Cite as: 533 U. S. 1 (2001)
Opinion of O'Connor, J.
Train Dispatchers, 499 U. S. 117, 129-130 (1991); Farmers and Merchants Bank of Monroe v. Federal Reserve Bank of Richmond, 262 U. S. 649, 660 (1923); see generally 11 Wil-liston on Contracts § 30:19 (4th ed. 1999). The basic question before the Court is thus one of "the fair intendment of the contract itself." Virginia v. West Virginia, 238 U. S. 202, 233 (1915). Specifically, the question is whether, at the time the Compact was negotiated and approved, Colorado and Kansas could fairly be said to have intended, or at least to have expected or assumed, that Colorado might be exposing itself to liability for prejudgment interest in the event of the Compact's breach. Cf. id., at 232-236 (awarding interest to Virginia in a suit against West Virginia for breach of a contract to assume "an equitable proportion" of Virginia's interest-bearing public debt upon finding that "there is no escape from the conclusion that there was a contract duty on the part of West Virginia to provide for accruing interest as a part of the equitable proportion assumed").
I fail to see how Colorado and Kansas could have contemplated that prejudgment interest would be awarded. The "venerable . . . rule" at common law was that prejudgment interest was unavailable on claims for unliquidated or, even more significantly, unascertainable damages. Milwaukee v. Cement Div., National Gypsum Co., 515 U. S. 189, 197 (1995). Contrary to the Court's suggestion, see ante, at 9-11, 13-14, that rule had not been abandoned by the period between 1943 and 1949, the years of the Compact's negotiation and ultimate approval by Congress. By that time, the state of the law in general regarding awards of prejudgment interest for unliquidated claims was uncertain at best, as the Court itself recognizes. See ante, at 9-11, and n. 3; cf. ante, at 13-14; see also Funkhouser v. J. B. Preston Co., 290 U. S. 163, 168 (1933) (noting "the numerous, and not harmonious, decisions upon the allowance of interest in the case of unliquidated claims," and that "the rule with respect to unliqui-dated claims has been in evolution"). To be sure, we had by
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