Chapter 1 Overview

• Library: Arkansas Construction Law Manual (2016 Ed.)

Overview

Cyril Hollingsworth^* © 2016

1.1 ....... Scope of Chapter.......................................... 1-1

1.2 ...... Construction Law – Generally....................... 1-1

1.3 ...... The Construction Industry Players................ 1-4

1.4....... The Construction Industry Process................ 1-5

1.5 ...... The Contractual Relationship as the

........... Foundation for Construction Law ................. 1-7

1.6 ...... Overview of the Manual Topics as Part of Construction Law 1-10

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1.1 Scope of Chapter

This chapter introduces Arkansas construction law by discussing the construction industry and the construction process, with the construction contract as the foundational starting point. The chapter provides a framework within which the chapters that follow address various aspects of the construction process and the related legal considerations.

1.2 Construction Law – Generally

Sophisticated construction dates to early civilizations. One only has to think about the great pyramids, or the roads and aqueducts constructed by the Romans. Phillip Bruner describes the historical perspective for construction in Construction Law:

For more than 4,500 years, from primitive Mesopotamian fire-brick and early Egyptian cut-stone construction to the extraordinary structures of the modern-built environment, construction has been a hallmark of the advancement of human civilization. ¹

Bruner goes on to describe what he characterizes as nineteenth century transformational events, which take construction law from being subsumed by broader and more generalized fields of law, to being caught up in developments that eventually would lead to the recognition of construction law as a field in itself.²

Since only in fairly recent years has “construction law” begun to be recognized as a distinct area of the law, it is important for Arkansas lawyers to know about the availability of sources for learning about construction law and which sources can also assist in finding cases related to various aspects of construction law. While the Arkansas appellate courts have rendered various significant construction law decisions, there are not reported decisions in Arkansas addressing every aspect of construction law.

Even at this time, when searching for cases involving construction law, one does not readily find a topic denominated as construction law. Perhaps this is due in part to the description one finds on the internet at Wikipedia, which says that construction law “is in essence an amalgam of contract law, commercial law, planning law, employment law, and tort.” The Westlaw key number system has no construction law topic, although the Westlaw database includes construction law as a distinct practice area for search purposes. Under the key number for Contracts, however, one can find cases dealing with construction projects and related issues by searching various key numbers which might be related to “buildings” or “building contract,” for example. Similarly, in using LexisNexis, one can use word searches, but not through the topic “construction law.” In a treatise such as 13 Am. Jur. 2d (2000), one will find a topic entitled “Building, etc., Contracts,” but no topic entitled “Construction Law.”

In 2002, Phillip Bruner and Patrick O’Connor produced a comprehensive construction law treatise, Bruner & O’Connor on Construction Law.³ As construction lawyer Donald Gavin commented in a review of this new set, Bruner and O’Connor set out to create a treatise on construction law in the model of Williston or Corbin on Contracts. This seven volume work may be the most extensive source covering construction law. Another helpful treatise is Steven G.M. Stein’s Construction Law, published by Matthew Bender & Company, Inc. since 1986.⁴ The Bruner & O’Connor treatise is available on Westlaw, and the Stein treatise is available on LexisNexis.

The previously noted Construction Law, supra note 1, is a textbook on various construction topics, by 23 contributing authors, one of whom is Carl Circo, a professor at the University of Arkansas School of Law, an active participant in the Arkansas Bar Association Construction Law section, and one of the three editors of this Manual.

While the effort to bring together comprehensive treatments of construction law is a relatively recent one, the American Bar Association’s Forum on Construction Law, originally the Forum on the Construction Industry, has provided excellent publications and seminars since its inception in 1976, as part...