+Berkeley Electronic Press (bePress), Hurricane Katrina and Economic Loss (provided by: Berkeley Electronic Press)
Disasters & the Law
UC Berkeley School of Law
19 entriesexpand all
+Brookings Institution, Metropolitan Policy Program, New Orleans after the Storm: Lessons from the Past, a Plan for the Future (October 2005)
+Darling, Erin, Liz Skillen & Minming Wu, Just Compensation Valuation Schemes After a Flood Disaster in France, California, and Louisiana (UC Berkeley School of Law, Law 224.9, Disasters & the Law, Spring 2006) (PDF — 461K)
"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.
+Dickinson, James, Gulf Coast Blues: FEMA's Botched Plans for Emergency Housing After Katrina
+Federal Emergency Management Agency (FEMA), Myths & Facts About FEMA Housing Following Katrina (FNF-08-046) (May 26, 2008)
+Fletcher, Laurel, Phuong Pham, Eric Stover & Patrick Vinck, Rebuilding After Katrina: A Population-Based Study of Labor and Human Rights in New Orleans (June 2006) (PDF — 2.1M)
- "To collect demographic information about laborers employed in the construction and related industries in New Orleans and its environs;
- "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
- "To study the overall impact of the changing workforce demographics in the Gulf Coast region."
+Frey, William H., Audrey Singer & David Park, The Brookings Institution, Metropolitan Policy Program, Resettling New Orleans: The First Full Picture from the Census (September 12, 2007) (PDF — 6.3M)
+Green, Stuart P., Looting, Law, and Lawlessness (provided by: SSRN) (Tulane Law Review, Vol. 81, Hurricane Katrina Symposium Issue, 2007) (PDF — 381K)
"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.
+Habitat International Coalition - Housing and Land Rights Network (HIC-HLRN) & PDHRE - People's Movement for Human Rights Learning, International Human Rights Standards on Post-disaster Resettlement and Rehabilitation (PDF — 877K)
"The intention of this compilation is to draw attention to some of the numerous existing international human rights instruments, including guidelines adopted by UN agencies that should form the basis for ongoing post-tsunami rehabilitation work. The standards provided for in these instruments could be used to ensure that a human-rights-based approach is upheld and not compromised in the multiple agendas of competing relief agencies. These standards must also be used to spread learning and education amongst all actors involved in the post-tsunami efforts such that everyone works for the same purpose: the speedy attainment of human rights for all who are affected."—Foreword, Miloon Kothari.
+Henry J. Kaiser Family Foundation, Giving Voice to the People of New Orleans: The Kaiser Post-Katrina Baseline Survey (May 2007)
+Inniss, Lolita Buckner, A Domestic Right of Return? Race, Rights, and Residency in New Orleans in the Aftermath of Hurricane Katrina (provided by: SSRN) (Cleveland-Marshall Legal Studies Paper No. 07-143) (Boston College Third World Law Journal, Vol. 27, p. 1, 2007)
+Kimball, Miles, et al., National Bureau of Economic Research, Unhappiness After Hurricane Katrina (NBER Working Paper Series No. 12062) (February 2006)
+LeRoy, Michael H., Compulsory Labor in a National Emergency: Public Service or Involuntary Servitude? The Case of Crippled Ports (provided by: SSRN) (Berkley Journal of Employment and Labor Law, Vol. 28, No. 2, 2007)
"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.
+LeRoy, Michael H., From Docks to Doctor Offices After 9/11: Refusing to Work Under "Abnormally Dangerous Conditions" (provided by: SSRN) (American Law Review, Vol. 56, No. 3, 2004)
"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.
+Liu, Amy, The Brookings Institution Metropolitan Policy Program,, Building a Better New Orleans: A Review of and Plan for Progress One Year after Hurricane Katrina (Special Analysis in Metropolitan Policy) (August 2006) (PDF — 442K)
"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.
+McCarty, Maggie, Libby Perl & Bruce Foote, Congressional Research Service (CRS), The Role of HUD Housing Programs in Response to Disasters (PDF — 86.2K)
+Peek, Lori (Editor), Children, Youth and Environments Center for Research and Design, Special Issue: Children and Disasters Children, Youth and Environments Journal, v. 18, no.1 (2008)
+PolicyLink, Building a Better New Orleans: Hope Needs Help (August 2007) (Issue Brief) (PDF — 1.67K)
+Seidenberg, Jennifer, Cultural Competency in Disaster Recovery: Lessons Learned from the Hurricane Katrina Experience for Better Serving Marginalized Communities (UC Berkeley School of Law, Law 224.9, Disasters & the Law, Spring 2006) (PDF — 103K)
"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.