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A Practice Area in Development: Disaster Law

During the past ten years America has endured devastating earthquakes, a hurricane that indelibly ravaged one of its most beloved cities, and a 200-million-gallon crude oil spill. And with aging infrastructures, a rapidly growing population, and global warming, disasters will likely prove even more common during the next ten years.

The law plays a central role in every stage of a disaster’s lifecycle: from preparedness and risk management to compensation, mitigation, and rebuilding. Consequently, the unique legal issues that arise before, during, and after catastrophic disasters—what is now commonly referred to as disaster law—is attracting attention from both academia and practitioners.

How Law Schools are Teaching Disaster Law

There are some common elements that appear in many disaster law classes. The Stafford Act, which created the system in which a presidential declaration of disaster triggers the Federal Emergency Management Agency (FEMA) into action, is a common topic. The constitutional issues that arise during disaster such as 14th amendment takings are also widely-taught, as are the relevant working of the various administrative bodies involved in disaster response such as the EPA. Aside from some of these more common disaster law topics, however, disaster law classes are as different as the professors who teach them.

At the University of Seattle, School of Law, Professor Cliff Villa starts his disaster law class with perhaps the most practical approach taken by any school. Professor Villa has his students create a disaster preparedness kit: a collection of the various systemic and material supplies any law firm needs in the case of a catastrophic disaster. The class then surveys the various laws and policies lawyers are often called on to utilize with advising clients affected by disasters, with an emphasis on Hurricane Katrina and the federal government’s response. Unlike many other programs which primarily focus on disaster law’s overarching policy issues, Professor Villa stresses the practical realities that lawyers can face when their firms are directly impacted by disaster, and, more importantly, when their clients are affected by disaster.

At Loyola, Professor Rob Verchick employs an innovative methodology. In addition to more general disaster law topics such as various constitutional and environmental issues, Professor Verchick has his students role-play in various local governmental positions. Students take on the role of Mayor and various legal advisers, and are presented with a surprise disaster to deal with. Students must come up with legal answers on the fly in a high-stress environment—much like lawyers responding to real disasters.

The University of Washington DC, David Clarke School of Law disaster law course offers students an illuminating contrast by considering how other nations and various international organizations deal with disaster. But what makes this school’s program truly unique is its clinical focus: students spend their spring semester fulfilling a “service week component.” The class travels to different locales across America to work with various disaster support organizations. During the 2010 year, the class went to Biloxi, Mississippi to work with the Mississippi Center for Justice, a non-profit that was instrumental both in aiding Katrina victims, and more recently, victims of the BP oil spill. Students provided legal aid to Katrina victims struggling with housing, discrimination, and recovery issues, and legal aid to BP victims dealing with claims processing. Every year the class also aids in rebuilding efforts in residential areas Katrina destroyed.

Disaster law practice

An education in disaster law can benefit a lawyer in at least three ways: 1) providing a lawyer with the ability to construct disaster plans within his or her own law firm, 2) potentially opening up a small, but relevant, niche area of legal practice, and 3) aiding lawyers practicing in the myriad legal fields that are implicated in catastrophic disaster.

As far as actual disaster law jobs, the field does not easily lend itself to the classic law firm model. Being an “expert” in disaster law would mean being an expert in every practice area that is impacted by disaster—in other words almost all practice areas. But a firm that is large enough to have the resources that a specialized practice group in disaster law would require faces a quantity problem: it is hard to find enough business to support the expenses of a large practice group in the, hopefully for the rest of us, long lulls between disasters. Similar workload problems challenge a solo or smaller firm specializing in one narrow field of disaster law.

Yet some lawyers have made the private firm model work for disaster law by specializing in one of the few narrow fields where a consistent client base is sustainable. FEMA Law Associates (FLA) is one such practice. FLA represents organizations attempting to navigate FEMA’s legal maze of disaster recovery reimbursement. The firm represents a variety of clients including government entities, medical facilities, and non-profits. These cases have huge stakes, and they are complex—FLA has cases outstanding from Katrina, a full six years after the storm. But the challenge of developing a bona-fide disaster law practice as a niche is also evident: the firm must cover a large geographical area to
create a sustainable client base, over 30 states, and it employs only two attorneys.

It is important to note that while becoming a disaster lawyer may not be feasible for everyone, familiarity with disaster law can benefit virtually any modern lawyer. The field is quickly becoming omnipresent at the margins of virtually every other legal practice area. For an example, knowing something about the procedures for getting government recovery aid under the Stafford Act can help lawyers advising clients in any geographical area hit by disaster. Disaster law can also be an incredible benefit to attorneys who deal heavily in land use planning or virtually any facet of insurance. Some other practice areas where lawyers can clearly benefit from some familiarity with disaster law include:

  • Municipal regulation;
  • Wetlands law;
  • Bankruptcy;
  • Tax;
  • Counsel to construction and consulting firms;
  • Landlord Tenant; and
  • Municipal state law.

Disaster law has clearly become an essential element of the legal system. Although not a mainstay in legal education, academia is recognizing the growing importance of disaster law, and courses are finally becoming more common place. The recent publication of a standardized disaster law text will hopefully remove some of the difficulties some law schools have faced in trying to get a disaster law course off the ground.

The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

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