Musings on Torture and the Saving of Lives

1465e9731e43ae5aI was interested in Lisa LaPlante’s post on torture. It came hard upon my attendance at a conference on Christian Realism in which the matter of hard choices got quite the attention. My comment got so long that I’ve decided to make it a post. I offer it here in the interest of stirring up some controversy to wake us from the haze of our tryptophan coma.

Lisa, commenting on the recent film Men Who Stare At Goats, asks if we are Cassidy or Hooper? I haven’t seen the movie, but the question strikes me as too simple. We are  both and perhaps we should be.

Continue ReadingMusings on Torture and the Saving of Lives

Seventh Circuit Criminal Case of the Week: More on Other Bad Acts Evidence

seventh-circuit5The Seventh Circuit had only one new opinion in a criminal case this week, and it is not one in which the court broke new legal ground.  In United States v. Harris (No. 07-4017) (Williams, J.), the court affirmed the defendant’s convictions for drug trafficking and unlawful gun possession.  The defendant raised various evidentiary objections on appeal, including a challenge to the use of other bad acts evidence against him.  Specifically, the government introduced evidence of prior drug sales perpetrated by Harris in order to show that he intended to distribute the drugs he was charged with possessing.

Litigation over other bad acts seems a routine feature of appeals in drug-trafficking cases.  As I suggested in this earlier post, it strikes me that the Seventh Circuit has pretty well interpreted the Rule 404(b) restrictions on evidence of other bad acts out of existence, at least in drug cases.  Although not as broadly worded as some other opinions, nothing in Harris seems inconsistent with the view that drug defendants are unlikely to find success with their Rule 404(b) arguments on appeal.

Continue ReadingSeventh Circuit Criminal Case of the Week: More on Other Bad Acts Evidence

Open Quantity Contracts: Beyond Good Faith

Business concerns sometimes enter into sales agreements that do not specify a particular quantity to be sold.  This might be helpful, for instance, if a manufacturer would like to secure a commitment from a supplier to meet the manufacturer’s needs, but it is not certain what the needs will be.  These business relationships do not always work out over the long term, however, and litigation often results.  In these cases, courts have struggled to establish clear, consistent standards with respect to the validity and terms of open quantity contracts.  Many of these cases turn on the application of amorphous “good faith” standards, raising concerns about unpredictability and the possibility that the courts are effectively imposing requirements on the parties that they never actually contemplated. 

Bravely seeking to bring some coherence and clarity to this difficult area of the law, Shelley Smith has a helpful new article on SSRN entitled “A New Approach to the Identification and Enforcement of Open Quantity Contracts: Reforming the Law of Exclusivity and Good Faith.”  She describes her three-part reform agenda as follows: 

Continue ReadingOpen Quantity Contracts: Beyond Good Faith