BerkeleyLaw Library

"The twin blows of the September 11, 2001, terrorist attack and the August 29-30, 2005, devastation caused by Hurricane Katrina, clearly demonstrated that major disasters pose a multitude of challenges to the people and governments of the United States. The challenges not only threaten the lives of Americans but the legal fabric that binds our society together. The Section of Litigation of the American Bar Association convened a Task Force to evaluate whether the legal system operated effectively in these situations and whether changes could be recommended that would more completely insure adherence to the rule of law. Neither the Task Force nor the Section of Litigation considers ourselves to be experts in disaster planning. An array of professionals, with substantial talent and expertise, has contributed valuable insights on how governments, businesses and families should prepare to respond to, and overcome, a major disaster.

"It is the purpose of these Principles to preserve the rule of law in times of major disaster. The Principles are intended to help insure that justice will continue to be dispensed despite the damage and disruption caused by a major disaster. The Principles are also intended to foster reliance on legal mechanisms when the effort is undertaken to restore a disaster-torn community through programs designed to compensate for loss or render assistance in recovery."—Introduction.

This special issue features articles on the economic loss impact of Hurricane Katrina. Contents include: Bradley T. Ewing, Jamie Brown Kruse & Daniel Sutter, An Overview of Hurricane Katrina and Economic Loss; William A. Carden, Sound and Fury: Rhetoric and Rebound after Katrina; Kivanc Kirgiz, Michelle Burtis & David A. Lunin, Petroleum-Refining Industry Business Interruption Losses due to Hurricane Katrina; Mark J. Kaiser, David E. Dismukes & Yunke Yu, The Value of Lost Production from the 2004-2005 Hurricane Seasons in the Gulf of Mexico; Mark A. Thompson, Hurricane Katrina and Economic Loss: An Alternative Measure of Economic Activity; Benjamin Kleidt, Dirk Schiereck & Christof Sigl-Grueb, Rationality at the Eve of Destruction: Insurance Stocks and Huge Catastrophic Events; Ron S. Jarmin & Javier Miranda, The Impact of Hurricanes Katrina, Rita and Wilma on Business Establishments; Mark A. Yanochik & Risa Kumazawa, Interest Rate Manipulation, Environmental Damage, and Loss Valuation; Douglas M. Walker & John D. Jackson, Katrina and the Gulf States Casino Industry; and Apoorv Dabral & Bradley T. Ewing, Analysis of Wind-Induced Economic Losses Resulting from Roof Damage to a Metal Building.

"The legal system ostensibly plays a central role in disaster prevention, response, and management. Attorneys, members of the judiciary, and decision-makers at every level of government must anticipate and respond to disasters in a coordinated manner. It is increasingly clear, however, that the law is woefully unprepared to handle disasters. A growing community of academics recognizes this problem, and is formulating solutions under the rubric of disaster law. This emerging legal academic field encompasses a wide-ranging, intra- and inter-disciplinary body of thought, research and dialogue which seeks to inform and improve disaster-related decision-making.

"On June 25th, 2007, eighteen law professors and legal practitioners who count disasters among their primary research interests, gathered at U.C. Berkeley Law School to chart disaster law's course for the immediate and long-term future. Appendix A, Workshop Participants and Agenda. Over the course of the day, participants highlighted a wide variety of important intellectual concerns and potential problem-solving strategies regarding disaster management.

"In a series of productive discussions, participants first addressed central normative issues of disaster law, including terminology and the role of the legal academy. The group then addressed four sub-areas of disaster law: international collaboration, social justice, compensation and insurance, and prevention and response. Participants' recommendations for action included the creation of an annual disaster law conference, the integration of disaster law into law teaching, and an increased internet presence.

"This white paper, a record of the milestone June 25th workshop, is intended as a tool for use by disaster law practitioners and academics in mapping the direction and future of the field."—Executive Summary.

"Hurricane Katrina not only devastated a large area of the nation's Gulf coast, it also raised fundamental questions about ways the nation can, and should, deal with the inevitable problems of economic risk and social responsibility. This volume gathers leading experts to examine lessons that Hurricane Katrina teaches us about better assessing, perceiving, and managing risks from future disasters.

"In the years ahead we will inevitably face more problems like those caused by Katrina, from fire, earthquake, or even a flu pandemic. America remains in the cross hairs of terrorists, while policy makers continue to grapple with important environmental and health risks. Each of these scenarios might, in itself, be relatively unlikely to occur. But it is statistically certain that we will confront such catastrophes, or perhaps one we have never imagined, and the nation and its citizenry must be prepared to act. That is the fundamental lesson of Katrina.

"The 20 contributors to this volume address questions of public and private roles in assessing, managing, and dealing with risk in American society and suggest strategies for moving ahead in rebuilding the Gulf coast."

—Publisher's Description.

"This essay explores the intellectual contexts wherein disasters are defined as non-routine social problems. The argument is advanced that this theoretical orientation can both open new doors for researchers and assist emergency management professionals in critically reviewing existing policy and future proposals."—Abstract

"Katrina alone will involve at least a hundred billion dollars in compensation, insurance, and rebuilding efforts, and lawyers will be heavily involved for at least the remainder of the decade in disputes over these funds. Unfortunately, there is no reason at all to think that Katrina is the last word on disasters. At first glance, disaster law seems to be nothing but a collection of legal rules of various kinds that happen to come into play when communities have suffered severe physical damage. But at a deeper level, disaster law is about assembling the best portfolio of legal rules to deal with catastrophic risks - a portfolio that includes prevention, emergency response, compensation and insurance, and rebuilding strategies. Because of this unifying theme, we think that the topic is deserving of serious law school attention even beyond its newsworthy qualities."—Daniel Farber

"This document ... is intended to serve as a reference for FEMA leadership and employees to help orient them to its organizational structure, programs, resources, stakeholders, and operations."—Preamble. Six sections include an introductory description of the New FEMA, followed by discussions of the agency organization, regional offices, the budget process, an overview of staffing and agency infrastructure, and external coordination.

"This symposium provides a forum for scholars to begin conceptualizing a new field of legal scholarship devoted to catastrophic risks. It is hard to think of anything equally important that has received so little sustained attention from lawyers and law professors. Hurricane Katrina involved over a thousand deaths and $100 billion in losses. There is no reason to consider Katrina the 'worst case scenario.' Yet, scholars have not yet systematically addressed the legal and policy issues posed by major disasters. Ultimately, the goal should be assembling the best portfolio of social policies, institutions, and legal rules to deal with catastrophic risks—a portfolio that includes prevention measures, mitigation incentives, emergency response strategies, liability rules, insurance, and reconstruction planning. In this symposium, papers by legal scholars and policy analysts will address these as well as other issues relating to this critically important subject."—Dan Farber, Editor, Introduction. Access to this bepress journal requires a subscription.

"This monograph looks at our country's federal and legal system and how it has been used in other kinds of crises, to offer a framework from which to address new threats. It begins by describing the laws Congress has established for dealing with disasters, emergencies and acts of war, then looks at the President's inherent authority for dealing with unanticipated crises, and at state and local emergency powers. Finally, it explores what legal liability may attach to those who respond to an emergency. The monograph identifies relevant statutory authority and case law, to define the limits of what acts government may reasonably initiate and what acts may be found unreasonable by the courts." —Introduction.

"This article reviews the risk of governmental tort liability associated with disaster management, in light of current statutory and case law regarding governmental tort immunity."—Introduction.

"The Disasters Roundtable convened its 15th workshop on Law, Science, and Disaster on October 18, 2005. It is recognized that science and technology can provide part of the basis for more effective hazard-related laws and regulations, including zoning laws, building codes, and hazard disclosure requirements. It is also clear that issues unrelated to science and technology also drive the development of hazard and disaster law. This workshop examined recent developments and trends in hazard and disaster law and its implementation, and drew on the September 11, 2001 experience to discuss the related issue of victim compensation."—Summary.

"The Natural Hazards Review stands on the realization that natural disaster losses result from interactions between the physical world, the constructed environment, and the character of the societies and people who occupy them. The journal is dedicated to bringing together the physical, social, and behavioral sciences; engineering; and the regulatory and policy environments to provide a forum for cutting edge, holistic, and cross-disciplinary approaches to natural hazards loss and cost reduction.... Social and behavioral sciences topics addressed include a range of issues related to hazard mitigation and human response as well as significant issues related to the built environment such as land use, building standards, and the role of financial markets and insurance."—Aim and Scope.

"Homeland Security Law and Policy discusses relationships abroad, the mission of federal, state, and local governments here at home, and the best way to "provide for the common defense" in a unique and incredibly helpful way. Presented in eight sections, the first examines homeland security and emergency management, defines homeland security within the classroom and the military, FEMA's place in policy, law, and management which includes a hazardous materials perspective, FEMA's changing priorities, and the shape of emergency response and management in the aftermath of the Homeland Security Act of 2002. Section II explores the local and regional perspectives, homeland security initiatives and management in metro areas, and emerges with a strategy for security. Section III presents new partnerships for homeland security which covers the government, the private sector, and higher education. Partnering with the Department of Defense is reviewed, including their immediate response to any given disaster. Section IV covers civil rights issues, the government's demands for new and unnecessary powers, antiterrorism investigations, the Fourth Amendment, the USA Patriot Act, money laundering, and suspicious activity reports from financial institutions. Section V explores the challenges for transportation and policy issues, aviation security, the role of technology and the federalized screening process. Section VI discusses natural disasters, weapons of mass destruction, bioterrorism defense, and the "dirty bomb" and its policy implications. Section VII continues with foreign policy aspects and foreign views, including excerpts from President Bush and Representative Doug Bereuter (R-Nevada). The final section tackles future challenges, restructuring management, the need for a change, the future role of the FBI, the executive orders issued in response to the 9-11 Commission Report, and the 9-11 Commission Report Implication Legislation. Illustrations and photographs are included to further the understanding of the subject matter. This resource will be invaluable to all law enforcement professionals, investigators, attorneys, and policymakers as well as the general public." —Publisher's description.

"As the first text to be published on emergency response and emergency management law, this book addresses important topics. First, emergency response law is considered with the goal of providing an understanding of the legal challenges faced on a daily basis by the front line troops in emergent situations. The emergency response law section begins with the duty to respond and proceeds through the wide range of legal issues that arise during response. Training accidents, vehicle issues, dispatch, Emergency Medical Services issues, and "Good Samaritan" acts are all covered. The emergency management discussion begins with the responsibilities of local and state governments, after which federal emergency management law is treated. The text contains useful suggestions for optimizing the alliance between attorneys and emergency managers, which is a key element in comprehensive preparedness. Law school classes and practicing attorneys will find the text to be an important resource for learning emergency response and emergency management law. Emergency responders and emergency managers will find its straightforward style to be both comprehensible and useful in their preparedness efforts. A partnership composed of emergency responders, emergency management professionals and their attorneys will be able to use the book as the basis for mutually informative discussions of legal issues. Attorneys who will be at the side of business and government chief executives in the aftermath of emergencies and disasters will find the work to be of particular value. At the end of each chapter, questions and problems refer back to the text. These resources highlight the principal issues and serve as a valuable teaching tool for the instructor." —Publisher's description.

"America builds on the edge of disaster prone areas: on moveable barrier islands, fragile coastal ecosystems, shorelines subject to inundation, and next to flammable forests. Ferocious storm events focus local and national attention in the tragic moment and during short-term recovery efforts; then, too often, we return to business as usual, continuing to build and rebuild on the edge. 'Losing Ground' provides effective perspectives and prescriptions for longer-term disaster mitigation planning and action. Authors from a variety of disciplines (including law, history, geography, environmental science, and urban planning) review past policies and practices, the lessons learned from previous disasters, current approaches to disaster planning and recovery, an assessment of the proper roles and responsibilities of various levels of government in the federal system, new legal and technological tools, and a review of innovations in disaster mitigation.

"Oliver A. Houck, a renowned professor of law from Tulane University, provides a preface from the perspective of a post-Katrina New Orleans: 'Perhaps, the most striking aspect of the post-Katrina Gulf Coast, from Alabama to Texas, is the rush to rebuild in exactly the same places, a few feet back, a few feet higher, more high priced investment than ever before. Two lane bridges are replaced by six lane bridges. Modest beach homes are replaced by condominiums. The hurricane has led to a construction boom. As the Gross National Product measures these things, the hurricanes were a huge success. What is wrong with this picture?.' "—Publisher's Description.

This special issue includes a collection of 20 papers from around the world, 4 book reviews, a media review and and an annotated compilation of resources focusing on children and youth before, during and after disasters occur.

"Catastrophes, whether natural or man-made, that could destroy the human race are often dismissed as alarmist or fanciful, the stuff of science fiction. In fact the risk of such disasters is real, and growing. A collision with an asteroid that might kill a quarter of humanity in 24 hours and the rest soon after; irreversible global warming that might flip, precipitating "snowball earth;" voraciously replicating nanomachines; a catastrophic accident in a particle accelerator that might reduce the earth to a hyperdense sphere 100 meters across; a pandemic of gene-spliced smallpox launched by bioterrorists; even conquest by superintelligent robots-all these potential extinction events, and others, are within the realm of the possible and warrant serious thought about assessment and prevention. They are attracting the concern of reputable scientists-but not of the general public or the nation's policymakers. How should the nation and the world respond to disaster possibilities that, for a variety of psychological and cultural reasons, people find it hard to wrap their minds around? Richard Posner shows that what is needed is a fresh, thoroughly interdisciplinary perspective that will meld the insights of lawyers, economists, psychologists, and other social scientists with those of the physical sciences. Responsibility for averting catastrophe cannot be left either to scientists or to politicians and other policymakers ignorant of science. As in many of his previous books, Posner brings law and the social sciences to bear on a contemporary problem--in this case one of particular urgency. Weighing the risk and the possible responses in each case, Posner shows us what to worry about and what to dismiss, and discusses concrete ways of minimizing the most dangerous risks. Must we yield a degree of national sovereignty in order to deal effectively with global warming? Are limitations on our civil liberties a necessary and proper response to the danger of bioterror attacks? Would investing more heavily in detection and interception systems for menacing asteroids be money well-spent? How far can we press cost-benefit analysis in the design of responses to world-threatening events? Should the institutional framework of science policy be altered? Do we need educational reform? Is the interface of law and science awry? These are but a few of the issues canvassed in this fascinating, disturbing, and necessary book." -Product Description

"While dams have multiple benefits (as well as some financial and environmental costs), they also present a risk to public safety and economic infrastructure. This risk stems from two sources: the likelihood of a dam failure, and the damage it would cause. While dam failures are infrequent, age, construction deficiencies, inadequate maintenance, and seismic or weather events contribute to the likelihood. To reduce the risk, regular inspections are necessary to identify potential problems. Corrective action then can be taken to remedy those deficiencies. Congress is often called upon to fund remedial actions, as a way to prevent the larger catastrophes. The 110th Congress will likely see proposals for improving dam safety and may oversee existing safety programs."—Summary.

"In this paper we discuss the differences between emergencies, disasters and catastrophes as these tend to be conceptually differentiated by disaster researchers. As illustrated in the examples below, these are differences that should make a difference in the planning and management activities of any crisis relevant groups."

A course reading list of materials, published both pre- and post-Katrina, about disasters, disaster planning, Louisiana politics, and public policy.

"In this special interim report, GulfGov Reports looks at the impact of the hurricanes on 15 communities. The school districts are parish and county wide in Louisiana and Mississippi. (In Louisiana, counties are called parishes.) In Mississippi, the school districts examined are all city districts. Specifically, the study examines systems in Calcasieu, Cameron, East Baton Rouge, Jefferson, Orleans, St. Bernard, and St. Tammany parishes in Louisiana; Bay St. Louis/Waveland, Biloxi, Gulfport, Jackson, Hattiesburg, Laurel, and Pascagoula in Mississippi; and Mobile County in Alabama."-Overview Analysis.

"Nuclear bombs in suitcases, anthrax bacilli in ventilators, tsunamis and meteors, avian flu, scorchingly hot temperatures: nightmares that were once the plot of Hollywood movies are now frighteningly real possibilities. How can we steer a path between willful inaction and reckless overreaction?

"Cass Sunstein explores these and other worst-case scenarios and how we might best prevent them in this vivid, illuminating, and highly original analysis. Singling out the problems of terrorism and climate change, Sunstein explores our susceptibility to two opposite and unhelpful reactions: panic and utter neglect. He shows how private individuals and public officials might best respond to low-probability risks of disaster--emphasizing the need to know what we will lose from precautions as well as from inaction. Finally, he offers an understanding of the uses and limits of cost-benefit analysis, especially when current generations are imposing risks on future generations.

"Throughout, Sunstein uses climate change as a defining case, because it dramatically illustrates the underlying principles. But he also discusses terrorism, depletion of the ozone layer, genetic modification of food, hurricanes, and worst-case scenarios faced in our ordinary lives. Sunstein concludes that if we can avoid the twin dangers of over-reaction and apathy, we will be able to ameliorate if not avoid future catastrophes, retaining our sanity as well as scarce resources that can be devoted to more constructive ends." —Publisher's Description.

"My testimony is organized in terms of three points in time. First, I discuss observations made by some researchers and practitioners concerning the ways in which post-September 11 policy and programmatic changes were adversely affecting FEMA's ability to respond in future major disaster events. Second, I briefly review assessments of FEMA's performance during hurricane Katrina, as well as post-Katrina reforms. Third, I suggest changes that have the potential for enhancing FEMA's ability to reduce losses in future disaster events. With little notice in terms of developing testimony, I have relied a great deal on my own experience and writings. Nonetheless, I believe that my comments accurately reflect what many in the research and practice communities have observed over the past six years."—Testimony.

Judge Jack B. Weinstein, senior federal judge in the Eastern District of New York, has presided over many of the landmark mass tort cases involving Agent Orange, DES, asbestos litigation, repetitive stress injury, and other environmental toxic torts. He published his landmark decisions in these cases as well alongside articles he has written analyzing the problems relating to complex mass tort litigation. The book documents prominent features of mass tort litigation, and Judge Weinstein's views concerning the most fair and efficient resolution of these massive litigations.

Chapter 2 deals specifically with "The Law's Reaction to Disasters", discussing various types of disasters, jurisdictional issues, "desirable conditions for disaster management by courts", procedural tools and models, and proposing a national disaster court.