BerkeleyLaw Library

"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.

This article begins with a critical account of what occurred in the aftermath of Hurricane Katrina. This critique serves as the backdrop for a discussion of whether there are international laws or norms that give poor, black Katrina victims the right to return to and resettle in New Orleans. In framing this discussion, this article first briefly explores some of the housing deprivations suffered by Katrina survivors that have led to widespread displacement and dispossession. The article then discusses two of the chief barriers to the return of poor blacks to New Orleans: the broad perception of a race-crime nexus and the general effect of the imposition of outsider status on poor, black people by dominant groups. Finally, the article explores the international law concept of the right of return and its expression as a domestic, internal norm via standards addressing internally displaced persons, and considers how such a domestic right of return might be applicable to the Katrina victims."

"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.