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The digital era invoked new challenges to judicial systems. The Internet enabled violation of privacy and intellectual property rights and enhanced the magnitude of criminal activity. Recognizing the inability of courts to handle a high magnitude of lawsuits, along with enforcement difficulties, policymakers worldwide chose to delegate quasi-judicial powers to online intermediaries that facilitate or enable such potential violations or infringements of rights. Search engines were first tasked to perform a quasi-judicial role under a notice-and-takedown regime to combat copyright infringement around the world. Recently, the European Union (EU) decided to delegate judicial authority to search engines by granting rights of erasure, or delisting of personal data, about EU individuals under certain circumstances. Effectively, the EU placed search engines—mainly Google currently—as a judiciary, tasked to balance different fundamental human rights. This privatization of the judiciary represents a new paradigm in legal systems and possesses vast global ramifications, which must be further scrutinized. This Article provides such scrutiny. It begins by briefly exploring the rights to be forgotten and delisted. It then provides an overview of the quasi-judicial roles played by search engines prior to the new EU rights regime and compares them to their new judicial role. Following an examination of the pragmatic and normative difficulties in the implementation of the EU rights regime, this Article evaluates and discusses the future of the private judiciary. It examines the drawbacks and benefits of judicial privatization; explores whether other means of regulation are more appropriate; and proposes modest solutions to properly address the shortcomings of the new privatized judiciary. This Article warns against such form of privatization and its current implementation, especially when fundamental rights are at stake. If policymakers insist on adjudicating search engines, they must also restrain their judicial power and ...

This article discusses the culture of speech and rhetoric in the judiciary.

One of the important problems confronting the modern state is to identify the way(s) to balance the relations between different branches of government. Everywhere the executive has become interventionist, assuming responsibilities for functions traditionally considered to be the preserve of other branches. This intrusion is more noticeable in lawmaking than in the judicial process. It is not uncommon to find a legislature, especially in Westminster systems, accepting the domination of the executive government as natural. But the judiciary does not always accept attempts by the executive to intrude into its domain cap-in-hand. Experience shows that the judiciary not only seeks to provide some kind of deterrent against the arbitrary exercise of power by the executive; it may also issue directives suo moto, requiring the executive to undertake things that it does not want to do. The extent to which the tendency of the executive to dominate the judiciary and the attempt by the latter to assert its independence clashes with each other is difficult to ascertain. (Asian Aff/GIGA)

Alexander Hamilton wrote in The Federalist No.78 that the judiciary "has no influence over . the purse."' Yet in Missouri v. Jenkins, the Supreme Court approved indirect judicial taxation. Hamilton wrote that the judiciary "will always be the least dangerous" and "beyond comparison the weakest" branch of government. Yet in Roe v. Wade, the Supreme Court created out of nothing a right to choose abortion, invalidated the abortion laws of all fifty states developed over more than a century, and shut millions of Americans out of the process of developing public policy on this important political issue. Hamilton wrote that the "liberty of the people can never be endangered from [the judicial] quarter." Yet in Employment Division v. Smith," the Supreme Court virtually eliminated the constitutional protection for citizens to freely exercise their religion.

This essay questions whether it is as appropriate as it is common to speak of the federal judiciary as legitimately engaged in "statesmanship"— however that rather slippery concept may be denned or elucidated. Scholars of both the "interpretivist" and "noninterpretivist" schools in constitutional law appear to subscribe to the expectation that judges should be statesmen. Some point to Tocqueville for support of this notion. The argument here is that Tbcqueville is unreliable on this point, for he parts company not only with his contemporary, Joseph Story, but with the framers of the Constitution. TheFederalistis examined for its thoughts on the meaning and location of statesmanship in the constitutional order, and it is argued that the essays on the judiciary reveal a conspicuous absence of any expectation that that branch should contain statesmen. Indeed, Publius advances an argument that Congress should act to restrain (through the threat of impeachment) judicial temptations to engage in any adventures that can be called statesmanship.