Message from the Director
Since August 2022, the Tulane Online Programs have undergone tremendous changes. Dr. Saru Manambandazo explains some of those changes.
Anticipating Predictable Change in Labor and Employment Law
In the late 19th Century legal education underwent a conceptual revolution. Christopher Columbus Langdell, who served as dean of Harvard Law School from 1870 – 1895, introduced the idea that law should be understood and taught as a science. Believing that an observational empirical paradigm could be applied to law, Dean Langdell believed that law was a predictable, objective, rational field.1 Though we still use Langdell’s tools in legal education - particularly the case method and the scientific method - most of us are not exactly persuaded as to law’s rationality, objectivity, and predictability. This idea - of law as objective, predictable, and rational in its operation – was subject to critical inquiry. 20th Century scholars and advocates revealed how the “truth” of law was subject to the operation of economic and social power, historical trends, political realities, and other forces.2
The economic realities, social trends, and political forces shape changes in law beyond any rational or objective frameworks. Law is always changing in response. And while this change is often slow, the requirements for implementation can arise quickly. Recently, the realm of labor and employment law was treated to two examples of how quickly law can change and how broad-sweeping these changes can be. Just last month in December of 2022, Congress passed the Pregnant Worker Fairness Act, which requires employers to make reasonable accommodations for pregnant workers.3 It also passed the PUMP Act (Providing Urgent Maternal Protections for Nursing Mothers)4 which expands protections for nursing parents in the workplace and clarifies the operation of reasonable nursing breaks in the workplace. Then, on January 5, 2023, the Federal Trade Commission proposed a new rule to the Federal Code of Regulations that would make non-compete clauses in employment contracts.5 The Federal Trade Commission’s rule, which would supersede the operation of state law that contradicts it, would have enormous implications for many sectors that rely on non-compete clauses to operate.6
Though many might have been surprised by these changes and shifts in the law, I don’t think the students and alumni from MJLEL were. In fact, I know they were not. Those of us in the MJLEL community, guided by world-class instructors and our own passion, are trained to know and think beyond what the law is today to what it could become. In our conversations, we have long been aware of the Pregnant Worker Fairness Act, which was introduced in 2012 and became urgent with the Supreme Court’s ambivalent decision in Young v. United Parcel Service.7 They have also been trained to grapple with the limitations of the FLSA’s protections – particularly around the gendered naming of the act for mothers.8 We also regularly speak about how some classic “givens” of employment law – from at-will employment to non-compete agreements – are being interrogated in the states in ways that will shape the future. Our students were not surprised because not only do they know the law as it is, MJLEL folks know how to find the law when it changes, and how to anticipate changes in the law that are yet to come. Legal change can be MADE predictable if you develop your expertise!
One of the most challenging aspects of being a legal professional involves the simple fact that the law changes. Every year, courts make new decisions at the state and federal level. Every year, administrative actors make new rules, and our understanding evolves to require new interpretations of existing laws. And not to be outdone, local government actors also play their part. While these changes may not always be rational and may be difficult to implement (a topic for another day), we remain poised and prepared because we make it our business and our mission to know that they are coming. In MJLEL, we don’t fear change. We embrace it. We understand it. And we anticipate it.
Changes at the Tulane MJ Program
It may come as no surprise that I love to read. When I’m not teaching law, reading about law, keeping up with law, or writing about law, one of my favorite things to do is read excellent speculative fiction. Speculative fiction is a genre that overlaps with science fiction and fantasy. Its authors build fantastic futuristic worlds that differ profoundly from our own or alternative futures that have much to teach. One of my favorite speculative fiction books is Octavia Butler’s Parable of the Sower. In Parable of the Sower, Butler addresses commitments to compassion, scarcity and climate change, and a destabilized political system and creates a compassionate empathetic worldview she calls Earthseed. Octavia Butler’s speculative vision of Earthseed centers on the importance of change and embracing change as a fundamental aspect of life. She wrote, “All that you touch you change. All that you change changes you. The only lasting truth is change.”
Since August 2022, the Tulane Online Programs have undergone tremendous changes. We have experienced the typical changes we undertake as an academic community every quarter. We have had new students enter the program, and established students graduate. Our students have taken classes in our innovative one-of-a-kind curriculum that are designed to change the way they see the world. Faculty grew in their interactions with students and the alumni grew into new roles and opportunities.
But we have had other changes as well. Dean Meyer restructured the leadership of the Online Programs, creating a more dynamic and collaborative team approach to serve the student body. As part of this, he appointed me as Senior Director of Online Legal Education and as Faculty Director of the MJ in Labor and Employment Law. Dean Meyer also appointed Professor Elizabeth Townsend-Gard Deputy Director of the MJ program in Labor and Employment Law, recognizing her significant contributions to the program with a leadership position. He also promoted Ms. Jozette Kauffmann to Staff Program Director, a position that will enable her to support our students more effectively. Dean Meyer also appointed a new leadership team in our sister programs, the Master of Jurisprudence in Energy Law and the Master of Jurisprudence in Environmental Law. Professor Mark Davis will serve as Faculty Director and Professor Chris Dalbom will serve as Deputy Director. We have added a host of new faculty across our programs (I promise you will meet them). Together we have been working with students, alumni, and the administration to build a stronger better degree and bring the Tulane MJ Programs to the next level, in terms of the student experience, curriculum, and alumni engagement. In line with this, we have created new courses and provided new experiences. This summer, we will have two new courses available one focused on administrative law and one focused on the Americans with Disabilities Act. In Fall of 2023, we will be rolling out courses in contract law and benefits law. This spring, we will have our first virtual Speaker Series.
During this time of transition, we have all grown and we have all been changed. And, for myself, I have held strong to the lessons of Octavia Butler’s Parable of the Sower. We have made change and have been changed by what we made. We have touched many things to change them and been touched in return, changing us. So many of us are in the legal profession to make change. Some of us want to change our own lives through the work of becoming a legal professional. Perhaps it is the change that will result in significant career advancement or more income or we seek change to increase our knowledge and become more effective. Perhaps the change is grander, in a desire to shift to larger policy conversations or ensure responsive change in the organizations that we operate within. We have the desire to craft a responsive changed world that differs from what has come before. And while we do this work we will change, even as we strive to change the world. This is, of course, hard work and often entails discomfort as we grow and change to the occupy new spaces or as we make spaces new to ensure that more of us can fit in. Throughout this time though, we should also remember, like Butler, to put compassion and empathy at the center of what we do, even when that can be a blessing and curse. Dealing with the discomfort of change requires compassion - compassion with those others and compassion with the self. And even when change is not a choice and transition is difficult, we can choose compassion and empathy as guiding frameworks for how we make change and how the world changes us.
Always changing and always becoming, Happy New Year!
1. For more about Dean Langdell, check out Bruce A. Kimball, The Inception of Modern Professional Education: C.C. Langdell 1826 – 1906 (2009).
2. Heck! Even science underwent its own paradigm shift, as philosophers like Karl Popper, Thomas Kuhn, and Sandra Harding demonstrated how the truth of science is shaped and reshaped by paradigms of understanding. For a perspective on the interaction of this with law, see Nancy Cook, Law as a Science: Revisiting Langdell’s Paradigm in the 21st Century, 88 N.D. L. Rev. 21 (2012).
3. The text of the PWFA is here: https://www.congress.gov/bill/117th-congress/house-bill/1065
4. The text of the PUMP Act can be found here: https://www.congress.gov/bill/117th-congress/house-bill/3110
5. You can read the text of the proposed rule here: https://www.ftc.gov/legal-library/browse/federal-register-notices/non-compete-clause-rulemaking
6. The FTC is seeking public comments on the proposed rule through March 10, 2023. See, https://www.regulations.gov/docket/FTC-2023-0007/document.
7. 575 U.S. 206 (2015).
8. For us we see these acts as limiting. I mean – Title VII’s expansion of sex discrimination from Bostock v. Clayton County, 140 S.Ct. 173 (2020) interprets sex discrimination in a way that includes gender identity. So why are we failing to include trans people who give birth – transmen and nonbinary people – in this legislation. Why are we still talking about mother’s exclusively?