Desperate to speed adjudication, the 5th century Roman Emperor Theodosius II passed the famed Law of Citations. Briefly, the law mandated that in any given case, the judge was to examine the rule recommended by 5 pre-eminent classical sources identified by the Emperor. If those authorities yielded a majority, the judge was to use that rule. If the 5 were tied in any way, the judge was expected to adopt the rule of the side including Papinian. If Papinian wasn't determinative, and the other authorities were split evenly, the judge could then make his own decision. An odd system, to be sure, but it worked for a century or so.

In any case, I spent a few moments today thinking which American judges I would use if we adopted the Law of Citations today. It's not simply a question of picking the 5 greatest people to have ever sat on the bench - you'd want jurists with wide expertise and an understandable style too. In any case, I'm not sure about all 5, but for myself, Learned Hand would take the place of Papinian. But I'd love to hear other rosters too.

Andrew Sullivan writing at TNR Online speaks out forcefully, and quite persuasively, against the non-consensual "outing" of public figures. Longtime blog readers will remember this as one of those blog-debates-that-does-not-die, with thoughts from Chris Geidner (and again), Tony Rickey, The Curmudgeonly Clerk, and others.

I certainly understand the disgust, skepticism, fear, and disdain from those who think that politicians' private lives should not come under public scrutiny. On the other hand, I would like to remind them-- offering explanation but not excuse-- that those folks who choose to "out" famous people don't always do so out of the malicious desire to persecute.

When a given group of people are widely and inaccurately stereotyped, and especially when membership in that group of people is relatively invisible, some folks make the choice (be it bold or foolish) to stand up and say, "no, I am part of the group, and I am not what you would expect."

The next step, and while it is a very dubious step, it is hopefully an understandable step, is to say, "and that man over there-- he is part of the group too! Bet you didn't expect that." It is unsavory to draft other people as unwilling martyrs in a campaign for social acceptance. But when people perceive themselves as leading a social or political fight for their rights, they sometimes act impatiently, and they sometimes tread or try to tread on the rights of others to acheive what they see to be a greater good. Sometimes this move makes the world, on balance, a better place. Sometimes it does not.

My tentative view is that the non-consensual outing of homosexual or bisexual politicians is both bad behavior and bad tactics. But those who (like me) oppose non-consensual outing but support legal and social equality between gay and straight romantic relationships ought to consider what tactics we would prefer? Government anti-discrimination law? Sit-ins? Ineffective and soft-spoken patience? More reruns of Will & Grace?

UPDATE: Paul Goyette wonders why I haven't discussed the drama of Alan Keyes's daughter's blog. But since he does, I won't bother.

In light of the NHL lockout, hockey player Brad Lukowich has gone to play in the minor leagues rather than kick around training or vacationing. The NPR interview with him is rather touching, in an odd, highly inelasticlabor-curve way, and I don't even like hockey.

Renee Montagne: You stood to have made along the lines of 1.3 million dollars--

Lukowich: Yeah.

Montagne: This season, had there been a season. And with the brahmins you're getting about 1200 dollars a month, plus a housing allowance?

Lukowich: Yeah. I'll make about ten thousand dollars this year. 1.3, ten thousand-- whatever it takes to keep playing hockey.

Fellow YLSer Angus Dwyer reports on one suggestion to "improve" the system of lower-court nominations: let the Supreme Court appoint those below it.

The solution is new to me, and it certainly is intriguing. Dwyer also makes a decent case that this could be done without amending the Constitution (especially since Scalia was drubbed so roundly by the majority in Morrison v. Olson). Not having heard Professor Mashaw's lecture, it's hard for me to critique this too thoroughly. On the one hand, since the Supreme Court counts on the lower courts to carry its edicts into being, it makes some sense for them to determine who is qualified to carry out their orders.

On the other hand, it also makes sense to want to exert continuing influence on the ex ante makeup of a branch of government whose membership is governmed by life tenure. Political appointment of lower court judges is a far more legitimate way to do that than many frequently-mentioned alternatives. So there's something to be said against letting a life-tenured branch of government further entrench its power and independence by running the system from within and appointing people according to its own collective biases, rather than giving the Senate and President a chance to bias the system too.

Oh, and as a practical matter-- such a statute (if it is constitutional) is unlikely to pass until congress and the president are of divided parties.

Query: Would the federal judiciary be able-- under the doctrines of recusal and non-justiciability-- to even hear a challenge to the constitutionality of such a statute? I learned today from an article by Judith Resnik (61 S. Cal. L. Rev. 1877) that the judiciary has heard questions about the constitutionality of statutes about its own pay (see e.g., Evans v. Gore 235 U.S. 245, ), but there may be limits to the "necessity" doctrine.