Floodwaters and Undermined Walls

2005-09-01 Thread JMHACLJ



The wall is the central metaphor defining the meaning and work of the 
Establishment Clause for many commentators including on this list. When 
the government "gets away" with some emblematic behavior tinged with religious 
connotations, the hue and cry of breach is predictable.

We are all watching with horror as the situation on the gulf coast goes 
from terrible to unimaginable. And in the midst of it, suddenly, the 
breach of the levee walls made the unimaginable simply a stop on the road to the 
unthinkable.

But this list is for thinking.

As I have heard the cable news bulldogs talking about lack of sufficient 
preparation on the part of the federal government, I wondered, "Is that really 
the case? Have all federal government officials really fallen down on the 
job?"

It took me a few minutes of thought to recall that at least one federal 
official, a judge, had looked ahead to this day. Like the proverbial ant 
laboring through the summer's sunshine, he prepared for this eventually. 
And, unlike so many "talkers," he actually did something.

You may be wondering about the identity of the judge in question. I 
am wondering how you could forget a judge who would have the prescience, the 
forethought, to see the inevitability of a future disaster of, well, biblical 
proportions, and take action.

I am, of course, referring to Judge Ira DeMent. 

After he concluded that the Alabama Prayer Statute was unconstitutional, he 
issued a permanent injunction that was, if I correctly recall, much debated and 
with heat on this list. One key feature of his order, the one which 
demonstrates today his prescience then was his judicial ban on _expression_ of 
religious or devotional sentiments over school public address systems even in 
times of war, natural disaster, or serious community distress. 

This week, as Katrina has worn away at the levee walls in New Orleans, we 
have the news that another assault on the wall of separation took place 
yesterday, when Louisiana's Governor declared a Day of Prayer. Governor 
Blanco urged Louisianans to pray to God and even told them how to 
pray and what things for which to pray. You can read 
her declaration here.Or point your browser to http://www.gov.state.la.us/Press_Release_detail.asp?id=988.

I wonder whether anyone will be found to stand in this 
breach?Will any forward thinking, DeMent-minded person or group will 
step forward to close it again, to push back the might rushing waters of 
government-encouraged, government-endorsed religious invocations of divine 
aid?Will People For, or AmericansUnited, or the ACLU, ride in 
to the rescue? 

Jim Henderson
Senior Counsel
ACLJ
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Re: Floodwaters and Undermined Walls

2005-09-01 Thread FRAP428
Jim Henderson, you are beyond disgusting. People are dying. They were gasping out their last breaths or cradling a loved one--a child, a mother or father--in distress as you wrote your post. Save your idelogical arguments for another time. I'm sorry, Eugene, but this is too much so don't bother to scold/reprove. Perhaps I no longer want to be part of this listserv when one of its members demonstrates such cruel indifference to human grief and suffering. 

Frances R. A. Paterson, J.D., Ed.D.
Associate Professor
Department of Educational Leadership
Valdosta State University
Valdosta, GA 31698
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RE: Floodwaters and Undermined Walls

2005-09-01 Thread Dave Ball



I'm with Frances, in terms of the Establishment Clause 
issue that Jim has raised.
In terms of the issue, this to me is just like the latitude 
that Bill Marshall has argued should be granted regarding post-9/11 religious 
observances.

To quote Bill's article, "The Limits of Secularism: Public 
Religious _expression_ in Moments of National Crisis and Tragedy," 78 Notre Dame 
L. Rev. 11 (2002) (the title really says it all):
"In the end, I suggest in this Essay that the 
tension between the constitutional commitment to anti-establishment and the 
societal need to engage in collective religious exercise can be accommodated by 
a doctrine that allows for government support for religion in limited and 
exceptional circumstances The constitutional value of secularism is in 
its instrumental role, not in its own orthodoxy. As such, the adherence to 
secularism need not be absolute. There may be moments of national crisis 
and grief when instrumental values pale and it becomes constitutionally 
permissible to pierce the secular veneer." 

Marshall, 78 Notre DameL. Rev. at 33.

David T. Ball, Esq.Associate DirectorOhio Legal Assistance 
Foundation10 W. Broad St., Suite 950Columbus, OH 43215voice: 
614-644-1582fax: 614-728-3749cell: 614-316-8222www.olaf.org 



From: [EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED] On Behalf Of 
[EMAIL PROTECTED]Sent: Thursday, September 01, 2005 1:11 
PMTo: religionlaw@lists.ucla.eduSubject: Re: Floodwaters 
and Undermined Walls
Jim Henderson, you are beyond disgusting. 
People are dying. They were gasping out their last breaths or cradling a loved 
one--a child, a mother or father--in distress as you wrote your post. Save your 
idelogical arguments for another time. I'm sorry, Eugene, but this is too much 
so don't bother to scold/reprove. Perhaps I no longer want to be part of this 
listserv when one of its members demonstrates such cruel indifference to human 
grief and suffering. Frances R. A. Paterson, J.D., Ed.D.Associate 
ProfessorDepartment of Educational LeadershipValdosta State 
UniversityValdosta, GA 31698 
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RE: Floodwaters and Undermined Walls

2005-09-01 Thread David Cruz

In Frances Paterson's defense, while this may be the place for the
noting that Henderson did, considerations of appropriate time are also
relevant.  And just now, when we don't even know how many people have
died, haven't recovered their bodies, haven't even necessarily rescued all
the trapped, does not strike me as a felicitous moment for a substantive
discussion (as opposed to baiting one's perceived adversaries from the
security of one's intact and dry home or office).

David B. Cruz
Professor of Law
University of Southern California Law School
Los Angeles, CA 90089-0071
U.S.A.

On Thu, 1 Sep 2005, Gene Summerlin wrote:

 I'll come to Jim's defense.  I don't think it is inappropriate to note
 on a religion law list that the Governor of Louisiana has declared a day
 of prayer, and that some people have advocated that such pronouncements
 violate the EC clause, or that such a pronouncement if given over a
 school's public address system in Alabama, would violate Judge DeMent's
 injunction.

 Nor do I think Jim's post was cruelly indifferent to the very real grief
 and suffering taking place in the Gulf Coast region.  Jim noted his
 horror as the situation turned from the terrible to the unimaginable.

 Gene Summerlin
 Ogborn, Summerlin  Ogborn, P.C.
 210 Windsor Place
 330 South Tenth Street
 Lincoln, NE  68508
 (402) 434-8040
 (402) 434-8044 (facsimile)
 (402) 730-5344 (mobile)
 [EMAIL PROTECTED]
 www.osolaw.com
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Re: Floodwaters and Undermined Walls

2005-09-01 Thread ArtSpitzer

In a message dated 9/1/05 1:48:47 PM, [EMAIL PROTECTED] writes:

Well, I know now what I always suspected.  If I cried out to Jim Henderson for succor, he might well help me but one part of his mind would be thinking or at least considering if he could use my suffering to advance his agenda.  Frances Paterson



For all we know Jim has sent a bigger contribution to the New Orleans relief effort than any of the rest of us.  If Jim were in Louisiana he might be staffing a Red Cross shelter; my recollection is that he does a lot of personal (non-legal) pro bono work here.  I doubt that any of us who aren't near New Orleans are devoting 100% of our attention to the suffering in New Orleans; I'm working on a brief.  I share [EMAIL PROTECTED]'s view that there was nothing offensive about Jim's post.

As to the proclamation, I do wish it had said something more like "My family and I are praying, and I call upon those who wish to do so to join us, and I call upon others to work and hope for relief from this disaster in the way that's meaningful to them."  That wouldn't have been so hard to say, would it?

Art Spitzer
ACLU
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Re: Floodwaters and Undermined Walls

2005-09-01 Thread Paul Finkelman




One might think that instead of spending time issuing calls for prayer, the
governor would focus on more down-to-earth matters. The call for prayers
also of course raises a different practial question. When I moved to Oklahoma
the state was in the middle of huge drought, with no rain for months. Rather
than call for water conservation, the governor called on everyone to pray
for rain the next Sunday (apparently the Gov. did not think God heard the
prayers of Jews, Moslems, or Adventists). Despite the huge humber of churches
in this state, and I presume many prayers for rain, there was no rain and
the drought continued. So miuch for the efficacy of prayer.! I suspect
that our many friends in Louisian and Mississippi would rather have bottled
water or another bus to get out of the city than prayers. 

Paul Finkelman

Gene Summerlin wrote:
 
 
  
 
  
 
  I'll come
to Jim's  defense. I don't think it is inappropriate to note on a religion
law list  that the Governor of Louisiana has declared a day of prayer, and
that some  people have advocated that such pronouncements violate the EC
clause, or that  such a pronouncement if given over a school's public address
system in Alabama,  would violate Judge DeMent's injunction.
 
  
 
  Nor do I think
Jim's post  was cruelly indifferent to the very real grief and suffering
taking place in the  Gulf Coast region. Jim noted his horror as the situation
turned from the  "terrible to the unimaginable." 
 
  
 
  Gene Summerlin
Ogborn, Summerlin  Ogborn, P.C.
210 Windsor  Place
330 South Tenth Street
Lincoln, NE 68508
(402)  434-8040
(402) 434-8044 (facsimile)
(402) 730-5344  (mobile)
[EMAIL PROTECTED]
www.osolaw.com
  
  
 
 
  
  
 
   
   From: [EMAIL PROTECTED]
 [mailto:[EMAIL PROTECTED]] On Behalf Of  [EMAIL PROTECTED]
  Sent: Thursday, September 01, 2005 11:21  AM
  To: religionlaw@lists.ucla.edu
  Subject: Floodwaters and  Undermined Walls
  
  
  
  The wall is the central metaphor defining the meaning and work of
the  Establishment Clause for many commentators including on this list.
When  the government "gets away" with some emblematic behavior tinged with
religious  connotations, the hue and cry of breach is predictable.
 
  
 
  We are all watching with horror as the situation on the gulf coast
goes  from terrible to unimaginable. And in the midst of it, suddenly, the
 breach of the levee walls made the unimaginable simply a stop on the road
to the  unthinkable.
 
  
 
  But this list is for thinking.
 
  
 
  As I have heard the cable news bulldogs talking about lack of sufficient
 preparation on the part of the federal government, I wondered, "Is that
really  the case? Have all federal government officials really fallen down
on the  job?"
 
  
 
  It took me a few minutes of thought to recall that at least one federal
 official, a judge, had looked ahead to this day. Like the proverbial ant
 laboring through the summer's sunshine, he prepared for this eventually.
 And, unlike so many "talkers," he actually did something.
 
  
 
  You may be wondering about the identity of the judge in question.
I  am wondering how you could forget a judge who would have the prescience,
the  forethought, to see the inevitability of a future disaster of, well,
biblical  proportions, and take action.
 
  
 
  I am, of course, referring to Judge Ira DeMent. 
 
  
 
  After he concluded that the Alabama Prayer Statute was unconstitutional,
he  issued a permanent injunction that was, if I correctly recall, much debated
and  with heat on this list. One key feature of his order, the one which
 demonstrates today his prescience then was his judicial ban on _expression_
of  religious or devotional sentiments over school public address systems
even in  times of war, natural disaster, or serious community distress.
  
 
  
 
  This week, as Katrina has worn away at the levee walls in New Orleans,
we  have the news that another assault on the wall of separation took place
 yesterday, when Louisiana's Governor declared a Day of Prayer. Governor
 Blanco urged Louisianans to pray to God and even told them how
to  pray and what things for which to pray. You can
read  her declaration here.Or point your browser to http://www.gov.state.la.us/Press_Release_detail.asp?id=988.
 
  
 
  I wonder whether anyone will be found to stand in this  breach?Will
any forward thinking, DeMent-minded person or group will  step forward to
close it again, to push back the might rushing waters of  government-encouraged,
government-endorsed religious invocations of divine  aid?Will People For,
or AmericansUnited, or the ACLU, ride in  to the rescue? 
 
  
 
  Jim Henderson
 
  Senior Counsel
 
  ACLJ
  
  

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Re: Floodwaters and Undermined Walls

2005-09-01 Thread Brad M Pardee

I'm not sure there is anything the governor
could have done in the time it took to issue a call to prayer that wasn't
already being done. And in time of crisis, like 9/11 or Hurricane
Katrina or anything else of such a devastating magnitude, there are many
of us who find a call to prayer as recognizing that there are more needs
than just the material down-to-earth ones. The provision
of material needs tells me that my leaders are aware of shortages and doing
their job to meet them. The call to prayer tells me that the leaders'
hearts are with me as well.

Brad

P.S. Regarding the eficacy of prayer,
for reasons we may not know, God doesn't always say yes to
everything we ask, but that's a subject for another list.

Paul Finkelman wrote on 09/01/2005 01:26:54 PM:

 One might think that instead of spending time issuing calls for 
 prayer, the governor would focus on more down-to-earth matters. The

 call for prayers also of course raises a different practial 
 question. When I moved to Oklahoma the state was in the middle
of 
 huge drought, with no rain for months. Rather than call for
water 
 conservation, the governor called on everyone to pray for rain the

 next Sunday (apparently the Gov. did not think God heard the prayers
 of Jews, Moslems, or Adventists). Despite the huge humber of

 churches in this state, and I presume many prayers for rain, there

 was no rain and the drought continued. So miuch for the efficacy
of
 prayer.! I suspect that our many friends in Louisian and 
 Mississippi would rather have bottled water or another bus to
get 
 out of the city than prayers. 
 
 Paul Finkelman
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RE: Floodwaters and Undermined Walls

2005-09-01 Thread Marc Stern








What the Establishment Clause in the abstract
means is one thing; whether as a practical matter any body would or should
enforce the maximum possible reading of the clause is something again. I have
often urged on the Jewish community some exercise of judgment over what issues
result in law suit. I have however been burnt more than once when those urging
greater permissible involvement of religion with government cite the practice I
have urged not be challenged as a mater of prudence as evidence of a (de
facto) concession that the constitution does not enact a wall of separation. It
takes no imagination at all to guess that the next time that there is a law
suit about official prayers, the governors call yesterday will be cited
as evidence that the challenged prayer is acceptable. If Jim will agree not to
so cite it, I am happy not to challenge it and to urge others to do the same.

Marc Stern









From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]
Sent: Thursday, September 01, 2005
2:18 PM
To: [EMAIL PROTECTED];
religionlaw@lists.ucla.edu
Subject: Re: Floodwaters and
Undermined Walls






In a message dated 9/1/05 1:48:47 PM, [EMAIL PROTECTED] writes:




Well, I know now what I
always suspected. If I cried out to Jim Henderson for succor, he might
well help me but one part of his mind would be thinking or at least considering
if he could use my suffering to advance his agenda. Frances Paterson




For all we know Jim has sent a bigger contribution to the New Orleans relief effort than any of the
rest of us. If Jim were in Louisiana
he might be staffing a Red Cross shelter; my recollection is that he does a lot
of personal (non-legal) pro bono work here. I doubt that any of us who
aren't near New Orleans are devoting 100% of our
attention to the suffering in New
  Orleans; I'm working on a brief. I share
[EMAIL PROTECTED]'s view that there was nothing offensive about Jim's post.

As to the proclamation, I do wish it had said something more like My
family and I are praying, and I call upon those who wish to do so to join us,
and I call upon others to work and hope for relief from this disaster in the
way that's meaningful to them. That wouldn't have been so hard to
say, would it?

Art Spitzer
ACLU






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Re: Floodwaters and Undermined Walls

2005-09-01 Thread A.E. Brownstein


I don't spend a lot of time worrying about the exact words government 
officials use to respond to catastrophes, but Art makes a very legitimate 
point here. It's not hard to come up with language that is inclusive. 
When  we face disasters as a people, and feel the need to speak as a 
people, and recognize the need to work together to overcome the adversity 
we face,  shouldn't our leaders try to speak in ways that work for 
everybody. Even if Scalia is right that only 2.3% of us will be left out 
of  a non-denominational, monotheistic message (and I don't think he is), 
why shouldn't officials try to use language that reaches out to those 
people as well.


Alan Brownstein
UC Davis

Art wrote,


As to the proclamation, I do wish it had said something more like My 
family and I are praying, and I call upon those who wish to do so to join 
us, and I call upon others to work and hope for relief from this disaster 
in the way that's meaningful to them.  That wouldn't have been so hard to 
say, would it?


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Re: Floodwaters and Undermined Walls

2005-09-01 Thread Ed Darrell
Were there penalties in the past, they would have pre-dated the Establishment Clause, and so would not be relevant to EC litigation. Washington's actions are noteworthy, perhaps: Congress sent him (non-binding) resolutions calling for days of prayer or fasting; Washington carefully edited out references to Jesus or other specific deific mentions, and issued (non-binding) calls for days of thanks, etc. 

Washington also lived long before Keynes noted that governments need not sit idly by and watch disaster happen. But Washington was rarely, if ever, accused of sitting on his hands. As a behind-the-scenes instigator of the Constitutional convention, he rather clearly demonstrated his bias for action as far as humans can go, before, during and after resort to prayer. And at his inaugural, once the official, government exercises were done, Washington and company adjourned to a church up the street, away from the government hall, forprayer and a sermon. I think Judge Dement would have approved of that, too. 

Surely there should be no less separation after incorporation. 

We can learn a lot from history.

Ed Darrell
Dallas[EMAIL PROTECTED] wrote:


In a message dated 9/1/2005 4:11:37 P.M. Eastern Daylight Time, [EMAIL PROTECTED] writes:
In a purely legal vein, I would note that the governor's call carries no penalty for noncompliance, nor any penalty for complying by praying differently, or to a different deity.
These define a standard by which adventures in Establishment Clause violations could be measured. In fact, I suspect that a record of evidence could be mounted to show that, in the early history of our country, at least in the colonial period, that individual but public failure to honor days of fasting and prayer did, in fact, carry these kinds of penalties, and help to characterize and define the established nature of the respective colonial state churches.

Of course, what happened in the colonial period, or in the States before Incorporation, for that matter, does not per se inform us of the meaning of the Establishment Clause but, as with the jailing of Baptist preachers, it can provide a persuasive backdrop against which to argue for Jefferson's or Madison's view of maximizing religious liberty.

Jim Henderson
Senior Counsel
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From the list custodian

2005-09-01 Thread Volokh, Eugene
Title: Message



 Folks: I'm willing to cut people slack in 
times of obvious and understandable emotional upset, butit's still 
important to note that posts such as those below,though forgivable under 
the circumstances, are quiteinappropriate. You may have whatever 
views you want of fellow list members. But there is no reason to 
personally insult them on the list. If you're so angry that you feel you 
have to post something, wait until the anger goes away, and then ask whether you 
still want to post it.

 Jim used an admittedly tragic event -- an event that he himself 
described as tragic -- as a means of framing a legal question and a legal 
argument. This is pretty much what academic lawyers and legal academics 
do; think back to your crim law class. The tragedy of this event, of 
course, is unusually fresh. Perhaps some would prefer not to use it as 
grist for the legal argument mill right now. On the other hand, others 
might find that the freshness of the event makes it especially 
valuable.Nothing in Jim's post remotely justifies even a 
harshimpersonal denunciation, much less personal 
insult.

 Again, I realize that under these circumstances may say things 
that they wouldn't normally say; I therefore don't want to fault the author of 
the post below too much. But I do want to make clear that such posts ought 
not be posted.

 The list custodian



-Original Message-From: 
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
On Behalf Of [EMAIL PROTECTED]Sent: Thursday, September 01, 2005 
10:11 AMTo: religionlaw@lists.ucla.eduSubject: Re: 
Floodwaters and Undermined Walls
Jim Henderson, you are beyond disgusting. People are dying. 
  They were gasping out their last breaths or cradling a loved one--a child, a 
  mother or father--in distress as you wrote your post. Save your idelogical 
  arguments for another time. I'm sorry, Eugene, but this is too much so don't 
  bother to scold/reprove. Perhaps I no longer want to be part of this listserv 
  when one of its members demonstrates such cruel indifference to human grief 
  and suffering. Frances R. A. Paterson, J.D., Ed.D.Associate 
  ProfessorDepartment of Educational LeadershipValdosta State 
  UniversityValdosta, GA 31698 
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Re: New Orleans legal system

2005-09-01 Thread Robert O'Brien


- Original Message - 
From: Richard Foltin [EMAIL PROTECTED]

To: Religionlaw@lists.ucla.edu
Sent: Thursday, September 01, 2005 4:26 PM
Subject: New Orleans legal system


Tangentially apropos of the interesting but assuredly academic discussion 
of

Governor Blanco's call for prayer, here is an e-mail I received this
afternoon detailing the very real -- and mind-boggling -- implications of
the catastrophe for area lawyers, judges and the legal system.

Richard Foltin
The American Jewish Committee



This is an email from a law professor at Southern University Law Center in
Baton Rouge
(she sent it to an ethics lawyers' listserv and it's made the rounds from
there...)


5,000 - 6,000 lawyers (1/3 of the lawyers in Louisiana) have lost their
offices, their libraries, their computers with all information thereon,
their client files - possibly their clients, as one attorney who
e-mailed me noted. As I mentioned before, they are scattered from
Florida to Arizona and have nothing to return to. Their children's
schools are gone and, optimistically, the school systems in 8
parishes/counties won't be re-opened until after December. They must
re-locate their lives.

Our state supreme court is under some water - with all appellate files
and evidence folders/boxes along with it. The 5th Circuit Court of
Appeals building is under some water - with the same effect. Right now
there may only be 3-4 feet of standing water but, if you think about it,
most files are kept in the basements or lower floors of courthouses.
What effect will that have on the lives of citizens and lawyers
throughout this state and this area of the country? And on the law?

The city and district courts in as many as 8 parishes/counties are under
water, as well as 3 of our circuit courts - with evidence/files at each
of them ruined. The law enforcement offices in those areas are under
water - again, with evidence ruined. 6,000 prisoners in 2 prisons and
one juvenile facility are having to be securely relocated. We already
have over-crowding at most Louisiana prisons and juvenile facilities.
What effect will this have? And what happens when the evidence in their
cases has been destroyed? Will the guilty be released upon the
communities? Will the innocent not be able to prove their innocence?

Our state bar offices are under water. Our state disciplinary offices
are under water - again with evidence ruined. Of particular interest to
you...our state disciplinary offices are located on Veteran's Blvd. in
Metairie. Those of you who have been watching the news, they continue to
show Veteran's Blvd. It's the shot with the destroyed Target store and
shopping center under water and that looks like a long canal. Our
Committee on Bar Admissions is located there and would have been housing
the bar exams which have been turned in from the recent July bar exam
(this is one time I'll pray the examiners were late in turning them in
-
we were set to meet in 2 weeks to go over the results). Will all of
those new graduates have to retake the bar exam?

Two of the 4 law schools in Louisiana are located in New Orleans (Loyola
and Tulane - the 2 private ones that students have already paid about
$8,000+ for this semester to attend). Another 1,000+ lawyers-to-be whose
lives have been detoured. I've contacted professors at both schools but
they can't reach anyone at those schools and don't know the amount of
damage they've taken. Certainly, at least, this semester is over. I'm
trying to reach the Chancellor's at Southern and LSU here in Baton Rouge
to see if there's anything we can do to take in the students and/or the
professors. I think I mentioned before, students from out of state have
beens stranded at at least 2 of the other universities in New Orleans -
they're moving up floor after floor as the water rises. Our local news
station received a call from some medical students at Tulane Medical
Center who were now on the 5th floor of the dormitories as the water had
risen. One of them had had a heart attack and they h! ad no medical
supplies and couldn't reach anyone - 911 was busy, local law enforcement
couldn't be reached, they were going through the phone book and reached
a news station 90 miles away!! It took the station almost 45 minutes to
finally find someone with FEMA to try to get in to them!!

And, then, there are the clients whose files are lost, whose cases are
stymied. Their lives, too, are derailed. Of course, the vast majority
live in the area and that's the least of their worries. But, the New
Orleans firms also have a large national and international client base.
For example, I received an e-mail from one attorney friend who I work
with on some crucial domestic violence (spousal and child) cases around
the nation - those clients could be seriously impacted by the loss, even
temporarily, of their attorney - and he