Tuesday, October 12, 2010

The Law and Technology

    It is always fascinating to watch the law play catch-up with technological change.
   Under New York's Statute of Frauds a contract for the conveyance of real property is not enforceable unless it is in writing. General Obligations Law § 5-703. There is an extensive body of case law on what constitutes a "writing" which satisfies the Statute of Frauds.
    Last week the Appellate Division, First Department, addressed the question of whether an e-mail can constitute a writing which meets the requirements of the General Obligations Law. Justice David Friedman's careful analysis concludes that it can. I recommend the opinion as a good example of how courts seek to fit new technologies into existing law. The ruling, Naldi v. Grunberg, can be found here .  

Friday, October 1, 2010

Coming Up in the Supreme Court: Protests at Military Funerals

     The United States Supreme Court will hear oral arguments next week in eight cases which will address matters of bankruptcy, cross-examination at a criminal trial, federal sentencing, and the liability of prosecutors for failure to disclose exculpatory evidence to a defendant.
     The most interesting case for me will be Snyder v. Phelps which addresses protests at military funerals. 
     After Marine Lance Corporal Matthew A. Snyder was killed in Iraq his family arranged for a private Christian burial at a Catholic Church in Maryland.
     Reverend Fred W. Phelps, a pastor of a Baptist Church in Kansas, who has protested at other military funerals, decided to protest at the Snyder funeral. Phelps espouses the view that God hates America because it tolerates homosexuality, particularly in the armed services. 
     The day of the funeral Phelps, two of his daughters, and four of his grandchildren carried signs at a distance from the funeral with messages such as "Pope in Hell," "God Hates the USA," and "Thank God for dead soldiers." After the funeral, on his website, Phelps accused the Snyder family of teaching their son irreligious beliefs. 
     The soldier's father sued Phelps and his daughters for intentional infliction of emotional distress, intrusion into their private event, and conspiracy. A jury awarded him $5 million, but the United States Court of Appeals for the Fourth Circuit reversed the judgment, concluding that funeral protest speech is protected by the First Amendment. 
     The case raises fascinating issues such as a conflict between the First Amendment's freedom of speech and freedom of religion; whether the protection the Supreme Court has accorded speech directed at "public figures" should apply when, as here, the speech is directed at private individuals at a private funeral; and whether those attending a private funeral are a "captive audience" who should be accorded some protection against unwelcome speech by uninvited individuals.
     The case will be argued on Wednesday, October 6.