The 'New' District Court Activism in Criminal Justice Reform

88 Pages Posted: 17 Jan 2018 Last revised: 25 Jan 2018

See all articles by Jessica Roth

Jessica Roth

Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: January 16, 2018


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, 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.

Keywords: criminal law reform, federal district court judges, judicial activism, collateral consequences of conviction, mass incarceration, alternatives to incarceration, judicial role, judicial ethics, judicial norms, prosecutorial accountability, prosecutorial discretion, criminal discovery reform

Suggested Citation

Roth, Jessica, The 'New' District Court Activism in Criminal Justice Reform (January 16, 2018). NYU Annual Survey of American Law, Forthcoming, Cardozo Legal Studies Research Paper No. 532, Available at SSRN:

Jessica Roth (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

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New York, NY 10003
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212-790-0489 (Phone)

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