The U.S. Court of Appeals for the Armed Forces issued its opinion in U.S. v. Marcum (pdf) earlier in the week. The decision tore apart Justice Kennedy's Lawrence v. Texas opinion in reaching its result leaving intact the military's sodomy prohibition statute. Lyle Denniston of SCOTUSblog gives a great overview here, but I'd like to examine why the court found it necessary to reach the decision it reached in this case.

The Marcum opinion is unique (from what I've seen) of the many post-Lawrence opinions in that it confronts squarely the confusion left by an opinion that both meticulously avoided asserting that homosexual sodomy -- or even sodomy generally -- is a fundamental right and depended on a line of "fundamental right" privacy cases on which it based its decision. Likewise, Lawrence explicitly overrules Bowers v. Hardwick, which upheld the Georgia statute at issue in that case based on a rational-basis analysis, and yet uses rational-basis language in invalidating Texas's Homosexual Conduct law. The Marcum court details these "on the one hand, on the other hand" questions left after Lawrence in painstaking detail.

This is important.

For the past four months, I've heard grumblings about the fact that the incoming 1L class at UT Law is 60/40, guys to girls. The usual split is 50/50, but some quirk of the admissions process has produced a class with 100 guys that can't get a date. I thought this was hilarious, and have been making comparisons to the millions of unmarriageable males in certain large Asian countries, but apparently this is not an isolated phenomenon. Today, I got this mail from a dear friend who's starting his 1L year at UVA:

Re: your suggestion to only study with girls -- apparently there are no girls. Our class of 360 people is like 60/40 men to women, which is a fluke but a damned inconvenient one. Also, you owe me like three hundred bucks for losing my My Little Pony collection.

So, what gives? My guess is that these schools made offers to an even number of men and women, but that a disproportionate number of women decided to move up the rankings ladder when they got better offers. Does this mean that there is, in fact, a higher ratio of women to men at, say, NYU or Harvard? Or did all of these missing women decide against law school at the last minute? Perhaps they were abducted? Or maybe I’m completely wrong and these schools actively sought male-heavy classes.

I’m in the dark here. If anyone from any other schools can report on a gender imbalance that would either explain this phenomenon or deepen the mystery, please speak up.

Reuters reports that a Nissan dealership over in Jersey is running an Extra Special deal -- buy any new model, get a 2003 Sentra free. This is a new spin on the seemingly extravagant sales and discounts automakers have been advertising since the recession was exacerbated by 9/11.

However, an anecdote from one professor made me wonder whether we really are getting such great deals. He recounted a time when he was in practice, and a senior member of his firm was giving an ultimatum to a client. The client had gotten into trouble for advertising women's pantyhose as being on sale. A sale, in usual parlance, means that there has been a reduction from the "normal" price. In this case, though, the "normal" price applied only on one day of the year. The FTC called foul, and the client immediately set his mind to devising an alternative scheme with similar chicanery. His lawyer firmly told him that if he pulled a stunt like that again, the firm would resign as counsel.

The Curmudgeonly Clerk, having departed chambers of an anonymous federal district judge in the Southern District of Texas "for another part of the state, where [he] will enter private practice (viz., products liability defense for a medium-sized firm)," has shut down his current blog. While we hope for his return -- perhaps even at a certain group blawg? -- we at least can rejoice in the archives he left up. Few if any other blawgers have the attention to detail that the Curmudgeon has shown.

Consider his last substantive post, on the recent law review/ Wall Street Journal article that proposes Texas's splitting itself into five states, in order to increase Republican presence in the Senate. While other bloggers merely assumed that this would happen, the Curmudgeon acerbically noted, "Even if Texas were to divide itself up, I doubt very much that the GOP would net eight new senators. Absent from any of Kesavan's and Paulsen's analysis is a consideration of demographic data. In the 2000 elections, there were 3,799,639 Texan votes for Bush and 2,433,746 Texan votes for Gore."

However, there's an easy response to his conclusion, "It would take some pretty fancy slicing to carve out five Republican sovereignties": Tom DeLay's proven that he can dice Texas quite finely for partisan purposes.

From Lawrence M. Friedman's A History of American Law:

These accidents were the raw material of possible lawsuits. Litigation was costly, but lawyers took cases on contingent fees. If the case was lost, the lawyer charged nothing; if he won, he took a huge slice of the gain. The upper part of the bar looked with beady eyes at this practice, "most often met with in suits for alleged negligent injuries." Thomas Cooley thought they were beneath contempt: "mere ventures," no better than "a lottery ticket." They debased the bar, brought "the jury system into contempt," and horror of horrors, helped create "a feeling of antagonism between aggregated capital on the one side and the community in general on the other." But the contingent fee had its merits. A poor man could sue a rich corporation. By 1881, the contingent fee was said to be an "all but universal custom of the profession."

Phil Carter has a Jurisprudence piece in Slate on the subject of law schools that wish to prevent the military from recruiting on campus. Actually, this attempt goes beyond law schools; entire universities, including undergraduate programs, are engaged in the same effort. (The Fray selections at the bottom of the page actually are worth reading for substantive responses to Carter's argument.)

Carter's concluding remarks, about how obstructing the movement of students from top universities (who are usually more socially liberal than the general population) into the military would "impede institutional change within the military on this issue by at least a decade, if not a generation," reminded me of an email discussion I had with U-Hand/Gabriel Mendel last year when he first started his blog. I asked him how he, a person supporting equality for gays, could participate in the military, and he gave an answer similar to Carter: change can come from within an institution, and his presence as a pro-equality JAG may facilitate that change.

Blogging has so habituated me to writing down every dumb thought that crosses my mind, I found myself doing it last night while I was supposed to be doing homework. Presented without further comment:

A good name for a blog about NY appeals: New York Court of Errors.

Page 3 of my Legal Methods book claims that legislators always have a purpose. Does anyone know what exactly is the purpose of the laws against commerce in sexual aids? The Curmudgeonly Clerk scorns the idea that male legislators are threatened by them; what are the other possibilities?

... but apologies to those who have been looking for new content here. Summer associate jobs have occupied Nick, Chris and Jeremy. We've had good news as well: W&V; made Texas Law Review, and I was abruptly pulled from Columbia Law School's waiting list. (Thus mooting this discussion. And this one. Sorry if I wasted anyone's time.)

Fortunately for productivity, I don't have an internet-enabled laptop now, so the blogging-from-class will have to wait for a couple of weeks. But expect a lot of 1L reactions, coming soon.