Notes from the Editor

AuthorBy John Foust
Published in
The Construction Lawyer
, Volume 41, Number 2, Season 2021. © 2021 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.
The Least Dangerous Branch
For Americans who are not
employed in the legal profession,
the U.S. Supreme Court is prob-
ably the most visible aspect of
our legal system. In a poll from
2018, a whopping 91 percent
of Americans agreed with the
statement “decisions made by
the U.S. Supreme Court have an impact on my everyday
life as a citizen.”
Incidentally, the same poll also revealed
that 52 percent of Americans could not name a single sit-
ting justice of the Court (other polls show the percentage
as being closer to two-thirds of Americans). Cynical jour-
nalists were quick to label this an illogical contradiction,
but it can also be read as evidence that people under-
stand the importance of the Supreme Court even if they
don’t necessarily follow its roster. One could also argue
that this is the way it ought to be. After all, the framers
of the U.S. Constitution intentionally designed the judi-
cial branch to be a counter-majoritarian check against
the two elected branches of the federal government.2 So
why should we as the public bother learning the names
of judges who are, by very design, not accountable to us.
Presumably, the folks who said the Supreme Court’s
decisions impacted their everyday lives were thinking of
high-prole, landmark decisions like Citizens United, Bush
v. Gore, Roe v. Wade, and the series of decisions estab-
lishing constitutional protection for same-sex marriage.
But I like to think that they also understand that the
Supreme Court hands down decisions on less politically
sensitive subjects that also have a potential to impact
their everyday lives, like dairy regulations and . . . (here
it comes—wait for it) construction law. To help prove the
important role the Court has played in the history of con-
struction law, this Spring issue of our journal contains
the rst in a two-part series of articles by Professor Carl
Circo on the Supreme Court’s impact on construction
law over the past several centuries.
The Construction Industry in the U.S. Supreme Court:
Part 1, Contract Law starts by reminding us that, in the
days before the Erie Doctrine, there was a body of gen-
eral federal common law in the United States, and the
Supreme Court was the nal arbiter of that law. During
that period, the Court handed down decisions that helped
shape contract law as we know it today. Most notable was
the Court’s role in helping contract law evolve from the
classical formalism of the eighteenth and early nineteenth
centuries, which leaned toward a more textual interpreta-
tion, to the more exible neoclassical principles that tend
to dominate the modern era. The latter, Professor Circo
explains, takes a more contextual approach to contract
interpretation, including by importing things like cus-
tom and usage in the industry, as well as notions of good
faith and fairness.
This historical discussion of the evolution of contract
law can also serve as a parable for why cases can end up
in trial when one side is dead set on viewing the case
through a classical/textual lens, while the other side is
looking at the same case through a neoclassical/contex-
tual lens. Anytime one party wants to focus on the plain
language of the contract (for example, in the notice provi-
sion in a change-order clause), while the other side wants
to focus on customary practice in the industry combined
with notions of fairness (by arguing, for example, that
the owner had actual notice and received the benet of
the work), this is really a debate over classical textualism
versus neoclassical contextualism.
Professor Circo also shows how the Supreme Court, in
a series of implied obligation cases during the period from
1914 to 1920, created what we now know as the Spea-
rin Doctrine. He then reminds us how the trend toward
neoclassical contextualism was not without its excep-
tions, citing to cases like United States v. Moorman and
United States v. Wunderlich, where the Court upheld the
rules granting deference to the contracting ofcer with-
out regard to fairness.
In addition to the fascinating article by Professor Circo,
we have two other excellent articles for our more practi-
cal-minded readers. One is Usage and Acceptance Rates
for Loss of Productivity Damage Quantication Methods,
by Dr. William Ibbs and Oskar Gentele, which exam-
ines the ways contractors and their counsel measure
and prove lost productivity. The other article is the ever-
so-timely Coronavirus Delay and Disruption Claims, by
Patrick McGeehin and John Spangler. It is a must-read
for anyone whose clients have been impacted by the pan-
demic—which is to say, everyone.
John Foust is a partner with Ralls Gruber & Niece in
San Francisco, California.
2. THE FEDERALIST NO. 78 (Alexander Hamilton).
John Foust
By John Foust

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