Advisory Committee's justification for allowing local courts to reject a national procedural rule. Although I acknowledge the validity of some of the Committee's concerns, I recommend a more cautious and nationally uniform solution. We need a deeper understanding of when, if ever, such "local option rules" are appropriate and what we can expect them to accomplish. Ultimately, we can only achieve this understanding by acquiring a coherent vision of the goals of our national procedural system. II. Advisory Committee Justification for Optional Rules    The Advisory Committee's Notes advance a number of explanations for allowing local courts to "exempt all or particular types of cases from these disclosure requirements or to modify the nature of the information to be disclosed." n8    First, the Advisory Committee suggests that mandatory disclosure might be inefficient in particular categories of cases. n9 Thus, it invites courts to identify classes of cases "in which discovery would not be appropriate or would be unlikely." n10 The Committee points to social security review and government collection cases as examples of these classes of cases. n11    The suggestion that courts can locally identify categories of cases for which abbreviated procedures suffice is not unique to Rule 26. For example, Rule 16(b) allows local courts to identify case categories for exemption from the scheduling order requirement, n12 just as Rule 26 permits local courts to identify categories of cases in which the cost of compliance with an across the board disclosure requirement would outweigh the benefits. n13     The decision to leave the selection of case categories to local courts is "a curious provision" n14 in light of both past experiences with Rule 16(b) and the differences between management and discovery. After examining local rules that exempt case categories under Rule 16(b), I am unconvinced that local identification of categories under that Rule is necessary. Most courts agree about exempted case categories under Rule 16(b) n15 and the exceptions to this consensus are not obvious candidates for exclusion under the Advisory Committee's rationale of exempting cases based on simplicity of issues. n16 Nor do all courts share the Advisory Committee's reasoning for exclusion. For instance, one court implemented broad rules that categorically exclude complex cases. n17    Experience under Rule 16 suggests two lessons for Rule 26. First, even with some guidance on operative principles for exclusion under Rule 16(b), courts can make idiosyncratic choices that may well reduce the usefulness of the Rule. Thus, the bare bones cost benefit analysis suggested in the Advisory Committee's Notes to Rule 26 is unlikely to ensure that local courts will be able to identify those categories of cases if they exist that do not require discovery. n18 Second, the consensus that eventually developed under Rule 16(b) suggests that the Committee itself could identify categories for exclusion on a principled basis rather than leaving category selection to the individual court. If the Committee's understanding of the needs of Social Security cases leads it to believe those cases should be excluded from mandatory disclosure requirements, as suggested in the Notes, n19 why should it make any difference whether the case is filed in Maryland or in Georgia? Facing this issue at the national level, rather than leaving it to local courts, would increase the likelihood that the problems of cost and delay that the Rule was intended to alleviate would be addressed in a coherent fashion by a group with the broad perspective and the resources to determine prudently which kinds of cases would not benefit from early disclosure. It is unclear how local courts are supposed to identify these categories, or why they should be required to do so. n20    My skepticism regarding local courts' ability to make these determinations on a consistent basis is compounded by the differences between discovery and scheduling. Discovery, and mandatory disclosure in particular, differs from scheduling in its greater potential to impose costs on litigants. It is disturbing that local courts must identify categories of litigants who will be spared these potential costs with no more guidance than a statement about cost benefit calculations. n21 Mandatory disclosure may decrease costs, as its proponents hope, n22 or it may increase costs, as its critics fear. n23 But I see no basis for allowing local autonomy on the question of which categories of litigants will ultimately discover the truth. n24    The complexity of the case also affects discovery differently than it affects scheduling. The Advisory Committee's Notes to Rule 26(a)(1) suggest that in permitting local courts to identify categories for exclusion the Committee was again considering only the simple case. n25 So while the disclosure requirements seem tailored for the simple case, critics claim that the requirements are the most problematic in the complex case. n26 Yet one court attempting to identify case categories did so for inclusion in disclosure requirements rather than exclusion; that court chose medical malpractice, personal injury, employment discrimination, and civil RICO n27 claims, n28 all of which can be quite complex.    In addition to allowing courts to excuse categories of cases from mandatory disclosure, Rule 26 permits courts to reject the disclosure requirements altogether. n29 The Committee justifies this provision by noting the need to accommodate different disclosure requirements adopted by some courts as part of their Civil Justice Expense and Delay Reduction Plans n30 under the Civil Justice Reform Act (CJRA). n31 The exemption is ironic, for while many courts adopted disclosure provisions in their Plans, the majority modeled their provisions after a version of the disclosure requirement that was advanced, and later rejected, by the Advisory Committee. n32 Thus, the exemption exists to protect courts that adopted a provision that the Committee itself rejected.    However, it is not obvious that the CJRA ever authorized courts to adopt mandatory disclosure provisions. That statute authorizes "encouraging cost effective discovery through voluntary exchange of information among litigants and their attorneys and through the use of cooperative discovery devices." n33 To consider this language authority to create mandatory discovery devices conflicts with the statute's language, which encourages voluntary efforts. n34 I have argued elsewhere that the CJRA was generally not intended to supersede the Federal Rules of Civil Procedure and that mandatory disclosure is a dramatic departure from the Rules' previous structure of attorney initiated discovery. n35 Thus, I do not believe that the accommodation in Rule 26(a)(1) was required. n36     Be that as it may, the Advisory Committee does not limit its permission to abrogate Rule 26(a)(1) to districts with alternative disclosure requirements in place under the CJRA; n37 furthermore, the power to "opt out" of the mandatory disclosure provisions has not been used only by those districts. n38 The Committee advances no explanation for allowing courts without alternative provisions to reject the Rule. n39 Courts are presumably free to reject Rule 26 for any reason at all.    Providing local courts with independence on the issue of compliance with mandatory disclosure raises serious problems of fairness and administration. District wide exemptions allow litigation advantages and costs to be unevenly distributed based solely on where filing is available in any given case. While it is certainly true that there are always advantages to filing or defending a lawsuit in one place rather than another, one goal of the federal procedural system ought to be to eliminate regional procedural differences as sources of strategic advantage. Moreover, attorney uncertainty about responsibilities under this decentralized system has never been higher. n40 Different districts within the same state follow different rules on basic discovery obligations, n41 and variants often trivial variants of the disclosure requirements abound. n42 Within this confusing patchwork, sanctions for failure to comply with disclosure obligations are quite stiff and include such measures as the suppression of evidence. n43    Thus, whether one agrees or disagrees with the wisdom of mandatory disclosure, there is little systemic benefit to be gained by allowing local decisions about whether to require compliance with Rule 26. Local independence increases uncertainty and creates opportunities for procedural gamesmanship without providing corresponding benefits for the goal of deciding cases on their merits. III. When Are Local Options Appropriate?    Given the attention focused on discouraging local deviations from the Federal Rules of Civil Procedure in the last ten years, n44 and given the problems with the procedural variations spawned by Rule 26, is it ever appropriate to permit local courts to abrogate a national procedural rule?    Advocates for uniform procedure argue that a unified system decreases litigation costs and improves access to courts by allowing attorneys to master one body of procedural law. Uniformity also reduces surprise and encourages deciding cases on their merits. n45 As a general matter, it is difficult to argue that the advocates of such a position are wrong. Moreover, most procedural rules implement value choices of consequence to the participants in a lawsuit; witness the tremendous battle regarding mandatory disclosure, fought over disagreements about the nature of a lawyer's duty to her client, the amount of "adversariness" that is optimal in our system, and the best way to uncover the truth in a contested matter. n46    Therefore, answering the question of whether local option rules are justified requires a sensitive evaluation of the underpinnings and goals of a particular rule in the context of the system in which it appears. We need to explore aspects of the system that might result in defensible justifications for local variation, such as whether differences in geography or conditions of court congestion should affect a rule's application. n47 Furthermore, we must explore suggestions that some procedural issues that are currently viewed as systemic problems may actually be limited to certain areas or linked to local legal cultures in ways that might justify local variations. n48 Additionally, if we delegate procedural decisionmaking to local rules groups, we need to consider their composition and incentives. n49    We also need to secure a clear grasp of what we will achieve through local variation within a given rule. Beyond protecting existing variation, for instance, it is difficult to see what purposes were served by allowing local courts to reject Rule 26(a)(1). The Committee's rationale for the Rule decreasing costs and improving the exchange of information with the goal of simplifying the process of achieving just results militates against making Rule 26 a candidate for local rejection. If the Committee believes that these benefits will follow from mandatory disclosure, why should they be withheld from litigants in many parts of the federal system simply because some judges and local rules committees disagree with that judgment? IV. Conclusion    Perhaps the goal of national uniformity has become so compromised that its continued pursuit is pragmatically unsound. If that is the case, however, we must proceed carefully to ensure that permission to create local procedures does not become transformed into a license for local compromising of important procedural values. If the rulemakers fail to adequately consider the Rules' underlying context and values, the hypothetical rule with which I began this Article may become a reality.