Judge Kavanaugh Made Some News About The Right to Privacy During His Confirmation

I was again quoted in the Washington Times about Judge Kavanaugh's confirmation hearings; this time about his views with respect to the right to privacy. Brett Kavanaugh's Digital Privacy Revelation Intrigues Senators, Advocates (Washington Times Sep't. 10, 2018).  

As reporter Alex Swoyer, esq. notes, Judge Kavanaugh previously indicated that bulk collection of telephone digital data would not violate the right to privacy, but his decision may no longer be good law because of the Carpenter Supreme Court decision. He also appears willing to apply Carptenter to other areas of the law. Specifically, I was quoted as follows:

But Mitchell Rubinstein, a New York-based lawyer, said the exchange between Judge Kavanaugh and Mr. Leahy was important because the nominee called the Carpenter case a “game changer.” “It appears that a Justice Kavanaugh will recognize the importance of privacy in many different areas that are likely to come up because of the explosive use of technology in this country,” he said.
 Mr. Rubinstein noted that Sen. Ben Sasse, Nebraska Republican, praised Mr. Leahy’s questioning.
 He said it may have been the “most striking and perhaps the most significant part” of the confirmation hearing. “There was a discussion about the past and the future and not about the political left or right,” Mr. Rubinstein said.

Governor Signs Into Law Major Legislation Narrowing A Unions Duty of Fair Representation

On April 12, 2018, Governor Cuomo signed Chapter 59 of the Laws of 2018 into law which amends the Taylor to narrow a public sector unions duty of fair representation. The amended statute now provides (the underlined portion represents the amendment):

  Improper  employee organization practices. It shall be an improper
   practice for an employee organization or its agents deliberately (a)  to
   interfere  with,  restrain or coerce public employees in the exercise of
   the rights granted in section two hundred two, or to cause,  or  attempt
   to cause, a public employer to do so provided, however, that an employee
   organization  does not interfere with, restrain or coerce public employ-
   ees when it limits its services to and representation of non-members  in
   accordance with this subdivision; (b) to refuse to negotiate collective-
   ly  in good faith with a public employer, provided it is the duly recog-
   nized or certified representative of the employees of such employer;  or
   (c)  to breach its duty of fair representation to public employees under
   this article. Notwithstanding any law, rule or regulation to the contra-
   ry, an employee organization's duty of fair representation to  a  public
   employee it represents but who is not a member of the employee organiza-
   tion  shall be limited to the negotiation or enforcement of the terms of
   an agreement with the public employer.  No  provision  of  this  article
   shall be construed to require an employee organization to provide repre-
   sentation  to  a non-member (i) during questioning by the employer, (ii)
   in statutory or administrative proceedings or to  enforce  statutory  or
   regulatory  rights, or (iii) in any stage of a grievance, arbitration or
   other contractual process concerning the evaluation or discipline  of  a
   public employee where the non-member is permitted to proceed without the
   employee organization and be represented by his or her own advocate. Nor
   shall  any  provision  of this article prohibit an employee organization
   from providing legal,  economic  or  job-related  services  or  benefits
   beyond  those  provided  in the agreement with a public employer only to
   its members.

This statute was reportedly enacted in anticipation of the U.S. Supreme Court's decision in Janus which may ultimately hold that it is a violation of the First Amendment for states (such as New York) to mandate that employees pay "agency fees" if they chose not to become union members. The Governor signed this statute into law at UFT headquarters, here, and reportedly stated that this statute “is the first step of the resistance.”

Supremes Hold That Arbitration Agreements Must Be Treated Like Any Other Contracts

In Kindred Nursing Home v. Clark, ___U.S.___(May 15,2017), the Supreme Court, once again, treated agreements to arbitrate in a favorable fashion.
At issue was whether an individual with power of attorney, could enter into an arbitration agreement. The Kentucky Supreme Court said no, but the U.S. Supreme Court reversed, reasoning in part:

The Act’s key provision, once again, states that an arbitration agreement must ordinarily be treated as “valid, irrevocable, and enforceable.” 9 U. S. C. §2; see supra, at 4. By its terms, then, the Act cares not only about the “enforce[ment]” of arbitration agreements, but also about their initial “valid[ity]”—that is, about what it takes to enter into them. Or said otherwise: A rule selectively finding arbitration contracts invalid because improperly formed fares no better under the Act than a rule selectively refusing to enforce those agreements once properly made. 

Justice Thomas wrote an interesting dissent where he stated that he would hold that the Federal Arbitration Act does not apply in state courts.