Barnes v. Gorman, 536 U.S. 181, 8 (2002)

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188

BARNES v. GORMAN

Opinion of the Court

pp. 192-201 (2d ed. 1998); Restatement (Second) of Contracts 355; 1 T. Sedgwick, Measure of Damages 370 (8th ed. 1891).

Nor (if such an interpretive technique were available) could an implied punitive damages provision reasonably be found in Title VI. Some authorities say that reasonably implied contractual terms are those that the parties would have agreed to if they had adverted to the matters in question. See 2 Farnsworth, supra, 7.16, at 335, and authorities cited. More recent commentary suggests that reasonably implied contractual terms are simply those that "compor[t] with community standards of fairness," Restatement (Second) of Contracts, supra, 204, Comment d; see also 2 Farnsworth, supra, 7.16, at 334-336. Neither approach would support the implication here of a remedy that is not normally available for contract actions and that is of indeterminate magnitude. We have acknowledged that compensatory damages alone "might well exceed a recipient's level of federal funding," Gebser, supra, at 290; punitive damages on top of that could well be disastrous. Not only is it doubtful that funding recipients would have agreed to exposure to such unorthodox and indeterminate liability; it is doubtful whether they would even have accepted the funding if punitive damages liability was a required condition. "Without doubt, the scope of potential damages liability is one of the most significant factors a school would consider in deciding whether to receive federal funds." Davis, supra, at 656 (Kennedy, J., dissenting). And for the same reason of unusual and disproportionate exposure, it can hardly be said that community standards of fairness support such an implication. In sum, it must be concluded that Title VI funding recipients have not, merely by accepting funds, implicitly consented to liability for punitive damages.2

2 We cannot understand Justice Stevens' Chicken-Little statement that today's decision "has potentially far-reaching consequences that go well beyond the issues briefed and argued in this case." Post, at 192-193. Our decision merely applies a principle expressed and applied many times

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