Savannah Law School Professor Caprice Roberts was cited by two Supreme Court Justices in Kansas v. Nebraska, a fight about interstate river water, for accurately predicting innovation in the law of contract remedies.
On February 24, 2015, the Supreme Court issued its opinion in Kansas v. Nebraska, 574 U.S. __ (2015). The case essentially involved a breach of contract between two states over a compact, and related settlement agreement, governing interstate water rights. Such disputes between states represent a rare example of original jurisdiction in which the Supreme Court acts as the trial court rather than the appellate court.
Pursuant to the Court’s broad equitable power to deter opportunism, it ordered Nebraska to disgorge $1.8 million in wrongful gains for knowingly exposing Kansas to a substantial risk of breach of their agreement. The dissenters oppose the disgorgement remedy as unfounded in traditional contract law and unjustified given the lack of a finding of deliberate breach on Nebraska’s part.
In a separate opinion, Justice Thomas cited Professor Roberts for correctly predicting that courts would use the Restatement (Third) of Restitution disgorgement remedy to expand conventional contract doctrine. Justices Scalia and Alito joined the portion of the opinion adopting Professor Roberts’s observations. In another separate opinion, Justice Scalia also quoted Professor Roberts to characterize the majority’s use of the Restatement as a “novel extension” of the law.
In the article cited, Restitutionary Disgorgement for Opportunistic Breach of Contract and Mitigation of Damages, 42 Loy. L.a. L. Rev. 131 (2008), Professor Roberts argues that disgorgement remedies would foster an environment in which actors operate conscientiously to mitigate avoidable consequences. As such, her article advocated for an approach similar to the majority in Kansas v. Nebraska, but Justices Thomas and Scalia accurately quote her for the proposition that it would be a new development in, rather than a restatement of, existing contract law.
Professor Roberts is a national expert in Remedies and an elected member of the American Law Institute. She has coauthored casebooks in Remedies and Federal Courts and is currently revising the third edition of the leading Remedies treatise, Dobbs and Roberts, Law of Remedies.
Citation to Professor Roberts is on page 8 of Justice Thomas’s dissent and referenced on page 1 of Justice Scalia’s opinion.
Professor Roberts’s cited article.
Her body of articles may be found here.