The Supreme Court of the United States released its decision yesterday in Kansas v. Nebraska:
The Court has original jurisdiction in disputes between States, and this one is a kind of contract law dispute regarding water access. The majority upholds the report of a Special Master, who ordered that Nebraska pay damages to Kansas and also that Nebraska
disgorge $1.8 million in wrongful gains. This award was based on §39 of the Restatement (3d) of Restitution and Unjust Enrichment. The majority holds that the article applies not only to deliberate breaches that create a profit, but also to those cases in
which the defendant knowingly exposes the plaintiff to a substantial risk of breach (relying in part on comment f to §39).
The dissenters hold that §39 can only reach to deliberate breach, which the Master found did not occur here.
In a one-page judgment, Scalia J. joins the dissent and also notes that "modern Restatements…are of questionable value, and must be used with caution" on the basis that "it cannot safely be assumed, without further inquiry, that a Restatement provision
describes rather than revises current law."
This strikes me as a somewhat unsophisticated view of the nature of the Restatement enterprise (whether "modern" or "original"), or indeed of any attempt to "describe" the common law.
Lionel
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