BerkeleyLaw Library

"The Special Committee on Hurricane Katrina and New Orleans Universities of the American Association of University Professors (AAUP) finds that there was 'nearly universal departure from (or in some cases complete abandonment of) personnel and other policies' by five New Orleans institutions―the Louisiana State University Health Sciences Center, the University of New Orleans, Southern University at New Orleans, Loyola University New Orleans, and Tulane University―as they contended with the disaster that befell the city and its universities.

"The report identifies several specific areas of widespread dereliction:

• The number of faculty terminations 'exceeded the inescapable or minimal needs of the institution, sometimes substantially';
• The notice and timing of personnel actions 'also failed to meet AAUP standards and created needless, even at times unconscionable, uncertainty';
• Alternative placement of affected faculty 'universally fell below AAUP standards, but also fell short of the institutions' apparent capacity to mitigate the harshest effects of inevitable personnel reductions';
• The opportunity for internal review of adverse judgments 'failed to meet most accepted standards of due process as well as the institutions' own established review procedures';
• Faculty tenure (which all these institutions had previously recognized and by and large respected) 'received far less deference than AAUP policy and prior practice [on these campuses] would have required.'" —Press release

"This report, which will be updated as events warrant, discusses the following:

• Medicaid's rules on eligibility, benefits, and financing in the context of current questions and issues raised by Hurricane Katrina.
• Recent state actions in response to Medicaid issues raised by the hurricane.
• Federal Medicaid waiver authority, including information on current activity in this area and the New York Disaster Relief Medicaid waiver granted in response to the September 11 terrorist attacks.
• Current federal legislation related to Medicaid and Hurricane Katrina relief efforts."

—Summary.

"The Hurricane Digital Memory Bank uses electronic media to collect, preserve, and present the stories and digital record of Hurricanes Katrina and Rita. George Mason University's Center for History and New Media and the University of New Orleans, in partnership with the Smithsonian Institutions National Museum of American History and other partners, organized this project.

"The Hurricane Digital Memory Bank contributes to the ongoing effort by historians and archivists to preserve the record of these storms by collecting first-hand accounts, on-scene images, blog postings, and podcasts. We hope to foster some positive legacies by allowing the people affected by these storms to tell their stories in their own words, which as part of the historical record will remain accessible to a wide audience for generations to come.

"This project builds on prior work by George Mason University's Center for History and New Media, and other partners such as the Library of Congress and the Red Cross, to collect and preserve history online, especially through the ECHO project and the September 11 Digital Archive. It is part of a growing practice of using the Internet to preserve the past through "digital memory banks." —Website.

"In the aftermath of Hurricane Katrina, victims evacuating New Orleans for safer ground in Gretna, LA, were stopped by a Gretna Police blockade. A class action lawsuit seeks damages from the officers and the City of Gretna for, inter alia, infringement on the right to travel.

"While the complaint does not allege 42 U.S.C. ? 1983 claims against the City of Gretna, such a claim could succeed."—Synopsis.

"Just compensation is critical to post disaster recovery in the wake of a devastating flood, especially when prior shortcomings of the government might be partially to blame. Assessing the full extent of compensation given to private landowners may help for future disaster flood recovery and planning. Despite profound geographic, demographic, and legal differences between France, Louisiana, and California a comparison of their post-disaster compensation models proves useful to identify past, present, and future models of a similar problem of postflood redevelopment compensation outside of private insurance schemes.

"Inquiring into eminent domain concepts surrounding just compensation principles in France, Louisiana, and California provides a framework for addressing post-disaster homeowner compensation. France supplies a model that demonstrates strong flood disaster prevention and land use planning measures alongside a full recovery compensation scheme. In contrast, Louisiana and California do not have explicit disaster compensation frameworks. Existing Louisiana law offers an existing legal and moral framework that can be applied by the state entity currently deliberating on post-disaster compensation program. California, on the other hand, currently offers the most unforgiving compensation scheme, but also has the time to adopt tailored flood compensation and planning principles."—Abstract.

"The manual was specifically written to give local grassroots organisations the knowledge and strategies necessary to protect children from sexual violence and sexual exploitation in the event of both natural and man made disasters and in emergency situations.

"We also hope is that it will be of use to larger organisations, international agencies, policy makers, funders and anyone else who is concerned with protecting children from this particularly damaging kind of abuse and violence."—Introduction.

"In the wake of Hurricane Katrina, Congress temporarily lifted one of the most puzzling limits in the tax Code: the cap that prevents an individual from claiming a charitable deduction greater than 50% of her income, even if she gives more than half her income to charity. Although scholars often criticize the cap in passing for creating unnecessary complexity, few have explored its theoretical underpinnings, and those who have appear hard-pressed to find a satisfactory justification.

"This Article fills that void by proposing two complementary explanations for the AGI limits, one grounded in economic theory and one in political philosophy. The economic explanation proceeds directly from the literature conceptualizing the charitable deduction as a way of overcoming market and government failure for various public goods by spurring non-profits to produce them. It suggests that the AGI limits reflect a bargain between individuals whose preferred public goods are fully funded by the government and those whose projects are only partially subsidized. The philosophical explanation is anchored by the idea of reciprocity inherent in liberal democratic theory. It argues that allowing some individuals to pay no taxes, even if supporting a 'good' cause, is tantamount to allowing them to opt out of a previously agreed-to scheme of cooperation and undermines the stability of our democratic society."—Abstract.

1. "To collect demographic information about laborers employed in the construction and related industries in New Orleans and its environs;
2. "To assess the needs and experiences of workers in the construction industry including job security, safety, fair pay, discrimination, and access to adequate housing and health care; and
3. "To study the overall impact of the changing workforce demographics in the Gulf Coast region."

"Over 700,000 people were displaced after Hurricane Katrina, including 330,000 families. This paper examines some of the potential jurisdictional and practical problems many of these displaced families will face in relation to divorce and child custody matters. It specifically focuses on Louisiana divorce laws and recent modifications to these laws, as well as the conflict of laws issue faced by spouses in covenant marriages when attempting to dissolve their marriages outside of the state. This paper also focuses on the jurisdictional questions that arise when parents attempt to either petition for or modify a preexisting custody decree after displacement. It will examine the implications of federal and uniform laws governing child custody jurisdiction in situations where one of the parents has been displaced outside of Louisiana due to emergency evacuations."—Abstract.

"As recent incidents in the wake of Hurricane Katrina and other disasters have illustrated, the moral content of looting spans a wide continuum: At one end are predatory and exploitative acts that seem deserving of even greater punishment than ordinary acts of burglary and larceny. At the other end are cases of necessity, involving otherwise law-abiding citizens who, as a result of forces beyond their control, find themselves hungry and exposed to the elements. In between these two poles lies a wide range of conduct that often involves impoverished and alienated citizens living on the edges of society, encouraged to engage in lawlessness by powerful group dynamics and the apparent suspension of civil order.

"This article begins by examining the various meanings - both literal and metaphorical - of looting. It then considers the factors that make bad looting so bad, and good looting less so. With respect to the latter, it considers the possibility that: (1) the disruption in normal social order might leave defendants in a state of nature, outside the jurisdictional reach of the court; (2) the defendant's criminal acts were necessary to avoid some greater harm from occurring; and (3) the otherwise law-abiding offender, suffering from a combination of fright, fatigue, hunger, exposure, and disorientation, should be at least partially excused on the grounds that his acts were out of character.

"The article concludes by considering some of the practical implications of the foregoing analysis, including the suggestion by various commentators that the proper response to looters is to shoot them on sight. It argues that such a policy would be profoundly misguided, both because the criminal law should not tolerate the disproportionate use of deadly force in response to what is essentially a property crime, and because of the obvious difficulties of distinguishing between bad and good looting, particularly under the kinds of emergency conditions in which such acts are committed."—Abstract.

• Integration of programme, resource management and coordination, and
• Streamlining and standardization of operational, administrative and financial practices related to disaster reduction and response."

"Thousands of immigrants were displaced by Hurricane Katrina. However, most reports, while critical of the governmental response to the hurricane, failed to even mention, much less criticize, the widespread indifference to the plight of the many noncitizens displaced by the mass disaster.

"The general public did not look sympathetically upon immigrants. Government's failure to provide relief failed to generate much of a public response, much less trigger any general expression of outrage. The denial of disaster relief to noncitizens, as well as aggressive enforcement of the immigration laws in the wake of the hurricane, was consistent with the times, which were filled with calls for increased immigration enforcement and the popular perception that immigrants ? especially undocumented ones ? constituted a serious social problem that must be addressed.

"Part I of this Article summarizes the context surrounding the Hurricane Katrina disaster and how the stage was set for a racially-charged debate over the government's actions in response to the disaster as well as the mistreatment of immigrants. Part II critically analyzes how government harshly treated immigrants in the aftermath of Hurricane Katrina and how political failure within administrative agencies contributed to this treatment, just as it has throughout U.S. history. This structural flaw further helps explain why we know so little about the silent suffering of immigrants in the wake of Hurricane Katrina and, more generally, in American social life. It also suggests deep problems with the lack of political accountability of the immigration bureaucracy to noncitizens.

"As it turns out, Hurricane Katrina is symptomatic of a more general problem in the governance of the United States. A shadow population of millions of undocumented immigrants who are abused and exploited, live in the United States and lack any formal input into the political process. They, along with many lawful immigrants, hold second class status in U.S. social life and, more specifically, are part of a low wage caste of color. Although more diluted than the old racial caste in place in the days of Jim Crow, it is a racial caste no less, marked by a subordinated status and subject to exploitation. To make matters worse, the democratic problem identified in this article is not limited to the immigration bureaucracy, but is a more general problem of U.S. government." —Abstract.

"The 13th Amendment ban on involuntary servitude has new relevance as the U.S. grapples with national emergencies such as catastrophic hurricanes, flu pandemics, and terrorism. This Article considers work refusal and coerced work performance in life-threatening employment contexts. Overwhelmed by fear, hundreds of police officers and health care workers abandoned their jobs during Hurricane Katrina. Postal clerks worked against their will without masks in facilities with anthrax. A report by Congress worries that avian flu will cause sick and frightened medical personnel to stay away from work, thus jeopardizing a coherent response to a crisis.

"How far can the U.S. go in forcing reluctant civilians to perform essential jobs during a national emergency? I explore solutions to this question by hypothesizing a large release of radiation - whether by terror attack, or catastrophic accident, or major earthquake - in a vital Pacific port. These ports have a history of work stoppages that disrupt the nation's economy. I examine federal government responses if dock workers refused assignments until conditions were safe: (1) The President could declare a national emergency labor dispute under the Taft-Hartley Act, and seek an 80-day back-to-work injunction. (2) Congress could re-enact Section 8 of the War Labor Disputes Act, making it unlawful for dock workers to discontinue production for 30 days and subjecting violators to coercive damages. (3) The president could issue strong executive orders, backed by imprisonment, that regulate employment in ports.

"At the heart of my analysis, I ask: Would any of these responses violate the Thirteenth Amendment ban on involuntary servitude? Congress and the judiciary have broadened this law, and its enforcement counterpart in 18 U.S.C. ? 1584, beyond the abolition of African slave-holding. The Supreme Court in Kozminski defined involuntary servitude as forcing a person to work by physical or legal coercion.

"But the Supreme Court created 13th Amendment exceptions for transportation work. Robertson upholds a law that bars merchant seamen from quitting work, and imprisons deserters. Butler permits states to conscript citizens to work on highways, on pain of imprisonment. Dock work is similar because ports integrate ships and trucks in a transportation hub. Courts now apply these precedents to new compulsory activities, such as mandatory public service for graduation. Moreover, Kozminski reaffirmed Robertson and Butler as precedents.

"Thus, the Constitution would be unlikely to shield dock workers from involuntary labor. This has troubling implications for employees who have recently worked in national emergencies, and may do so again. Employees who work to alleviate avian flu or other catastrophic health threats are also at risk for compulsory labor that exposes them to extraordinary hazards.

"I conclude with a legislative proposal to strengthen individual rights. As my research shows, courts that are presented with national emergency disputes rarely side with the individual who stands in the way of the public's welfare. Without a more balanced labor policy to address emerging crises, the nation may realize belatedly that when we allow fundamental freedoms to be sacrificed in the name of real or perceived emergency, we invariably come to regret it." —Abstract.

"Section 502 of the Labor-Management Relations Act (LMRA) allows employees to stop working if they face 'abnormally dangerous conditions,' and a rule under the Occupational Safety and Health (OSH) Act creates an employee right to refuse work because of 'apprehension of death or injury.' Using a hypothetical scenario, I show that neither law would assist emergency workers who lack protective gear while responding to a terror attack.

"I propose an NLRB rule to strengthen Section 502, a 1947 law that is dormant but appropriate for these abnormal workplace dangers. Although part of my proposal draws on the experiences of 9/11, it is mainly founded on fundamental changes in job duties and government employment regulations that recognize a permanent threat to domestic security. The growing list of affected occupations includes dockworkers and doctors, subway and airport workers, power plant and postal employees, and more. However, my proposal excludes police, firefighters, and most paramedics. They perform immediate lifesaving services, and in any event, are excluded from the NLRB's jurisdiction because they are public employees.

"My proposal draws from the fruitless experience of appellate court decisions on Section 502. This caselaw is conflicted because courts disagree as to whether an employee must present proof in fact of an extreme risk, or be motivated by good faith belief. My proposal is also based on the intent of the drafters of Section 502. The two sponsors of this law were Republican senators who strongly opposed union interests. However, when proposing this law in the midst of enacting strike controls, they said 'it would be very unfair and very unjust to employees in any industry to penalize them, if, because of abnormal or unusually dangerous conditions, they should refrain from working.'

"Using evidence from recent GAO reports and other studies, I show that new types of emergency workers are poorly trained and equipped. For the few who train for a cataclysmic attack, their simulations are unrealistic. These employees— who, in their routine jobs do little or no life-threatening work— are not trained for their own fear and panic. Thus, there is too little attention to the possibility that these essential workers will refuse orders when their lives are endangered.

"By breathing life into Section 502, the NLRB would join the large circle of federal and state agencies that are currently immersed in this emergency planning. The purpose of my Article is not to spare a few careers that might otherwise be lost in a poor response to an attack. If these newly designated or de facto emergency workers are not extended a work refusal right, their employers will continue to be lax in improving protective equipment, communication systems, bio-terror inoculations, and work procedures. In the final analysis, proper training and protection of these new emergency workers is essential to deter, prevent, respond to, and mitigate an attack." —Abstract.

"This paper will review the federal, state, and local response to date as it relates to the important goal of creating a better New Orleans. This paper does not attempt to review every decision made on every aspect of the recovery, but instead tries to highlight areas of priority.

"The paper will begin with a quick overview of the federal, state, and local roles to date on post-Katrina recovery.

"It will then evaluate how well the overall recovery response has performed in meeting the three goals of a creating a more inclusive, sustainable, and prosperous New Orleans. In each of these goals, the paper reviews pre-Katrina conditions in New Orleans and puts forth a vision for the future. It then highlights those areas of meaningful progress at the federal, state, and local levels in support of those goals and closes with an action plan to further the recovery progress."—Introduction.

"Southern California is at high risk for a major natural disaster. Yet, few assessments have been made to discover how communities with large populations of Limited English Proficient (LEP) immigrants would fare in such an event. It has also not been established whether LEP immigrants who may be poor and have low levels of education have the information necessary to prepare for and survive a disaster, or whether the social networks, formats, and language in which they can successfully receive and respond to emergency information are in place.

"To address these issues, examine past efforts, and build policy recommendations for the future, the Tom?s Rivera Policy Institute (TRPI) and the Asian Pacific American Legal Center of Southern California (APALC) undertook a joint project that examined several LEP immigrant communities in Southern California. After conducting interviews with emergency service personnel, both in local governments and in nonprofit organizations, and holding focus groups with LEP community members in their native languages, we are able to provide the following findings about this important issue." —Executive Summary.

"One year ago, in the aftermath of Hurricane Katrina, elected officials at all levels pledged bold new action and committed to righting inequities as devastated communities rebuilt—better, safer, with more access to opportunity than before. However, despite their pledges that the most vulnerable citizens would get the help they needed to reclaim their lives and livelihoods, lawmakers have lacked the political will to turn their rhetoric into action.

"This examination of three communities emblematic of long-standing poverty and exclusion—the urban neighborhoods of East Biloxi, Mississippi, and the rural communities of Vermilion and Plaquemines parishes in Louisiana—reveals that government neglect at all levels extends beyond the well-publicized failures in New Orleans to encompass an entire region in distress."—Executive Summary.

"The awareness of federal, state and local governments of the potential for levees in New Orleans to fail and decimate poor neighborhoods of the city was widely reported following the hurricane Katrina disaster. Demographics in the areas likely to incur the most severe damage were known to be neighborhoods of predominately poor, black residents. In addition to understanding the likely geographical impact of the impending disaster, the federal government was aware of the extensive social science and legal challenges detailing the likelihood of minority citizens to experience the worst consequences and slowest recovery from natural disasters. Studies dating back to the 1950s and numerous reports of the Red Cross support this conclusion. FEMA itself was sued in federal court for its inadequate response to marginalized communities during hurricane Andrew in 1992. While the federal government may not be held legally responsible for its discretionary policies within the disaster relief context, the horror of hurricane Katrina surely calls for a long overdue re-thinking of the federal approach to assisting marginalized communities in disaster recovery. Social science, the practical problems raised within legal challenges, as well as successful strategies from other disasters and even within the Katrina tragedy offer numerous opportunities for such reform."—Abstract.

"In the wake of Hurricane Katrina, incarcerated New Orleanians suffered in ways that far exceeded initial understandings of the scope of the storm. New Orleans's criminal justice system was utterly debilitated by the storm, with courts closed, judges and attorneys evacuated, and evidence underwater and destroyed. The many thousands who had been imprisoned in New Orleans prior to the storm were transferred throughout the state, their contact with family, friends and attorneys severed.

Additionally, in the days and weeks following the storm, erroneous reports suggested that New Orleans had devolved into lawlessness. This reporting triggered an unwarranted amount of the general relief effort to be focused on law enforcement, and hundreds of arrests were made despite the fact that courts were still closed and attorneys still absent. The cumulative result of mass incarceration and judicial debilitation was widespread denial of fundamental constitutional and due process rights, including, notably, the essential right to challenge the legality of one's imprisonment through a writ of habeas corpus. For those who suffered so greatly as a result, possible remedies such as pardon and criminal record expungement should be explored and thoughtfully considered."—Abstract.

"Marking two years since Hurricane Katrina's landfall, the Southern Education Foundation (SEF) released a new report on August 29 that updates the status of displaced students and reviews the federal government's efforts to address the hurricane-related education challenges in the Gulf Coast.

"The report is rich with data and detail about the condition of children and the systems of education on which students are now relying to prepare them for life and work."

"In our December 6, 2006, testimony, GAO stated that FEMA made tens of millions of dollars of potentially improper and/or fraudulent payments associated with both hurricanes Katrina and Rita. These payments include $17 million in rental assistance paid to individuals to whom FEMA had already provided free housing through trailers or apartments. In one case, FEMA provided free housing to 10 individuals in apartments in Plano, Texas, while at the same time it sent these individuals $46,000 to cover out-of-pocket housing expenses. In addition, several of these individuals certified to FEMA that they needed rental assistance.

"FEMA made nearly $20 million in duplicate payments to thousands of individuals who claimed damages to the same property from both hurricanes Katrina and Rita. FEMA also made millions in potentially improper and/or fraudulent payments to nonqualified aliens who were not eligible for [FEMA's Individuals and Households Program]. For example, FEMA paid at least $3 million to more than 500 ineligible foreign students at four universities in the affected areas. This amount likely understates the total payments to ineligible foreign students because it does not cover all colleges and universities in the area. FEMA also provided potentially improper and/or fraudulent IHP assistance to other ineligible non-U.S. residents, despite having documentation indicating their ineligibility.

"Finally, FEMA's difficulties in identifying and collecting improper payments further emphasized the importance of implementing an effective fraud, waste, and abuse prevention system. For example, GAO previously estimated improper and potentially fraudulent payments related to the IHP application process to be $1 billion through February 2006. As of November 2006, FEMA identified about $290 million in overpayments and collected about $7 million."—What GAO Found.