 Case number two, special or part-time teaching and writing for publication. The second case for discussion involves United States District Judge Solomon and what she finds to be a very appealing offer from the Wise Law School to serve as an intercession judge-in-residence. The first question focuses on the issues other than financial that she needs to address before responding to this invitation. Canon 4 and its commentary recognize that a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice. And teaching is of course one way of doing this and is encouraged not only because of that fact but also because teaching often helps one to become and be a more effective judicial officer. Canon 4 does impose two restrictions however on outside law-related activities including teaching. The first is that the activity must not interfere with the performance of your judicial duties. And the second is that the activity must not cast doubt on your capacity to decide impartially any issue that may come before you. Let me ask my colleagues here, acceptance of this invitation by Judge Solomon is going to mean many hours of preparation and then it's going to mean two weeks away from chambers on campus thereafter she's going to have to consult with students about their research projects and she of course will ultimately have to grade papers. Probably in light of the fact that Judge Solomon anticipates writing a book this year and also plans to spend a three weeks vacation with her family at the lake this summer. Does this create any problems? Well, I don't know that there's an objective problem from the amount of time that you've outlined, Walt, because in my experience our judges have such different capacities. Some of them can do all of their work and then write, God knows how many books on the side appear at an infinite number of legitimate fora and still have time left over. It's not true of all judges. I think the three things that Judge Solomon ought to think about and if she requests permission subsequently from her Chief Judge to undertake this engagement that he or she ought to think about are one, will her absence in any significant way cause a dislocation necessity to reallocate the court's work? Will she in fact during the year be pulling down her full share of the court's work so that special arrangements don't have to be made so that she is taken off a trial or is not assigned a trial that she would normally expect to get? The second would be to look at her record and to see whether or not in truth she is one of our quick judges or one of our really slow judges. I would be very reluctant if I were her or if I were her Chief Judge to sanction even this relatively modest intercession. If she was a judge who had 20 cases in which she hadn't yet issued the significant ruling or the final opinion, there's a third more subtle factor which when you've been around courthouses for a while you recognize and that is even if you get all of your judicial work done and many judges can do it and still do an enormous amount of outside activities, there is a dynamic going on in the courthouse which means that a judge ought to be there most of the time even if he or she can do their work elsewhere or has pulled down their full share of the formal work. We get enormous amounts of emergency motions, emergency proceedings and pretty soon you find that certain judges are known to take a disproportionate amount of that emergency activity because they're always there and they can be called upon and others the word gets around, well they're never there or you've got to make sure they're going to be there. That's a very subtle factor but I think an important one and I think a judge who really wants to pull his or her weight ought to take a count of. I don't think objectively the amount of time that's involved here is in and of itself enough to say no but I think it's significant enough so that she has to think about all of those factors, how fast she's going to get her work done and how much time totally throughout the year she's going to be out of the courthouse. Jim, in her seminar on the federal judicial process, Judge Solomon will undoubtedly want to address several thorny issues of federal jurisdiction that she may well be called upon to decide in her court. Does this mean that she can't accept this teaching assignment because it may cast doubt on her capacity to decide those issues impartially as a judge? I think the answer today is no, she can teach it and it won't cast doubt on her ability to decide these cases fairly. There was a time I think when the answer might have been different, when many judges were reluctant to express their views on a variety of issues. But I think that Canon 4, which encourages legal scholarship, legal work outside the bench, by necessity means that a judge can write a book and express views on particular issues, which that judge may later have to decide. There are I think some situations where the circumstances may be so aggravated that a judge will have to recuse if an issue is extremely narrow, highly controversial, on which the judge has expressed very, very clear views over a long period of time. The question is quite specific to the extent that one can say the judge's ruling is absolutely utterly predictable and nothing could possibly change this judge's minds, no development of the law, no change in circumstances, then perhaps a judge ought to recuse. But in that unlikely situation, that unlikely situation alone is not enough in my view to justify telling a judge, no, you can't write on these issues that are before you. I think Canon 4 just points in the other direction. Assuming that Judge Solomon resolves that she wants to do this, she's going to have to decide whether she can accept the compensation and the reimbursement that's been tendered by the law school. First, of course, she needs to consider the Ethics Reform Act of 1989. It prohibits a judge from receiving an honorarium, which the act defines as receiving anything of value for a speech, appearance, or an article. And of course in a sense here, Judge Solomon will be making an appearance and giving a speech, but under the Judicial Conference regulations, it's clear that the compensation that she's been offered would not be an honorarium. The Reform Act makes it clear that Congress did not mean to foreclose compensation for a judge's teaching. And the regulations say that anything that's part of an accredited institution's educational program is teaching, whether or not a traditional course is involved. The Ethics Act also says that a judge's, quote, outside earned income, unquote, for any calendar year cannot exceed 15% of the basic pay of a cabinet level officer. And the Judicial Conference regulations implementing the act give you a judge's guidance in what constitutes outside earned income. And under those regulations it's clear that this compensation would be considered outside earned income. So she will need to, Judge Solomon will need to make sure that this, when added to her other outside earned income for the year, doesn't exceed the 15% cap. Judge Solomon should also consult those regulations before she negotiates the contract for her book. Royalties are excluded from outside earned income, but certain advances are not. Canon 6 imposes some additional restrictions on the receipt of compensation. Basically it says that there are three requirements. You can receive compensation, number one, if it's reasonable in light of the services you're rendered, two, if it's no more than a non-judge would receive for the same services. And finally, if it doesn't give the appearance of impropriety for some other reason. Expense reimbursement is alright as long as the expenses are reasonably incurred by the judge or by the judge's spouse, quote, where appropriate to the occasion. Now in Judge Solomon's case, part-time faculty members receive $4,000 to $4,500 for teaching an entire semester and the only people that have received as much as $7,000 from a wise law school for a thing like an intercession are office holders and former office holders. Jim, do you think that creates a problem for Judge Solomon? I don't think it creates a problem. There is a difference clearly between what is being required of the judge in this two-week intercession period and what is required of the ordinary part-time faculty. It is clear that the price that is being paid this judge was paid to other people and other people who are not judges. So one does not, I don't think you can reach the conclusion that the fee is being paid simply because Solomon is a judge. The other requirement, of course, is that the fee in and of itself be reasonable. In that kind of analysis, I think we're all used to making in this case, if you look at the number of hours that are spent because the two weeks are very intense, and then another number of hours spent after the two weeks involving the student papers, you're looking at a rate of compensation that I think would not be too much different from that which you would arrive at if we all took our salaries and divided them by 2,000 hours a year, although I don't think too many of us work just 2,000 hours a year. It's not out of line with the compensation that Congress itself has set for the judge to work. So I think the $7,000 is not a problem. Pat, is this a quote appropriate occasion for Judge Solomon to bring her spouse to the campus at the law school's expense? Well, appropriate occasion is a very open-ended phrase, but some of the things that I would look at in the situation is, why is she being asked? Is she being asked solely because of her great fount of knowledge on law and literature and on some of these other things, or is she as the title suggests being asked because she is some kind of a role model or a voice from the outside? She's called an intercession juror-judge in residence. So clearly she's not your ordinary garden variety of faculty member being asked solely for her expertise in a particular field. I would say it's probably appropriate because she's going to be engaged in a lot of contact with faculty and with students. So I think that especially since Judge Solomon is a woman judge and she presents a somewhat unique front to the students, having her husband there showing that it is possible to have a satisfactory, constructive, supportive family relationship probably has an educational benefit of its own. I assume also since she's there for an intense period and called a judge in residence, there'll be lots of lunches and there'll be dinners with other faculty members at which their spouses will be there. Why would we consign her to dance alone as it were for this entire period? The kind of thing that I could, the kind of occasion I could envision that would not be appropriate might be a full-time working session of a task force which was trying to put together, I don't know, regulations, rules, something where you're working around the clock except for a bite here and there and it's clear that the spouse is serving no function at all by being there. But I think on the whole it's okay. Okay, let's move along to the third question. Assuming that Judge Solomon decides to take compensation, then the answer to question three is clear and simple. Because the teaching will be compensated, the Ethics Reform Act requires that Judge Solomon get permission in advance from the Chief Judge of her circuit. The regulations of the Judicial Conference will tell her the kind of information she needs to provide to her circuit chief when she's seeking to get his or her consent. Now, there may be an issue or two here raised by the fact that Judge Solomon plans to use her chambers resources and her staff to assist in helping her prepare for the seminar and to write her book. Canon 4 prohibits any substantial use of chambers resources or staff for law related activities. The first point I want to make is that Canon 4 here is talking about a judge's outside law related activities. We're not talking about activities that the judge engages in as a part of his regular responsibilities. When a judge is asked by a local bar association to go speak about his adjustment to the bench or about the local rules that are about to be promulgated, he's speaking, that's part of his responsibilities as a judge, and there aren't any restrictions on the use of chambers resources. I think we're all in agreement on that. He can use his secretary to type a speech and there is no restriction. But that's not what we're talking about here. When we're talking about teaching, we're not talking about Judge Solomon's official activities. We're talking about outside law related activities. And the Canon says that she can only make insubstantial use of her public resources. The Canon and advisory opinions 79 and 80 recognize that it's impossible for a judge not to make some use of chambers resources if you're going to be involved in outside activities. Nevertheless, Canon 4 says you can only make insubstantial use. Now, what does that mean and what problems do you all see with Judge Solomon's plans here? Pat? Well, the biggest problem, of course, is defining what is insubstantial use. I'm assuming that means that the secretary can't type the manuscript for the book. I'm also assuming that the law clerk could only be used in a very insignificant way if you said, Jay, would you check the site of these four cases? But not would you go out and find all the law review articles that have been written on the following topic and summarize them for me. So those, I think, are the primary things that come to my mind. Obviously, you can't use the frank in any kind of back and forth communications with the press. I'm going to leave to Jim to discuss some of the ramifications of using computer assisted legal research in your computers for that kind of work. I will say that I think that this is an area which our committee upon inquiry really, we have made a start with opinion 79 and 80, but will have to be fleshed out in the future. In my experience and 12 years on the bench, it is perhaps the Canon least understood and perhaps most often violated. And I think it's going to take a real educational effort on all our behalf, old judges and new, to really get through to them that this Canon and the way it's being interpreted really means what it says. You can't really use those law clerks and secretaries for the teaching and the speeches which are not an intrinsic part of your judicial function. Before we leave the subject of staff and go on with Jim and other chambers resources, does it make a difference here? The hypothetical says that Judge Solomon is taking out of her own pocket and providing compensation, additional compensation for the work she's asking her staff to do. Does that make a difference? I think probably not, although I certainly don't pretend to have the definitive answer on this. My own feeling is that you get into a somewhat dangerous area when you start saying to these people who work so intensely with you as a law clerk and a secretary does, hey, I want you to come in and do this, but I'll pay you extra. You get into a very odd situation of there saying, well, you don't need to pay me. I don't want to take the money or I'll do it on my extra time. I would tend to think that it shouldn't make a great difference, but I understand that this is an area in which there is definitely a difference of opinion. There is a difference of opinion. The Committee on Codes of Conduct in advisory opinion 79 has taken the position that it does not solve the problem for you to provide extra compensation. Jim, how about using the other chambers resources other than staff? Well, we do have, in our opinions, essentially three rules, one of which was already discussed, which is you can't use the staff even if you pay them. The second clear rule that we have is if some use of some chamber's facility does not impose any measurable incremental cost on the government, such as using the books in your library, using the chairs, the desk, the table, using a government pen, these things do not, as I said earlier, as we say, impose measurable incremental costs. And by definition, we think of them as insubstantial. And I think that's the best definition of insubstantial. The third rule that we've applied is that if some activity does impose some incremental cost which is not trivial, then that constitutes substantial use if the judge does not compensate the government for its use. If the judge compensates the government for its use, the judge is in effect using the judge's own resources and not the government's. And we don't really have a question of use of chamber's resources. What's an example of that, Jim? I think computer-assisted legal research, and even there, sometimes lines are difficult to devise if, for example, a judge has prepared a lecture, prepared a law review article, relies on one particular case, maybe in an obscure jurisdiction as an example of something. And at the very last minute before it's going to be sent away to the printer, turns to the computer-assisted legal research and jeopardizes the case. The cost of the government of that particular act is likely to be very trivial, and that constitutes insubstantial use. But if you wind up, I would suppose, with the more significant charges, if you've done computer-aided legal research in the traditional sense by doing word searches and linking them, then I think you have to pay the government. If you, for example, conduct a lot of business over a long-distance telephone, and you use the private number that most judges have in their chambers, and it's your private business, you have to compensate the government. Facts machines also are another example of this express mail or court mail. If these things are used, there are lots of things. Ferox machines, you know, 2,000 copies, if you don't reimburse, it's a substantial use. It creates an interesting problem for court administration, though, because as a former chief judge, if you have to pull out of the total amount of computer-assisted legal research that the court has, which is part of one entire Judiciary Act budget and allocated to the chambers, or you have to figure out the number of Xerox pages. Well, I actually think that raises another issue, because I think it is incumbent upon the judge who is using these materials and these resources to make the estimate, to keep track. I don't think a judge who is using resources in these circumstances is free to say to the chief judge or the clerk, figure it out and send me the bill. I think the judge has an affirmative obligation to make a reasonable estimate and pay it and not wait to be billed. Finally, there's the issue raised by the fact that Judge Solomon runs into the country's leading expert on the use of statistics to prove discrimination in employment discrimination cases. A professor there at Wise Law School. It so happens that it's a very fortunate meeting because she has just finished hearing a long employment discrimination case. She heard much expert testimony that she didn't really understand and she sees this as a wonderful fortuitous opportunity. Can she ask the good professor to help her understand what the witness is before her said, Pat? I don't think not with any specificity. I think she cannot go in and say, Dr. X, I had a witness who came before me and said that you must use the one-tailed test in these circumstances and the two-tailed test in those circumstances. Do you think that that's credible testimony? I think what she may do, if it's helpful to her and the less specific you get sometimes, the less helpful is the advice. She may talk generally with him about whether or not in his experience and in his works he has favored the one-tail over the two-tail and if so for what reasons. Although even that I think might get a little touchy. I suppose if there is something in one of his texts, if he has written a text that's out there in the public domain and she says in such and such a paragraph you discuss this I'm not sure I fully understand what that means or why you said that. That kind of general discussion on statistics in general would be okay, but the closer she gets to any testimony before her case or even to the very specific issue in her case, the more I think she gets into the realm of ex-party communications which the other sides minimally would have to know about and in my experience would probably object vociferously to. I agree completely. What the judge does if the judge gets specific is the court is in essence calling an expert witness, hearing the testimony of that expert witness outside the presence of the parties and the lawyers and not giving any opportunity to cross-examine. If you look at it that way you realize that it's just not an appropriate thing to do although it's very understandable and I think this rule too is probably subject to some obviously inadvertent violation by many judges and this will continue to occur as long as we have an increased emphasis on judicial training. Judges go to seminars, you hear an expert, the expert's very helpful to issues the trouble of the judge, you talk to the expert and you really have to refrain from doing that. It may be in some respects an anomalous rule because if you don't actually consult with the expert face to face but you pull the expert's book down from a shelf in the court's library and you rely on it in one of your opinions even though neither party cited it this is permissible. But I think that's always been something that lawyers have understood may occur but that you actually consulted with somebody and found their statements to your persuasive on the basis of their demeanor. Let me raise an in-between question which has come up. We know that you can go and pull down the law review article. I suppose theoretically you might say both parties if they were smart enough could have gone in the library and pulled down the same law review article and I think we agree that you don't take the expert aside and say well this came up in our case but what often happens is a judge will go to a bar association symposium of bar associate as a member of the audience or sometimes as a member of the panel and then somebody will bring up a case if it's a high visibility case that the judge is sitting on that has not yet been decided. I've had that happen to me. Do you think then you have to get up and walk out so that you don't hear the discussion about that case? Obviously you don't participate in it. My answer to that would be if you can conveniently do so you ought to. If you can't do so you ought to advise the parties that this discussion did occur in your presence and to the best of your ability you ignored it and will not consider it which is exactly what we have to do in bench trials when we hear offers of proof on evidence we've excluded. The cannons do expressly provide that the court has the judge has the right to go to a professor and consult about the case but he or she has to advise the parties of the subject matter of the advice given and give them a chance to comment so that's not it's not something that many judges use. My experience I've never known a judge to use that. I don't know whether you have. Well I all I can say is I I wish I were Judge Solomon. It was going to have the fun of going and being an in-residence intercession judge.