Results matching “katrina”

"The Lawsuit That Sank New Orleans" - PointOfLaw Forum

At the WSJ (sub), David Schoenbrod pins some of the blame on shoddy levee-building and pork-barrel reclamation projects, but says environmentalists' levee-busting lawsuits can't escape a share of responsibility as well:

The Corps cannot stop a project, conduct a lengthy study, go back to court, and then be sure it can pick up where it left off. Large federal projects ordinarily cannot proceed unless executives and legislatures at several levels of government agree on the same course of action at the same time. That's why litigation delay can kill necessary projects. However responsibility is apportioned, but for the lawsuit, New Orleans would have had the hurricane barrier.

...Louisiana State University's Hurricane Center found that "the flooding of most of New Orleans" came from breaches of floodwalls on canals adjoining Lake Pontchartrain; Katrina's surges did not pour over the levees but breached them because the Corps' floodwalls were shoddy. The barrier stopped by the lawsuit was designed to keep storm surges out of the lake, so it would have reduced the pressure on these floodwalls.

More: OL Sept. 9, Sept. 14, Sept. 17.

More on Katrina and the legal system - PointOfLaw Forum

The September 23 issue of "After Katrina Legal News," a newsletter published by the New Orleans-based firm Phelps Dunbar, is online here. Included is this rundown of Katrina Lawsuits:

The first of what is expected to be a multitude of lawsuits relating to Hurricane Katrina have been filed. The Attorney General of Mississippi has sued numerous insurance companies in state court seeking to void exclusions in property casualty insurance policies. Private class action law suits have been filed in Louisiana seeking declaratory judgment that damages caused by waters entering New Orleans because of breaches in the levee system are covered by homeowner insurance policies. A federal class action suit has been filed against oil and gas pipeline companies and oil and gas exploration companies for damages caused to Louisiana's wetlands by the creation of pipeline and access canals, which allegedly contributed to destruction caused by Hurricane Katrina. Class action suits have been filed against oil companies and oil well operators relating to some of the 44 reported oil spills caused by the storm, including five spills classified by the Coast Guard as "major" (over 100,000 gallons), and four spills classified as "medium" (10,000 to 100,000 gallons).

Martin Grace has some thoughts on the suit brought by the Mississippi AG, here and here. The Wall Street Journal editorial page calls it a "Category 5 Lawsuit." The website of the Mississippi AG's Office includes a Katrina-related links page that covers the suit.

"Over-Ruled" - PointOfLaw Forum

In responding to a great crisis such as a major hurricane, we're sometimes better off if those on the front lines dare to throw out the rule book. When Katrina struck, though, many responders seemed more concerned with following proper procedure than with saving those in need of rescue. Why? Don't miss Washington Post science and medicine correspondent David Brown's analysis. And please, fewer lawyers at FEMA, argues the Toledo Blade's Jack Kelly.

Katrina and the runaway AG - PointOfLaw Forum

I've got a "Rule of Law" guest column in Saturday's Wall Street Journal (subscriber-only link) on the lawsuits by Mississippi attorney general Jim Hood and his ally Dickie Scruggs attempting to overturn the clear and unambiguous exclusion of flood coverage from homeowners' insurance policies in the wake of Hurricane Katrina. As readers of this site know, I'm appalled by the idea:

Sometimes it takes a good lawyer to get an insurance company to pay up on the promises it made. But if you want insurers to pay billions on promises they never made -- risks they were at pains to avoid underwriting, never collected premiums for, and never set aside reserves against -- then a pair of very special lawyers, Jim Hood and Dickie Scruggs, are at your service.

In case you're arriving late, insurance pros worldwide stood transfixed last week at the news that Mr. Hood, the elected attorney general of Mississippi, and his ally Mr. Scruggs, the Pascagoula wheeler-dealer known for his role in the $246 billion tobacco litigation, were suing to invalidate -- as "unconscionable" and contrary to public policy -- the standard flood exclusion in every Magnolia State homeowner's contract. Assuming ordinary readings of policy language, the early estimates have insurers on the hook for a record $40-$60 billion in Katrina payouts. Knock out the flood exclusions and that exposure will increase by many billions more -- scores of billions if the principle gets applied in Louisiana.

I get into the Constitutional issues a little bit, and some of the practical consequences:

So, can't State Farm, Allstate and others cite Article I, Section 10 of the U.S. Constitution, which provides that "No state shall. . . pass any. . . law impairing the obligation of contracts"? Unfortunately, the Supreme Court in Blaisdell, a 1934 New Deal case, gave states free rein to nullify contracts so long as "the legislation is addressed to a legitimate end and the measures taken are reasonable and appropriate to that end." If you think that guts the originally intended protection, maybe you're part of that "Constitution in exile" movement we keep being warned about.

Should the Hood-Scruggs theory be taken seriously, the bankrupting of some insurers and the diversion of money from insureds in other states will only be the start. The wider problem would be that both reinsurers and primary insurers are likely to head for the hills rather than underwrite future conventional policies in Mississippi, or indeed any jurisdiction judged capable of electing a Hood to high office. At a minimum, they're likely to demand a steep premium to compensate for legal risk.

More: Thomas Knapp notes that "It was only a matter of time before the Gulf Coast disaster moved from the finger-pointing stage to the pocket-picking phase." (via Henley). And: Infamy or Praise (Sept. 19), Ribstein, Kirkendall, D.C. Examiner.

Flood exclusion avoidance suits - PointOfLaw Forum

Doug Simpson traces some of the unintended consequences, virtually all of them bad, of the Hood/Scruggs attempt to wriggle out of policy exclusions in the wake of Hurricane Katrina.

Scruggs, Hood and hurricane reinsurance - PointOfLaw Forum

In a Sept. 12 BestWire interview, Dickie Scruggs demagogically suggested that given the role of international reinsurance his proposal for voiding flood exclusions in the wake of Katrina would merely fob off the cost of Gulf rebuilding on "Swiss gentlemen". But Washington, D.C. policyholder attorney Marc Mayerson of Spriggs & Hollingsworth, on his Insurance Scrawl blog, argues that reinsurers may well escape such costs on the grounds that they are obliged to reimburse only payments triggered by the actual terms of insurance policies, and not to compensate primary insurers for lawless expropriation on the one hand, or (assuming an out-of-court settlement) for "goodwill" payments over and above what contractual language specifies. "The European reinsurers probably have little to fear -- other than the threatened insolvency of their customers (i.e., the insurers)."

The N.Y. Times's softball coverage of Scruggs and his claims is here. Mississippi Attorney General Jim Hood's pleading, in his lawsuit attempting to expropriate the insurers, is here, and his press release here (both PDF).

Davis-Pork in the Gulf - PointOfLaw Forum

Mickey Kaus wonders whether it's really a good idea for Democrats and liberals to be rallying in defense of the "notorious" Davis-Bacon Act, which is meant to enforce union wage scales on government contractors, and which the President recently suspended in the Katrina reconstruction zone. Time was, after all, when the neoliberal Washington Monthly persuasively pushed for the elimination of the law. (That's nothing; we can remember when the Washington Monthly used to be great on liability reform, too.) And James Taranto amusingly notes that Josh Marshall of Talking Points Memo has been crusading in favor of the union position on Davis-Bacon even as he advertises for internship help at a wage rate of $0.00, which manages to outdo in big-heartedness the wages the UFCW dispenses for picketing Wal-Mart.

Katrina and big government - PointOfLaw Forum

The hurricane proves folks like us were wrong to ask for a smaller and less intrusive government -- that's what we keep hearing, at least. Among those who aren't buying the new line: Anne Applebaum, Colby Cosh and Tom Palmer.

Davis-Bacon lifted in disaster zone - PointOfLaw Forum

President Bush last week announced that the federal "prevailing wage" law, which generally requires government contractors to pay the equivalent of union-scale wages whether or not they employ union labor, would be suspended in areas affected by Hurricane Katrina. The suspension, which follows earlier precedent in times of natural disaster, has drawn much outrage on lefty blogs as well as in such predictable quarters as the N.Y. Times editorial page. A better question is why this dinosaur of a wage-fixing law, kept on the books through the political clout of labor unions in defiance of the principles of a free labor market, should not be repealed altogether and permanently. Tim Worstall has some fun with the Times; Steve Antler at EconoPundit and Michael Fox at Employer's Lawyer also comment.

Dumb-ass question of the day - PointOfLaw Forum

(Explanation of the title.) Thanks to Heather Mac Donald for pointing out this gem of a self-parody from Sen. Kohl:

Judge, in the aftermath of Hurricane Katrina, we all saw that those who suffered the most were those who had not been able to take advantage of the great opportunities that our great country has to offer. As we found out, those without employment opportunities and educational opportunities simply did not have the means to escape the storm and the flooding.

As you seek to become the head of the judicial branch, as you seek the position of chief justice of the United States of America, what role would you play in making right the wrongs revealed by Katrina? And what role do you and the judicial branch play in making sure that we as a nation keep on moving forward toward providing equal opportunity to all Americans?

Judge Roberts answers with a paean to equal justice under the law and the importance of upholding the rule of law. Not good enough for Kohl, who follows up:

In spite of all of our laws and all of our rules, we still saw what happened down in New Orleans. And the people who were left behind were people who had not had educational or employment opportunities.

And the question I asked was whether you, as a person who aspires to be the chief justice of the United States, sees a particular role other than continuing the role that you observe we are following now, particular role for improving our ability to respond to the needs of those people who live under those circumstances?

What does Kohl think the Supreme Court is supposed to do—charter a helicopter for rescues? Create a constitutional right out of whole cloth to one-SUV-per-family? Roberts responded more diplomatically:

Well, the courts are, of course, passive institutions. We hear cases that are brought before us. We don't go out and bring cases. We don't have the constitutional authority to execute the law. We don't have the constitutional authority to make the law.

Our obligation is to decide the cases that are presented. Now I'm confident, just in the nature of things, that there will be cases presented arising out of that horrible disaster, of all sorts. And many of those will be federal cases, I'm sure. Others will be in the state courts.

And again, the obligation of the federal judiciary and the state judiciary is to make sure they provide a place where people can have their claims, their litigation decided fairly and efficiently, according to the rule of law.

That's the appropriate role for the judicial branch.

Here come the insurance lawsuits - PointOfLaw Forum

Most insurance policies sold cover wind damage but not flood damage, and it was the latter that devastated Louisiana. Even so, of Hurricane Katrina's estimated $100 billion+ in economic losses, "insurers are already expected to pay $20 billion to $35 billion, more than [they have] paid for any other natural disaster in the country's history. But property owners are likely to push for a more expansive definition of insurers' liability." (NYTimes).

The Law of Price Gouging - PointOfLaw Forum

Shortages of gasoline in the wake of Hurricane Katrina have prompted both state and federal regulators to take steps to curtail price gouging. Legally, approaches wary widely, from those of New York Attorney General Eliot Spitzer (who has tried to apply mini-FTC Act language -- "unfair and deceptive trade practices" -- to prohibit sudden price increases) to Georgia Governor Sonny Purdue (who has the advantage of a specific Georgia statute that applies only during declared emergencies to prohibit retail price increases that are not connected to demonstrable changes in the cost of supply) to the Federal Trade Commission (which has been lobbied by some members of Congress to "investigate" claims of gouging).

What makes this multiplicity of legal approaches interesting is that some commentators question whether "gouging" really exists and, if so, whether it might actually be beneficial. (More coverage).

Employers' responsibilities after natural disasters - PointOfLaw Forum

Littler Mendelson has some advice (via Michael at EmploymentBlawg).

Politics or the Rule of Law Yet Again - PointOfLaw Featured Discussion

As this is written the Roberts hearings, scheduled to begin on Tuesday, are in some jeopardy, because of the death of Chief Justice Rehnquist, and because of the ongoing turmoil over the aftermath of Hurricane Katrina. The President finds himself under a barrage of criticism from Democrats for failing to deliver more relief to New Orleans (as if he had the power to do that), and there are reports that the Mayor of New Orleans, in an act of extraordinary chutzpah, has asked for a delay in the Roberts hearings so that the Administration can concentrate on aid to his city. We may never know whether the devastation that hit New Orleans is due simply to an act of God, to a failure by state and local officials, or to a federal relief effort which was too slow, but it looks to me, as Ben Stein has argued in the American Spectator, as if objective observers would conclude that President Bush has done nothing wrong, and that those claiming he did are engaging in the crassest and most reprehensible form of partisan politics.

Similarly, the extraordinary posturing that we are beginning to see coming from the Senate, in the wake of the Chief�s passing, is anything but the fulfillment of the advise and consent function as traditionally understood. Thus, Senator Schumer, who has come to be the leading champion of the notion that �judicial ideology� needs to be balanced on the Court, and who appears to have believed that under Rehnquist the court became unbalanced in a rightward direction, now declares that the hearings should be delayed because, as he said on ABC, � We can take a few days out to mourn Justice Rehnquist. He was a towering figure in the judiciary . . . Judge Roberts was his law clerk, and Judge Rehnquist was Judge Roberts' mentor. I think it makes a good deal of sense for us to take time, catch our breath and take a few days out.� Even more remarkably, Senator Christopher Dodd has suggested that the President should consider asking Justice O�Connor temporarily to rescind her retirement, presumably to become acting Chief Justice, in order to give the President more time to consider how permanently to replace the Chief Justice.

What appears to be going on in this attempt to delay the President and the Senate from carrying out their constitutionally-mandated functions is to give the Senate Democrats, their allies in the liberal interest groups, and the main stream media more time to make the case that the President cannot be permitted to pack the Court with the sort of conservative nominees he has promised, and that the Court must remain �balanced,� and that, in Cass Sunstein�s bizarre appellation, no �fundamentalist Conservatives� need apply.

One side in this debate, then, appears ready to use any tactic or opportunity at hand to engage in a politically-motivated effort to dictate the kind of result-oriented jurisprudence on the Court it favors, as I suggested in my last post. We can only hope that the White House will be able to perceive this effort for what it is, and mount a strong case that to delay Judge Roberts�s confirmation, to delay the selection of a new Chief Justice, or to give in to the nonsense about �judicial ideology� or �fundamentalist conservative,� would be nothing short of a betrayal of the Constitution and the rule of law itself. I hope somebody at 1600 Pennsylvania Avenue is reading Richard�s and my efforts.

British and Australian news sources are reporting that white foreign tourists have been evacuated from the Superdome to other staging sites and shelters because they were being threatened on account of their race: BBC account (via Kaus); Australian Herald Sun account; Australian Age/Reuters account.

According to Bearing Blog, officials seem to be planning to racially segregate the emergency shelters to avoid racial tension; the blogger comments on the linguistic somersaults needed in an NPR interview to avoid the word "segregation."

Ann Althouse reminds us that February's 5-3 decision, Johnson v. California, authored by Sandra Day O'Connor, held that the safety concern of warring racially-based gangs in prisons did not create an exception to strict scrutiny of racial segregation. (The majority for this position, as Althouse notes, is actually 6-2; Justice Stevens' dissent protested that the Court should have gone ahead and found the practice unconstitutional rather than remanding to the courts below.)

Because there is typically more deference given to administrative decisions in the prison setting than in other government settings, Washington v. Harper, 494 U. S. 210 (1990), there could be lawsuits over the government's safety plans, and current law seems favorably disposed to find the practice unconstitutional. And do not be surprised if lawyers later seek to claim civil rights violations over evacuation triage decisions.

Looting in New Orleans - PointOfLaw Forum

Glenn Reynolds suggests shooting looters. Eric Muller proudly looks down his nose at the idea. How uncivilized! But the irony is that it's Muller whose position is uncivilized.

There are lots of snarky remarks about looting coverage (Prawfsblawg, unlike Wonkette, at least noted that one can't expect consistency across different news organizations), but in reality, as a look at blogs from people actually in New Orleans show, the looting is far worse than the media is reporting until recently. This isn't an issue of salvaging spoiling food and water (though, even here, allowing looting means the strong get food and the weak starve); they're attacking rescuers and doctors and hospitals. "At flood-swamped Charity Hospital, looters with handguns forced doctors to give up stores of narcotics." Other looters are stealing generators from unarmed citizens. This is the anarchy that Muller is defending; he can bring to bear a lot of sarcasm on the matter, but that's hardly a useful policy suggestion. If someone wishes to argue that shooting violent looters is inefficacious, that's one thing, but simply to argue that doing so will lead to loss of life seems to me to ignore the opportunity costs of permitting looting.

I fully acknowledge that shooting looters is an inappropriately disproportionate response if one views looting as mere larceny. But one doesn't shoot looters to protect property, one does so to protect order. Somebody is going to suffer unjustly when society breaks down. I don't understand why Muller thinks it preferable for the law-abiding citizens to be the cost-bearers. History has shown repeatedly that the way to stop an anarchic riot is an early display of substantial force.

Of course, with the New Orleans police having close to third-world levels of corruption in good weather, there isn't exactly law enforcement that I would trust on the ground in the city until the National Guard gets sent in, so the whole question may be moot.

The original comment thread on Volokh is here. The bash Glenn Reynolds and Ted Frank thread is here.

Update: Glenn Reynolds has more:

When I was on Grand Cayman last month, several people told me that looting became a problem after Hurricane Ivan, but quickly stopped when the police shot several looters. That's because looters usually value life over property too.

And Jeff Goldstein:

That many progressives I�ve been reading are so willing to advocate for an anarchic condition wherein stronger, better armed, and more ruthless civilians are able to lord it over the weaker victims of Katrina�all for the sake of maintaining their critique of materialism�is, frankly, astounding.

Church lawsuits and Katrina relief - PointOfLaw Forum

One more consequence of the church abuse litigation and associated diocesan bankruptcies: Prof. Bainbridge is going to be careful about which Catholic institutions he selects as recipients of his Katrina donations, lest the money wind up in hands like those of, say, Larry Drivon (Aug. 31). More on the Canadian situation in this report (via Sullivan):

More than 130 churches and other property belonging to a Roman Catholic diocese in Newfoundland could soon be up for sale after a court approved a financial settlement Tuesday for the victims of abusive priests.

The negotiated settlement between St. George's Diocese and the 40 victims is expected to raise $13 million for compensation. St. George's is believed to be the first Catholic diocese in Canada to seek bankruptcy protection as a result of sexual abuse claims.

The men involved will receive awards of between $75,000 to $1 million once the sale of properties is completed over the next 30 months....

The church won't have to sell items used to perform mass, such as vestments, candelabras or Bibles.

While on the subject of Katrina donations, Glenn Reynolds has an updated listing of charities helping with survivor relief.

  1 2 3 4 5 6 7 8