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

AuthorBy Carl J. Circo
Published in
The Construction Lawyer
, Volume 41, Number 3. © 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 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

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