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Protecting Free Speech in Social Media: A Pathway to Self-Determination in International Law
Get PDFWith the growth of Internet and social media usage, state regulatory action to surveil and censor citizens is running rampant. As the principle of self-determination stands, minority populations are typically bearing the brunt of these attacks, receiving little protection under domestic and international law. Self-determination within international law must be restructured into a definitive pathway that includes protecting the freedom of speech to encourage discourse and tolerance between the State and its minority populations. This article proposes a solution that could fill the gap in international law formed by insufficient domestic rule in States that neglect to protect these populations in the age of the Internet.
By incorporating the freedom of speech into the principle of self-determination, States would be encouraged to think before detrimentally enabling censorship as the primary means to protect territorial integrity and State security. History reflects that by restricting the speech and identity of individuals, conflict becomes inevitable. This is vividly illustrated by the centuries-long cultural crusade in Catalonia by the Spanish government. It has been proven repeatedly that people will not sit by quietly while their cultural, political, or social structure is erased. To prevent future conflict, people must know that they have a voice that will be heard. Social media accomplished this.
This publication is a shortened form of the original article which contains a second case study on the Hong Kong independence movement. The full version is available on request to the author
Vertical and Horizontal Dimensions of the Rule of Law
Get PDFScholarly discussions about the rule of law have become a cacophony of disagreement. The more that is written about the topic, it seems, the less that we know. Thus, bringing clarity to basic issues is essential. This Essay draws out the implications of a conceptual distinction between the vertical and horizontal dimensions of the rule of law at domestic and international levels. The vertical dimension—which focuses on liberty and restraints on arbitrary government power—examines the top-down relationship between government officials and private actors in relation to how the ruling regime treats citizens and entities on matters of interest to the government itself. The horizontal dimension—which focuses on social ordering, security, and trust—examines the side-to-side relationship between actors in society on matters of everyday social and economic interaction. This Essay outlines and fills in the implications of the vertical-horizontal framework and applies the framework to four contexts to demonstrate its potential usefulness. A theme running through the Essay is that scholars have unduly neglected the importance of the horizontal dimension. This Essay rectifies this neglect by showing the importance of examining both dimensions
Democratic Backsliding in Poland in Light of Rule of Law Accountability to the European Union
Get PDFIn 2015, Poland began to gradually dismantle institutions of the rule of law that had been carefully put in place after its governmental transition. Moreover, this process has been underway largely with the electorate’s support. This is puzzling because only several years earlier, the rule of law seemed to be all but guaranteed by the country’s accession to the European Union. As Poland is still a member of the European Union, and the European Union is noticing erosion of the rule of law and sounding the alarm, why are “eroders” still being elected? We propose an explanation based on the dynamic model from a 2024 article by Caterina Chiopris, Monika Nalepa, and Georg Vanberg, which posited that voters were deeply uncertain as to whether the incumbent they were about to reelect was introducing policy change because of his genuine ideological commitments or because he is a closet autocrat, for whom policy change is instrumental to usurping power. What is more, the authors find that there is an interactive relationship between democratic commitments and uncertainty. We tested this theory with an experiment around the 2019 nationwide Polish elections and found that citizens with less exposure to democratic rule were more likely to reelect incumbents making sweeping policy changes when they were uncertain about the true intentions of the incumbent’s policy
The Rise of Uptier Transactions in the Leveraged Loan Market
Get PDFThe use of uptier transactions has exploded in the leveraged loan market, precipitated by economic pressure, flexible debt documentation, and permissive treatment by courts. In an uptier transaction, a borrower typically issues senior debt to a new or pre-existing group of lenders by exchanging outstanding debt for superpriority debt, thereby subordinating an existing class of lenders. The principal result of these transactions is that the borrower may obtain follow-on secured financing without offering the investment to all its lenders, thereby materially decreasing the value of each excluded lender’s investment. Due to the material effects of these transactions to unsuspecting lenders, they have been scorned as “hostile restructurings” that promote “theft” and “lender-on-lender violence.”
This Comment will explore (1) how uptier transactions affect a borrower’s capital structure; (2) why a borrower would pursue an uptier transaction and why a lender would consent; (3) the legal and equitable issues courts have addressed when analyzing contested uptier transactions; and (4) the consequences of each court’s ruling to the leveraged loan market. Finally, this Comment will conclude by recommending that Congress and the courts permit stakeholders in the leveraged loan market to self-regulate the treatment of uptier transactions as a practical solution
Clearing Up the Confusion: A Three-Part Framework for Applying the Copyright Preemption Clause to Right of Publicity Claims
Get PDFTo prevent conflicting state-law interests and federal copyright interests in a single claim, Congress enacted Section 301 of the Copyright Act of 1976—providing a two-prong test to determine when a state-law claim is preempted by federal copyright law. Though Section 301 appears to be a clear and simple test, it has proven to be anything but. Between 1986 and 2023, six of the thirteen circuit courts decided whether state-law right of publicity claims are preempted by federal copyright law using the Section 301 two-prong test, but each court’s analysis was vastly different from the other. Specifically, the Second, Third, Fifth, Seventh, Eighth, and Ninth Circuits analyzed copyright preemption issues with right of publicity claims without a clear framework.
Confusion plagues the courts in the following areas: (1) the subject matter and scope of the issues, (2) the equivalency of rights asserted by the plaintiff to copyright, and (3) the differing language within the relevant state right of publicity laws and its place within the preemption analysis. Further, each court has developed a different first step in analyzing preemption, which greatly affects the direction of the rest of the analysis. In some cases, courts consider both implied and express preemption. In others, courts only consider express preemption. Yet, none of the courts use a uniform framework. As the Ninth Circuit described, copyright preemption in relation to right of publicity claims has become quite the “murky body of law.”
In the effort to clarify the murky waters of preemption, this Comment proposes a three-part framework for courts to uniformly apply in right of publicity litigations where copyright preemption is in question. The initial part of the framework provides a clear first step for courts to determine what is truly at the heart of the claim. The second and third steps preserve the Section 301 test but incorporate new considerations courts have historically encountered to clarify the confusion about subject matter, scope, and rights. This framework avoids the limitations of a bright-line rule by being broad enough to cover the many different fact-dependent and complex copyright issues found within right of publicity claims while still being clear enough to be helpful
Prosecutorial Independence Lost: How Prosecutorial Bureaucracy is Politicized in South Korea
Get PDFHow is prosecutorial independence lost? How does a prosecution system’s design affect its political independence? This Article analyzes the inner workings of South Korea’s Prosecutors’ Office, which adheres to the Continental European style of prosecutorial organization and independence that emphasizes mechanisms of bureaucratic accountability for prosecutors. Based on interviews with prosecutors, police, judges, lawyers, scholars, and activists, it shows how independence is lost in three key areas of prosecutorial activity: personnel policy, investigations, and charging decisions. This article argues that aspects of the Continental tradition make prosecutors vulnerable to politicization.
Personnel policy has selected prosecutors meritocratically at young ages, trained them intensively within the organization, and promoted prosecutors based on seniority and merit, in principle. Investigations and charging decisions are meticulously overseen by higher-ranked veteran prosecutors. Certain elite prosecutorial divisions have historically specialized in political cases, namely the “special investigations” and “public security” departments. The centralized, hierarchical system for supervising prosecutors in theory establishes rational management and quality-control over prosecutors. In reality, however, these mechanisms allow the upper echelons of the prosecutorial bureaucracy, and the politicians that appoint them, to exercise firm political control over the entire system. In particular, the promotion system, by dangling opportunities for career success before prosecutors, molds their mentalities and encourages them to gratify their superiors’ wishes. Korean presidents have also customarily employed prosecutors within the Presidential Office (the “Senior Secretary for Civil Affairs” being the leading example) and used them to manipulate political investigations.
With regards to prosecutorial independence theory, this Article offers a case study of how the concept’s Continental style functions and how mechanisms of bureaucratic accountability can sometimes fail to protect against politicization. This Article is the second in a series. The first Article explains the history and doctrine of the Continental style in Korea, while the final Article provides an account of reform discourse and recent changes
