Green Plains Trade Group v. Archer Daniels Midland Co.

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
GREEN PLAINS TRADE GROUP v. ARCHER DANIELS MIDLAND CO.
Cite as 320 Neb. 882
Green Plains Trade Group LLC et al., plaintiffs, v.
Archer Daniels Midland Company, defendant.
___ N.W.3d ___
Filed February 27, 2026. 	No. S-25-127.
1. Torts: Intent: Proof. One of the basic elements of tortious interference
with a business relationship is an intentional act which induces or causes
a breach or termination of the relationship.
2. Constitutional Law: Courts. Article I, § 13, of the Nebraska
Constitution does not create any new rights, but is merely a declaration
of a general fundamental principle. It is a primary duty of the courts to
safeguard this declaration of right and remedy, but where no right of
action is given or remedy exists under either the common law or some
statute, this constitutional provision creates none.
3. Statutes: Legislature: Public Policy. It is the function of the Legislature,
through the enactment of statutes, to declare what is the law and public
policy of the state.
Original action. Judgment entered.
David A. Domina, of Domina Law Group, P.C., L.L.O., and
John E. Tangren, Adam J. Levitt, Adam Prom, and Greg G.
Gutzler, of Dicello Levitt, L.L.P., for plaintiffs.
Maggie L. Ebert and John P. Passarelli, of Kutak Rock,
L.L.P., Scott P. Glauberman, Stephen V. D’Amore, Linda
T. Coberly, Samantha M. Lerner, and Michael J. Stepek, of
Winston & Strawn, L.L.P., for defendant.
Funke, C.J., Cassel, Stacy, Papik, Freudenberg, and
Bergevin, JJ., and Alioth, District Judge.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:53 AM CDT

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
GREEN PLAINS TRADE GROUP v. ARCHER DANIELS MIDLAND CO.
Cite as 320 Neb. 882
Papik, J.
An Illinois federal court has asked whether this court would
recognize a claim under § 766A of the Restatement (Second)
of Torts (1979) (§ 766A). For reasons we will explain, we
would not.
I. BACKGROUND
1. Claim Based on § 766A
This case comes to us through a certified question from the
U.S. District Court for the Central District of Illinois. A law-
suit between two ethanol producers, Green Plains Trade Group
LLC (Green Plains) and Archer Daniels Midland Company
(ADM), is currently pending in that court. Green Plains, head-
quartered in Nebraska, alleges that ADM, headquartered in
Illinois, engaged in tortious interference with contract under
Nebraska law.
Central to Green Plains’ lawsuit is what is known as the
Chicago Benchmark Price for ethanol. According to Green
Plains, the Chicago Benchmark Price is the key indicator of
the value of ethanol and is used as a reference price in many
ethanol sales contracts throughout the industry. The Chicago
Benchmark Price is promulgated by a pricing service and is
based on the quantity and price of ethanol sold at a specific
terminal in Argo, Illinois, during a certain window of time
each day.
Green Plains claims that ADM took actions to intention-
ally drive down the Chicago Benchmark Price. Green Plains
asserts that ADM did so by strategically timing large deliver-
ies to the Argo terminal, as well as large below-market sales
at that location.
According to Green Plains, ADM’s actions resulted in addi-
tional profits for ADM and reduced profits for Green Plains
and other ethanol producers. Green Plains claims that because
it entered sales contracts based on the Chicago Benchmark
Price, ADM’s actions resulted in Green Plains receiving less
money for its sales contracts than it otherwise would have

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
GREEN PLAINS TRADE GROUP v. ARCHER DANIELS MIDLAND CO.
Cite as 320 Neb. 882
received. And, Green Plains alleges, ADM not only protected
itself from the decrease in the Chicago Benchmark Price, but
profited from it because ADM had acquired derivative con-
tracts that became more valuable if the Chicago Benchmark
Price went down.
In its complaint in federal court, Green Plains alleged that
ADM’s conduct amounted to a form of tortious interference
with contract, recognized in § 766A.
2. Dismissal of Complaint by Illinois
Federal District Court
ADM filed a motion to dismiss in the Illinois federal district
court. It contended that Green Plains’ complaint should be dis-
missed for multiple reasons, one of which was that the theory
of tortious interference described in § 766A had never been
adopted or recognized under Nebraska law.
The Illinois federal district court granted ADM’s motion
to dismiss. See Green Plains Trade Group v. Archer Daniels
Midland, 648 F. Supp. 3d 1028 (C.D. Ill. 2022), vacated and
remanded 90 F.4th 919 (7th Cir. 2024). The federal district
court discussed prior decisions from this court that cited
§ 766A—Recio v. Evers, 278 Neb. 405, 771 N.W.2d 121
(2009), and Pettit v. Paxton, 255 Neb. 279, 583 N.W.2d 604
(1998)—but concluded that in those cases, this court neither
recognized § 766A as a valid basis for a tortious interference
claim under Nebraska law nor “rejected that section out of
hand.” Green Plains Trade Group v. Archer Daniels Midland,
648 F. Supp. 3d at 1036.
In the absence of a decision from a Nebraska appellate
court expressly recognizing § 766A as a valid cause of action
under 	Nebraska 	law, 	the 	federal 	district 	court 	concluded
that it was obligated to “choose the narrower interpretation
that restricts liability.” Green Plains Trade Group v. Archer
Daniels Midland, 648 F. Supp. 3d at 1037. Accordingly, the
court “decline[d] to find that Nebraska common law recog-
nizes tortious interference with contract claims as formulated

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
GREEN PLAINS TRADE GROUP v. ARCHER DANIELS MIDLAND CO.
Cite as 320 Neb. 882
under § 766A.” Green Plains Trade Group v. Archer Daniels
Midland, 648 F. Supp. 3d at 1038.
3. Seventh Circuit Vacates
Dismissal of Complaint
Green Plains appealed the dismissal of its complaint to the
U.S. Court of Appeals for the Seventh Circuit. The Seventh
Circuit vacated the dismissal and remanded the cause for fur-
ther proceedings. See Green Plains Trade v. Archer Daniels
Midland, 90 F.4th 919 (7th Cir. 2024). The Seventh Circuit
concluded that the federal district court had erred by conclud-
ing that, in the absence of binding authority from this court,
it was obligated to choose an interpretation of state law that
restricted liability. The Seventh Circuit explained that the
district court should have instead made a prediction as to
whether this court would recognize a cause of action premised
on § 766A.
The Seventh Circuit directed the federal district court,
on remand, to predict whether this court would recognize a
cause of action based on § 766A. Alternatively, it “invite[d]
the district court’s attention to the possibility of certifying the
section 766A issue to the Nebraska Supreme Court.” Green
Plains Trade v. Archer Daniels Midland, 90 F.4th at 930.
4. Federal District Court
Certifies Question
After remand, the federal district court followed the Seventh
Circuit’s certification suggestion. It entered an order stating
that because it had determined there was no binding deci-
sion from this court as to whether a cause of action based on
§ 766A was viable under Nebraska law, it would certify a ques-
tion to this court pursuant to Neb. Rev. Stat. § 24-219 (Reissue
2016). The federal district court certified the following ques-
tion: “Would the Nebraska Supreme Court adopt § 766A of
the Restatement (Second) of Torts in cases concerning tortious
interference with a business relationship or expectancy?”

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
GREEN PLAINS TRADE GROUP v. ARCHER DANIELS MIDLAND CO.
Cite as 320 Neb. 882
We entered an order accepting the certified question and
directing the parties to file briefs addressing it. After the ini-
tial briefs were filed, we issued a supplemental briefing order,
which we discuss in more detail in the analysis section below.
II. ANALYSIS
1. Background Regarding Tortious
Interference Claims
Before we directly address the certified question, we believe
it helpful to set forth some background information regarding
claims of tortious interference generally, as well as the spe-
cific theory of tortious interference discussed in § 766A. The
Restatement (Second) of Torts discusses multiple types of
claims of tortious interference, two of which we will mention
here. One type is set forth in Restatement (Second) of Torts
§ 766 (1979) (§ 766), and the other in § 766A. Section 766
at 7 provides:
One 	who 	intentionally 	and 	improperly 	interferes
with the performance of a contract (except a contract to
marry) between another and a third person by inducing
or otherwise causing the third person not to perform
the contract, is subject to liability to the other for the
pecuniary loss resulting to the other from the failure of
the third person to perform the contract.
As the foregoing language indicates, § 766 envisions a
scenario in which a party to a contract is induced by a third
party to breach the contract. Under those circumstances, § 766
would allow the nonbreaching party to sue the third party for
damages caused by the other party’s failure to perform the
contract. There is no dispute in this case that Nebraska law
recognizes such a claim for tortious interference. See, e.g.,
Pettit v. Paxton, 255 Neb. 279, 583 N.W.2d 604 (1998).
What is disputed is whether Nebraska law recognizes a
claim for tortious interference under an alternative scenario
discussed in § 766A. That section provides:

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
GREEN PLAINS TRADE GROUP v. ARCHER DANIELS MIDLAND CO.
Cite as 320 Neb. 882
One 	who 	intentionally 	and 	improperly 	interferes
with the performance of a contract (except a contract to
marry) between another and a third person, by preventing
the other from performing the contract or causing his
performance to be more expensive or burdensome, is
subject to liability to the other for the pecuniary loss
resulting to him.
§ 766A at 17. In this scenario, the question is not whether the
would-be tort-feasor has induced the other party to the con-
tract to breach. It is instead whether the would-be tort-feasor
has, in the words of § 766A, “prevent[ed] the [plaintiff] from
performing the contract” or “caus[ed] [the plaintiff’s] per-
formance to be more expensive or burdensome.”
The theory of liability described in § 766A has not been
uniformly recognized by courts. While some courts have
“expressly approved the Restatement’s rule of liability or
at least assumed or implied that it is acceptable,” others
have rejected it. See Dan B. Dobbs et al., Dobbs’ Law of
Torts § 634 (Apr. 2025 update) (collecting cases). Compare
Allen Family Foods, Inc. v. Capitol Carbonic Corp., No.
N10C-10-313 JRS CCLD, 2011 WL 1205138 (Del. Super.
Mar. 31, 2011) (unpublished opinion) (adopting § 766A), and
Wilspec Tech. v. DunAn Holding Group, 204 P.3d 69 (Okla.
2009) (adopting § 766A), with Gemini Physical Therapy v.
State Farm Mut. Auto., 40 F.3d 63 (3d Cir. 1994) (reject-
ing § 766A), and Price v. Sorrell, 784 P.2d 614 (Wyo. 1989)
(rejecting § 766A).
As we mentioned above, the Illinois federal district court
analyzed our decisions in Recio v. Evers, 278 Neb. 405, 771
N.W.2d 121 (2009), and Pettit, supra, and determined that this
court had neither adopted nor rejected the theory discussed in
§ 766A as a valid basis for tort liability in Nebraska. Before
this court, however, both parties continue to resist that con-
clusion and contend that, in those cases, this court already
resolved the issue of whether § 766A is a basis for liability
under Nebraska law. Green Plains argues that we recognized

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
GREEN PLAINS TRADE GROUP v. ARCHER DANIELS MIDLAND CO.
Cite as 320 Neb. 882
§ 766A as a basis for liability. ADM says we rejected it. We
thus begin our analysis with the parties’ arguments based on
our decisions in Recio and Pettit.
2. This Court Has Not Previously
Recognized or Rejected § 766A
Our decisions in Recio and Pettit referenced § 766A.
Before we discuss those references and the parties’ arguments
based upon them, it is necessary to describe the underly-
ing disputes.
In Pettit, a closely held family corporation wished to
sell a parcel of real estate. The president of the corporation
accepted an offer to purchase the real estate for $550,000,
but, after doing so, continued to solicit other offers. Another
party offered to purchase the real estate for $600,000. Due in
part to a disagreement between the president and her children
as to whether the second offer should be considered, the cor-
poration failed to close the sale by the date specified in the
first purchase agreement. The parties who made the first offer
to purchase the real estate then filed suit, seeking specific
performance of their purchase agreement. Later, the parties
who made the first offer to purchase the real estate reached
a settlement with the corporation whereby they agreed to pay
an additional $50,000 for the corporation to perform under
the purchase agreement. But as one lawsuit ended, another
began. The purchasers of the real estate turned around and
sued the party who made the second offer to purchase, alleg-
ing that his intentional interference with the purchase agree-
ment caused $50,000 in damages. The district court granted
summary judgment to the party who made the second offer
to purchase.
[1] On appeal, we began our analysis of the tortious interfer-
ence claim by observing that, under our precedents, one of the
basic elements of tortious interference with a business relation-
ship is “an intentional act which induces or causes a breach or
termination of the relationship.” Pettit v. Paxton, 255 Neb. 279,

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
GREEN PLAINS TRADE GROUP v. ARCHER DANIELS MIDLAND CO.
Cite as 320 Neb. 882
286, 583 N.W.2d 604, 609 (1998). We then concluded that the
purchasers in Pettit had failed to establish this element, because
the corporation’s failure to close on the closing date was not a
breach of the purchase agreement, as closing occurred within
a reasonable time after the specified date.
The purchasers, however, had argued that breach was not a
required element of a tortious interference claim. They relied
on § 766A in support. We noted this argument and quoted
§ 766A, but then stated that the theory described in § 766A did
not apply to the facts of the case. We explained that in claims
based upon § 766A, the plaintiff alleges that the defendant
interfered with the plaintiff ’s performance of the contract. But
in Pettit, we observed that the plaintiffs were alleging that the
defendants interfered with the corporation. Having found no
breach and rejecting the purchasers’ argument that § 766A fit
the circumstances of the case, we affirmed the district court’s
entry of summary judgment.
Both parties claim Pettit supports their respective positions.
Green Plains points out that we cited and discussed § 766A,
but simply found that it did not apply. Green Plains suggests
that if § 766A were not a part of Nebraska law, we would
have said so, rather than citing and discussing it. ADM, on
the other hand, argues that this court rejected § 766A in Pettit,
because we relied on precedent holding that breach or termi-
nation of a relationship is an essential element of a tortious
interference claim.
In our view, both parties read too much into our decision
in Pettit. Although we cited and discussed § 766A in Pettit,
we did so in the context of addressing an alternative argument
by the purchasers. We found that the purchasers’ theory of
liability did not fit within the parameters of § 766A, but we
did not hold that § 766A was a valid theory of liability under
Nebraska law. We thus reject Green Plains’ argument to the
contrary. But we also disagree with ADM’s argument based
on Pettit. Although we held that the purchasers’ claims failed
because they had not shown a breach of contract, it must be

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
GREEN PLAINS TRADE GROUP v. ARCHER DANIELS MIDLAND CO.
Cite as 320 Neb. 882
recalled that we viewed Pettit as a case arising under § 766,
not § 766A. See Pettit, 255 Neb. at 288, 583 N.W.2d at 610
(“[s]ection 766 applies where, as here, the plaintiff alleges
that the defendant interfered with the third party . . .” (empha-
sis supplied)). Our application of the breach requirement in
a case presenting a § 766 fact pattern sheds no light on the
viability of a claim arising under § 766A. Our decision in
Pettit neither adopted nor rejected § 766A as a basis for liabil-
ity under Nebraska law.
We reach the same conclusion with respect to our decision
in Recio v. Evers, 278 Neb. 405, 771 N.W.2d 121 (2009).
In that case, a professor reported to her university employer
that another professor had sexually harassed her. After an
investigation, the university placed the professor accused of
sexual harassment on probation and directed her to undergo
counseling. That professor responded by suing her accuser for
tortious interference. In describing the complaint on appeal,
we observed that it was not clear whether the plaintiff—the
professor accused of sexual harassment—was alleging that
the defendant—the professor who reported the sexual harass-
ment—had caused the university to breach its contract with
the plaintiff (a § 766 theory) or that the defendant had made
the plaintiff’s performance more difficult (a § 766A theory). We
assumed for purposes of the opinion, however, that the plaintiff
was pursuing a § 766 theory based on contractual breach by
the university. We ultimately affirmed the district court’s entry
of summary judgment in favor of the defendant, concluding
that the plaintiff’s claim failed because any interference with
a business relationship was justified. We also briefly observed,
with citation to § 766A, that to the extent the plaintiff claimed
that the defendant made the plaintiff’s performance of the con-
tract more difficult, that claim would fail because there was no
evidence that the plaintiff suffered any loss from an alleged
inability to perform her contractual duties.
Again, we conclude that our decision in Recio did not
adopt or reject § 766A as a basis for liability under Nebraska

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
GREEN PLAINS TRADE GROUP v. ARCHER DANIELS MIDLAND CO.
Cite as 320 Neb. 882
law. Our decision did not find liability based on § 766A. We
assumed that the plaintiff was pursuing relief under § 766 and,
in the alternative, determined that any claim based on § 766A
would also fail. We are not persuaded by Green Plains’ conten-
tion that citations to Pettit and a case from another jurisdiction
discussing the viability of § 766A claims demonstrate that we
recognized that § 766A was a valid theory of recovery under
Nebraska law.
As the foregoing discussion demonstrates, we reach the same
conclusion as the certifying court: Our precedents have neither
recognized § 766A as a valid basis for a tortious interference
claim under Nebraska law nor “rejected that section out of
hand.” Green Plains Trade Group v. Archer Daniels Midland,
648 F. Supp. 3d 1028, 1036 (C.D. Ill. 2022), vacated and
remanded 90 F.4th 919 (7th Cir. 2024). This conclusion does
not, however, end our analysis. The certifying court has not
asked us merely whether this court has recognized or rejected
§ 766A as a valid basis for a tortious interference claim under
Nebraska law; it has asked us whether we would recognize
§ 766A as a valid basis for a tortious interference claim under
Nebraska law. We proceed to examine that question as an issue
of first impression now.
3. Question of First Impression: Would We
Recognize Claim Under § 766A?
In addition to their arguments based on our precedent, both
parties also make alternative arguments as to why we should or
should not recognize the theory described in § 766A as a mat-
ter of first impression. In their initial briefs before this court,
both parties primarily stacked up decisions of other courts that
have adopted or rejected § 766A as a theory of liability and
made what we understand to be policy arguments as to why
§ 766A should or should not be recognized as a valid theory
of tort recovery. Missing from both parties’ initial briefs was
significant discussion of the historical origins of the theory

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Nebraska Supreme Court Advance Sheets
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GREEN PLAINS TRADE GROUP v. ARCHER DANIELS MIDLAND CO.
Cite as 320 Neb. 882
described in § 766A, particularly whether the theory was rec-
ognized by English common-law courts.
In our view, however, the analysis of whether a tort theory
of liability should be recognized as a matter of first impres-
sion ought to begin with the question of whether the theory
has English common-law origins. We say so because in its
nascency, Nebraska enacted a statute adopting, with some qual-
ifications, the English common law as the law of Nebraska.
In 1866, when Nebraska was still a territory, the Legislature
enacted a statute that provided:
So much of the common law of England as is appli-
cable, and not inconsistent with the constitution of the
United States, with the organic law of this territory, or
with any law passed or to be passed by the legislature of
this territory, is adopted, and declared to be law within
said territory.
Rev. Stat. ch. 7, § 1, p. 31 (1866).
After Nebraska became a state, the references to “territory”
in the statute were changed to “state,” but the rest of the stat-
ute was left in place and remains on the books today. See Neb.
Rev. Stat. § 49-101 (Reissue 2021). This is what is known as
a “reception” statute, which many American states enacted to
recognize the authority of English common law within their
borders in the absence of a binding statutory or constitutional
provision. See Jud Campbell, Determining Rights, 138 Harv. L.
Rev. 921, 941 (2025).
The ramifications of Nebraska’s reception statute are dis-
cussed in more detail later in this opinion. For present pur-
poses, it suffices to say that given Nebraska’s adoption of
English common law via statute, Green Plains would have a
strong case that § 766A is a part of Nebraska’s law if it could
show that theory was recognized by the English common law
at the time the reception statute was enacted.
Based on the foregoing, we directed the parties to submit
supplemental briefs addressing whether the theory described
in § 766A was recognized in the common law of England.

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GREEN PLAINS TRADE GROUP v. ARCHER DANIELS MIDLAND CO.
Cite as 320 Neb. 882
The parties did so. Unsurprisingly, Green Plains argued that
the theory described in § 766A was consistent with English
common-law cases in existence at the time Nebraska’s recep-
tion statute was enacted, and ADM argued otherwise. As we
will explain, we are not persuaded by Green Plains’ argument.
(a) English Common-Law Origins of § 766A?
At the outset, we note that in contending that the the-
ory of liability summarized in § 766A is consistent with
the English common law, Green Plains does not point to
any 	English 	common-law 	decision 	or 	series 	of 	decisions
that expressly recognized that a party was liable for actions
that made another’s performance of a contract more expensive
or more burdensome. Indeed, it appears that there is universal
difficulty in identifying the precise origins of the theory of
liability described in § 766A. Comments to the Restatement
discussing § 766A acknowledged that “[n]o single case has
been identified as constituting the origin of this form of the tort
. . . .” § 766A, comment b. at 18.
Rather than pointing to a specific case recognizing the
theory of liability described in § 766A, Green Plains argues
that the English common law broadly imposed liability on
anyone who harmed others in their pursuit of an enterprise
or occupation and that this broad rule naturally came to be
applied in cases in which a party made another’s performance
of a contract more expensive or burdensome. In support of
its contention that the English common law recognized this
broad rule of liability, Green Plains relies on cases such as
Keeble v. Hickeringill, (1707) 103 Eng. Rep. 1127 (K.B.),
a case in which a landowner was held liable for firing gun-
shots to scare away waterfowl his neighbor had attempted to
attract with decoys, as well as various ancient cases in which
English courts imposed liability on those who prevented third
parties from conducting business with plaintiffs. See, e.g.,
Tarleton v. M’Gawley, (1793) 170 Eng. Rep. 153 (K.B.);
Garret v. Taylor, (1621) 79 Eng. Rep. 485 (K.B.). See, also,

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GREEN PLAINS TRADE GROUP v. ARCHER DANIELS MIDLAND CO.
Cite as 320 Neb. 882
Restatement (Second) of Torts § 766B, comment b. (1979)
(collecting cases).
According to Green Plains, this broad principle later “crys-
tallized into formal recognition of a tort for improper interfer-
ence with contract,” supplemental brief for plaintiff at 8, in the
decision of Lumley v. Gye, (1853) 118 Eng. Rep. 749 (Q.B.)—a
case in which one opera house was found liable for inducing
a singer to breach her exclusive contract with another opera
house. Citing to later American cases, Green Plains claims that
the tort of contractual interference was eventually extended
to cases in which a defendant’s actions rendered a plaintiff’s
performance of a contract more expensive. See, e.g., McNary
v. Chamberlain, 34 Conn. 384 (1867).
Although Green Plains has identified some broad language
in certain English common-law decisions, we are not per-
suaded that those decisions were understood to create the
broad rule of liability for which Green Plains argues. English
courts later clarified, for example, that Keeble did not recog-
nize a broad rule of tort liability, but was instead a nuisance
case based on principles of property law. See Allen v. Flood,
[1898] A.C. 1 (H.L.) 174 (appeal taken from Eng.) (explaining
that Keeble, supra, “was decided on the ground that the act of
the defendant was a wil[l]ful disturbance of the enjoyment by
the plaintiff of his own land for a lawful and profitable pur-
pose, and what is called in law a nuisance”). See, also, All Star
Awards v. HALO Branded Solutions, 642 S.W.3d 281 (Mo.
2022) (recognizing that Allen, supra, characterized Keeble,
supra, as nuisance case).
As for cases cited by Green Plains in which English courts
found parties liable for driving away potential customers of oth-
ers by violence, threats, or vexatious lawsuits, they have been
subsequently understood as recognizing a specific tort referred
to in England today as “unlawful means.” See Secretary of
State for Health v. Servier Laboratories Ltd., [2021] UKSC 24.
The unlawful means tort imposes liability when a defendant
intends to harm the plaintiff by engaging in unlawful acts that

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GREEN PLAINS TRADE GROUP v. ARCHER DANIELS MIDLAND CO.
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affect a third party’s freedom to deal with the plaintiff. See
id. This tort stands in contrast to § 766A, which imposes no
requirement that the defendant’s actions affect a third party’s
freedom to deal with the plaintiff.
Not only do we disagree with Green Plains that the cases it
cites established the broad rule of common liability for which
it argues, we also disagree with its assessment of Lumley,
supra. Lumley did impose liability for interference with a con-
tract, but it was a case in which the defendant induced a third
party to breach its contract with the plaintiff. Lumley thus
recognized the theory of liability that would later be described
in § 766, not § 766A. Moreover, English courts have since
clarified that the tort recognized in Lumley and the unlawful
means tort are separate theories of liability rather than merely
different applications of a single, broad theory of liability. See
Servier Laboratories Ltd., supra.
This brings us finally to Green Plains’ reliance on American
cases with the following fact pattern: a plaintiff has a contract
to maintain a road or bridge, but a third party comes along
and damages the road or bridge in a way that makes the plain-
tiff’s performance of the contract more onerous. See, e.g.,
Cue v. Breeland, 78 Miss. 864, 29 So. 850 (1901); McNary
v. Chamberlain, 34 Conn. 384 (1867). Green Plains contends
that the imposition of liability on the third party in these cases
is consistent with the English cases discussed above and also
demonstrates § 766A’s common-law origins. We again must
disagree. Setting aside the fact that these were American rather
than English decisions, we are persuaded by commentators
who have concluded that these decisions are best understood as
cases in which the plaintiff is subrogated to sue for the trespass
committed against the owner of the bridge or road, rather than
the adoption of a tort with the breadth of § 766A. See, e.g.,
Dan B. Dobbs, Dobbs’ Law of Torts § 634 (Apr. 2025 update)
(setting forth subrogation theory and concluding that McNary,
supra, and Cue, supra, “hardly support[] a general rule of lia-
bility for interfering with the plaintiff’s performance”); Harvey

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GREEN PLAINS TRADE GROUP v. ARCHER DANIELS MIDLAND CO.
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S. Perlman, Interference with Contract and Other Economic
Expectancies: A Clash of Tort and Contract Doctrine, 49
U. Chi. L. Rev. 61, 104, 105 (1982) (concluding that repair
contract “subrogated the plaintiffs to the owners” and that
McNary, supra, and Cue, supra, “announced no new principle
of substantive tort liability”).
In summary, we are not persuaded that the theory of liability
described in § 766A was recognized by the English common
law. We explore the significance of that conclusion in the
remainder of this opinion.
(b) Does Nebraska Constitution Compel
Recognition of § 766A?
Green Plains argues that even if English common law
did not recognize a claim for interference with a plain-
tiff’s performance of a contract, this court can and should
nonetheless recognize § 766A as a viable theory of liability
under Nebraska law. In its supplemental brief, Green Plains
argues that we can depart from the English common law
when required by the state constitution. And, according to
Green Plains, this court should recognize § 766A “to fulfill”
the words of article I, § 13, of the Nebraska Constitution,
which guarantees that “‘every person, for any injury done
him or her . . . , shall have a remedy by due course of law.’”
Supplemental brief for plaintiff at 18.
We agree with Green Plains to the extent it contends that
common-law rules in conflict with the state or federal consti-
tution are not the law in the State of Nebraska. Our reception
statute expressly states that only those parts of the common
law “not inconsistent with the Constitution of the United
States, with the organic law of this state, or with any law
passed or to be passed by the Legislature of this state” are
adopted as law within Nebraska. See § 49-101. Consistent
with that statute, we have previously recognized that common-
law rules must yield to the state constitution. See, e.g., Corona
de Camargo v. Schon, 278 Neb. 1045, 776 N.W.2d 1 (2009);

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Wilfong v. Omaha & C. B. Street R. Co., 129 Neb. 600, 262
N.W. 537 (1935).
[2] We disagree with Green Plains, however, that article I,
§ 13, of the Nebraska Constitution compels the recognition
of § 766A as a viable theory of liability under Nebraska law.
This court has previously held that this constitutional provision
does not create any new rights, but is merely a declaration of
a general fundamental principle. State ex rel. Tyler v. Douglas
Cty. Dist. Ct., 254 Neb. 852, 580 N.W.2d 95 (1998). We have
also said that it is a primary duty of the courts to safeguard
this declaration of right and remedy, but where no right of
action is given or remedy exists under either the common law
or some statute, this constitutional provision creates none. Id.
Accordingly, article I, § 13, of the Nebraska Constitution does
not require the recognition of § 766A.
(c) Green Plains’ Policy Argument
for Recognition of § 766A
In addition to its argument based on article I, § 13, of the
state constitution, we understand Green Plains to argue that this
court can and should recognize § 766A even if we conclude
that it was not recognized in the English common law and even
if we conclude that its recognition is not constitutionally com-
pelled. In essence, we understand Green Plains to argue that
we should recognize § 766A because it would make good tort
policy for the State of Nebraska.
(i) Judicial Caution in Common-Law Innovation
One could perhaps make an argument that a reception statute
like ours compels courts to leave the common law as it existed
at the time of the statute’s adoption, permitting innovations
to the common law to come only via statute or constitutional
amendment. Indeed, at least one state supreme court appears
to have determined its reception statute requires that type of
restraint. See Walmart Stores East, LP v. Leverette, 321 Ga.
854, 917 S.E.2d 702 (2025) (holding Georgia law did not

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permit nontrivial nominal damages award because common
law did not permit such awards and doctrine had not been
modified or displaced by statute).
We, 	however, 	must 	acknowledge 	precedent 	from 	this
court recognizing judicial authority to independently modify
common-law rules. In the early days of the 20th century,
Roscoe Pound wrote as a commissioner for this court that the
reference to the “common law of England” in the precursor to
§ 49-101, see Comp. Stat. ch. 15, § 1 (1881), was not intended
“to petrify the common law, as embodied in judicial decisions
at any one time, and set it up [as an] inflexible form as a rule
of decision.” Williams v. Miles, 68 Neb. 463, 470, 94 N.W.
705, 708 (1903). Instead, it was understood that courts had
the power to modify common-law rules “from time to time as
changed conditions and new states of fact require.” Id.
Several decades later, this court echoed Pound’s earlier sen-
timent, stating:
The adoption of the common law in the most general
terms by any state would not admit of an unqualified
application 	of 	all 	its 	rules 	without 	regard 	to 	local
circumstances and the then present enlightened conception
of reason and justice, for the common law is applicable
only in so far as it is suited to the genius, spirit, and
objects 	of 	its 	inten[d]ments 	affecting 	the 	society 	of
the state.
State v. Tautges, Rerat & Welch, 146 Neb. 439, 444, 20 N.W.2d
232, 234-35 (1945). Similarly, a few years later, this court
claimed the power “to modify the common law, adopting such
of its principles as are applicable and rejecting such others as
are inapplicable.” In re Estate of Lewis, 148 Neb. 592, 602, 28
N.W.2d 427, 433 (1947). As these cases demonstrate, this court
has historically claimed power to modify the common law
independent of statute or constitutional amendment.
But even if no outside force prevents us from making new
common-law rules or from modifying or abolishing old ones,
we believe there are reasons for this court to be very cautious

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about doing so. First, while it cannot be denied that English
common-law judges recognized and modified legal doctrines
based on sources other than a statute or some other state-
ment of positive law, see, e.g., Antonin Scalia, A Matter of
Interpretation (1997), it was universally recognized then, as
now, that changes to the common law were to be gradual,
see, e.g., PM Group Life Ins. v. Western Growers Assur.
Trust, 953 F.2d 543, 547 (9th Cir. 1992) (“common law deci-
sionmaking process is inherently incremental in nature” and
“calls for devising a rule that does not stray too far from the
existing regime”); Price v. High Pointe Oil Co., Inc., 493
Mich. 238, 243, 828 N.W.2d 660, 663 (2013) (explaining that
common law “typically develops incrementally, i.e., gradu-
ally evolving as individual disputes are decided and existing
common-law rules are considered and sometimes adapted to
current needs in light of changing times and circumstances”);
State v. Lead Industries, Ass’n, Inc., 951 A.2d 428, 445 (R.I.
2008) (“evolution” of common law “takes place gradually
and incrementally and usually in a direction that can be pre-
dicted”); Frederick Schauer, Thinking Like a Lawyer: A New
Introduction to Legal Reasoning 119 (2009) (“common-law
rules” are “developed incrementally and by accretion over
time”); Richard A. Posner, Blackstone and Bentham, 19 J.L.
& Econ. 569, 594 (1976) (describing English common-law
system as “quintessentially incremental, indeed glacial”). It
would be inconsistent with the gradual nature of common-law
evolution for this court to adopt wholesale changes via indi-
vidual judicial decisions.
[3] While changes to the common law have always pro-
ceeded incrementally, differences between the roles of English
common-law judges and the roles of our judiciary today
supply an additional reason for us to be cautious about even
gradual common-law innovation. English common law judges
were agents of the monarch. See Elephant Ins. Company, LLC
v. Kenyon, 644 S.W.3d 137, 155-56 (Tex. 2022) (Young, J.,
concurring; Blacklock, J., joins) (“[i]n England, the judiciary

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was an arm of the king, after all”). They understood their task
to be to discover or find the unwritten law based on sources
such as custom and reason. See id. See, also, Gamble v. United
States, 587 U.S. 678, 139 S. Ct. 1960, 204 L. Ed. 2d 322
(2019) (Thomas, J., concurring). Most today, however, would
recognize that the decision of whether to adopt or reject a
particular tort theory of liability like § 766A is a question of
public policy. See Oliver Wendell Holmes, Jr., The Common
Law 1 (1st ed. 1881) (evolution of common law reflects the
“felt necessities of the time, the prevalent moral and political
theories, [and the] intuitions of public policy”). And we have
consistently recognized that under our system of separated
powers, it is the function of the Legislature, through the enact-
ment of statutes, to declare what is the law and public policy
of the state. See, e.g., Lopez v. Catholic Charities, 315 Neb.
617, 998 N.W.2d 31 (2023).
And for good reason. As some courts have observed, com-
pared to judges, “the Legislature possesses superior tools and
means for gathering facts, data, and opinion and assessing
the will of the public.” Woodman ex rel. Woodman v. Kera
LLC, 486 Mich. 228, 246, 785 N.W.2d 1, 10 (2010). See,
also, Torres v. JAI Dining Services (Phoenix), 256 Ariz. 212,
536 P.3d 790 (2023) (Bolick, J., concurring) (contending that
legislative branch is better suited to make policy than judicial
branch). And although some might contend there remains
room for judicial common-law innovation when it merely
“fill[s] in the gaps” left by statutes, see Kenyon, 644 S.W.3d at
158 (Young, J., concurring; Blacklock, J., joins), we must also
bear in mind the possibility that some “gaps” exist because the
Legislature chose not to legislate on a particular subject.
Furthermore, it is more difficult to make the case for an
active common-law-modifying judiciary today than it would
have been in earlier eras. Perhaps an ample degree of judi-
cial policymaking via common-law innovation was warranted
in, for example, the 19th or early 20th centuries, when there
was far less legislation pertaining to far fewer subjects. See

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Charles M. Cook, The American Codification Movement: A
Study of Antebellum Legal Reform 50 (1981) (citing early
American legal commentator Nathan Dane, who estimated
that in first half of 19th century “over 90 percent of the law
in the states was common law”). As one surveys the scope of
the Nebraska Revised Statutes (not to mention the Nebraska
Administrative Code) of today, however, it is increasingly dif-
ficult to make the case that courts must be the institution that
adjusts the law in response to societal changes. See, Kenyon,
644 S.W.3d at 158 (Young, J., concurring; Blacklock, J., joins)
(“one basic premise of the common law—the need for courts
to fill in the gaps because the rest of the government would
[not] or could not—is less urgent than before”); Kera LLC,
486 Mich. at 246, 785 N.W.2d at 10 (contending that “[t]he
need for a judiciary responsive to perceived public policy
needs of the state” has been reduced by “modern legislatures
exercise [of] robust regulation of [our] economy and the rights
and responsibilities of citizens”).
Finally, frequent judicial innovation of the common law risks
a loss of predictability and stability in the law. As one state
supreme court has described the common law, it is a “know-
able judicial corpus and, as such, serves the important social
value of stability.” State v. Lead Industries, Ass’n, Inc., 951
A.2d 428, 445 (R.I. 2008). To be sure, in some cases, it will be
harder than in others to discern what the applicable common-
law rule is. But any stability and predictability afforded by the
common law will be significantly undermined if established
common-law rules can be discarded and new rights and duties
created simply because this court believes it can identify a
superior public policy.
In light of the foregoing concerns, we are not inclined to
recognize a cause of action not recognized by the common
law in the absence of highly compelling reasons to do so. If
there are equally compelling policy arguments both for and
against recognition of the new cause of action, we are inclined
to defer to the Legislature’s judgment on whether the cause

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of action should be recognized. Other state supreme courts
have applied similar frameworks when asked to recognize new
common law rights. See, Price v. High Pointe Oil Co., Inc.,
493 Mich. 238, 260, 828 N.W.2d 660, 672-73 (2013) (“when
it comes to alteration of the common law, the traditional rule
must prevail absent compelling reasons for change”); Badillo
v. American Brands, Inc., 117 Nev. 34, 42, 16 P.3d 435, 440
(2001) (concluding that while court had power to “create a
common law cause of action,” it would “construe such power
narrowly and exercise it cautiously”). See, also, Hulsh v.
Hulsh, 2025 IL 130931, ¶ 31, 272 N.E.3d 456, 465, 487 Ill.
Dec. 402, 411 (2025) (although within judicial authority to
adopt a restatement rule, “it is more appropriate for the legis-
lative branch to decide whether a new cause of action should
be created”); Holmes v. Circo, 196 Neb. 496, 505, 244 N.W.2d
65, 70 (1976) (declining to recognize cause of action not rec-
ognized at common law and observing that “decision should
be left to the Legislature”).
(ii) We Decline to Recognize § 766A
With this standard in mind, we turn to Green Plains’
argument that policy reasons strongly support the recogni-
tion of § 766A. We do not deny that there are policy rea-
sons supporting the recognition of § 766A. As Green Plains
argues, § 766A liability compensates a plaintiff for losses
incurred when a defendant makes the plaintiff’s performance
of a contract more expensive or more burdensome and deters
the defendant from engaging in such conduct. Green Plains
asserts there is no reason not to impose liability in those cir-
cumstances. In recognizing § 766A, some courts have been
receptive to such an argument. See, e.g., Wilspec Tech. v.
DunAn Holding Group, 204 P.3d 69, 74 (Okla. 2009) (“[t]o
predicate a cause of action solely on the identification of the
breaching party and to deny recovery where plaintiff’s perfor-
mance is hindered or rendered more costly is without reason
and a distinction this Court refuses to draw”); Allen Family

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Foods, Inc. v. Capitol Carbonic Corp., No. N10C-10-313 JRS
CCLD, 2011 WL 1205138 at *5 (Del Super. Mar. 31, 2011)
(unpublished opinion) (“[t]he Court can think of no rational
basis to encourage behavior which would be tantamount to
targeted tortious interference”).
In our view, however, there are also reasonable policy argu-
ments against recognizing § 766A as a theory of liability. As
we mentioned at the outset of this opinion, some courts have
expressly declined to recognize § 766A. In its decision declin-
ing to recognize § 766A, the Wyoming Supreme Court wrote
that to recover under § 766A, a plaintiff was required to show
only that his or her performance became more expensive or
burdensome rather than demonstrating a breach or the loss of a
prospective contractual relation. See Price v. Sorrell, 784 P.2d
614 (Wyo. 1989). In the Wyoming Supreme Court’s view, a
showing that performance of a contract became more expen-
sive or more burdensome was “too speculative and subject to
abuse to provide a meaningful basis for a cause of action.” Id.
at 616. See, also, Gemini Physical Therapy v. State Farm Mut.
Auto., 40 F.3d 63 (3d Cir. 1994) (predicting that Pennsylvania
would not recognize § 766A for same reason).
In Windsor Securities, Inc. v. Hartford Life Ins. Co., 986
F.2d 655 (3d Cir. 1993), the U.S. Court of Appeals for the
Third Circuit discussed potential drawbacks of § 766A in even
more detail. That court observed that in a § 766A fact pattern,
the defendant’s actions are directed at the plaintiff, who will
not be a “willing participant.” Windsor Securities, Inc., 986
F.2d at 662. Instead, the defendant’s actions will normally
involve “force, fraud, or other independently actionable con-
duct.” Id. The court explained that in those cases, the plaintiff
will be able to recover for “adverse effects on contract rights”
as an element of damages for some other theory of recovery,
id.; “‘[t]hus in many cases interference with contract is not
so much a theory of liability in itself as it is an element of
damage resulting from the commission of some other tort, or
the breach of some other contract,’” id. (emphasis omitted)

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(quoting W. Page Keeton et al., Prosser and Keeton on the
Law of Torts, § 129 (5th ed. 1984)). In such cases, the court
explained, recognition of § 766A would “duplicate protec-
tion already afforded through tort and contract.” Windsor
Securities, Inc., 986 F.2d at 662. But, the court continued,
“duplication comes at a cost. It risks chilling socially valuable
conduct and creates new liability of uncertain dimensions.”
Id. Finally, the court cited a number of commentators critical
of “the amorphous nature of the tortious interference prin-
ciple, warning that its expansion is ill-conceived, threatening
both fairness and efficiency.” Id.
Unlike Green Plains, we also do not view the specific facts
of this case as strongly supportive of a decision to recognize
§ 766A. Instead, those facts confirm our hesitation about
independently recognizing it as a theory of liability. The end
result of ADM’s alleged conduct in this case was that ethanol
was being sold to buyers at lower prices. It is difficult to see
how that alone is a wrong that requires correction. And while
Green Plains, assuming its allegations are true, received less
money for those ethanol sales than it would have received
but for ADM’s actions, Green Plains did still receive what it
contracted for—sales at the Chicago Benchmark Price. Green
Plains’ claim that it should receive more than that rests on its
argument that ADM’s actions constitute unfair competition that
should not be permitted, or, at least, that a fact finder should
have the power to decide whether those actions should not be
permitted through application of § 766A.
In our view, however, consideration also must be given to
whether there are other laws—state or federal—regulating
competition that would independently cover ADM’s alleged
conduct. If ADM’s actions are violative of some other law
regulating competition, it is much harder to argue that liability
under § 766A is needed. And if ADM’s actions are not viola-
tive of some other law, it is not clear to us that this court,
or courts generally, are best suited to determine whether

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such actions are nonetheless “improper” competition and thus
tortious through application of § 766A.
We are not persuaded that we should recognize § 766A.
Although 	there 	may 	be 	reasonable 	policy 	arguments 	that
§ 766A should be a basis for tort liability, there are, in our
view, reasonable competing arguments to the contrary. This is,
thus, the type of policy question that should be resolved by the
Legislature rather than this court.
III. CONCLUSION
For reasons we have explained, the answer to the certified
question is, “No.” This court would not recognize § 766A as a
valid basis for tort liability in Nebraska.
Judgment entered.
Miller-Lerman, J., not participating.