434
Breyer, J., dissenting
verse, this "no causation" holding. The Court, in today's opinion, does not discuss that holding. Instead it holds that the companies will not be able to prove the existence of the implicit promises. In my view, however, the record before us now does not permit this latter holding. Rather, this Court should reverse the Court of Appeals' "no causation" holding and then remand this case for further proceedings.
I need mention only one fatal flaw in the Court of Appeals' "no causation" holding, that of hindsight. The Court of Appeals, in essence, found the companies' Agent Orange settlement so obviously unnecessary, so abnormal, so far removed from ordinary litigation behavior, that it could not have been "foreseeable," see Restatement (Second) of Contracts § 351; 5 Corbin, Contracts § 1002, or (if I recast the same point in the Court's tort-like "causation" language) that it cut the causal link between promise breach and harm. But, viewed without the benefit of legal hindsight, the settlement was neither unforeseeable nor was it an intervening "cause" of the loss.
In 1984, when the companies settled, the settlement was not notably different in terms of reasonableness or motivation from other settlements that terminate major litigation, for at that time the law that might have provided the companies with a defense was far less clear than it is today. I concede that even then some Circuits already had found in the law a "government contractor defense" that, in effect, immunized defense contractors from most suits by servicemen claiming injury from defective products. See McKay v. Rockwell International Corp., 704 F. 2d 444, 448-451 (CA9 1983), cert. denied, 464 U. S. 1043 (1984); Brown v. Caterpillar Tractor Co., 696 F. 2d 246, 249-254 (CA3 1982); Tillett v. J. I. Case Co., 756 F. 2d 591, 599-600 (CA7 1985). But, most of these Circuits had held that the existence of such a defense was a matter of state law, which might differ among the States. See Brown, supra; Tillett, supra; Hansen v. Johns-Manville Products Corp., 734 F. 2d 1036, 1044-1045 (CA5
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