Dec 09, 2020
A Bad Year Makes for a Good Amount of New Law
Dec 09, 2020
By Robert Rosborough
How did such a terrible year go by so quickly? Perhaps some of you disagree and felt endless hours at home made the year drag on endlessly. However quickly it passed, it was not uneventful. With so many dramatic events unfolding so rapidly, one unsurprising result is conflict. And conflict leads to new law, from both courts and legislatures. This final 2020 issue of the Marin Lawyer covers just a few of the recent developments in the law—many, but not all, of them stemming from the pandemic.
Before turning to new law, something else stemming from the pandemic is unfortunately a greatly increased amount of human suffering. Certainly for many, the suffering of grief over the loss of loved ones. For many others, particularly elders, the suffering of being alone all the time. For others, the loss of a job, the inability to pay the bills or even buy food, or the loss of a home (which will become frighteningly common when eviction moratoria end). We have profiled many local nonprofits over the years in the pages of the Marin Lawyer, and they are all working hard to make a difference in our community. We asked a few of them to tell us what changes they have seen because of the pandemic and how they are responding. They are working harder than ever to adapt to enormous changes in the needs of the people they serve, not to mention in their own working conditions. They are stepping up and making an enormous difference. I encourage all our readers to read Nonprofits Respond to the Pandemic to find out how the Canal Alliance, Legal Aid of Marin, LITA (Love is the Answer), Marin Child Care Council, and North Marin Community Services are adapting and increasing their services in this time of tremendous need. Perhaps doing so will inspire you to help them help others.
And I would like to let you know if you don’t already that MCBA’s own joint pro bono endeavor with the Marin County Law Library, Lawyers in the Library, has resumed operations (via Zoom, making it easier than ever to help) and is always looking for volunteers to donate just two hours of their time helping those who cannot afford a lawyer handle their own legal problems with the help of the library’s resources.
While the pandemic may have slowed the total flow of information into the law library (the California Legislature passed less than half its usual number of bills, for example), plenty of new law has still developed this year. One area that has seen—and continues to see almost daily—vast changes both from the pandemic and otherwise, is employment law. We covered some of those changes in our June issue but the law is evolving so rapidly that we bring you several updates. Lisa Spann Maslow contributes an excellent overview of the vastly expanded California Family Rights Act, with bulleted highlights of major provisions. Cari Cohorn takes a helpful look at several of the key (quite) recent developments directly related to COVID-19. And Pat Goldman covers both the history of the employee-independent contractor distinction and the most recent dramatic developments.
Also workplace-related but moving into the real property arena, Jeff Lerman, Phil Diamond, and Dan Dersham bring helpful insights into commercial lease restructuring from their own representation of both tenants and landlords coping with the effects of the pandemic. Shifting gears to intellectual property law, music lovers should read Francine Ward’s report on two recent copyright cases, including the famous, and finally finished, “Stairway to Heaven” case. And just because you don’t practice Indian Law, don’t skip Tom Weather’s report on recent developments in this area so you can find out whether the U.S. Supreme Court gave half of Oklahoma back to Native Americans.
Back closer to home, we are honored to have Chief Probation Officer Marlon Washington, newly on the job in Marin, report on some significant changes, including in juvenile justice. We report on highlights from MCBA’s first-ever virtual, four-day MCLE Fair, including outstanding keynote talks from Professor Rory Little (with predictions of what areas of the law will see significant changes in the current U.S. Supreme Court term), Chief Justice Tani Cantil-Sakauye, and Dean Erwin Chemerinsky of Berkeley School of Law. I report on Judge Kelly Simmons’ update from the probate court. If you practice in this area, be sure to read it to find out the most current court procedures. And we bring you Greg Brockbank’s latest political column, with excellent summaries of the results of contested local elections and state propositions as well as his insight and analysis of the Congressional and presidential races. If you are a Trump supporter, you might want to skip his final paragraphs, where he recounts Trump’s rise and fall and sets out his (perhaps shocking) reason he thinks Trump won’t be running in 2024.
Addressing both local and national issues, Daniel Schneider writes a brief primer about some of the potential constitutional challenges to pandemic reopening rules, which includes the U.S. Supreme Court’s Thanksgiving-Eve ruling on the regulation of church services. While the pandemic has brought many formerly obscure areas of the law into our consciousness (see, for example, Karthik Raju’s article on travel restrictions in the June issue), it is also prompting developments in areas already on the radar of many Supreme Court Justices as ripe for change, notably free exercise of religion.
Moving into the international arena, we are privileged to reprint an article from The Conscious Lawyer magazine on courtroom design. If you are a regular reader of the Marin Lawyer, you have seen me discuss the integrative law movement, which seeks to bring the wisdom of other professions and areas of knowledge to bear on the law in the hopes of improving the law, the legal system and the profession to reflect how people actually make decisions and resolve conflict in a way that addresses more of our human needs. The Conscious Lawyer reports on the many fascinating developments in this field. In this case, lawyers and design students in the Netherlands got together to explore how to design a better courtroom and two courtrooms are being built reflecting their ideas. Given the drastic changes needed in courtrooms because of the pandemic, we should take note. And on January 13th, you can hear the subjects of the article speak on reimagining the courtroom, brought to you by The Project for Integrating Spirituality, Law, and Politics (PISLAP), which collaborated with The Conscious Lawyer on its most recent issue.
Finally, I would like to thank my guest editors for this issue: Ann Munene, Marie Barnes, Andy Perez and incoming MCBA President Tim Nardell. I wish everyone Happy Holidays and a much happier New Year.
Rob Rosborough is Of Counsel to Monty White LLP. He mediates disputes where an ongoing relationship is at stake, particularly adult-family conflict such as disagreement over caring for an aging parent, and HOA disputes. He also maintains an estate planning and HOA practice. Rob teaches at USF’s Fromm Institute (conflict resolution and history of science) and helps lawyers cope with the practice of law by teaching them meditation skills as a certified iRest® meditation teacher.