著者

辻 雄一郎

出版者

駿河台大学

雑誌

駿河台法学 (ISSN:09149112)

巻号頁・発行日

vol.23, no.2, pp.89-142, 2010-02

著者

辻 雄一郎

出版者

駿河台大学

雑誌

駿河台法学 (ISSN:09149112)

巻号頁・発行日

vol.26, no.1, pp.39-70, 2012-09

著者

孝忠 延夫 小林 直三 奈須 祐治 大江 一平 辻 雄一郎

出版者

関西大学

雑誌

關西大學法學論集 (ISSN:0437648X)

巻号頁・発行日

vol.55, no.1, pp.263-295, 2005-06-25

著者

孝忠 延夫 小林 直三 奈須 祐治 大江 一平 辻 雄一郎

出版者

関西大学

雑誌

關西大學法學論集 (ISSN:0437648X)

巻号頁・発行日

vol.54, no.6, pp.1372-1411, 2005-03-10

著者

辻 雄一郎

出版者

日本法政学会

雑誌

法政論叢 (ISSN:03865266)

巻号頁・発行日

vol.46, no.1, pp.108-137, 2009-11-15 (Released:2017-11-01)

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In the United States, the Brandenburg test has been applied to the incitement of the illegal action in the physical world. In this paper, the author asks whether this Brandenburg test is applicable in the internet. Cyberspace has several special factors which do not exist in the physical world. Everyone can be the speaker at a cheap price. The message is sent all over the world instantly. This convenient tool has dark sides such as email bombs, and intimidation homepages. In the internet age, we need to ask the question whether the Brandenburg test is modified or abolished totally in this information society because of these special features of the internet. There are various tools to send messages via internet such as e-mail, homepage, blog, newsletter, mailing list, etc. In this paper, the author focuses just on the expression opened to the public. The author believes that before seeing the internet problem, it is necessary for us to see the origin and applicability of the Brandenburg test in the physical world. The Brandenburg test is not a given. Its origin is clear and the present danger test shaped in common law. In the conclusion, the author suggests that the Brandenburg test has some future since it has been used to protect the opinion of the minority in the real world. However, this test was used mostly in the peaceful period. We need to be vigilant to see this test for internet society.

著者

辻 雄一郎 ツジ ユウイチロウ Yuichiro Tsuji

雑誌

駿河台法学

巻号頁・発行日

vol.25, no.2, pp.117-163, 2012-02

著者

辻 雄一郎

出版者

日本法政学会

雑誌

法政論叢 (ISSN:03865266)

巻号頁・発行日

vol.51, no.2, pp.111-130, 2015-08-15 (Released:2017-11-01)

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The Fourth Amendment was added to the U.S. Constitution in 1791. In no place in the Fourth Amendment does the term "warrant" appear. In interpretation of the Fourth Amendment by the U.S. Supreme Court, the police require warrants to perform searches. A warrantless search is deemed reasonable only if it falls within a specific exception to the Fourth Amendment's warrant requirement. The ninety percent of American adults who own cellphones todays carry with them digital records of nearly every aspect of their lives. Two hundred and twenty-three years have passed since the Fourth Amendment was added. In Riley v. California, the Supreme Court held that the police generally have no authorization to search digital information on cellphones seized from arrested individuals without warrants. While the Riley case is certain to be a subject further study, the American scholars who have studied the case so far have found several lessons for the interpretation of constitutional law. In this article, I would like to discuss this issue with a focus on the interpretation methods of the originalist Justice Scalia and the intra-textualist Akhil Amar, and the battle between Congress and the judicial approach. Justice Breyer provided six factors to overturn precedents. Daniel Farber shows a pragmatic approach.

著者

辻 雄一郎

出版者

明治大学法律研究所

雑誌

法律論叢 (ISSN:03895947)

巻号頁・発行日

vol.95, no.2-3, pp.243-249, 2022-12-26

著者

辻 雄一郎

出版者

日本法政学会

雑誌

法政論叢 (ISSN:03865266)

巻号頁・発行日

vol.51, no.2, pp.111-130, 2015

---

The Fourth Amendment was added to the U.S. Constitution in 1791. In no place in the Fourth Amendment does the term "warrant" appear. In interpretation of the Fourth Amendment by the U.S. Supreme Court, the police require warrants to perform searches. A warrantless search is deemed reasonable only if it falls within a specific exception to the Fourth Amendment's warrant requirement. The ninety percent of American adults who own cellphones todays carry with them digital records of nearly every aspect of their lives. Two hundred and twenty-three years have passed since the Fourth Amendment was added. In Riley v. California, the Supreme Court held that the police generally have no authorization to search digital information on cellphones seized from arrested individuals without warrants. While the Riley case is certain to be a subject further study, the American scholars who have studied the case so far have found several lessons for the interpretation of constitutional law. In this article, I would like to discuss this issue with a focus on the interpretation methods of the originalist Justice Scalia and the intra-textualist Akhil Amar, and the battle between Congress and the judicial approach. Justice Breyer provided six factors to overturn precedents. Daniel Farber shows a pragmatic approach.

著者

辻 雄一郎

出版者

日本法政学会

雑誌

法政論叢 (ISSN:03865266)

巻号頁・発行日

vol.46, no.1, pp.108-137, 2009-11-15

---

In the United States, the Brandenburg test has been applied to the incitement of the illegal action in the physical world. In this paper, the author asks whether this Brandenburg test is applicable in the internet. Cyberspace has several special factors which do not exist in the physical world. Everyone can be the speaker at a cheap price. The message is sent all over the world instantly. This convenient tool has dark sides such as email bombs, and intimidation homepages. In the internet age, we need to ask the question whether the Brandenburg test is modified or abolished totally in this information society because of these special features of the internet. There are various tools to send messages via internet such as e-mail, homepage, blog, newsletter, mailing list, etc. In this paper, the author focuses just on the expression opened to the public. The author believes that before seeing the internet problem, it is necessary for us to see the origin and applicability of the Brandenburg test in the physical world. The Brandenburg test is not a given. Its origin is clear and the present danger test shaped in common law. In the conclusion, the author suggests that the Brandenburg test has some future since it has been used to protect the opinion of the minority in the real world. However, this test was used mostly in the peaceful period. We need to be vigilant to see this test for internet society.

著者

辻 雄一郎

出版者

日本法政学会

雑誌

法政論叢 (ISSN:03865266)

巻号頁・発行日

vol.42, no.1, pp.52-71, 2005-11-15

---

Grokster case was decided in June, 2005. Before this case, at Boalt Hall, Berkeley, School of Law, there were two arguments over the prevention of the direct and indirect infringement of copyright. One is argued by Professor Pamela Samuelson who proposes the solution by Congress. The other is Professor Peter Menell who proposes the solution by Judiciary. They think Sony Beta case differently, which was decided in 1985. In face of this battle, the Supreme Court took the middle approach and clarified what indirect infringement is. Although this case is going to be analyzed by other distinguished scholars, it is important to say that the American scholars recognize that this P2P issue includes interpretation issue of Constitutional law. However, unlike the U.S., there are not so many arguments in Japan that discuss Constitutional law issue about P2P. In this article, I like to discuss this issue focusing on the interpretation and the battle between Congress and Judicial approach. The main point is that P2P issue includes the First Amendment rights of the technology inventor, the sender of the information and the copyright holder. Unless the explanation how to solve the P2P by the government, the balance of these three shall not be kept.