A Vision for a Robust Disaster Legal Services System in the Midwest

by Paul G. Rando, Editor-in-Chief, University of Cincinnati Law Review Vol. 91

I. Introduction

In years to come, it will be prudent for people everywhere to have effective and efficient systems in place for recovery from major natural disasters. A key element of effective and efficient recovery includes responding to the many legal problems that arise after a disaster. Though not currently as disaster prone as regions such as the American West¹ or the Southeast,² the states of the Midwest³ can use their current relative peace from extreme, cataclysmic weather events as a chance to experiment with and develop such legal systems. To do so will require creativity and legal pioneering, but Midwest lawyers interested in developing better disaster legal services need not start entirely from scratch. They can use as inspiration the limited disaster legal response systems that already exist in areas more susceptible to catastrophe, as well as the popular legal clinic model that is used for many purposes.

II. Background

Natural disasters are increasing in frequency and ferocity around the globe.⁴ In responding to the impact of a disaster, there are a plethora of potential legal problems. Examples include home titling (some relief organizations are not allowed to repair or replace a ruined home without express approval from the home’s legal owner, but disasters strike hardest in communities where title has been passed down generationally for centuries, often with the proper legal documentation lost during the years or even during the disaster itself),⁵ appealing erroneous denials of relief from government agencies, and problems relating to insurance and probate.⁶ To respond to the growing threat, in September 2022, the International Federation of Red Cross and Red Crescent Societies, in conjunction with the International Institute of Humanitarian Law of Sanremo and the Italian Red Cross, will host the seventh course on International Disaster Law.⁷ Domestically, in some areas where disasters have become a common problem, there are some disaster legal services frameworks in place. And across the country, law students and law schools use the legal clinic model to serve a variety of needs. By incorporating disaster recovery services into the legal clinic model, Midwestern law schools can prepare students as disaster law practitioners while also serving an important and growing legal need.

A. Pre-existing Disaster Legal Response Systems

Currently, the main provider of domestic disaster legal services is Equal Justice Works (“EJW”), a national nonprofit which operates a Disaster Resilience Program.⁸ Through that Program, EJW pairs a fellow—often a recently-graduated law student or a student seeking summer employment—with a local organization (such as Texas RioGrande Legal Aid, Southeast Louisiana Legal Services, and Community Legal Services of Mid-Florida) to provide post-disaster legal aid, typically for a temporary term of service.⁹ EJW’s current disaster fellowship offerings are all located in states more commonly impacted by disaster than the Midwest (hurricane-prone states Texas, Louisiana, and Florida, and wildfire hotspots California and New Mexico).¹⁰

Disaster legal work is not entirely limited to the nonprofit space. For example, the large multi-city firm Baker, Donelson, Bearman, Caldwell & Berkowitz, PC (“Baker Donelson”) hosts a Disaster Recovery and Government Services practice group which largely focuses on the federal public assistance program managed by the Federal Emergency Management Agency (“FEMA”).¹¹ Additionally, the National Disaster Legal Aid Resource Center provides an online resource designed to mobilize attorneys seeking pro bono opportunities in the aftermath of a disaster. The Resource Center includes a compendium of trainings and materials for individuals involved in the disaster recovery space, lawyers and nonlawyers alike.¹²

B. The Legal Clinic Model

A legal clinic provides certain low-cost or free services to a population (often one that would have difficulty affording legal services from a costly firm).¹³ Typically associated with a law school, a clinic has the additional benefit of providing hands-on legal experience to law students.¹⁴ Clinics can focus on a variety of topics—here at the University of Cincinnati, for example, we already have clinics dedicated to Domestic Violence and Civil Protection Orders, Entrepreneurship and Community Development, Indigent Defense, Legal Access, Patents and Trademarks, the Sixth Circuit, and of course the nationally recognized post-conviction appeals clinic, the Ohio Innocence Project.¹⁵

But the legal clinic space is somewhat devoid of disaster-focused entities. Even in parts of the country frequently wracked by natural catastrophe, there are not many law schools that offer a disaster legal services clinic. Southern University Law Center in Louisiana,¹⁶ Stetson University in Florida,¹⁷ and Pepperdine Caruso School of Law in southern California¹⁸ are among the only universities in the nation that offer such a program or something like it.

One law school in particular demonstrates what the American Midwest needs: Touro Law School in New York State. Touro Law launched a disaster legal services program to assist individuals impacted by Hurricane Sandy in 2012, and developed the program to serve out-of-state clientele after Hurricane Harvey hit Texas in 2017.¹⁹ Though no longer an offering for Touro Law students,²⁰ the Disaster Legal Clinic coordinated with other law schools and volunteer lawyers nationwide to provide various legal aid including filing flood insurance claims.²¹ Touro Law’s Clinic did everything that a Midwestern clinic should be able to do: provide disaster legal services in state, out-of-state, and in coordination with various other disaster recovery actors.

III. Discussion

In brief, Midwestern law schools (such as the University of Cincinnati College of Law) should initiate disaster legal services clinics as soon as possible and ideally before the effects of climate change subject the region to the same frequency of storms as is already felt in the Gulf of Mexico, the Caribbean, and the West Coast.

Like any other clinic, this hypothetical disaster legal services clinic would utilize law students under the guidance of professors and attorneys. Initially, the clinic’s workers could develop their skills and knowledge of disaster law by focusing on federal issues, such as filing applications for FEMA relief or appeals to FEMA’s erroneous denials of aid.²² Because many areas of disaster recovery are linked to federal law via FEMA, students in the Midwest could respond to out-of-state issues, familiarizing themselves with the practice of disaster legal services without having to necessarily familiarize themselves with the disaster law of other states. Clinicians could potentially also work on various legal issues related to COVID-19 and other global pandemics.²³

As the clinicians gain more experience in this field, and as major disasters encroach further and further toward and into the Midwest (for example, the 2021 tornadoes and 2022 Kentucky floods),²⁴ the work of the clinic can evolve. By forming partnerships with disaster recovery nonprofits such as All Hands and Hearts,²⁵ Nechama,²⁶ Team Rubicon,²⁷ etc., the clinic may receive referrals from across the country. These nonprofits can refer potential beneficiaries who need help with titling their homes or various other legal barriers they must overcome before receiving aid. By partnering with law schools, firms, or legal nonprofits in the state in which the disaster occurred, the clinic will be able to engage more directly in the process of disaster recovery.

In addition, Midwestern law schools would benefit from instigating a Disaster Law course in conjunction with the clinic. A few law schools in the United States already offer Disaster Law coursework.²⁸ Through this course, the students participating in the clinic will get a theoretical framework to support their hands-on experience. Furthermore, students could apply what they have learned after graduating by moving to more disaster-prone regions and setting up a disaster legal services practice. As part of the course, the law school could invite practitioners from Baker Donelson, as well as lawyers from FEMA or state-based emergency management agencies, for training and guest lectures. It may also be beneficial to partner with Equal Justice Works to send students to one of their affiliated disaster legal services providers for summer employment.

IV. Conclusion

By being proactive in initiating a Disaster Law program, including a course and a legal clinic inspired by the existing legal clinic model and other pre-existing actors in the disaster legal services space, the American Midwest can ensure that its law community is prepared to handle the many legal issues that arise after natural disasters. Though the Midwest is not hit with major disasters as often as other regions, it will be important, as the frequency and ferocity of disasters increases, to be adequately prepared. The most effective method of disaster recovery is, after all, to ensure that a community is resilient.

Cover Photo by Marcus Kauffman on Unsplash

Paul G. Rando

Paul's previous leadership roles include directing volunteer programs in international natural disaster recovery, (including managing a base of operations in Toa Baja, Puerto Rico, one in North Carolina, and leading teams to reconstruct 50 homes, 52 toilets, and 2 schools in Nepal), and leading a trail crew for a six month stint in the Vermont backcountry. Every leadership role is a humbling opportunity, and being chosen as the Editor-in-Chief for Volume 91 has been no exception. Paul's writing for the Law Review has focused on issues of the law of natural disaster recovery and the January 6 Capitol insurrection. After law school, he intends to work in natural disaster legal services, and aspires to open a disaster legal services clinic, to teach a course in Disaster Law, and to get his LLM degree. He currently works at Cummins Law.

References

1
In addition to threats from the San Andreas fault, or from typhoons and tsunamis, the American West is particularly prone to devastating wildfires. See, e.g., Winston Choi-Schagrin & Elena Shao, Why Does the American West Have So Many Wildfires?, N.Y. Times (Aug. 3, 2022), https://www.nytimes.com/2022/08/01/climate/wildfire-risk-california-west.html (“[W]hile the region’s dry vegetation has always made it prone to fires, climate change is intensifying wildfires and lengthening fire season . . . the fires are bigger, more severe, and last longer. . .”); Elizabeth Pennisi, As Wildfires Continue in Western United States, Biologists Fear for Vulnerable Species, Science (Sept. 30, 2020), https://www.science.org/content/article/wildfires-continue-western-united-states-biologists-fear-vulnerable-species.
2
The American Southeast faces a similarly drastic threat from hurricanes. In the past five years alone, the following named storms have taken thousands of lives and exacted billions of dollars in property damage: Hurricanes Harvey, Irma, Maria, Florence, Dorian, and Ida, among others. See e.g., Nat’l Hurricane Ctr., Nat’l Oceanic & Atmospheric Admin., Costliest U.S. Tropical Cyclones (July 11, 2022), https://www.ncei.noaa.gov/access/billions/dcmi.pdf. Note that “hurricane” is the term for “[a] tropical cyclone with maximum sustained winds of 74 mph (64 knots) or higher.” Nat’l Hurricane Ctr., Nat’l Oceanic & Atmospheric Admin., Tropical Cyclone Climatology (Text), https://www.nhc.noaa.gov/climo/?text#:~:text=Hurricane%3A%20A%20tropical%20cyclone%20with,Pacific%20Ocean%20are%20called%20cyclones. (last visited Aug. 12, 2022).
3
According to the U.S. Bureau of Labor Statistics, the states that comprise the Midwest are: Illinois, Indian, Iowa, Kansas, Michigan, Minnesota, Missouri, Nebraska, North Dakota, Ohio, South Dakota, and Wisconsin. Midwest Information Office, https://www.bls.gov/regions/midwest/midwest.htm (last visited Aug. 12, 2022).
4
See, e.g., Brady Dennis, ‘They Are Not Slowing Down’: The Rise of Billion-Dollar Disasters, Wash. Po. (Aug. 4, 2022), https://www.washingtonpost.com/climate-environment/interactive/2022/billion-dollar-disasters/ (showing that in the United States alone, over 700 people died and over $145 billion of property was damaged or destroyed by natural disasters in 2021; showing also that global climate change is contributing to a rising disaster threat).
5
Knowledge drawn from author’s experience managing disaster recovery volunteer projects after domestic disasters such as Hurricane Maria, Hurricane Florence, and the 2016 1000-year flood in eastern Texas.
6
See, e.g., Disaster Recovery and Government Services, Baker Donelson, https://www.bakerdonelson.com/disaster-recovery-and-government-services (last visited Aug. 12, 2022).
7
7th International Disaster Law Course, International Institute of Humanitarian Law, https://iihl.org/international-disaster-law/7th-international-disaster-law-course/ (last visited Aug. 12, 2022).
8
Disaster Resilience Program, Equal Justice Works, https://www.equaljusticeworks.org/become-a-fellow/fellowship-program/disaster-resilience-program/ (last visited Aug. 12, 2022).
9
Id.
10
Id.
11
Disaster Recovery and Government Services, supra note 3.
12
National Disaster Legal Aid Resource Center, https://www.disasterlegalaid.org/ (last visited Aug. 12, 2022).
13
See, e.g., Susan L. Brooks & Rachel E. Lopez, Designing a Clinic Model for a Restorative Community Justice Partnership, 48 Wash. U. J. L. & Pol’y 139 (2015), https://openscholarship.wustl.edu/law_journal_law_policy/vol48/iss1/11.
14
Id.
15
Clinics, Univ. of Cincinnati Coll. of L., https://law.uc.edu/real-world-learning/clinics.html (last visited Aug. 12, 2022).
16
Disaster Law, S. Univ. L. Ctr., https://www.sulc.edu/page/disaster-law-clinic (last visited Aug. 12, 2022) (unclear whether this clinic remains in operation).
17
Disaster Law Externship, Stetson L., https://www.stetson.edu/law/academics/clinical-education/disaster-law-externship.php (last visited Aug. 12, 2022) (“[S]tudents work directly with attorneys on disaster outreach and work directly with the national coordinator on disaster legal services. Students are assigned to work on cases involving disaster research or claims which may include FEMA appeals. Students will also research systemic issues related to disaster benefits.”).
18
Disaster Relief Clinic, Pepperdine Caruso Sch. of L., https://law.pepperdine.edu/experiential-learning/clinical-education/clinics/disaster-relief-clinic/ (last visited Aug. 12, 2022) (“The Disaster Relief Clinic seeks to close the justice gap for those affected by disasters by providing a swift and continuing response to disasters as legal needs transition from the immediate need for assistance with the Federal Emergency Management Agency (FEMA) and insurance to transitioning to recovery and rebuilding.”).
19
Touro Law Disaster Clinic, Formed in the Wake of Superstorm Sandy, Leading National Effort to Provide Legal Help to Harvey Victims, Touro L. (Aug. 31, 2017), https://www.tourolaw.edu/AboutTouroLaw/News/356 (last visited Aug. 12, 2022).
20
Student Activities and Organizations, Touro L., https://www.tourolaw.edu/studentresources/student-organizations (last visited Aug. 12, 2022).
21
Touro Law Disaster Clinic, Formed in the Wake of Superstorm Sandy, Leading National Effort to Provide Legal Help to Harvey Victims, supra note 16.
22
FEMA is known to deny thousands of meritorious applications for disaster benefits. See generally, Paul G. Rando, Mitigating the Discretion Disaster: How Changes in the Law Can Help FEMA Effectuate Its Critical Mission, 90 U. Cin. L. Rev. 1265 (2022), https://scholarship.law.uc.edu/uclr/vol90/iss4/7.
23
COVID-19 was labeled a natural disaster by multiple entities. See e.g., Paul Rando, There Are No Natural Disasters, Int’l L. Soc’y Newsletter, May 7, 2021 (“COVID-19 has expanded the operative definition of “disaster” used by disaster NGO’s. Medical scientists have long known about a pandemic’s disastrous potential. . .”), https://sway.office.com/9N9JSe1z0U6nGaYq?red=Link [https://perma.cc/4U43-RCKU] (citing Uri Friedman, We Were Warned, The Atlantic (Mar. 18, 2020), https://www.theatlantic.com/politics/archive/2020/03/pandemic-coronavirus-united-states-trump-cdc/608215/; also citing Our COVID-19 Response, All Hands and Hearts (May 6, 2020), https://www.allhandsandhearts.org/our-covid-19-response-may-6-2020/).
24
See, e.g., Maria Sacchetti, Death Toll for Kentucky Climbs to 28, With More Storms Coming, Wash. Po. (July 31, 2022), https://www.washingtonpost.com/nation/2022/07/31/kentucky-flood-climate/; see also Washington Post Staff, The Record-Breaking Tornadoes That Swept the United States, By the Numbers, Wash. Po (Dec. 17, 2021), https://www.washingtonpost.com/climate-environment/2021/12/13/tornado-mayfield-kentucky-amazon/.
25
Our Mission, All Hands and Hearts, https://www.allhandsandhearts.org/our-mission/ (last visited Aug. 12, 2022) (“All Hands and Hearts effectively and efficiently addresses the immediate and long-term needs of communities impacted by natural disasters.”).
26
Who We Are, Nechama, https://nechama.org/who-we-are/ (last visited Aug. 12, 2022) (“NECHAMA, rooted in the Jewish value of Tikkun Olam, repairing the world, provides comfort and hope to communities by engaging volunteers in disaster recovery work.”).
27
About, Team Rubicon, https://teamrubiconusa.org/about/ (last visited Aug. 12, 2022) (“Team Rubicon has deployed across the United States and around the world to provide immediate relief to those impacted by disasters and humanitarian crises.”).
28
See, e.g., Disaster Law, Emergency Preparedness and Response, Pace Univ. Elizabeth Haub Sch.of L., https://law.pace.edu/courses/disaster-law-emergency-preparedness-and-response (last visited Aug. 12, 2022) (“[S]tudents will explore the framework for disaster response and recovery, the policy choices involved in reducing vulnerability, and the complexities of federalism in action. Global perspectives on disasters will be included.”).