Carl Circo

The takings clause of the Arkansas Constitution declares that “the right of property is before and higher than any constitutional sanction.” Perhaps such an elevated regard for property is little more than a relic of the post-reconstruction South. But the philosophy seems surprisingly well aligned with a 2013 decision of the U.S. Supreme Court. Koontz v. St. Johns River Water Management District holds that the U.S. Constitution requires heightened scrutiny when a land use authority exacts an impact fee in exchange for a development permit. Koontz arguably reconceives the Court’s attitude toward routine land use regulation, implying a constitutionally favored right to develop land and, in the process, potentially repealing decades of case law conferring broad discretion on the government to regulate land use for the common good. In this sense, Koontz may signal that a majority of today’s U.S. Supreme Court reckons that the right of property is indeed before and higher than other constitutional rights.

This article argues that the digital world is beginning to play a key role in moving commercial actors toward intentionally relational contracting practices by fostering and rewarding interdependence, adaptability, and reciprocity among otherwise autonomous, self-interested actors in the marketplace. Using a case study involving the most important technology affecting contractual relations in the construction industry, this article explores how collaborative technologies may be expanding opportunities for relational contract in commercial transactions. The study shows how building information modeling is reshaping contractual behavior in the industry by facilitating and encouraging a previously unimagined degree of collaboration among design professionals, builders, specialty trades, suppliers, manufacturers, and owners and operators. The result could be a truly transformative shift toward relational contract in the building sector.

In a future menaced by global climate change, to what extent can and should local communities use development financing tools—especially impact and linkage fee programs—to help defray the public and social costs of natural disasters? Should land use authorities require new real estate projects to internalize some of the potential costs that severe weather events may impose on their communities over time? Such programs might, for example, impose disaster impact fees on new development to fortify infrastructure and to improve emergency management systems or even to fund a reserve account to defray anticipated disaster recovery costs. Beyond that, should new development help finance any of the costs of retrofitting existing communities and new affordable housing projects to face natural disasters and the costs of recovering and rebuilding in those neighborhoods when disaster strikes? Can disaster impact and linkage fees help address problems of uninsured, underinsured, and uninsurable risks?
   
    To establish a framework for understanding the public financing challenge, Part I of this paper presents the problem in the context of evidence that climate change may cause more frequent and more severe tornadoes. Part II then develops a legal analysis equally applicable to other natural disasters that are even more commonly associated with climate change, such as extreme heat waves, hurricanes, coastal storm surges, forest fires, and flooding. The author concludes that disaster impact and linkage fee programs could play a small but meaningful role in tornado alley and beyond, but only if they can avoid or survive heightened judicial scrutiny under the U.S. Supreme Court land use cases and the rational nexus standard of state land use law. The current state of the law, especially following Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586 (2013), creates a quandary for any land use authority that may consider resorting to development funding devices to help adapt the built environment to climate change.

    The author presented a first draft of this paper at the 13th Kratovil Conference on Real Estate Law and Practice: Adaptation of the Built Environment to Achieve Resilience to Climate Change, which took place in September, 2013 at the John Marshall Law School. He gratefully acknowledges the comments, suggestions, and encouragement provided by the other participants in that conference.

... AL 35203 (205)521-8000 alewis@ba-boult.com Michael R. Libor, Pennsylvania Chapter Morgan, Lewis & Bockius LLP 1701 Market Street Philadelphia, PA 19013 (215) 963-4936 mlibor@morganlewis.com Carl Lisman, Vermont Chapter Lisman, Webster & Leckerling, PC ...

For several years, business and transactional lawyers have increased the pressure on law schools to produce more practice-ready graduates. This article explores the practical skills reform movement with two goals in mind. First, it seeks to articulate and reconcile some of the fundamental differences in the perspectives of the practicing bar and the legal academy. Second, it highlights the special challenges and opportunities involved in making legal education more effective for students who will practice business and transactional law. In addition to reviewing recent literature from the bar and the academy on the practical skills gap, the article also reports and analyzes the results of the author’s own national survey of law firm professional development departments concerning the specific practical skills that entry-level transactional lawyers need. The author concludes that, if reform is to be comprehensive and fully effective, the bar must take the leading role, and that society will benefit most when the bar and law schools seek out educational partnerships with one another.

The sustainable construction movement may eventually transform construction law and practice. Alternatively, sustainability in the built environment may simply be absorbed into the existing fabric of construction contracting. Using the lens of design and construction law theory, this article examines selected project structures and contract provisions being used or proposed in the design and construction industry to allocate the special risks associated with green building standards and objectives. Green building contracts will inevitably reflect industry practices derived from theories of liability and risk allocation that have dominated construction and design law for decades. But established practices and legal theories do not necessarily match the new realities of green building design and construction. This article analyzes some of the most important issues relating to the contracting structures and provisions that lawyers are beginning to adapt and adjust for green building projects, especially those developments that invite exploration of the tort and contract theories that are fundamental to construction and design law.

The social rehabilitation of convicted persons has long been a goal of our criminal justice system. 1 This statement is so true that the term" corrections" has come into common usage in reference to the postconviction phase of the system. 2 The rehabilitative process may ...

This article concludes the author's three-part series that underscores the importance of context in analyzing risk allocation in the construction industry. See Carl J. Circo, When Specialty Designs Cause Building Disasters: Responsibility for Shared Architectural and Engineering Services, 84 NEB. L. REV. 162 (2005); Carl J. Circo, Contract Theory and Contract Practice: Allocating Design Responsibility in the Construction Industry, 58 FLA. L. REV. 561 (2006). Some of the most interesting and frequent economic tort claims raise important policy issues in a construction industry context. For example, the plaintiff may be a disappointed developer or owner seeking recourse against a solvent subcontractor after the builder's bankruptcy, or the claimant may be a building contractor suing to recover delay damages from the owner's architect. Inevitably, the defendant asserts that because it has no direct relationship with the plaintiff, tort policy should preclude recovery for economic harm. Do these claims improperly attempt to cross the boundary between tort and contract? Or do they point toward the next logical tort law frontier? The cases are in considerable disarray. The article briefly surveys how the authorities have analyzed tort claims for recovery of purely economic loss (economic loss incurred without physical damage to person or property). It then critiques in greater detail the most common theories for recovering purely economic loss in building construction cases. The cases are incoherent because the prevailing tort analysis fails to consider industry context. Courts should replace the overstated economic loss rule with a commercial loss defense that will place economic torts in the appropriate context. While the article focuses on the construction industry cases, the recommendations also apply to other economic tort problems.

As more states and local governments decide to offer green building incentives and other programs to offset the impact of land uses that do not meet sustainable development standards, they must decide how to fund or offset the costs of their programs. This Article argues that developer fees should be used more ambitiously to help finance the most progressive sustainability objectives, and it examines the legal limits that apply to developer funding devices for sustainability, such as sustainability impact and mitigation fees. The U.S. Supreme Court’s land use exactions opinions do not provide meaningful guidance concerning the constitutionality of monetary development exactions. Moreover, through its trilogy of takings cases in its 2005 term, the Court reinforced the principle that federal courts must accede to legislative initiatives in a wide array of state and local land use policies. As a result, the key limitations on the use of developer fees to finance green building incentives and other sustainable development programs must come from the highly developed body of state land use law governing exactions, impact fees, and mitigation fees. While the prevailing view favors using a rigorous rational nexus test to determine the validity of developer fees in most context, state courts should apply a more deferential standard to sustainability fees, which should require only that the fee program must bear a reasonable relationship to the public health, safety, and general welfare.

This article explores what the author has learned from developing and supervising an externship program that places students in the legal departments of major corporations. Externship placements in corporate legal departments provide unique opportunities for law schools to integrate into the curriculum the core practice competencies that are essential for commercial and business lawyers but that are rarely taught in an experiential setting. The article proposes an educational partnership model to establish, structure, and implement a corporate counsel externship. This approach advocates a carefully orchestrated collaboration between the faculty who administer the program for the school and the lawyers who supervise the students on site. The structure of the program must be adaptable enough to take advantage of the particular opportunities that each participating legal department offers, with the only inflexible principle being that the primary purpose must be to educate the students. The author concludes that educational partnerships of this kind offer some of the most promising avenues for improving legal education in the 21st century.

In its role as a federal remedy for state prisoners who claim to be confined in violation of the Constitution of the United States, the writ of habeas corpus has become a remarkable and controversial feature of contemporary American law. 1 It is an unseemly paradox that a ...

By demanding stewardship of natural capital over exploitation, sustainability envisions a property regime less committed to individual property rights than are the traditional and economic theories of property. While the traditional property theories of Blackstone, Locke, and U.S. constitutional doctrine tolerate restrictions on private property rights for the sake of public welfare, they resist the strongest versions of sustainability, which promote generational and social justice. Similarly, an economic analysis of property recognizes the values of resource conservation and welfare for future generations, but only to the limited extent the economist can calculate future value. As a result, economic analysis may overlook or undervalue the interests of remote generations. Moreover, the goal of a more egalitarian distribution of resources, which informs the social justice model of sustainability theory, runs counter to the dominant economic analysis of property. Only relational principles at the fringes of property theory in the United States can fully embrace the strongest versions of sustainability. Thus, absent an unlikely theoretical revolution in the U.S., the sustainable development agenda cannot succeed in this country at the level required by the international community.

4. Design Professional's Responsibility for Acts and Omissions of Others........................... 183 5. Liability to Third Parties...................... 185 a. From Privity to Duty....................... 185 b. Personal Injury Cases...................... 187 c. Property Damage and Pecuniary Interest Claim ...

Earlier this year, the United Nations released Buildings and Climate Change, which reports that 30-40% of all primary energy is used in buildings. A host of other authorities have joined the U.N. in calling for green building standards, not only to conserve energy, but also to achieve more socially responsible real estate development. A discernable movement is now afoot for government to play a significant role in promoting green building projects. But there is not yet agreement on what that role should be. In particular, green building standards have not yet found their place within the realm of land use regulation. In the United States, land use controls are normally adopted, implemented, and enforced at the local level, where they are subject to local political influences that make it unlikely that municipalities alone will bring about the required green building revolution. And prospects for effective green building initiatives resulting from international or national sustainable development policies are dim due to the resurgent private property rights movement in this country. While the principles at stake are considerable, we must not allow deep philosophical, normative, and political battles over the more controversial aspects of sustainable development theory to retard progress on this matter of critical global concern. This article argues that timely, meaningful movement toward sustainability in the U.S. building industry requires state-level legislation that promotes, and sometimes even mandates, green building standards at the regional and local levels.