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A handful of legal scholars, shocked by the collapse of the New Orleans courts following Hurricane Katrina, are working to create a new specialty they call “disaster law.” “Preservation of the rule of law in times of major disaster is very important and not enough has been done to think through and act on how to keep the justice system functioning in times of disaster,” said Stephan Landsman, professor at DePaul University College of Law in Chicago. “I hate to say it, but we are going to have challenges on the scale of Katrina.” Dan Farber, professor at the University of California, Berkeley School of Law and director of the school’s Environmental Law Program, organized a symposium of legal scholars last June to consider disaster law. Participating schools agreed in a white paper that “the legal system and its stewards remain gravely unprepared for the next major disaster � the occurrence of which is nothing short of a certainty in a world characterized by global warming and international conflict.” “Federalism was a big issue in the immediate aftermath of Katrina when there was a discussion about whether National Guard troops should be sent into Louisiana without the governor’s permission to quell chaos in the streets,” Farber said. “When the storm struck, many children were out of state with noncustodial parents, so there are family law issues. There will be land use issues, such as whether development should be stopped in the most vulnerable areas, so that is a takings claim.” Disaster law, summed up in a set of principles, written mainly by Landsman and recently adopted by the American Bar Association, stresses that the “rule of law must be preserved when a major disaster occurs.” More specifically, that includes a duty to protect irreplaceable records, represent those who cannot afford counsel when they turn to the courts for help in rebuilding and guarantee uninterrupted due process for the incarcerated. Next, a syllabus Rob Verchick, professor at Loyola University New Orleans School of Law and head of its Center for Environmental Law and Land Use, lived through Katrina. Some of his students are working with students of Alexander Aleinikoff, dean of the Georgetown University Law Center in Washington, to create a syllabus for a disaster law course. “We like to say disasters are color-blind, but in important ways they are not,” Verchick said. “You see after any hurricane, tornado, earthquake, poor folks are hurt more because they are in more vulnerable places, they have less insurance, less sophistication. We have to examine the racial tensions, the income disparities and gender issues that contribute to vulnerability.” Aleinikoff said the mixing of law, social disparities, the role of government and the interdisciplinary nature of understanding disaster make it an important topic for study. “This is an area of law students ought to pay attention to. These are low-probability, catastrophic events that government is not good at planning for or responding to,” Aleinikoff said. “We are a Washington law school. We see government pays the most attention to the immediate and what can be quantified. How do you create government structures that plan for the risk?” A subspecialty The academics immersed in disaster law plan to keep interest alive with conferences, seminars, the creation of a syllabus and scholarly articles. Their goal is to see disaster law recognized as a subspecialty. “The big challenge is getting a critical mass so people think about this as an area of the law,” said Farber. “It doesn’t happen that often. It happened with environmental law in the ’70s when somebody gave it a name and thought through how to develop this as a field. It is not clear if, between disasters, you can generate enough student demand to do much more than seminars.”

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