Gerber, Paula --- "The Teaching of Construction Law and the Practice of Construction Law: Never the Twain Shall Meet?" [2010] LegEdRev 5; (2010) 20(1&2) Legal Education Review 59
[*] Dr Paula Gerber is a Senior Lecturer in the Faculty of Law, Monash University, Melbourne, Australia.
[1] These two countries have been chosen for the study because they both have strong construction industries that contribute significantly to the gross domestic product, and well-established legal professions with a history of practising in the area of construction law. In addition, the author has familiarity with both jurisdictions, having worked as a construction lawyer in California, United States and Melbourne, Australia.
[2] See, eg, in the United States: White & Case, Practice (2010) <www.whitecase.com/practices> (‘Construction and Engineering’); Morgan Lewis, Areas of Experience: A–C (2010) <http://www.morganlewis.com/index.cfm/fuseaction/practiceArea.listAlpha/nodeID/51fe28f8-210f-442a-b73d-d4255bed92c6/startLetter/a/endLetter/c/> (‘Construction Dispute Resolution, Construction Litigation, and Construction Project Administration & Claim Avoidance’); Morrison Foerester, Development, Land Use + Construction (2010) <http://www.mofo.com/development-land-use--construction-services/> (‘Development, land use and construction’). See, eg, in Australia: Allens Arthur Robinson, Construction (2010) <www.aar.com.au/services/const/index.htm> (‘Construction’); Minter Ellison, Areas of Expertise (2010) <www.minterellison.com/public/connect/Internet/Home/Expertise/> (‘Construction’); Clayton Utz, Construction and Major Projects (2010)
<www.claytonutz.com/area_of_law/construction_and_major_projects/home.page> (‘Construction and Major Projects’).
[3] In both Australia and the United States, the vast majority of university engineering, architecture and construction courses offer either compulsory or elective courses on the law relating to construction, engineering and so on. Many professional bodies require that graduates have done some study of construction law before they can be licensed or registered as, for example, an engineer or an architect.
[4] Paul Henderson Inc v Ark Power & Light C, 380 F Supp 298, 317 (ED Ark, 1974).
[5] Philip L Bruner, ‘The Historical Emergence of Construction Law’ (2007) 34 William Mitchell Law Review 1, 13–14.
[6] The universities offering a subject on construction law within their law schools include: the University of Texas; University of Arkansas; University of California, Berkeley; University of Hawaii; Duquesne University; University of North Carolina; Arizona State University; University of Nebraska; Whittier Law School; University of San Francisco; University of Alabama School of Law; John Marshall Law School; University of Virginia; Florida Coastal School of Law; University of Richmond; and the University of Denver.
[7] The four Australian universities offering subjects on construction law as part of their LLB or JD programs are: Monash University, University of Melbourne, Murdoch University and University of Notre Dame.
[8] Thomas J Stipanowich, ‘Reconstructing Construction Law: Reality and Reform in a Transactional System’ [1998] Wisconsin Law Review 463, 575.
[9] Matthew Bell, ‘Construction Law Graduate Studies around the World’ [2009] Journal of Legal Affairs and Dispute Resolution 1.
[10] See University of Melbourne, Construction Law (5 October 2010)
<http://www.masters.law.unimelb.edu.au/index.cfm?objectid=CFBACDCA-1422-207C-BAF9652E1AF7B2D1> .
[11] See King’s College London, London MSc Programme: Construction Law & Dispute Resolution (March 2009) <www.kcl.ac.uk/content/1/c6/06/13/33/MScProspectusv92009.pdf>.
[12] Lawrence C Melton, ‘What We Teach When We Teach Construction Law’ (2009) 29(3) Construction Lawyer 8, 9.
[13] Stipanowich, above n 8, 575.
[14] The same observation has been made with respect to elder law: Nina A Kohn and Edward D Spurgeon, ‘Elder Law Teaching and Scholarship: An Empirical Analysis of an Evolving Field’ (2010) 59 Journal of Legal Education 414, 430.
[15] See, eg, Paula Gerber, ‘How to Stop Engineers from Becoming “Bush Lawyers”: The Art of Teaching Law to Engineering and Construction Students’ (2009) 1(4) Journal of Legal Affairs and Dispute Resolution in Engineering and Construction 177–88; D J Doorey, ‘Harry and the Steelworker: (or Teaching Law to Non-law Students)’ (2008) 14 Canadian Labour and Employment Law Journal 107–28; Robert J Morris, ‘Not Thinking Like a Non-Lawyer: Implications of “Reorganization” for Legal Education’ (2004) 53(2) Journal of Legal Education 267–83; Faisal M Arain, ‘Leveraging on Information Technology for Teaching Construction Law to Built Environment Students: A Knowledge-Based System (KBS) Approach’ (2009) 14(2) Journal of Construction in Developing Countries 77.
[16] Bruner, above n 5.
[17] Ibid 20.
[18] Ibid 21.
[19] The Forum on the Construction Industry is the arm of the ABA devoted to educating attorneys about construction law and has more than 6000 members. See ABA, About Us
<http://new.abanet.org/Forums/Construction/Pages/Information.aspx> .The equivalent organisation in Australia is the Society of Construction Law which was formed in 2009 to promote education, study and research in construction law. See Society of Construction Law Australia, Home <www.scl.org.au/>.
[20] Allen L Overcash, ‘The Case for Construction Law Education’ (2009) 29(3) Construction Lawyer 5.
[21] Ibid 7.
[22] Ibid.
[23] Melton, above n 12, 9.
[24] Ibid.
[25] Ibid 10.
[26] Bruner, above n 5, 13.
[27] Overcash, above n 20, 6.
[28] See, eg, Young v McManus Childs [1969] 1 AC 454; Gloucestershire County Council v Richardson [1969] AC 480.
[29] See, eg, Hill v Polar Pantries, 64 SE 2d 885 (1951); Ryan v Morgan Spear Association Inc, 546 SW 2d 678 (Tex Civ App, 1977).
[30] See, eg, Sopov v Kane Constructions Pty Ltd [2009] VSCA 141 (15 June 2009) which involved litigation that lasted for nine years (including various appeals). The period of construction specified in the building contract was 130 days, although the builder terminated the contract after working on site for one year.
[31] Email from Stephen Hess to Lawrence Melton, 16 March 2010 (copy on file with the author).
[32] Gerber, ‘How to Stop Engineers from Becoming “Bush Lawyers”’, above n 15, 180.
[33] Ibid 179.
[34] Arain, above n 15.
[35] Dorothy H Evensen and Cindy E Hmelo, Problem Based Learning: A Research Perspective on Learning Interactions (Lawrence Erlbaum Associates, 2000).
[36] Alice Christudason, ‘Challenges of Teaching Law to Non-Law Students’ (Paper presented at the Society of Legal Scholars Conference, 13 September 2004)
<www.ukcle.ac.uk/directions/previous/issue10/christudason.html>.
[37] Carol Bond and Marlene Le Brun, ‘Promoting Learning in Law’ [1996] LegEdRev 1; (1996) 7(1) Legal Education Review 1.
[38] It should be noted that the model syllabus set out here does not include references to cases, legislation or standard form contracts. This is because these vary greatly from one jurisdiction to the next. Therefore, the model syllabus focuses on the general principles of each topic, not regional-specific detail.
[39] See Donald D Kim, Brian M Lindberg and Justin M Monaldo, Annual Industry Accounts Advance Statistics on GDP by Industry for 2008 (May 2009) <www.bea.gov/scb/pdf/2009/05%20May/0509_indyaccts.pdf>.
[40] See IBISWorld, Construction in Australia: Australian Industry Report (19 November 2010) <http://www.ibisworld.com.au/industry/default.aspx?indid=306> .
[41] Patrick Mead, ‘Current Trends in Risk Allocation in Construction Projects and Their Implications for Industry Participants’ [2007] Construction Law Journal 23.
[42] Also known as design and construct (D & C).
[43] In the Court of Appeal decision of Modern Engineering (Bristol) Ltd v Gilbert-Ash (Northern) Ltd the House of Lords overturned the Court of Appeal’s decision, but Lord Diplock expressly cited with approval Lord Denning’s reference to cashflow being the lifeblood of the industry: Gilbert-Ash (Northern) Ltd v Modern Engineering (Bristol) Ltd [1973] 3 All ER 195 at 215.
[44] See, eg, Building and Construction Industry Security of Payment Act 2002 (Vic) s 18.
[45] The fact scenario for this class exercise is taken from the case of Wegan Constructions Pty Ltd v Wadonga Sewerage Authority [1978] VicRp 6; [1978] VR 67.
[46] Harold Hongju Koh, Lex et Veritas (January/February 2005) Legal Affairs <www.legalaffairs.org/issues/January-February-2005/editorial_koh_janfeb05.msp>.
[47] There are numerous texts and articles relating to construction insurance issues. See, eg, Scott Turner, Insurance Coverage of Construction Disputes (West Group, 2nd ed, 2009); W J Palmer, J M Maloney and J L Heffron, Construction Insurance, Bonding, and Risk Management (McGraw-Hill, 1996); Jens Knocke (ed), Post-Construction Liability and Insurance (Taylor & Francis, 1993).
[48] Paula Gerber, ‘Dispute Avoidance Procedures’ (2001) 18(1) International Construction Law Review 122.
[49] See generally Robert M Matyas et al, Construction Dispute Review Board Manual (McGraw-Hill, 1995); Paula Gerber, ‘Construction Dispute Review Boards’ (1999) 10(1) Australasian Dispute Resolution Journal 9; Shelley Maxwell-Smith, ‘Dispute Resolution Boards: Coming to a Project Near You?’ (2004) 16(1) Australian Construction Law Bulletin 1; G P Owen, Dispute Boards: Procedures and Practice (Thomas Telford, 2007).
[50] See generally Gordon Jaynes, ‘FIDIC’s 1999 Edition of Conditions of Contract: Is the DAB Still a Star?’ [2000] International Construction Law Review 42; Bryan M Sifert, ‘International Construction Dispute Adjudication under International Federation of Consulting Engineers Conditions of Contract and the Dispute Adjudication Board’ (2005) 131(2) Journal of Professional Issues in Engineering Education and Practice 149–57.
[51] See generally Colin Wall, ‘The Dispute Resolution Advisor in the Construction Industry’ in Peter Fenn and Rod Gameson (eds), Construction Conflict Management and Resolution (E & FN Spon, 1992); Sai-On Cheung, ‘The Alternative Dispute Resolution Movement in the Construction Industry in Hong Kong’ (1999) 10(2) Australasian Dispute Resolution Journal 98–112.
[52] US Supreme Court Chief Justice Warren Berger, ‘State of the Judiciary Address’ (Speech delivered at the American Bar Association, 12 February 1984).
[53] For further information on ADR for construction disputes see Sai-On Cheung, Henry C H Suen and Tsun-Ip Lam, ‘Fundamentals of Alternative Dispute Resolution Processes in Construction’ (2002) 128(5) Journal of Construction Engineering and Management 409–17; Kathleen M J Harmon, ‘Resolution of Construction Disputes: A Review of Current Methodologies’ (2003) 3(4) Leadership and Management in Engineering 187–201; Richard H Steen and Robert J MacPherson, ‘Resolving Construction Disputes out of Court through ADR’ (2000) 65(5) Journal of Property Management 58.
[54] See, eg, the Technology and Construction Court in England <http://www.hmcourts-service.gov.uk/infoabout/tcc/other_bodies.htm> and the Technology, Engineering and Construction List of the Supreme Court of Victoria, Australia <http://www.supremecourt.vic.gov.au/wps/wcm/connect/Supreme+Court/ Home/Lists+and+Sittings/Specialist+Lists/Technology+Engineering+and+Construction/> .
[55] See, eg, in Australia, Supreme Court (General Civil Procedure) Rules 2005 (Vic) Order 50.
[56] See, eg, William M Sullivan et al, Educating Lawyers: Preparation for the Profession of Law (Jossey-Bass/Carnegie Foundation for the Advancement of Teaching, 2007); Roy Stuckey et al, Best Practices for Legal Education: A Vision and a Road Map (Clinical Legal Education Association, 2007).
[57] Stuckey et al, above n 57, 19.