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Opinion of O'Connor, J.
would think that, particularly in such circumstances, even the most rudimentary conception of fairness would dictate that the Court ought not to interpret a contract between two States as exposing one of them to liability under a novel legal principle some 50 years later without some indication that the States might have contemplated such exposure in conjunction with the contractual rights and duties expressed in their compact. Contrary to the Court's apparent belief, see ante, at 11-12, n. 4, nothing about such a contextualized historical approach would create an across-the-board incentive for the continued breach of interstate compacts entered into before 1987, especially given the prospect of large and uncertain damages awards. Had Kansas and Colorado anticipated or even suspected what the Court today effects, they almost certainly would have negotiated a provision in the Compact to address the situation. States in the future very likely will do so in the wake of the Court's decision, which creates a very different backdrop from the one against which Kansas and Colorado operated. In the absence of such a provision, however, "the loss [as to interest] should remain where it has fallen." Board of Comm'rs of Jackson Cty., supra, at 353; see Third Report § XI, at 101 ("Prejudgment interest here neither takes from those who benefitted, nor goes to those who were injured").
For the foregoing reasons, I respectfully dissent from the Court's award of prejudgment interest.
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