Disaster Law Commons^™

The Emergency Next Time, Noa Ben-Asher

Elisabeth Haub School of Law Faculty Publications

This Article offers a new conceptual framework to understand the connection between law and violence in emergencies. It is by now well-established that governments often commit state violence in times of national security crisis by implementing excessive emergency measures. The Article calls this type of legal violence “Emergency-Affirming Violence.” But Emergency Violence can also be committed through governmental non-action. This type of violence, which this Article calls, “Emergency-Denying Violence,” has manifested in the crisis of the COVID-19 pandemic.

The Article offers a taxonomy to better understand the phenomenon of Emergency Violence. Using 9/11 and COVID-19 as examples, the Article proposes …

Following The Yellow Burning Road To Oz: The Social And Economic Impact Of Opportunity Zones And Their Potential Expansion In California Amid Wildfires, Nicole Motamed

The Journal of Business, Entrepreneurship & the Law

This article will discuss the economic backdrop against which legislation was enacted to spur economic development in distressed areas, focusing on the creation of the Opportunity Zones program established by Congress in the Tax Cuts and Jobs Act of 2017. The first half of the article will provide an in-depth analysis of the Opportunity Zone incentive and consider its procedures and implications, including the tax benefits of the program and the necessary criteria to be qualified for its benefits. It will also present both the negative and positive impacts that have surfaced since the program’s inception and which have in …

Newsletter, Winter 2022

Newsletter

No abstract provided.

Fourth Amendment Issues And Covid-19 Tracking, Brooke A. Banks

Cardozo Arts & Entertainment Law Journal

The note argues that the special needs doctrine does not justify warrantless government access to cell site location information (CSLI) for COVID-19 tracking, as individual privacy interests outweigh public health benefits. It advocates for voluntary, privacy-protective measures, such as opt-in apps, to balance privacy and pandemic response.

Polarization And Reform: Rethinking Separation Of Emergency Powers, Kevin Rizzo

Cardozo International & Comparative Law Review

The note examines the challenges posed by the expansion of presidential emergency powers, particularly under the National Emergencies Act (NEA), and argues that political polarization has weakened Congress's ability to check the President's use of these powers. It advocates for reforms to balance national security needs with constitutional checks and balances, emphasizing the need to address the structural and political factors that enable presidential overreach.

Disaster Vulnerability, Lisa Grow, Brigham Daniels, Douglas M. Spencer, Chantel Sloan, Natalie Blades, Teresa Gomez

Publications

Vulnerability drives disaster law, yet the literature lacks both an overarching analysis of the different aspects of vulnerability and a nuanced examination of the factors that shape disaster outcomes. Though central to disaster law and policy, vulnerability often lurks in the shadows of a disaster, evident only once the worst is past and the bodies have been counted. The COVID-19 pandemic is a notable exception to this historical pattern: from the beginning of the pandemic, it has been clear that the virus poses different risks to different people, depending on vulnerability variables. This most recent pandemic experience thus provides a …

A Telehealth Explosion: Using Lessons From The Pandemic To Shape The Future Of Telehealth Regulation, Deborah Farringer

Texas A&M Law Review

From board rooms, to classrooms, to Saturday Night Live skits, the video conferencing app Zoom became a seemingly overnight sensation as a way to connect while businesses were shuttered and individuals were forced to stay at home when the coronavirus pandemic erupted in the United States in March 2020. From 10 million daily users in December 2019 to over 200 million daily users by March 2020, the company founded in 2011 became a market leader as the country tried to figure out how to continue business as usual—to the extent possible—during the global pandemic. While hospitals prepared for the onslaught …

Saving The Nonessential With Radical Tax Policy, Rodney P. Mock, Kathryn Kisska-Schulze

University of Cincinnati Law Review

Under the Internal Revenue Code of 1986, as amended, for-profit entities are distinguishable from tax-exempt entities in that they, among other factors, pursue profits, and enjoy unrestricted commercial activities. The COVID-19 lockdowns prevented commercial activity for numerous for-profit small businesses. For the first time in United States history, a distinction was made between "essential" and "nonessential" businesses. Such distinction is historically absent in both legal scholarship and tax law; instead, it is a product of governmental reaction to the COVID-19 pandemic. Via executive order, nonessential businesses were characterized as being trivial to the fabric of society, and thus shuttered, while …

What To Do When People Don't Move: Ending The "Condemnation Blight" Value Rule For Forced Retreat Resulting From Sea Level Rise, Dario Rabak

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Between A Rock And A Hard Place: The Implications Of St. Bernard Parish Government V. United States On Flood Takings, Mariel Talmage

Cardozo Law Review

No abstract provided.

Debt Expansion As "Relief And Rescue" At The Time Of The Covid-19 Pandemic: Insights From The Legal Theory Of Finance, Iris Hse-Yu Chiu, Andreas Kokkinis, Andrea Miglionico

Indiana Journal of Global Legal Studies

In Section II, we discuss the relief and rescue policies in the US, UK, and EU and show how they have been advanced by legal elasticity in suspensions from normal private and regulatory law. Crucially, such legal elasticity is intended to facilitate an increased debt burden for corporations and households as a means of relief and rescue. We argue that this policy choice, which is startlingly similar in these developed jurisdictions, has been influenced by the contexts of financialization in these jurisdictions and the perception of temporary duration by policy makers. However, there is a need to critically interrogate the …

Climate Change As Systemic Risk, Barnali Choudhury

Articles & Book Chapters

Hindsight tells us that COVID-19, thought by former President Trump and others to have come out of nowhere, is more aptly labelled a “gray rhino” event, one that was highly probable and preventable. Indeed, despite considerable evidence of the impending threats of pandemics, for the most part, governments failed to prepare for the pandemic, resulting in wide-scale social and economic losses.

The lessons from COVID-19, however, should remind us of the perils of ignoring gray rhino risks. Nowhere is this more apparent than with climate change, a highly probable, high impact threat that has largely been ignored to date. Despite …

Newsletter, Summer 2021

Newsletter

No abstract provided.

American Punishment And Pandemic, Danielle C. Jefferis

Faculty Scholarship

Many of the sites of the worst outbreaks of the disease caused by the novel coronavirus (COVID-19) are America’s prisons and jails. As of March 2021, the virus has infected hundreds of thousands of incarcerated people and well over two thousand have died as a result contracting the disease caused by the virus. Prisons and jails have been on perpetual lockdowns since the onset of the pandemic, with family visits suspended and some facilities resorting to solitary confinement to mitigate the virus’s spread, thereby exacerbating the punitiveness and harmfulness of incarceration. With the majority of the 2.3 million people incarcerated …

Protecting The Right To Food In The Era Of Covid-19 And Beyond, Ying Chen

Georgia Journal of International & Comparative Law

No abstract provided.

Reimagining Exceptional Events: Regulating Wildfires Through The Clean Air Act, Emily Williams

Washington Law Review

Wildfires are increasing in both frequency and severity due to climate change. Smoke from these fires causes serious health problems. Land managers agree that prescribed burns help mitigate these negative consequences. Prescribed burns are lower-intensity fires that are intentionally ignited and managed for an ecological benefit. They reduce the amount of smoke produced and limit wildfire damage to natural systems and human property.

The Clean Air Act (CAA) is designed to regulate air pollution to protect public health, yet it exempts wildfire smoke through the exceptional events designation while imposing strict regulations on prescribed burns. Congress and the Environmental Protection …

Climate Change, Competition & Conflict Along The River Nile: The Great Ethiopian Renaissance Dam & Shifting Customary International Water Law, Salma Shitia

Fordham Environmental Law Review

Decade-long negotiations between the Arab Republic of Egypt and the Federal Democratic Republic of Ethiopia surround the decision to build the hydroelectric power plant along the River Nile. For much of Ethiopia, the Grand Ethiopian Renaissance Dam represents a beacon of prosperity. For countless Egyptians, the structure embodies a potential catastrophe. Grounded in threats of displacement for Egyptian agricultural communities, some have compared the Grand Ethiopian Renaissance Dam crisis to disasters culminating in mass migration.

This battle for natural resource access has intensified as climate change exacerbates the region’s dire conditions. Specifically, exhaustible resource allocation amid climate change indicates that …

A Paper Tiger? Prosecutorial Regulators In China’S Civil Environmental Public Interest Litigations, Chunyan Ding, Huina Xiao

Fordham Environmental Law Review

In July 2015, China’s national legislature brought in prosecutor-led civil environmental public interest litigation (“EPIL”) for thirteen selected provincial areas of the country. After a two-year legal experiment, this prosecutor-led civil EPIL system was then established nationwide in July 2017. Yet, can it be said that prosecutorial regulators in China are in fact a paper tiger? Drawing upon content analysis of the 655 prosecutor-led civil EPILs and in-depth interviews with twelve frontline prosecutors and judges, this article examines the dynamics of regulatory practice and the motivation of the Chinese prosecutorial organs to engage in environmental regulation through litigation. Based upon …

The Yoga Analogy: Scaling-Up The U.S.’S Renewable Energy Sector Mindfully With New Technologies, Evolving Standards, Public Buy-In, Data Sharing, And Innovation Clusters, Kimberly E. Diamond

Fordham Environmental Law Review

This paper focuses on innovative renewable energy devices, exploring how scientifically-based industry standards that continuously evolve with engineering design technology, the public’s buy-in and feeling of connectedness with groundbreaking devices, and innovation clusters that accelerate device development through data sharing and public-private partnerships can all help advance the U.S.’s domestic renewable energy industry.

Part I analyzes challenges inherent to scaling- up novel renewable energy technologies while simultaneously developing the industry standards regulating them. Part II uses the Block Island Wind Farm, an offshore wind demonstration project, and Pavegen’s globally-deployed arrays of piezoelectric smart flooring tiles as examples illustrating the importance …

Environmental Racism: Using Environmental Planning To Lift People Out Of Poverty, And Re-Shape The Effects Of Climate Change & Pollution In Communities Of Color,, William C.C. Kemp-Neal

Fordham Environmental Law Review

In the mid-1900s the United States began to see a rise in concern for environmental awareness issues. In the early days the movement focused on things like clean air, water and pollution but by the 1970s-1990s many prominent environmental awareness groups began to form focused on the idea that in order to avert climate change the principal goal needed to be to reduce global greenhouse gas emissions. In 1987 a report was released called Toxic Waste and Race, which outlined an intimate link between the placement of environmental hazardous waste sites in communities of color, and greater instances of polluted …