Recent Issue - Winter 2014

Summer 2014 Editor's Note

With this issue, I am honored to commence service as the third Editor-in-Chief of the Journal of the American College of Construction Lawyers. My eminent predecessors, Adrian Bastianelli and Holt Gwyn, have set a high bar in this publication, and the College is fortunate that both of them continue to serve in other important leadership capacities.

Of course, a journal is only as good as its authors, and this issue illustrates the deep and diverse experience of the scholars who have kindly contributed to it. 

In our lead article, Dean Thomson and Colin Bruns survey the laws limiting enforcement of construction contract indemnity clauses across the 50 American states. Its accompanying maps make it a handy reference both for attorneys and for contract negotiators and drafters.

In the second article, two distinguished Canadian practitioners (Barry Leon and John Siwiec) explain how the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States can provide a practical alternative remedy when clients seek redress while working in one of the 150 member countries.

The third article is offered by Ava Abramowitz, an experienced counsel and teacher who offers practical advice for handling risk allocation in contract drafting and negotiation.

In the fourth article, a team of practitioners (Leslie O’Neal Coble, Paul Bruno, Edward Cassady and Ernest Badway) offer a practical guide to strategies when circumstances compel a corporate entity to conduct an internal investigation. Faced with increasingly complex laws and regulations governing “false claims,” “corrupt practices,” and “whistle blowers,” both in-house counsel and independent firms should find useful guidance in this article.

In the fifth article, John Heisse and Jeffrey Jacobi add a chapter to this Journal’s dialogue as to whether design professional negligence should be measured in terms of exceeding a designated threshold. They reply to an article by David Mockbee and Jud Jones in the Winter 2013 issue of this Journal. The idea of using a defined threshold for measuring professional liability has attracted substantial interest at recent industry conferences, and this latest article offers thoughtful comments on alternative approaches to determining liability.

In the final article, College co-founder Stanley Sklar reflects on the extent to which an arbitrator should play a dominating “samurai” role in adjudicatory proceedings. He responds to Mark Friedlander’s article on the same subject in the Journal’s Winter 2012 issue.

I would like to return for a moment to my immediate predecessor, Holt Gwyn. Since he assumed the Editor-in-Chief position in the Summer 2009 issue, he has devoted extraordinary efforts to maintaining quality and professionalism in these pages. His efforts and those of the various editors and authors whom he coordinated collectively account for the growing reputation of this publication in the construction industry. Those of us who read and cite the Journal in our daily work owe them all a great debt. In a day when cynics like to characterize the legal profession as being motivated by financial gain, it is reassuring to see such generous and high quality volunteer contributions to our common profession.  

Oles Morrison Rinker & Baker LLP