Four Practice Areas on the Horizon
NEW JERSEY LAWYER NJSBA.COM | August 2013
The Future of the Law
Four Practice Areas on the Horizon
by Joshua F. Cheslow
They say the wheels of justice turn slowly, but grind exceedingly fine. The same could be said for the profession as a whole, often characterized by its slow-to-change and conventional nature. Even if that remains true today, advances in science and technology are changing the legal profession.
Of course, elements like legal practice software and email have changed the business of practicing law, just as the fax machine did in its time. But changing business practices are only one aspect of the scientific and technological transformation of the law. Practice areas too are changing. Even as lawyers are assimilating to mobile and cloud computing, the law is becoming a more science-based occupation. Several new legal genres that will change the profession are based in the science and technology fields. Natural disaster law, space law, robotics law, and privacy law are part of the leading edge of a new science and technology revolution in the law.
Scientific advances have changed law slowly but significantly over time. A half-century ago, few could have predicted that environmental rights and norms would be the subject of successful legal careers; today, the field of environmental law has spawned specific sub-genres, such as ‘green’ law. Twenty-five years ago, before AOL and dial-up modem connections, the novelty of the Internet did not betray a hint of its explosive impact on the field of intellectual property; today, the subject of Internet copyright protection is a subspecialty
of intellectual property. Ten years ago, e-discovery was barely a legal discipline; now, it has been suggested that in modern litigation all discovery is electronic because 99 percent of the world’s information is generated electronically and only a fraction is converted to paper.1
Today, young lawyers should be prepared for a more rapid expansion of science and technology practice areas. Pathways to new technologically or scientifically advanced practice areas are emerging. Expertise in these practice areas will demand a cross-section of science-based knowledge and mathematics. This article summarizes four exciting new legal topics that have a strong possibility of fueling the burgeoning careers of today’s young lawyers, as science, technology, and the law continue to converge.
Natural Disaster Law
The slow process of climate change has combined in recent years with exceptional weather events. The volume of weather events, and the acceleration of climate change in recent years, is notable. The devastating effects of such phenomena could give rise to a legal practice area akin to natural disaster law. Climatic catastrophe has hit communities hard. Hurricane Katrina and Superstorm Sandy have made the implementation of flood prevention laws a focus for the Southern and Northeast regions of the country. In the Midwest and Southwest regions, devastating weather events like the tornado in Moore, Oklahoma, have forced cities to consider requiring
local communities to build more durable structures. Also, in the face of such incredible destruction,2 new organizations like the National Hazard Mitigation Association, established in 2008, are being formed, dedicated to the premise of building sustainable communities.
Lawyers are obliged to ask how this new challenge will affect the legal and regulatory future. For instance, in New Jersey the presence of dangerous and costly coastal flooding may give rise to a new regulatory architecture. Currently, lawyers may be most familiar with The National Flood Insurance Program3 and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).4 Both are slow-moving,
bureaucratic government behemoths, the first seriously underfunded and the last only intended to assist with cleanup of the nation’s hazardous waste sites (and underfunded). New natural disaster laws may help change the reactive approach.
Effective crisis management, state and interstate preparedness, and infrastructure security demand a forward-looking response. In the Netherlands, a country built mostly below sea level, a forward looking response has always been the best defense to flood disasters. “The Dutch ‘way of thinking is completely different from the U.S.,’ where disaster relief generally takes precedence over disaster avoidance.”5 In the U.S., employing the Dutch way of thinking is likely to entail changing a legal system that does not presently account for the security concerns, delays, and cost associated with large-scale natural disasters.
The first seeds of serious international natural disaster law have already sprouted. The Red Cross has put forth the Model Act for the Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance.6 The law proposes to lift international barriers (the difficulty of aid workers to get through customs in the affected country) and provides that financial aid is to be funneled to disaster-stricken countries. The law tackles broad topics related to disaster mitigation, such as immigration and national security. Still, the law itself is built to remove obstacles to disaster reaction, after disaster has struck.
New Jersey experienced its own reactive approach to a natural disaster. After Superstorm Sandy, Governor Chris
Christie declared a state of emergency on Oct. 27, 2012. At that point, a host of different provisions went into effect. Restrictions were placed on excessive price increases7 (otherwise known as price gouging) under the Consumer Fraud Act. In addition, mandatory overtime restrictions on healthcare personnel were exempted.8
Unfortunately, New Jersey’s legal response was comprised solely of post-disaster relief. But, natural disaster law will have to encompass an approach that takes into account disaster prevention as well. In one discussion paper at the Red Cross conference on the model act, estimates of the effects of natural disasters include 2.4 billion affected people and 16 percent of world gross domestic product.9 These numbers show, if natural disasters are not priorities already, they will be soon, and they will be costly.
What will new comprehensive natural disaster laws look like? The rare violence of superstorms (like Sandy) can be expected to be regulated first. On barrier islands and low-lying areas, a state may seek to reformulate its eminent domain powers if owners fail to install expensive flood prevention measures. For instance, today in New Jersey the eminent domain law requires that “…no action to condemn shall be instituted unless the condemnor is unable to acquire such title or possession through bona fide negotiations with the prospective condemnee.” In the wake of superstorms battering the coastline, will the Legislature deem this bona fide negotiation
element to be too restrictive for barrier towns in need of radical new flood prevention technologies?
Still just as pertinent to everyday life are the more traditional disaster relief laws that must be reformulated to deal with issues like responsible post-storm cleanup. After Hurricane Katrina, a “toxic tide” of paint, deodorant, batteries, large broken pieces of municipal sewage plants, landfill waste, and railroad cars flowed into area water supplies, a poisonous mixture that further complicated and intensified the already
daunting cleanup task.10 In the future, how will a state propose in advance to deal with such devastation?
Legal practices wishing to focus on natural disaster law should be prepared to weave an interdisciplinary tapestry of tort, insurance, real estate, employment, land use, construction, and environmental practices for mass client claims. Natural disasters demand a one-stop shop for clients who may have lost nearly everything. Currently, natural disaster lawyers will need to navigate the legal web for clients who may be eligible for Federal Emergency Management Agency (FEMA) assistance, or who may qualify for disaster unemployment insurance through the New Jersey Department of Labor and Workforce Development.
In the long term, though, a focus on prevention will shift the conversation. There are legal ramifications to investing in disaster prevention, as utilitarian impulses clash with private property rights.
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