There. That’s over.

It’ll be three months before I know if I passed.

Here is a hopefully useful excerpt from a footnote in my Law Review article. It’s not the whole footnote, and I’m not going to share the entire article for at least some time, as I have other plans for it. But this one footnote, the result of many, many hours of research, could be useful to others and I thought I would share it.

(For those who are interested, the article is not really about same-sex marriage as such, but about an obscure little choice of law problem in one of the very few areas where federal courts have to look into the validity of a marriage – the common law spousal privileges under Fed. R. Evid. 501.)

112. 37 states have enacted statutes banning same-sex marriage and prohibiting the recognition of out-of-state same-sex marriages. Ala. Code § 30-1-19 (2009) (Alabama); Alaska Stat. § 25.05.013 (2009) (Alaska); Ariz. Rev. Stat. §§ 25-101, 25-112 (2009) (Arizona); Ark. Code Ann. §§ 9-11-107, 9-11-109, 9-11-208(b)-(c) (2009) (Arkansas); Colo. Rev. Stat. § 14-2-104 (2009) (Colorado); Del. Code Ann. tit. 13, § 101(a), (d) (2009) (Delaware); Fla. Stat. § 741.212 (2009) (Florida); Ga. Code Ann. § 19-3-3.1 (2009) (Georgia); Haw. Rev. Stat. § 572 (2009) (Hawai’i); Idaho Code Ann. §32-209 (2009) (Idaho); 750 Ill. Comp. Stat. 5/201, 5/212, 5/213.1 (2009) (Illinois); Ind. Code § 31-11-1-1 (2009) (Indiana); Kan. Stat. Ann. §§ 23-101, 23-115 (2009) (Kansas); Ky. Rev. Stat. Ann. §§ 402.005, 402.020, 402.040, 402.045 (2009) (Kentucky); La. Civ. Code Ann. art. 89, 96, 3520 (2009) (Louisiana); Me. Rev. Stat. Ann. tit. 19-A § 701 (2009) (Maine); Md. Code Ann., Fam. Law § 2-201 (2009) (Maryland); Mich. Comp. Laws §§ 551.1, 551.271 (2009) (Michigan); Minn. Stat. §§ 517.03, 518.01 (2009) (Minnesota); Miss. Code Ann. §93-1-1 (2009) (Mississippi); Mo. Rev. Stat. § 451.022 (2009) (Missouri); Mont. Code Ann. §§ 40-1-103, 40-1-401 (2009) (Montana); N.C. Gen. Stat. §§ 51-1, 51-1.2 (2009) (North Carolina); N.D. Cent. Code §§ 14-03-01; 14-13-08 (2009) (North Dakota); Ohio Rev. Code § 3101.01 (Ohio); Okla. Stat. tit. 43 § 43-3.1 (2009) (Oklahoma); Pa. Cons. Stat. § 1704 (2009) (Pennsylvania); S.C. Code Ann. §§ 20-1-10, 20-1-15 (2009) (South Carolina); S.D. Codified Laws §§ 25-1-1, 25-1-38 (2009) (South Dakota); Tenn. Code Ann. § 36-3-113 (2009) (Tennessee); Tex. Fam. Code §§ 2.001, 6.204 (2009) (Texas); Utah Code Ann. §§ 30-1-2, 30-1-4.1 (2009) (Utah); Va. Code §§ 20-45.2, 20-45.3 (2009) (Virginia); Wash. Rev. Code §§ 26.04.010, 26.04.020 (2009) (Washington); W. Va. Code § 48-2-603 (2009) (West Virginia); Wis. Stat. §§ 765.001, 765.01, 765.04 (2009) (Wisconsin); Wyo. Stat. Ann. § 20-1-101 (2009) (Wyoming). One state, New Hampshire, has enacted statutes banning same sex marriage, but allowing for limited domestic recognition of out-of-state same-sex marriages, provided that the couple establish domicile in the state after marrying and that the marriage was not effected in a manner designed to circumvent the state’s prohibition of such marriages. N.H. Rev. Stat. Ann. §§ 457:1-3, 457:43 (2009). Research produced no word from Vermont’s legislature or courts on whether out-of-state same-sex marriages would be recognized as civil unions under Vermont’s civil union framework under Vt. Stat. Ann. tit. 15, ch.23 (2009). However, given that Vermont’s civil union framework has now been supplanted by allowing same-sex marriage in the state, . . . such recognition will likely be unnecessary in the future. Vermont is likely to recognize out-of-state same sex marriages as valid, as are the other three states which now allow same-sex marriage, although this has not yet been tested in court. . . . Vermont formerly had a statutory ban on same-sex marriage, Vt. Stat. Ann. tit. 15, §§ 5, 8 (2008), but has since repealed it, becoming the first state to legislatively enact same-sex marriage without a court order to do so. . .&nbsp. As of this writing, only two state statutes banning same-sex marriage have been struck down by courts. Conn. Gen. Stat. §46b-38aa (2008) (providing for same-sex civil unions but defining marriage as “the union of one man and one woman”), invalidated by Kerrigan v. Comm’r of Pub. Health, 49 Conn. Sup. 664 (2008) (holding that the statute’s definition of marriage violated state constitution’s guarantee of equal protection); Iowa Code § 595.2 (2009) (Iowa) (stating that “[o]nly a marriage between a male and a female is valid”), invalidated by Varnum v. Brien, No. CV5965, 2007 WL 2468667 (Iowa Dist. 2007) (unconstitutional on equal protection grounds), aff’d Varnum v. Brien, No. 07-1499, slip op. at 69 (Iowa 2009). 29 states have written same-sex marriage bans into their state constitutions. Ala. Const. amend. 774 (Alabama); Alaska Const. art. I, § 25 (Alaska); Ariz. Const. art. XXX (Arizona); Ark. Const. amend. 83 (Arkansas); Cal. Const. art. I, § 7.5 (California); Colo. Const. art. II, § 31 (Colorado); Fla. Const. art. I, § 27 (Florida); Ga. Const. art. I § IV (Georgia); Haw. Const. art. 1, § 23 (Hawai’i); Idaho Const. art. III, § 28 (Idaho); Kan. Const. art. 15, § 16 (Kansas); Ky. Const. § 233A (Kentucky); La. Const. art. XII, § 15 (Louisiana); Mich. Const. art. I, § 25 (Michigan); Miss. Const. art. 14, § 263A (Mississippi); Mo. Const. art. I, § 33 (Missouri); Mont. Const. art. XIII, § 7 (Montana); Neb. Const. art. I, § 29 (Nebraska); Nev. Const. art. I, § 21 (Nevada); N.D. Const. art. XI, § 28 (North Dakota); Ohio Const. art. XV, § 11 (Ohio); Okla. Const. art. 2, § 35 (Oklahoma); Or. Const. art. XV, § 5a (Oregon); S.C. Const. art. XVII, § 15 (South Carolina); S.D. Const. art. XXI, § 9 (South Dakota); Tenn. Const. art. XI, § 18 (Tennessee); Tex. Const. art 1, § 32 (Texas); Utah Const. art 1, §29 (Utah); Va. Const. art. I, § 15-A (Virginia); Wis. Const. art. XIII, § 13 (Wisconsin). Only Massachusetts, Vermont, Connecticut and Iowa currently allow same-sex marriages. . . . The four remaining states (New Jersey, New Mexico, New York, and Rhode Island) and the District of Columbia have no ban. See National Conference of State Legislatures, Same Sex Marriage, http://www.ncsl.org/programs/cyf/samesex.htm (last visited March 27, 2009). . . .

“Who’s there?”

“Orange.”

“Orange who?”

“Orange you glad you didn’t vote for McCain!”

I still say Stevens is due – he’ll be 89 this year. And Ginsburg has health issues. Luckily all three are part of the liberal bloc and will be replaced with liberals – not likely to upset court balance.

I’m in the middle of finals week in my last semester in law school. Assuming I pass everything, I’ll graduate on May 17th, which is incidentally the septenvigintennial of my birth.

William Gluckin & Co. v. Int’l. Playtex Corp., 407 F.2d 177 (2d Cir. 1969), is an opinion upholding the issuance of a preliminary injunction against Playtex, manufacturer of, ahem, ladies’ support garments, prohibiting Playtex from prosecuting a lawsuit it had filed against Woolworth & Co. for selling brassieres manufactured by Gluckin at Woolworth’s stores in Georgia. See, what happened was this: Playtex had a patent, and Gluckin (allegedly) infringed the patent and sold the infringing unmentionables to Woolworths, who sold lots of them in Georgia. Woolworth’s, Playtex, and Gluckin were all New York corporations amenable to suit in New York, but Gluckin was not amenable to suit in Georgia. Playtex sued Woolworth’s for infringing its patent in Federal court in Georgia. Gluckin found out and filed their own suit (for a declaratory judgment) in Federal court in New York.

See, if the Georgia suit went ahead, the Georgia District Court would have had to determine whether the bust supporters sold by Woolworth’s indeed infringed Playtex’ patent. This would be the same issue as what would have to be decided in the declaratory judgment action in New York. So if the Georgia court made a decision on the subject, that decision would have had a binding effect on the New York court under the doctrine of res judicata. (Woolworth’s probably could have had the Georgia case dismissed for failure to join a necessary party who could not subsequently be joined because of a lack of personal jurisdiction, see Fed. R. Civ. P. 19, but that’s not what happened.)

Gluckin, therefore, really wanted to make sure it had the opportunity to litigate the patent infringement issue itself in the New York suit, and not by proxy through Woolworth’s in the Georgia suit. But ordinarily, the suit that gets filed first gets priority, and later suits get enjoined until earlier ones get finished.

Fortunately for Gluckin, there is an exception to this first-filed-goes-first rule, arising out of patent law. An infringement suit against a customer of a manufacturer always has the manufacturer as the real party in interest, and the policy of the Second Circuit is to place preference on the real party in interest litigating his own claim, so long as it is more convenient than the customer suit. Which is why Gluckin got the injunction against the Georgia suit.

Anyway, I’m sure all you peoples out there who don’t care about civil procedure were bored to tears reading about all that.

On a more entertaining note, reading this case reminded me of this fun yet highly inaccurate account of the invention and patenting of the brassiere from the ultra-tear-jerker film Beaches, starring Bette Midler and some other people whose names I cannot remember.

Finals are one down, three to go. As the kids say, “woot!”