Oubre v. Entergy Operations Inc. Page 24

Oubre v. Entergy Operations Inc. general information

Media for Oubre v. Entergy Operations Inc.

Audio Transcription for Oral Argument - November 12, 1997 in Oubre v. Entergy Operations Inc.

David H. Souter:

At the remedy stage, the Federal court does have fairly broad powers to craft a remedy without any violation of Erie, and therefore solve both the problem of state variation and the tender-back problem by saying it's going to be a remedial issue here.

What's wrong with that?

Carter G. Phillips:

What's wrong with that is, that's not the scheme Congress adopted.

William H. Rehnquist:

Well, it's also, what if the plaintiff loses the suit?

Carter G. Phillips:

That's the other side of it.

You may never get anything back.

But the bottom line is that the tender-back rule is not a remedial rule.

It is a rule that serves the ends of justice and fairness, but it does so substantively.

It is a fundamental principle of contract law, it creates an independently recognized right, it is enforceable independently, and it is that right which she forfeited and which justifies the dismissal of her claim, and why the judgment of the Fifth Circuit should be affirmed.

If there are no other questions I'll yield back my time.

William H. Rehnquist:

Thank you, Mr. Phillips.

The case is submitted.