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Volume 72 Issue 2 39707-nys_72-2 Sheet No. 1 Side A 01/15/2018 10:23:44 \\jciprod01\productn\n\nys\72-2\FRONT722.txt unknown Seq: 1 15-JAN-18 9:55 NEW YORK UNIVERSITY ANNUAL SURVEY OF AMERICAN LAW VOLUME 72 ISSUE 2 39707-nys_72-2 Sheet No. 1 Side A 01/15/2018 10:23:44 NEW YORK UNIVERSITY SCHOOL OF LAW ARTHUR T. VANDERBILT HALL Washington Square New York City 39707-nys_72-2 Sheet No. 1 Side B 01/15/2018 10:23:44 \\jciprod01\productn\n\nys\72-2\FRONT722.txt unknown Seq: 2 15-JAN-18 9:55 New York University Annual Survey of American Law is in its seventy-fifth year of publication. L.C. Cat. Card No.: 46-30523 ISSN 0066-4413 All Rights Reserved New York University Annual Survey of American Law is published quarterly at 110 West 3rd Street, New York, New York 10012. Subscription price: $30.00 per year (plus $4.00 for foreign mailing). Single issues are available at $16.00 per issue (plus $1.00 for foreign mailing). For regular subscriptions or single issues, contact the Annual Survey editorial office. Back issues may be ordered directly from William S. Hein & Co., Inc., by mail (1285 Main St., Buffalo, NY 14209-1987), phone (800- 39707-nys_72-2 Sheet No. 1 Side B 01/15/2018 10:23:44 828-7571), fax (716-883-8100), or email ([email protected]). Back issues are also available in PDF format through HeinOnline (http://heinonline.org). All works copyright © 2017 by the author, except when otherwise expressly indicated. For permission to reprint an article or any portion thereof, please address your written request to the New York University Annual Survey of American Law. Copyright: Except as otherwise provided, the author of each article in this issue has granted permission for copies of that article to be made for classroom use, provided that: (1) copies are distributed to students at or below cost; (2) the author and journal are identified on each copy; and (3) proper notice of copyright is affixed to each copy. Manuscripts: The Annual Survey invites the submission of unsolicited manuscripts. Text and citations should conform to the 20th edition of A Uniform System of Citation. Please enclose an envelope with return postage if you would like your manuscript returned after consideration. Editorial Office: 110 West 3rd Street, New York, N.Y. 10012 (212) 998-6540 (212) 995-4032 Fax http://www.annualsurveyofamericanlaw.org 39707-nys_72-2 Sheet No. 2 Side A 01/15/2018 10:23:44 \\jciprod01\productn\n\nys\72-2\FRONT722.txt unknown Seq: 3 15-JAN-18 9:55 For what avail the plough or sail Or land or life, if freedom fail? EMERSON 39707-nys_72-2 Sheet No. 2 Side A 01/15/2018 10:23:44 39707-nys_72-2 Sheet No. 2 Side B 01/15/2018 10:23:44 \\jciprod01\productn\n\nys\72-2\FRONT722.txt unknown Seq: 4 15-JAN-18 9:55 39707-nys_72-2 Sheet No. 2 Side B 01/15/2018 10:23:44 iv 39707-nys_72-2 Sheet No. 3 Side A 01/15/2018 10:23:44 \\jciprod01\productn\n\nys\72-2\FRONT722.txt unknown Seq: 5 15-JAN-18 9:55 NEW YORK UNIVERSITY ANNUAL SURVEY OF AMERICAN LAW 2017–2018 BOARD OF EDITORS Editor-in-Chief LEONID GRINBERG Managing Editors ERIK F. BAKKE EMILY E. FOUNTAIN NATHALIE M. GORMAN KATHRYN A. HAINES Development Editors Executive Article Editors Senior Articles Editors RAYMOND N. HABBAZ AMANDA BOITANO OZGUN SAK AISHLINN R. O’CALLAGHAN JESSICA B. FUHRMAN SAMUEL P. VITELLO RACHEL M. LIEB KEVIN WU DANIEL R. MUELLER Note Editors NEALOFAR S. PANJSHIRI Online Editors TONY CHENG STEPHEN M. RETTGER RACHEL MALHIET SUCHITA MANDAVILLI DILLON M. WESTFALL ELOISE D. ROTENBERG Article Editors KEITH F. BARRY XUAN GONG ANTHONY PASCUA, JR. FRANCES BERNSTEIN CRYSTAL N. HANS EMILY C. POOLE MICHAEL J. BOREK NATHALIE A. HERRAND CHRISTINA N. ROMERO LANCE BOWMAN CHRISTIAN KINSELLA BETH SHANE SEBASTIAN P. CLARKIN PHILLIP G. KRAFT HANNAH S. STERN TIMOTHY CORY LAUREN KREPS ALICE THAI CLAUDIA DIAZ-ALEMANY SARAH K. LEFSKY MATTHEW J. WIENER SEAN M. GALVIN ALLISON R. LEHRER WILLIAM P. YOUNG COURTNEY A. GANS NAOMI Y. MONCARZ CAROLINE ZIELINSKI 39707-nys_72-2 Sheet No. 3 Side A 01/15/2018 10:23:44 LAUREN NIKODEMOS Staff Editors EDWIN D. ABUNDIS NATALIE GOW MICHAEL D. REBUCK CLARA ARAGONE-DIAZ LILLIAN GRINNELL AARON C.F. SALERNO DEVIKA M. BALARAM JOSHUA HABERL SAMUEL A. SEHAM ELLIOTT P. BARRON ISA M. HERRERA MOYA NEENA DEB SEN DANIEL W. BLAZE SAMUEL F. HIMEL NICOLE H. SNYDER JACOB A. BRALY ALEX INMAN JACOB L. STANLEY ALLISON S. CANDAL ALLYSON N. KALEITA KATHERINE T. STEIN ROBERT COBBS MARISSA L. KIBLER IAN M. SWENSON KATHERINE E. CORIC AVI LAHAM SUZANNE D. TRIVETTE CAROLINE DIAZ CHRISTINE J. LEE AMY I. WANN KIMBERLY T. DREXLER JOSEPH M. LEVY H. CHASE WEIDNER YIRAN DU DYLAN LONERGAN BRETT M. WEINSTEIN RANDOLL THEODORA FISHER DAVID MOOSMANN KIONE WONG MICHAEL FREEDMAN KATHRYN G. MORRIS DARREN D. YANG BRIAN R. GOTTLIEB IGNATIUS NAM KIRSTIE YU JOSH PIRUTINSKY 39707-nys_72-2 Sheet No. 3 Side B 01/15/2018 10:23:44 \\jciprod01\productn\n\nys\72-2\FRONT722.txt unknown Seq: 6 15-JAN-18 9:55 39707-nys_72-2 Sheet No. 3 Side B 01/15/2018 10:23:44 vi 39707-nys_72-2 Sheet No. 4 Side A 01/15/2018 10:23:44 \\jciprod01\productn\n\nys\72-2\FRONT722.txt unknown Seq: 7 15-JAN-18 9:55 SUMMARY OF CONTENTS ARTICLE THE “NEW” DISTRICT COURT ACTIVISM IN CRIMINAL JUSTICE REFORM Jessica A. Roth 187 NOTES DEMOCRACY IN THE DIGITAL AGE: WHY THE EQUAL TIME RULE SHOULD BE ABANDONED Sarah Warburg-Johnson 275 VALUING FATAL CANCER AT THE EPA Max Yoeli 315 A NEW IDEA RATHER THAN A NEW I.D.E.A.: SEPARATE FEDERAL LEGISLATION FOR RTI STUDENTS Harry I. Black 357 39707-nys_72-2 Sheet No. 4 Side A 01/15/2018 10:23:44 39707-nys_72-2 Sheet No. 4 Side B 01/15/2018 10:23:44 \\jciprod01\productn\n\nys\72-2\FRONT722.txt unknown Seq: 8 15-JAN-18 9:55 39707-nys_72-2 Sheet No. 4 Side B 01/15/2018 10:23:44 viii 39707-nys_72-2 Sheet No. 5 Side A 01/15/2018 10:23:44 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 1 15-JAN-18 9:53 THE “NEW” DISTRICT COURT ACTIVISM IN CRIMINAL JUSTICE REFORM JESSICA A. ROTH* Historically, the debate over the judicial role has centered on the consti- tutional 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 broaden- ing 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 judi- cial 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. I. Introduction......................................... 188 R 39707-nys_72-2 Sheet No. 5 Side A 01/15/2018 10:23:44 II. A Summary of the “New” District Court Activism . 193 R A. The Overly Punitive State . 194 R 1. Background ................................. 194 R 2. Mass Incarceration. 198 R 3. Alternatives to Incarceration . 202 R 4. Collateral Consequences of Conviction . 205 R B. The Excesses of Prosecutorial Discretion . 209 R 1. Overcharging ................................ 210 R 2. Undercharging .............................. 215 R * Associate Professor of Law, Benjamin N. Cardozo School of Law. I am grateful to Michelle Adams, Gabriel J. Chin, Bruce Green, Kyron Huigens, Benjamin Lawsky, Burt Neuborne, Daniel Richman, and Kate Stith for very helpful comments on earlier drafts of this paper and to participants in the 2016 Ethics Schmooze and CrimFest 2016, where this Article was presented as a work in progress. Thanks also to Ben Cain, Rachel Karpoff, and Josh Ontell for excellent research assistance. 187 39707-nys_72-2 Sheet No. 5 Side B 01/15/2018 10:23:44 \\jciprod01\productn\N\NYS\72-2\NYS201.txt unknown Seq: 2 15-JAN-18 9:53 188 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 72:187 3. Criminal Discovery . 219 R III. The “New” District Court Activism in Historical Context ............................................. 228 R A. A Search for Historical Parallel . 228 R B. Why Now? ....................................... 236 R 1. The Impact of Booker . 236 R 2. Social and Political Context. 240 R 3. Shifting Judicial Roles and Norms . 246 R 4. The New Media Environment. 250 R IV. Evaluating the “New” District Court Activism. 252 R A. The Value of the “New” District Court Activism . 252 R B. Reasons for Concern ............................ 259 R C. Possible New Mechanisms of Judicial Input .
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