The Meaning of Categorizing Professional Speech

Professionals advise their clients. Does this advice constitute professional conduct or speech? Professional advice is speech that is protected under the First Amendment, but at the same time, professional conduct can be regulated by the states, so professional speech can, incidentally, be involved in such regulation. Many lower courts and scholars adopt this view, and thus, professional speech receives less protection than other speech does. However, professional speech should not be treated as having less protection under the First Amendment. The distinctive character of professional speech is its nexus with the knowledge community. Professionals belong to the knowledge community. The knowledge community creates and maintains professional insights, and each profession conveys its insights to its clients. The interests of the professional speech of the knowledge community are combined with the standpoint that the protection of free speech is not only a subjective right but also an objective right. This way of thinking can provide a new perspective on restraining government discretion.本研究はJSPS科研費JP19K01299の助成を受けたものです

Professional Speech and Academic Freedom: Democratic Competence Theory and Liberty

The omikuji for this year could have read, “You are not determined enough. Study.” Are horoscopes brilliantly predicting the future of our country? We might follow such “announcements” and “prophecy” for advice. It would seem that experts who give such “advice,” however, are not considered part of a knowledge community whose autonomy is guaranteed by academic freedom. Therefore, if an astrologer communicates a prediction about the future to a customer via a horoscope, it is not categorized as professional speech within the context of academic freedom. Individuals who do not convey the wisdom of the knowledge community do not deserve to be called experts, and professional occupational regulations that regulate such experts do not raise the issue of the First Amendment. On the other hand, it can be argued that a knowledge community consisting of a network of experts is created for particular forms of speech categorized as professional and that, in general, a respectful attitude and respect for the judgments of the community are required. Thus, the knowledge community is required to verify the knowledge created by experts via scientific methods, have a special interest in the accuracy of that knowledge, and eliminate political interference (knowledge community theory). Knowledge community theory argues that it is the knowledge community itself that judges the accuracy of knowledge and that the government is not allowed to overwrite that judgment. The reason the government should not judge the accuracy of knowledge is that it is unable to do so. However, if the government should not judge the accuracy of knowledge, even if it had the ability to do so, then a normative requirement to exclude government intervention must be derived from constitutional principles.本研究はJSPS 科研費JP19K01299の助成を受けたものです

Purposivism and Textualism in the Roberts Court (1): NLRB v. SW General Inc.

Every governmental power, including judicial power, must be restrained under the law. The courts are required to use their power under the effective control of the Constitution. It is useful to adopt textualism to bound the discretion of the courts’ interpretive power. Textualism deems the text of the statute as having significant meaning, and simultaneously intends to draw boundaries that the courts must not violate. Recently, however, the Supreme Court of the United States has adopted purposivism in certain major cases. It eschewed the natural reading of the statute and delved into the political context to interpret the legislative background of the statute. This seems to be an infringement of the legislative powers of making rules, and the administrative power to interpret the statute. This article seeks to elucidate why the U.S. Supreme Court has taken this approach. NLRB v. SW General Inc. was expected to shed light on the reason for the Court’s adoption of purposivism, but no clear explanation emerged. This article analyzes and reviews some of the plausible explanations researchers have offered for the shift.

Purposivism and Textualism in the Roberts Court (2): NLRB v. SW General Inc.

Every governmental power, including judicial power, must be restrained under the law. The courts are required to use their power under the effective control of the Constitution. It is useful to adopt textualism to bound the discretion of the courts’interpretive power. Textualism deems the text of the statute as having significant meaning, and simultaneously intends to draw boundaries that the courts must not violate. Recently, however, the Supreme Court of the United States has adopted purposivism in certain major cases. It eschewed the natural reading of the statute and delved into the political context to interpret the legislative background of the statute. This seems to be an infringement of the legislative powers of making rules, and the administrative power to interpret the statute. This article seeks to elucidate why the U.S. Supreme Court has taken this approach. NLRB v. SW General Inc. was expected to shed light on the reason for the Court’s adoption of purposivism, but no clear explanation emerged. This article analyzes and reviews some of the plausible explanations researchers have offered for the shift

Does the Article 24 of Constitution strongly control the legislative discretion?

Article 24 of the Constitution must be construed as strongly controlling legislative discretion. Sex-neutral statutes would be made based on the existing social gender structure. Therefore, sex-neutral statutes would reproduce or re-establish this social gender structure. To eliminate this redundant process, courts must decide whether to overrule legislative discretion