1. What does she think of Lon L. Fuller’s “The Forms and Limits of Adjudication”? Has she read it?
2. Does she have an understanding of comparative procedural systems in practice? For instance, what does she think of Mary Ann Glendon’s analysis of foreign legal systems in “Comparative Legal Traditions”?
3. What does she think of using preclusion rules as an alternative way to overcome joinder complexity? In particular, what does she think of Justice Rehnquist’s dissent in Parklane Hoisery Co. v. Shore?
4. How does the Due Process Clause figure in precluding persons that did not participate in a prior case? In particular, what is her opinion of Richards v. Jefferson County, Alabama, a SCOTUS case?
5. What does she think of preclusion after notice and opportunity to intervene, particularly in the context of reverse discrimination suits where consent decrees have already been entered? For example, Martin v. Wilks, another SCOTUS case? What is her opinion about Congress’ response to this case, with 42 U.S.C. sec. 2000e-2(n)?
6. What is her opinion of the Eleventh Amendment jurisprudence we have thus far? Does the text govern? How do we reconcile the text of the Eleventh Amendment and the subsequent jurisprudence? What is her opinion of the diverging approaches of doing so?
7. Is she concerned about the limitations on aggregation imposed by territorial jurisdiction? How, in her opinion, does this play into asbestos litigation? Does she have an opinion of In re Asbestos Litigation?
8. Does Strawbridge v. Curtiss announce a constitutional rule, or is the diversity required for diversity jurisdiction by the constitution broader or narrower than what is promulgated by that case?
9. When is it appropriate for judges to use the All Writs Act? Was the Terri Schiavo case an example?
10. Is compulsory consolidation in bakruptcy cases fair to litigants? Why or why not? Do litigants have a constitutional right to be masters of their own complaints?
11. What are relevant policy concerns of class actions? Discuss Hansberry v. Lee and In the Matter of Rhone-Poulenc Rorer Inc. In particular, is Judge Posner wrong? Why or why not?
12. Are there constitutional or jurisdictional limits on mandatory class actions? If they exist, how do they play into the case of In re Federal Skywalk Class? Was the outcome of that case justified? Why or why not? What conceptual framework would you use to decide that case today?
13. What is federal common law? How is it different from general common law in federal courts? Discuss In re Agent Orange.
14. You are on record as opposing judicial activism. Which judge is more activist in your view: Jack B. Weinstein or Edward Becker?
15. What is the proper use of a court’s remedial powers? Discuss Missouri v. Jenkins. In addition, what is the rightful position, and what are some common critiques of this analytical tool?
16. How much power should magistrate judges have in complex antitrust cases? How could overpowering magistrate judges possibly conflict with the guarantees of the 7th Amendment?
17. You have experience with antitrust law. Do you agree with the result in Topco? What could possibly be wrong with it?

Typically, a nominee is as cooperative as she believes necessary to ensure her confimation. If the President comes to realize that more openness will make the difference between confirmation and rejection, he will waive the privilege. As of now, the Chattering Class still believes Miers will be confirmed, if only barely, so there is no reason for the President to do so.

It is, of course, quite possible that a waiver would do Miers no good. Presidents receive a lot of advice that they do not heed, and it might be rather awkward if the public knew all of the ideas that are batted around in the White House, and ultimately not adopted as policy, particularly if Miers is the source of those ideas.

As of 9:50, David Frum’s petition asking President Bush to withdraw Harriet Miers had 5741 signatures.  If you haven’t signed …