The Construction Industry in the U.S. Supreme Court:Part 2, Beyond Contract Law

• Author: By Carl J. Circo
• Pages: 5-14

THE CONSTRUCTION LAWYER 5Volume 41, Issue 3

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LEGAL FOUNDATIONS

The Construction Industry

in the U.S. Supreme Court:

Part 2, Beyond Contract Law

By Carl J. Circo

This second of a two-part

review of the U.S. Supreme

Court’s decisions arising out

of the construction industry

examines topics other than the

construction contract issues the

rst article addressed. Part 1

documented the Court’s partic-

ipation in the process by which

contract law has adapted to the construction industry

context—in effect, it looked at the Court’s most direct

contributions to construction law. Now, Part 2 consid-

ers how the construction industry has contributed to the

Court’s decisional history.

Instead of the chronological approach of Part 1, this

article proceeds on a topical basis. Before launching

directly into the construction industry cases, the rst sec-

tion takes a brief detour to acknowledge that the Court’s

interaction with the railroad industry provided many

of the Court’s earliest decisions involving construction

projects. It then turns to the Heard Act and Miller Act

opinions, followed by a discussion of a few cases in which

the Court dealt with construction lien issues, before turn-

ing to industry cases that presented constitutional issues.

The nal topic selectively takes up cases on labor and

employment, property, torts, and miscellaneous statu-

tory and regulatory issues.

Railroad Cases: An Introductory Aside

The young nation’s transportation projects naturally

spawned extensive litigation. As many as 80 of the

Supreme Court’s earliest opinions involving construction

projects came via the railroad industry. The Court decided

these cases beginning in the second half of the 19th cen-

tury and continuing through the early decades of the 20th.

Given the importance of rail infrastructure in serving the

country’s geographic, economic, and social ambitions at

the time, the large number of these cases hardly seems sur-

prising. Even so, with that many cases during this period

involving rail projects, one might wonder whether any spe-

cial characteristics of railroad construction might have

had a distinct impact on the development of construction

law. There is little evidence to support that proposition.

There is, however, a collateral reason for mentioning the

railroad cases here.

To be sure, some of the Court’s railroad cases left last-

ing marks on U.S. construction law. But the fact that

those cases involved railroad projects is merely inci-

dental—the cases mostly presented issues common to

construction projects of any kind. Several of these cases

adapted basic principles of contract law to the construc-

tion industry context, which earned them a place in Part

1 of this two-part series. Others were among the earliest

to invite the Court to interpret important provisions of

the U.S. Constitution, especially the Contract Clause

and the Commerce Clause; still others dealt with issues

particularly signicant in construction law, such as stat-

utory liens to provide security for unpaid construction

work and even such routine matters as liability for per-

sonal injury and property damage caused by construction

activity. This article considers such cases in separate sec-

tions concerned with those topics.

The current section alludes to the railroad cases as a

distinct category to highlight how legal issues generated

by a single industry can impact legal history. In effect, the

story of the Court’s decisions involving the railroad indus-

try, a signicant number of which concern construction

projects, stands as an especially interesting example of

one of the chief claims Part 1 made about the construc-

tion industry cases: An industry’s experience can help

shape legal developments.

The disputes that brought railroad construction proj-

ects before the Court exist within the much broader

relationship of the railroad industry to the legal and polit-

ical environment during the rst several decades of the

nation’s history.1 That is, they have far greater signicance

as components of a mostly bygone era of railroad law

than as a category of construction industry cases. Com-

mentators have noted the railroad industry’s impact on

our political, economic, and legal systems during rail’s

dominant period.2 The industry’s special characteristics—

its situational and transactional context—help explain its

relationship with our governmental institutions. Railroads

fullled a critical need for nationwide common carrier

services. Moreover, they advanced one of the country’s

primary political ambitions by creating and operating a

national transportation system essential to developing

the western frontier. For decades, railroad corporations

accounted for tremendous wealth and political inuence.

Tension between the idealized American preference for

Carl J. Circo