It’s the day after Election Day! Granted, this year’s election cycle wasn’t nearly as exciting as last year — when Obama ended racism in America.

Still, there are many winners to congratulate. Republicans Chris Christie and Bob McDonnell are new governors. People can now point to the North Country on a map of New York State. Michael Bloomberg secured a third term as New York City Mayor. And the New York Post (predictably) managed to ignore it all and plastered of picture of Pedro Martinez in a diaper on its front page.

But for our purposes, the biggest winners were the voters of Maine. They successfully defeated the efforts of gays and lesbians to be treated fairly, thus making sure that all of those rugged and earthy Mainers will not be tempted to have the gay sex they secretly desire.

Obviously the tactics of BC Law professor Scott Fitzgibbon — and other defenders of traditional marriages between drunken woodsmen and the girls they knock up — won the day. Do gay marriage advocates have any more tricks stashed in their closets?

Kash says yes, after the jump.

Devotees of “The Sopranos” will surely recall the character of Vito Spatafore, the closeted Mafia member who was killed after colleagues spotted him at a gay bar. As it turns out, the character has real-life counterparts.

A recent sentencing hearing in federal court prompted an exploration of homosexuality and organized crime, in the New York Times:

High among [the rules of the Mafia] — perhaps right at the top — is the ban on being gay.

So when Robert Mormando, a confessed Gambino family gunman, appeared on Monday for a hearing on his sentence for his role in the shooting of a Queens bagel store owner in 2003, he seemed to indicate that La Cosa Nostra’s laws may sometimes be honored less while being practiced than they are while being breached. Mr. Mormando, 44, not only confessed to acting as a government informer, but he also took the extra — and, it should be said, perilous — step of outing himself in court.

So what motivated Mormando’s revelation? An interest in trying out for Project Runway? A burning desire to overshare?

Warning: The penis-to-vagina ratio in this week’s column is quite high. If you’re already on the mailing list for Rick Santorum 2012, you may want to avert your eyes — or go make fun of sissy-boy John Kerry for helping plan his daughter’s wedding.

Our fabulous finalist couples:

1. Sebastian Dungan and Lavi Soloway

2. Adam Levine and Janson Wu

3. Alisha Bhagat and Mark Egerman

Read more about these newlyweds, after the jump.

* Bank of America’s board votes to waive privilege and disclose the legal advice it received on the Merrill Lynch merger, which could spell trouble for B of A’s outside counsel at Wachtell (depending on the advice given). [New York Times]

* Meanwhile, B of A expands its team for the SEC litigation in the S.D.N.Y. by hiring Paul Weiss (which, along with Cleary Gottlieb, urged the bank to waive privilege with respect to the Merrill merger advice). [Dealbook / New York Times]

* Tort reform, in the form of limitations upon medical malpractice suits, could save up to $54 billion over the next 10 years. [CNN]

* Jon and Kate arbitrate… [People]

In a speech last night before the American Academy of Arts and Sciences, the chief justice of the California Supreme Court, Ronald M. George, criticized his state’s reliance on the initiative process. His remarks focused on how that process, direct democracy taken to the extreme, has paralyzed state government, especially when it comes to fiscal matters.

For long-time readers of Above The Law, Herman Thomas is a familiar name. He’s the former Alabama state court judge who allegedly enjoyed spanking male prisoners, traded favorable treatment for sexual favors, and improperly interfered on behalf of a cousin in legal trouble.

He gave up the paddle gavel two years ago. Now he’s headed to trial.

From the Associated Press:

Chief Assistant District Attorney Nicki Patterson said authorities began looking at Thomas after he changed a jail sentence in 2006 for his cousin, former Mobile County school commissioner David Thomas, even though the case was being handled by another judge. Other cases that Thomas had taken over from other judges without their approval soon surfaced, she said.

And what happened to the prisoners in the cases commandeered by Thomas?

The University of Virginia Law School, and legal academia more generally, have been rocked recently by a controversy involving a leading law professor and claims of anti-gay animus.

William N. Eskridge Jr. — currently the John A. Garver Professor of Jurisprudence at Yale Law School, where we had great good fortune of having him as a professor — testified last month before Congress in support of the pending Employment Non-Discrimination Act of 2009 (ENDA). ENDA would prohibit sexual orientation and gender identity discrimination in the workplace. In explaining the need for ENDA, Professor Eskridge made reference to his own career, testifying that “I was denied tenure at the University of Virginia School of Law in 1985 based in part on my sexual orientation.” You can, and should, read his complete testimony here (opens as a Word document).

The controversy has, of course, reverberated throughout the blogosphere. See, e.g., the UVA Law Blog (including 40+ comments, many of them quite insightful); Brian Leiter’s Law School Reports (here and here); and The Faculty Lounge. The UVA Law Blog also reprints a Virginia Law Weekly article from January 1986 about the Eskridge tenure denial (which was strongly opposed by students; if you’ve been lucky enough to have Bill Eskridge as a teacher, this should not be a surprise).

We reached out to both Professor Eskridge and UVA Law School. We received written statements from Professor Eskridge and from Dean Paul G. Mahoney.

Their statements, plus a comprehensive collection of links, appear below.

When we first reported on Boston College Law professor Scott Fitzgibbon’s anti-gay marriage advertisement in Maine, we noted that the classes he taught were not germane to his views on gay marriage:

According to his bio, Professor Fitzgibbon teaches jurisprudence, corporations, securities regulation, and contracts. Are gay and lesbian BC Law students comfortable learning about these subjects from an anti-gay marriage professor?

But the Boston College Law School website Eagleonline has done some fantastic investigative journalism and revealed that Fitzgibbon teaches what he preaches:

In the Spring of 2008, a group of Boston College Law School students enrolled in Professor Scott T. Fitzgibbon’s “Marriage: Law and Theory” seminar formally approached Dean of Students Norah Wylie to express concern over Fitzgibbon’s allegedly improper conduct in class.

Can the law school claim that it is “welcoming” to gays and lesbians when it had an anti-gay marriage professor teaching its marriage and the law class?

Let’s look at the students’ complaints after the jump.

It’s too early to take nominations for this year’s law revue contest. But an early contender will surely be a video we received from students at Boston College Law School. It’s a spoof of BC law professor Scott Fitzgibbon’s anti-gay marriage commercial. Here’s the set-up, from the BC Student Bar Review (that’s a social organization, for 1Ls still wondering what happens outside of the library):

Dear all,

The next bar review will begin at 8pm this Thursday, October 1 at The Kells…. We can hear some of you already: “but guyssssss, The Kells is full of meatheads in Red Sox hats.” Well, we’ve got a news flash for you, Little Lord Fauntleroy: every bar in Boston is full of meatheads in Red Sox hats, and very few of them have dance floors as spirited or drinks as reasonably priced as The Kells. We find it to be a great place to blow off some steam, get weird on the dance floor, and accost your TA from LLRW and force him to do shots of Jameson with you.

However, as Dean Garvey reminded us in his memo, we must be respectful of those who disagree with us, no matter their beliefs. In the spirit of providing equal time, we have included a brief video message from the opposition:

The Kells is the kind of place that makes you want to bathe yourself in lye when you wake up the next morning afternoon. Here’s what the loyal opposition has to say:

After the jump, would the real Professor Fitzgibbon please stand up?

Here at Above the Law, we’ve reviewed a lot of employment discrimination complaints over the years. But this one is special.

The firm (like it matters):

Maron Marvel Bradley & Anderson.

The plaintiff:

Jennifer Braude.

Why you care:

Do I have your attention? Click after the jump for more details, plus Maron Marvel’s response.

We’ve been waiting for this. We’ve been covering Boston College Law Professor Scott Fitzgibbon and his commercial against gay-marriage. That commercial is now being shown on national television (I caught it being discussed on Dylan Ratigan’s show this morning). I can’t imagine how proud the BC Law community is to have their law school prominently featured in an ad that — as one legal blogger put it: “relies on inflammatory and unfounded rhetoric.”

Today, a group of BC Law professors put out a statement that tries to soothe the feelings of gays and lesbians that may feel the university as a whole doesn’t think they should be given equal treatment.

Read it after the jump.

Yesterday, we talked about a Boston College Law professor, Scott Fitzgibbon, who went up to Maine to shoot an anti-gay marriage commercial. John Garvey, Dean of Boston College Law, didn’t respond to us, but he did send around an email to the BC Law community. As many predicted, Dean Garvey defended Professor Fitzgibbon. Here is the pertinent part of Dean Garvey’s letter:

Professor Fitzgibbon, as a member of our faculty, is free to express his views. His public statements represent his own opinions, as the advertisement makes clear, and do not state any official position of Boston College Law School. We also have faculty members who hold a contrary view, which they too are free to express publicly. Many have done so while referring to themselves as BC Law professors. One of them has publicly led the fight to oppose the Solomon Amendment on the grounds that it is an affront to gay and lesbian students and prospective members of the U.S. military. Others have taken controversial positions on such subjects as abortion, euthanasia, and the treatment of detainees.

I believe that free expression is central to our mission as a law school committed to public
discourse and the free exchange of ideas and opinions. We have faculty and students from many different backgrounds, and with many different points of view. It is our expectation that they will continue to engage in public discourse, and argue their positions with passion and civility, with the intellectual freedom that an academic institution affords to us all.

Dean Garvey is clearly right insofar as academic institutions must be grounded on the free exchange of thoughts and ideas, even when those ideas are controversial.

But as NYU Law Dean Richard Revesz found out, the gay marriage issue isn’t always as simple as a mere intellectual debate. If you believe that marriage is a basic civil right, then the issue can transcend the normal bounds of academic discourse.

Not surprisingly, Above the Law readers have some opinions on whether Dean Garvey is taking the correct stance here. We present Dean Garvery’s full letter and some of the best comments and emails, after the jump.

The gay marriage debate continues to rage in New England, and now a Boston College Law Professor wants to weigh in. The state of Maine has a ballot proposition about gay marriage this fall, and BC Law Professor Scott T. Fitzgibbon decided to shoot an anti-gay marriage ad.

Just to be clear, this is not a Dr. Li-ann Thio situation. Thio was invited to teach at NYU Law this fall and later declined the invitation under a hail of student protests. But Thio seemed to go out of her way to disparage gays and lesbians and the very practice of homosexual sex.

Fitzgibbon at least tries to stick to the legal issues surrounding the systematic denial of civil rights to gays and lesbians.

After the jump, check out the ad for yourself.

We continue our series of open threads about small law firms focused on different areas of practice. In light of the turmoil being experienced by Biglaw, as well as the many laid-off lawyers and job-hunting law students looking for other opportunities, now is an excellent time to look beyond large law firms.

Today we turn our attention to TRUSTS AND ESTATES. What is it like to work at a small (or at least non-big) firm focused on T&E work? What are your hours like? Your compensation? What do you like the most — and the least — about your job?

Please discuss, in the comments.

Speaking of trusts and estates, at the recent Lavender Law conference we attended a workshop on advanced estate planning. The panelists offered advice that might be helpful to people who practice in, or aspire to practice in, trusts and estates.

Read about it, after the jump.

We’re having a pretty gay Monday here at Above the Law. Earlier today, we discussed which top law firms won recognition from the Human Rights Campaign for being LGBT-friendly.

Perhaps we’ll still recovering from the weekend. As we mentioned before, we spent part of it attending the excellent Lavender Law conference, over in Brooklyn (just a short subway ride away from the ATL offices in Soho). In case you’re not familiar with the conference, here’s some background:

Every year, the sharpest legal minds in the lesbian, gay, bisexual and transgender (LGBT) community gather at the National LGBT Bar Association’s annual conference and career fair.

Hundreds of practicing attorneys, dozens of scholars, over 500 students and many leading members of the judiciary are expected to attend over the course of this year’s events.

We moderated a panel on Saturday, focused on federal courts and LGBT equality, and we attended several other panels and workshops. We’ll be writing a bit about the conference proceedings.

Our first conference write-up — discussing the workshop Coming Out in the Profession: “But What Will the Clients Think?”, which may interest young LGBT attorneys — appears after the jump.

Let’s give credit where credit is due. The Human Rights Campaign has released its annual Best Places to Work list. It shows that law firms are great when it comes to creating a non-discriminatory environment for gays and lesbians. The ABA Journal reports:

In 2006, the first year law firms were included in the Human Rights Campaign survey, 12 got a perfect rating of 100 percent [on the Corporate Equality Index]. This year an unprecedented 88 law firms got perfect ratings, “eclipsing every other industry represented on the index,” according to a press release. The group evaluated 127 law firms in all; 124 of them were among the nation’s largest 200 law firms.

Our industry deserves a large pat on the back. In a time of massive layoffs, it is great that law firms are still committed to equality when it comes to sexual orientation.

Check out the list of firms that are good for gays here (PDF).

Top Law Firms for Equality - 2010 [Human Rights Campaign]
Law Firms Outshine Other Companies in Ranking by Gay Rights Group [ABA Journal]

Earlier: Which Law Firms Are Down With the Gays?

Mainly we’re posting this because it’s a Friday afternoon and rainy (at least here in New York). We figure you need some entertainment to launch you into the weekend.

But there is a legal angle to this music video. It might have spawned intellectual property litigation, if Disney — and Miley Cyrus — didn’t have such a good sense of humor. Enjoy!

(If you like, feel free to discuss “fair use” issues in the music video context in the comments.)

Disney Allows a Gay Miley Cyrus Knock-Off Video to Flourish Online [Media Decoder / New York Times]
Finally, an Excuse to Post This Video of Fire Island Gays Lip-synching to Miley Cyrus [Daily Intel / New York Magazine]
Fire Island Gays Get the Attention of Miley Cyrus With ‘Party’ Video [Towleroad]

We’ve written extensively in the past about law students and lawyers taking their clothes off for the camera. For whatever reason, most have been women. For example:

an associate from Thacher Proffitt (& Wood — hehe), who previously posed for Playboy;

a U. Miami law school graduate, who also posed for Playboy;

a UNC law student, who auditioned for Playboy’s pages; and

a Brooklyn law student, who appeared on Playboy TV.

But we are equal opportunity oglers here at Above the Law. We’re more than happy to write about naked male hotties (or clothed male hotties, at Davis Polk).

Meet “Jacob” (surely not his real name). He’s a male law student who has turned to performing in gay pornography to pay his tuition.

NOTE: We’ve included a screencap. It is safe for work, but it does include shots of a shirtless man, which some may find risqué. Accordingly, we’ve posted the image AFTER THE JUMP.

Do NOT click on the “Continue reading” link below unless you are prepared to see some skin. Thanks.

Back in October 2007, we wondered:

Why does Florida produce so many TV judges? It is because of their penchant, noted by PD Howard Finkelstein, for being rude and abusive?

The following are former Floridian jurists who left the state bench for the boob tube: Marilyn Milian, of the People’s Court (previously discussed here); Alex Ferrer, a/k/a “Judge Alex”; David Young, the gay TV judge; and the notorious Anna Nicole Smith judge, Larry Seidlin (not on air yet, but rumored to arrive in fall 2008).

Sadly, the world is now down two Miami TV judges. One of them, Judge David Young (pictured above), was trying to be The Gay TV Judge.

The country may be growing more receptive to gay marriage. But when it comes to television judges, it seems we like ‘em straight.

Courtroom TV: Two of Miami’s TV judges get the ax [Daily Business Review]

Last month, we wrote about the questionable arrest of a gay Washington lawyer — a controversy we dubbed A Gay Gatesgate, referencing the furor over Harvard professor Henry Louis Gates’s arrest by Cambridge police. We expressed the view that the police sometimes abuse their authority in dealing with outspoken citizens (and it seems that many of you agree with us, based on the results of our opinion poll).

Yesterday the gay lawyer who was arrested in D.C., Pepin Tuma — a former associate at Milbank Tweed and Gibson Dunn, so he’s part of the Biglaw tribe — wrote about his arrest in the Washington Post. After describing the conduct that led to his arrest, which should be familiar to readers of our earlier post, Tuma writes:

I am in fact a gay man. And because I have been involved in civil rights work, I know my rights, and I calmly asserted them [to the arresting officer]. I asked why I was being detained. I explained that, as a lawyer, I knew it was not a crime to offer a public opinion about the police. But the troubling police conduct did not end there. Other officers have acted to bolster Culp’s fabricated version of the incident. One of his superiors attempted to induce witnesses to attest that I resisted arrest when I had not. Another superior falsely wrote to Internal Affairs that I confirmed that Culp had advised me to move along before arresting me; he did not. It appears that officers simply lied over and over to cover up an unconstitutional arrest.

Tuma builds his case, after the jump.