Kidding aside, your post and Ujjval’s post hit the mark. The old bottles analogy tries to comfort folks by implicitly stating that “there’s nothing to see here, these new facts fit neatly into the long established, dusty canons of English and maybe even Roman jurisprudence.” That’s probably a true statement, but anyone who has gone to law school knows that shoving new facts into old law is seldom easy. After all, that IS the practice of law–putting new wine into old bottles. (God, I’m getting tired of this analogy.) It brings to mind my first year law school exams. That’s where my professors devised a diabolical blend of new facts (i.e., new vintage) and asked me to force them onto the reasoning of a tiny set of dusty cases I’d read or pretended to read (i.e., old bottles) in 90 minutes. As I recall, those exams often resulted in later consumption of large amounts of not-so-old wine. I shudder at the thought…of prolonging this analogy.

I would also not say that the legal and insurance issues involved with certification are so enormously terrifying or complex that they should stand in the way of progress in this area. The job of lawyers is to identify those risks so that our clients can make better decisions and better contracts that allocate the costs of those risks.

Asserting that the changes currently taking place in the realm of construction law regarding green or sustainability issues is simply new wine in old bottles seems both trite and tautological. Firstly, it is trite since this is, after all, a paper produced by an organization that has shown a strong interest in calming any fears about the liability generated by the use of its rating system products. A natural and understandable result of self-interest. One could hardly expect any other outcome, especially given the other studies and “publications” it produces as part of a very able and impressive marketing strategy.

Secondly, tautological, and especially so since this is a roundtable of attorneys. The whole process of legal reasoning proceeds by putting new wine into old skins. Edward Levi’s great book titled “An Introduction to Legal Reasoning” stands as a masterful essay on exactly how the legal system proceeds by reasoning by example. The progress of the law is always a putting of new wine into old bottles, always a battle between similarity and difference. Thus to say that no theory or creation of novel liability exists is to say little.

New reproductive technologies (nanotechnology, genetic manipulation for foodstuffs, medicine, etc., and DNA testing are only some of the most obvious other expamples) present no novel types of liability either since they involve nothing more than the application of property, family, or intellectual property law to a new context. The fact that one can sue a sperm bank for negligence in improperly destroying banked sperm requires no new theory of liabilty (though how to quantify the damages becomes a bit puzzling). Nevertheless, such new wine could not have been imagined only a few years ago, nor the much novel case law that resulted from finding old bottles to put it in.

So the new and confusing arena of green (in all its more obvious and bizarre applications)presents no novel liability. Yet, it does in fact necessitate the application of property, contract, real estate, and construction law in a very new and as yet uncharted context. Green building rating system products are only the beginning of this putting new wine into old bottles when dealing with the more general application of “green,” but it does not follow from this that the new context could not have a signiicant impact on the requisite legal practitioners and the need to provide meaningful counsel and risk management for clients and policymakers.

Just some thoughts,
Jon