Andy Ness is a visionary, so the focus of the program was on the future of construction law. How is construction and construction lawyering changing? What is coming down the pike?
Here are a few of my take-aways and things to look for in the materials:
Plenary 1: Legal Issues Arising from Future On-Site and Off-Site Construction Technologies. (A) BIM tools and how they are making proper project delivery and design choices more demanding. No longer can a project team evaluate three or four different options and scenarios--with the aid of BIM, it is now possible to run 3,000 to 4,000 scenarios in order to pick the best solution for building cost, life cycle costs, and carbon footprints. (B) For us lawyers, we need to be aware of new licensing issues. (C) For cloud computing, ask yourself: where does the data reside? Who controls it? What warranties are there with these computer models? Who indemnifies? (D) Similarly, the trend towards off-site prefabrication is bound to raise interesting new labor law issues, as well as the potential for big busts if something is mass-produced off site and it does not work. (E) Look out for counterfeit parts; this has been a particular problem with electronic parts. As lawyers, how do we protect the supply chain.
Plenary 2: Preference Programs--Will the Trend Continue? (A) Buzzword for identifying bona fide DBE's: Do they serve a "commercially useful and substantial function?" (B) Look at the materials for discussion of pass-through schemes and certification schemes. (C) New computerized verification of certified payrolls makes it easy to identify illegitimate schemes. (D) Listing laws: half the states have them; the feds don't. (E) Look for an ABA 2013 publication on loopholes in ARRA buy America requirements.
Plenary 3: The Future of Construction and Insurance Bonding. (A) As billion, and even multi-billion projects become commonplace, the risks become too large to push down to the lowest level as we have traditionally done. Need to share the risk among bigger and more players. (B) Bigger insurance towers, with more insurers involved to absorb big risks. Less re-insurance has been available. (C) Be careful with blurring of traditional design vs. construction roles—what is covered by E&O insurance, what by CGL? Architects can now work for contractors (about time, but it’s getting more and more complicated out there). (D) Insurance products are backwards looking, not forward looking; they lag the industry and this presents opportunity for good lawyering!
Adrian Bastianelly observed that when he started in this business, the body of construction law was small. There was Spearin and a couple of things. In the last 45 years the field has exploded. As a result, of course, much of this is still in flux and less settled than we sometimes like. Take the economic loss rule as one small example—“one bloody case after another” without much being settled one might lament.
Plenary 6: Reverse On-Line Auctions. Harper Heckman managed to turn this into a really great shaggy dog story about his airstream. Great stuff. New York has a study of this delivery system in the works. Keep an eye out for it. It turns out RVO’s are popular with big box owners. Who knew.
Plenary 7: Forecasting Change in Construction Law Practice. (A) There is a McKinsey 2025 study out. Rest assured, there is lots of reason to be nervous. Seems like we, in North America, are about to be marginalized in the new world economy. If we want to swim with the big fish, we need to open offices overseas. (B) There was an interesting discussion about statistics on case outcome with different types of teams. The good news is that pairing men and women works best. Vive la differance!
Plenary 8: International Dispute Resolution: We learned that Rich Tyler looks really good in a night cap! Check out the materials for all you need to know on the convention on the international sales of goods and international arbitration. Want to collect a CA judgment in China—good luck! Better to opt for arbitration and take advantage of the New York Convention of Enforcement of Foreign Arbitral Awards, which are more easily enforced.
Plenary 9: The Future of Preserving, Finding, and Presenting Construction Project Data. Hint—it’s not getting less complicated. Check out the materials.
The Astronaut, Dr. David A. Wolf: Flying in space is really cool!
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