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In a little-remarked Supreme Court decision last week, Chief Justice John Roberts and Associate Justice Stephen G. Breyer stage a “battle of the dueling contracts treatises.” Cummings v. Premier Rehab Keller, 20-219 (04/28/2022).
The case involved discrimination claims, specifically whether emotional distress damages were recoverable in a private action to enforce either the Rehabilitation Act of 1973 (29 U. S. C. §794(a)), or the Affordable Care Act (42 U. S. C. §18116). Because of some arcane precedents that aren’t relevant to this post, the Supreme Court used a contract-analysis to decide the case—and in doing so, dug deep into some well-known (and possibly dusty) contracts treatises.
Chief Justice Roberts delivered the opinion with his judging blow that it “is hornbook law that “emotional distress is generally not compensable in contract” (p.7), citing D. Laycock & R. Hasen, Modern American Remedies (5th ed. 2019). He bolstered this with cites to W. Jaeger, Williston on Contracts (3d ed. 1968); E. Farnsworth, Contracts (1982); J. Perillo, Calamari & Perillo on Contracts (6th ed. 2009); and the very old-school C. McCormick, Law of Damages (1935).
In pages 3-5 of his dissent, Breyer came back with jabbing cites to the Restatement (Second) of Contracts §347; a newer edition of 3 E. Farnsworth, Contracts §12.8, p. 188 (2d ed. 1998); an older S. Williston, Law of Contracts (1920); different sections of C. McCormick, Law of Damages (1935); and two 19th c. treatises: J. Sutherland, Law of Damages (1883) and T. Sedgwick, Measure of Damages (8th ed. 1891).
Justice Roberts won this battle but my hat is off to the Supreme Court librarians who assembled this impressive stack of tomes.
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