Arkansas Law Review

Arkansas Law Review

Volume 75, Number 2 (2022)


Construction Law: Its Historical Origins and its Twentieth Century Emergence as a Major Field of Modern American and International Legal Practice

Philip L. Bruner

“Construction Law” is a rapidly emerging “capstone” legal field that over the past century has subsumed principles from many traditional fields of law and has contextually created new implied rights and obligations unknown to such traditional fields. Construction law’s emergence has been driven by the extraordinary modern growth in global construction activity, which in 2020 accounted for 13% (US$10.7 trillion) of the global gross domestic product and which by 2030 is expected to grow by another 42%. This growth in construction activities engages millions of firms and persons and has increased considerably the technical complexity and rapidity of changes in construction design, materials, methods, and dispute resolution. In recent years, the judiciary has begun to recognize construction law as a “separate breed of animal”.


Construction Law: The English Route to Modern Construction Law

Vivian Ramsey

In this Article, I will look at the way that construction law has developed in the English common law world from its roots in the law of England and Wales. Whilst common law traditions are now applied to many jurisdictions, the number of jurisdictions in which English precedents are binding is now small. But, in many common law jurisdictions decisions of the English courts are still treated as “persuasive.” English decisions in the field of construction law have an extensive reach in terms of their persuasiveness. First, having a long-established court system, including a specialist court for 150 years, has meant that the decisions of the English court have often been the only decisions on points of principle relating to construction. Secondly, forms of contract derived from English standard forms of contract have been and continue to be used worldwide, most commonly in the FIDIC forms of contract. Today, therefore, contracts derived from these English standard forms are used in civil law countries, particularly in the Middle East, and questions of interpretation are very often based on decisions of the English courts, applied of course in the context of the local law.


Structural Precarity and Potential in Condominium Governance Design

Andrea J. Boyack

This Article examines a condominium’s legal structure in the context of ensuring construction and upkeep quality in a multifamily building and explores possible systemic improvements. Part I considers three latent vulnerabilities inherent in the condominium governance structure: (1) overprotection of developers; (2) unwillingness of members to ensure optimal upkeep; and (3) association financial precarity. Part II critiques some suggested legal responses to the Surfside disaster and discusses the swift and dramatic impacts on condominium governance caused by changed underwriting requirements of Fannie Mae and Freddie Mac. Finally, this Article concludes by calling for more effective stabilization of condominium governance to remediate its inherent structural weaknesses.


Construction Law Apologetics

Carl J. Circo

This Article challenges the legal academy’s perceptions and offers an alternative assessment of the relationship between the construction industry and law. Part I reviews practical reasons for teaching construction law to law students. In brief, Part I first demonstrates how a construction law course pairs advanced instruction in several topics introduced in the core curriculum, such as contracts, torts, civil procedure, evidence, remedies, and dispute resolution, with lessons on adapting legal knowledge to the specialized construction industry practice. Next, it explains how studying construction law can prepare students to represent clients in a wide range of complex commercial matters that require expertise in transactional practice, advocacy, and dispute resolution. Then, Part II makes the case for greater scholarly engagement with the legal aspects of the built environment, exploring some especially promising contract and tort topics in detail before briefly suggesting other potential research projects. Part III concludes by proposing an ongoing dialogue between construction lawyers and the legal academy.


Equitable, Affordable and Climate-Cognizant Housing Construction

Shelby D. Green

In this Article, I recount some of the history of unwise and improvident land use policy and practices that have led to gross inequities and to the climate-exposed state, not only in terms of where people were assigned spaces to live, but how. I go on to suggest that communities should be designed with intent, with regard for the threats of climate change as well as accessibility to those historically excluded.


Design Professional Liability for Construction Worksite Accidents - How Arkansas Led the way to a National Consensus

Marc M. Schneier

Three major developments underlie the law of architect or engineer (a/e) liability to construction workers, beginning in the second half of the twentieth century: (1) a change from a no-duty regime to a duty of care under a foreseeability test, (2) reactions to that expanded liability by changes to standard form documents by industry associations (in particular the American Institute of Architects (AIA)), (3) currently culminating in a broad national consensus. The Arkansas Supreme Court was instrumental in framing the issues of this jurisprudence early in its development and later contributed to its continued evolution.


Construction Liens and the "Secret Lien" Problem

Dale Whitman

Perhaps the most essential element of a modern scheme of land ownership is a system of records that will allow an owner to show to the world, and particularly to intended transferees, that she or he owns the land in question. It is almost equally important that an owner be able to create a lien or charge on land, putting it up as security for an obligation or debt while retaining possession. And as a concomitant principle, it is critical that an intended transferee be able to detect, in a reliable system of records, whether the land has already been charged with a security interest by its present owner.


Recent Development: Arkansas Insurance Dep't. Final Rule 126: "Insurance Business Transfers"

Silas Heffley

Pursuant to Act 1018 of 2021, “An Act to Establish the Arkansas Business Transfer Act,” the Arkansas Insurance Department has promulgated Final Rule 126 “to provide standards and procedures for the transfer and novation of insurance policies from a transferring insurer to an assuming insurer through a transaction known as an ‘insurance business transfer.’” The Rule requires that the applicant submit an Insurance Business Transfer Plan—along with a nonrefundable $10,000 fee—to the Department detailing the transaction. One critical element of this Plan is the Independent Expert Opinion Report. An independent expert will produce a written report to be included in the Plan and will assist the court and the Commissioner of the Insurance Department in their review of the transaction. Under Final Rule 126, “The Commissioner shall authorize the submission of the Plan to the court unless he or she finds that the insurance business transfer would have an adverse material impact on the interests of policyholders or claimants that are part of the subject business.” Within thirty days of the Commissioner’s approval of the Plan, the Rule requires the applicant to petition the court for approval. Final Rule 126 became effective on January 1, 2022.


A Dog's Bark to Act as a Nark

Bailey R. Geller

This Comment therefore advocates for systemic reconsideration of dog scent lineups at trial. It will not claim that all dog scent lineups are flawless, particularly given the slipshod manner in which many are performed. But dog scent identifications are increasingly more valuable than our legal system currently acknowledges when they are properly conducted. They should be admissible.