Notes from the Editor

• Author: By John Foust
• Pages: 3-3

THE CONSTRUCTION LAWYER 3Summer 2020

NOTES FROM THE EDITOR

Published in The Construction Lawyer, Volume 40, Number 3 Summer2020. © 2020 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion

thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

By John Foust

John Foust is a partner with Ralls Gruber & Niece in San

Francisco, California.

Legal Doctrines

The eld of construction law

is no stranger to legal doc-

trines. In addition to that

most famous of all construc-

tion-law doctrines,1 we have

scores of others to guide us.

2

But what exactly is a legal doc

-

trine? Black’s Law Dictionary

defines it as “a legal prin-

ciple that is widely adhered

to.” Yet that doesn’t capture

its essence.

3

For example, the

criminal statute prohibiting murder is a legal principle widely

adhered to, but we don’t refer to it as the doctrine of nullum

homicidium. Instead, doctrine, at least in a common law juris-

diction, connotes a legal principle announced and rened

by courts—hence, the tradition of naming a legal doctrine

after the case from which it originates.

But is a doctrine a law? Most would say yes. Even Lon

Fuller, the legal philosopher and noted critic of legal positiv-

ism, would agree. Fuller famously articulated eight minimal

conditions that must be fullled for a law to be genuine.

4

Fuller made a pragmatic argument for these conditions, and

he presented them through the parable of a hypothetical

king named Rex who nds himself unable to rule effec-

tively when any one of the conditions is not met.5 He also

believed the conditions were morally necessary, which put

him at odds with the reigning champions of legal positiv-

ism, H.L.A. Hart and Joseph Raz. Hart argued that Fuller’s

eight conditions are better viewed as principles of efciency

and are in no way dependent upon or reective of moral-

ity.6 To prove his point, Hart imagined a set of principles

for poisoning people (such as “avoid poisons that attract

notice”), which would have the same logical consistency

and efciency as Fuller’s conditions but which could never

be considered moral.7

Yet we need not take sides in the Hart-Fuller debate to

know that legal doctrines are an inescapable part of con-

struction law practice. Just how inescapable is demonstrated

by our rst article, Is There a Doctrine in the House?, by

Marion T. Hack and G. William Quatman, a comprehen-

sive survey of 10 legal doctrines commonly applied in design

and construction cases. One doctrine discussed is that of

constructive change, which often arises in the context of a

contractor claim for lost labor productivity, also known as

loss of efciency, also known as disruption. Lost produc-

tivity just happens to be addressed by Paul Stynchcomb,

William Ibbs, and James Newland in Preparing and Pre-

senting Loss of Labor Productivity Claims: Analysis of the

Methodologies with Two Exemplars, which is a perfect primer

for anyone prosecuting or defending against a lost-labor

productivity claim.

Lon Fuller and H.L.A. Hart, mentioned earlier, once

engaged in a famous public debate over law and moral-

ity in the Harvard Law Review.8 Because The Construction

Lawyer is the HLR construction-law equivalent, it is our

pleasure to publish a legal debate over the meaning of the

word quality in design and construction contracts. Readers

may recall Garth Snider’s Spring 2020 article, which applied

the theories of Plato and Kant to interpret the elusive con-

cept of quality in contracts.9 Upon reading this uniquely

philosophical take on construction law, Marc Schneier wrote

a timely rebuttal to remind us that “Western philosophy did

not ... stop in the nineteenth century.” His article uses Witt-

genstein’s Philosophical Investigations to reject the idea of

denition as being akin to a Platonic Form, and he argues

that the pliability of the word quality is exactly what makes it

so useful for design or construction contracts. Both articles

are short and enjoyable; I hope you enjoy reading the Snider-

Schneier debate half as much as I enjoyed editing them.

Endnotes

1. The Spearin doctrine is so ubiquitous that we’ve adopted an

unofcial rule against publishing articles on it—except for those

submitted for our annual student writing competition!

2. See generally Marion T. Hack & G. William Quatman, Is

There a Doctrine in the House?, 40 CONSTR. LAW., no. 3, Summer

2020, at 5.

3. For how to capture the essence of a word, see Marc M.

Schneier, A Response to Mr. Snider’s Platonic Idea of “Quality”

in Construction Contract Drafting (with Help from Ludwig Witt-

genstein), 40 CONSTR. LAW., no. 3, Summer 2020, at 15.

4. LON L. FULLER, MORALITY OF LAW 39 (rev. ed. 1969).

5. Id. at 74.

6. H.L.A. Hart, Book Review, 78 H

ARV

. L. R

EV

. 1281, 1284

(1965). See also H.L.A. HART, ESSAYS IN JURISPRUDENCE AND PHI-

LOSOPHY 347 (1983).

7. Hart, Book Review, supra note 6, at 1286.

8. H.L.A. Hart, Positivism and the Separation of Law and Mor-

als, 71 HARV. L. REV. 593 (1958); Lon L. Fuller, Positivism and

Fidelity to Law—A Reply to Professor Hart, 71 H

ARV

. L. R

EV

. 630

(1958). By “famous,” I mean that the Hart-Fuller debate has its

own Wikipedia page, which is typically how I prove something

is famous to my teenage kids. See Hart–Fuller Debate, WIKIPE-

DIA, https://en.wikipedia.org/wiki/Hart%E2%80%93Fuller_debate.

9. W.C. Garth Snider, The Elusive Concept of “Quality” in Con-

struction Contract Drafting, 40 CONSTR. LAW., no. 2, Spring 2020,

at 31.

John Foust