Builders Corporation of America, a Corporation, and Herlong Sierra Homes, Inc., a Corporation v. United States

While I have some reservations about the suggestion in the court’s opinion that statutory exceptions should be “treated as affirmative defenses”, yet I am heartily in accord with Judge FEE’S statement: “The spirit of the Rules is that technical requirements are abolished and that judgments be founded on facts and not on formalistic defects.” I think a case of this importance, in a field where the law remains unsettled, ought not to be disposed of upon a mere motion to dismiss without opportunity to develop what the precise facts are.

That is the point of Kennedy v. Silas Mason Co., 334 U.S.…