Preserving Rule of Law
Through Preserving
Civil Society
Edward P. Richards, JD, MPH
Director, Program in Law, Science, and Public Health
LSU Law School
richards@lsu.edu
http://biotech.law.lsu.edu
http://ssrn.com/author=222637
Rule of Law
Law Enforcement
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Basic enforcement of criminal law
Preservation of judicial due process
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Functioning courts
Habeas corpus
Control by civil authorities
Rule of Law
National Security
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Preservation of political control over military
authority.
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Preservation of civilian law enforcement
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Preservation of chain of command
Limited substitution of military authority, which is
still under civil control.
Preservation of consultation with state and
local government.
How Are We Doing?
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Limited disasters
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Geographically and demographically limited
Tornados, small earthquakes
Small hurricanes outside levees
Domestic national security events
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9/11
H1N1
Hurricane Katrina
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The Danziger Bridge Case
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The deaths compared to Hurricane Betsy
The real or perceived breakdown of civil
order
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One example
Stories of looting and behavior in the superdome
The real breakdown in civil institutions
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Armed private security and vigilante culture
Preservation of Civil Society
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As much as possible:
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Governmental should continue to function under
the same rules as pre-disaster.
Disaster response should be an extension of
day-to-day agency responsibility and command
and control.
Individuals should retain autonomy
Can you preserve rule of law without
preserving civil society?
Limitation of the National
Response Model
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There is no civilian chain of command
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Large events overwhelm national resources
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Our democracy is not structured this way.
Logistics issues
Limits on people and materiel.
Must depend on local resources for initial
response
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The bigger the event, the long the local reliance
Dysfunctional Government is
Always Dysfunctional
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Governmental agencies that do not
functional effectively day to day will fail in
disasters
A disaster plan will not substitute for people
and materiel.
Compare local institutions in Sandy and
Katrina
Response Plans Mask Risk
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What is the best you can do in a massive
hurricane?
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Limit loss of life
Get people in shelters
Rebuild – maybe – over 2-5 years
National plans do not spell out their
limitations and politicians say we will make
it right.
Rewarding Bad Planning
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FEMA and Congress reward bad planning
and response with more money
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NFIP
Road Home
Rebuilding infrastructure in high risk zones
Urban renewal through the disasters
Local politicians blame the feds and are
reelected.
HOW TO IMPROVE NATIONAL
RESPONSE PLANS
Focus on Individual and
Family Resiliency.
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Clearly state the limits of government help.
Change incentives to increase resiliency.
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Pro-active NFIP
Do not suppress insurance costs
Reward actions that increase resiliency.
Do not romanticize staying in stupid places.
Do not use the poor as pawns.
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Right of return/Drown the poor first.
Demand Accountability from
State and Local Government
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Quit waiving FEMA co-pays.
Reinstate real rebuilding limits.
Pay attention to environmental costs.
Demand every high risk community
develop a Plan B for restructuring the
community to less risk after the next
disaster.
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Require pre-approval by the community.
Conclusion
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The Rule of Law ultimately depends on
preserving civil society.
We have large populations at high risk of
disruption
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Earthquakes
Extreme weather events and climate change
National security events
Making individuals more resilient is a
necessary component of national response
plans.