Publication Date

2019

Journal

New York University Annual Survey of American Law

Abstract

Historically, the debate over the judicial role has centered on the constitutional and administrative law decisions of the United States Supreme Court, with an occasional glance at the Federal Courts of Appeals. It has, moreover, been concerned solely with the “in-court” behavior of Article III appellate judges as they carry out their power and duty “to say what the law is” in the context of resolving “cases and controversies.” This Article seeks to deepen the discussion of the appropriate role of Article III judges by broadening it to trial, as well as appellate, judges; and by distinguishing between an Article III judge’s “decisional” activities on the one hand, and the judge’s “hortatory” and other activities on the other. To that end, the Article focuses on a cohort of deeply respected federal district judges-many of whom, although not all, experienced Clinton appointees in the Southern and Eastern Districts of New York–who, over the last decade, have challenged conventional norms of judicial behavior to urge reform of fundamental aspects of the federal criminal justice system. These “new” judicial activists have made their case for reform in the pages of their judicial opinions, often in dicta; in articles and speeches; and through advocacy within and beyond the judicial branch. This Article summarizes this activity, places it in historical context, and assesses its value as well as its risks.

Volume

74

Issue

2

First Page

277

Last Page

364

Publisher

NYU School of Law

Keywords

Judges, Sentencing and Punishment, Penology, Due Process, Constitutional Law, Fourteenth Amendment, Legal Practice and Procedure

Disciplines

Constitutional Law | Fourteenth Amendment | Judges | Law

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