Two Minute History of Construction Law

In a playful tongue-in-cheek address in Biblical language to the American Bar Association’s Forum on the Construction Industry in 1994, Professor Thomas Stipanowich, a prominent construction industry and dispute resolution scholar, undertook to describe how the field of construction law had developed and evolved from adversarial contests to dispute during the past generation, with humorous references to some of the lawyers who were principally involved in that history.

Professor Stipanowich’s article was originally published at 14 Construction Law Review 28 (Aug. 1994), and was reprinted in the Bruner and O’Connor Treatise on Construction Law (with bracketed notes added by the authors of the treatise to identify some of the names in the article that readers who are not intimately familiar with the construction industry might not recognize):

IN THE BEGINNING there was Overton [Currie of Atlanta].

And there was Max [Greenberg of New York], and Gil [Cuneo of Washington D.C.], and B.C.[Hart] and Phil [Bruner of Minneapolis], and Milt [Lunch of Washington, D.C.], and Bob and Ken[Cushman of Philadelphia] of the House of Cushman, and others too numerous to be mentioned, hereafter collectively known as the MIGHTY MEN of OLD.

And the Law pertaining to the Built Environment was without form, and the faces of they that labor were devoid of understanding.

And the MEN of OLD said, “Let there be established a Firmament.” And so they created them, ALI-ABA [American Law Institute-American Bar Association continuing education programs] and Fed. Pub. [Federal Publications, Inc., now West Group].

And they gave names to all the creations, the Causes of Action, and the Theories of Damages for every party that moveth on and under the land:

for Delays of Seasons, of Days, and of Years;
for the Differing Conditions of the Field;
for Default and for Convenience;
Eichleay and Modified Eichleay;
in Total Cost and in Quantum Meruit.

And Overton saw that it was good. Especially Quantum Meruit.

And their Scribe was Justin [Sweet of the University of California-Berkeley] and by his fourth edition [of Legal Aspects of Architecture, Engineering and the Construction Process] truly all who knew him were filled with wonder at his understanding.

Now one of their number, James [Groton of Atlanta], son of Groton, was then dwelling in the Land of Suther[land, Asbill and Brennan of Atlanta]. And he heard a voice saying, “Go, ye therefore among the Builders and the Others and learn of their Ways.” And he saw before him a figure bearing a burning DART [Dispute Avoidance and Resolution Task force of the American Arbitration Association] and a voice, which sounded suspiciously like Cecil B. DeMille proclaiming, “Hear, now the Commandments of the New Order:

1. Thou shall value Interdependence over Independence.

2. Thou shall be Proactive and Preventative in all thy Work.

3. Thou shall strive for Win-Win Solutions, and for Alternatives which best achieve these Ends.

4. Thou shall listen to the counsel of your Client, and remember that there are other Values besides Legal Ones.

5. Thou shall treat Change as an Ally, and not be fearful of him or her.”

And James took these Commandments down to his Brethren, and said, “Ye who worship the golden gavel, take heed. A New Day is at Hand.”

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