Notes from the Editor

AuthorBy John Foust
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.
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.
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.
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.
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
. L. R
. 1281, 1284
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
. L. R
. 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-
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

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT