Adapting to the Future of Law: Legislations and Regulations
Legislation and regulations (“legs and regs”) will always be with us. They are “change agents,” always altering the legal employment landscape. Sometimes they do that in subtle, almost unnoticeable ways; other times, their impact is massive. And that means volatility...and opportunity.
The Risks of Being Unprepared: Two Examples
When Congress raised the estate tax exemption to $5 million for individuals and $10 million for spouses, a number of estate planning attorneys were blindsided and lost huge chunks of their business.
A similar phenomenon occurred with attorneys who depended on transportation clients when trucking was deregulated and the U.S. Interstate Commerce Commission ceased operations. Despite the warning signs, these attorneys hadn’t prepared for the regulatory changes or the impact those changes would have on them.
The Need to Anticipate
The only thing you can anticipate to a certainty is that legislation and regulation will keep flowing out of Washington, D.C., and state capitals. In order to predict what might happen and consequently to both protect yourself against adversity and take advantage of opportunity resulting from legs and regs, you have to keep up with developments in the greater community, nation, and world outside of your narrow professional realm. That means making it a regular practice to read and keep your ear to the ground through contacts with people in the know. General circulation daily local and national newspapers, magazines, and trade journals relevant to your practice area (for example, any energy lawyer should be a regular reader of Oil and Gas Journal) are a must. Anything your principal clients read, you should read, too. Professional membership organizations are an excellent way to keep apprised of what’s coming down the legs and regs pike.
Anticipation means much more than awareness. It should include a current resume and/or curriculum vita if you are an employee or a current business and marketing plan if you are a sole practitioner or law firm partner.
Prepare for Opportunity
Legs and regs are a major component of economist Joseph Schumpeter’s concept of “creative destruction.” In addition to wiping out entire practice niches with the stroke of a pen, they can also generate terrific legal and law-related job opportunities for attorneys. These can come in all shapes and sizes and with either very specific or multiple employer universes. Within each opportunity you can usually find prospects for writing, interpreting, advocating for and against, and advising and counseling about, the new law or regulation, as well as the possibility of expanding your practice or newfound expertise into collateral areas.
If you see that a new law or regulation likely to generate demand for your services is imminent, you can best position yourself by adding a credential to supplement your law degree. This does not have to be an LLM degree, which would be very time-consuming and expensive. Alternatively, you can enroll in a far less expensive and time-consuming certificate or comparable program.
When the financial shenanigans and outright frauds perpetrated by companies like Enron and Worldcom began coming to light in the early 2000s, agile firms (law, accounting, consulting) of all sizes, as well as a handful of sole practitioners, envisioned a major regulatory response by government, one that would vex their clients and force them to dramatically alter their business practices and compliance regimes. These organizations and individuals began putting together corporate governance practices and peppering their clients with anticipatory information. When the Sarbanes-Oxley Act became law in 2002, they were ready to launch, while the vast majority of their counterparts were left hanging.
Similar preparation preceded the enactment of other major legislation and the issuance of regulatory initiatives since then, including the Higher Education Opportunity Act of 2008, the Affordable Care Act, the Dodd-Frank Act, and the HIPAA Omnibus Rule. Each one of these landmark pronouncements caused a sea change in behavior by affected entities and individuals, sending them scurrying to the lawyers for advice and assistance. You want to position yourself to be one of those attorneys to whom they scurry.
Where the Jobs Are Likely to Be
The public sector at all levels has a demand for individuals that can perform all of the functions associated with new legs and regs. Every time a new directive from Washington is promulgated, there may be a need for attorneys and others with a legal background to implement, administer, monitor compliance with, and enforce its provisions. Sometimes that entails an entire new hiring binge. For example, when in 2009 the Obama administration announced a 30-year policy reversal regarding the licensing of new nuclear power plants, the U.S. Nuclear Regulatory Commission went on an unprecedented legal hiring spree.
The Private Sector
The private sector also has a continuing and continuously growing need for attorneys when government pronounces a new edict. Every corporation, whether public, closely held, or nonprofit, as well as every other business needs employees or outside counsel who can advise them with respect to the barrage of legs and regs that govern almost every aspect of business and human behavior.
Example: Employment Law
Examples of legs and regs invading every corner of society abound. Below is just one example from just one such corner—relations between employers and employees.
Beginning with the landmark civil rights legislation of the 1960s, Congress and the state legislatures have enacted numerous laws protecting the rights of workers, including the—
Equal Pay Act of 1963 (Pub.L. 88-38)
Fair Labor Standards Act (29 U.S.C. 201–219)
Occupational Safety and Health Act of 1970 (Pub.L. 91-596)
Title IX (20 U.S.C. 1681–1688)
Rehabilitation Act of 1973 (29 U.S.C. 701 et seq.)
ERISA (29 U.S.C. 1001 et seq.)
Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (38 U.S.C. 4212)
Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.)
Age Discrimination in Employment Act (29 U.S.C. 621 et seq.)
Americans with Disabilities Act (42 U.S.C. 12101 et seq., 47 U.S.C., Chapter 5)
Family and Medical Leave Act (29 U.S.C. 2601 et seq.)
Contract Work Hours and Safety Standards Act (40 U.S.C. 3701 et seq.)
Uniformed Services Employment and Reemployment Rights Act (USERRA) (38 U.S.C. 4301 et seq.)
Lily Ledbetter Fair Pay Act of 2009 (Pub.L. 111-2)
This is just a partial list. In addition to the need for lawyers, this bevy of federal employment laws generated the following representative law-related job titles:
Representative Employment Law-Related Job Titles
ADA Compliance Manager
Affirmative Action/EEO Officer
Affirmative Action Specialist
Civil Rights/Affirmative Action Investigator
Cultural Diversity Director
Disability Services Coordinator
Diversity Management Director
Employee Disability Programs Manager
Employee Relations Manager/Specialist
Employment and Training Specialist
Equal Opportunity Compliance Specialist
Equal Employment Manager (Complaints and Resolution)
Fair Housing Specialist
Human Rights Administrator
Judiciary AA/EEO Investigator
Reemployment Rights Compliance Specialist
Veterans Reemployment Rights Specialist
Employment law and law-related credentialing programs are abundant. A few appear below. (Purdue Global Law School does not endorse any particular program.) There are many more that you can identify via the internet.
Discrimination in the Workplace: The Law of EEO
Critical Issues in Employment Law - Legal Pitfalls in the Hiring Process
Critical Issues in Employment Law - ADA: Reasonable Accommodation and the Interactive Process
Workers' Compensation Basics
Crafting Compliance Handbook Policies and Employee Agreements
Employment-Based Immigration Basics
HIPAA: Health Insurance Portability and Accountability Act
Independent Contractor or Employee?
Workplace Investigation Integrity: Retaliation and Confidentiality
Preparing for Negotiations
Ethics in the Workplace
Employment Law Certification (online)
Institute for Applied Management & Law, Inc.
Certificate in Employee Relations Seminars
Down the Road
Employment law may be a potentially fruitful field because virtually everyone is, has been, or will be an employee and/or employer at some point. Moreover, Congress and state and local legislatures will continue to pass laws that directly and indirectly affect the employment relationship. The result is that this is a field with a bright future, one in which new and cutting-edge issues constantly emerge as society becomes more complex. The same can be said about a great many practice areas. In all of these cases, fortune favors the prepared.