1. What is the distinction between offensive and defensive nonmutual issue preclusion? Is the Bernard case offensive or defensive?
2. Does the Bernard case fall within the narrow traditional exception to the mutuality requirement for issue preclusion spelled out here?
3. Should it matter under defensive nonmutual issue preclusion whether the precluded party was a plaintiff or a defendant in the earlier suit?
4. Should offensive nonmutual issue preclusion never be allowed? Should it be allowed only when the precluded party was the plaintiff in the original suit?
5. What about the problem of a nonparty holding back (or opting out
of a class action) to wait to see if there is an issue determination
the defendant that he (the nonparty) can use to bind the defendant
issue preclusion? How should this problem be solved?