Columbia Journal of Gender and Law

The Personal (Jurisdiction) is Political

Sarah Geller — Thu, 05 Dec 2024 00:00:00 +0000

Extraterritorial laws between states have long been debated, but less discussed are the implications of these extraterritorial theories on personal jurisdiction. As anti-abortion states continue to pass extraterritorial laws targeting abortion—bounty-hunter abortion laws—it becomes increasingly important to address the role personal jurisdiction will play in attempts to enforce these laws. Personal jurisdiction may serve as a useful roadblock to stop bounty-hunter lawsuits. This Note seeks to fill this gap in the literature by examining both the role personal jurisdiction will play in extraterritorial anti-abortion lawsuits and the fit between theories underlying personal jurisdiction and extraterritoriality. In this context, the governing state and federal precedents and the values underlying personal jurisdiction do not support exercise of personal jurisdiction over out-of-state defendants. Part I details states that have currently enacted bounty-hunter laws, the ongoing lawsuits related to these laws, and the issues these suits have presented for the basic requirements of personal jurisdiction. Part II lays out the menu of ways these cases might be handled, specifically by addressing the likely types of defendants and exploring how personal jurisdiction would—or, more aptly, would not—apply. Part III concludes by discussing theories underlying personal jurisdiction and how they support judges finding that bountyhunter lawsuits against out-of-state defendants should not proceed. I argue that both Supreme Court precedent and personal jurisdiction’s underlying normative values indicate that courts should not have personal jurisdiction over out-of-state abortion-suit defendants. Personal jurisdiction is one of the many procedural roadblocks—in addition to questions of substantive law—that will arise in civil enforcement mechanism lawsuits.

Defamation in the Time of Deepfakes

Abigail George — Thu, 05 Dec 2024 00:00:00 +0000

Deepfake technology, powered by artificial intelligence, has enabled the quick and easy creation of hyperrealistic videos that superimpose one person’s face onto another’s body. While the technology has benign applications, it has also been overwhelmingly used to create nonconsensual pornography. Deepfake pornography is a severe sexual offense that has targeted hundreds of thousands of women. This Note, the first comprehensive analysis of deepfake pornography under defamation law, sketches a framework for advocates and judges to apply defamation to cases of deepfake pornography.

This Note argues that deepfakes—in achieving photorealism and simulating someone’s true body and private life—qualify as defamatory false statements of fact. As this Note shows, when alleged defamatory statements strive for (and achieve) hyperrealism, and they purport to reveal a truth about someone’s private sex life, they qualify as false statements of fact. Cursory indications that a deepfake is “fake” or even viewers’ knowledge that it is “synthetic” refer solely to the manner of creation, not its signified meaning. The photovisual realism of deepfakes collapses the distinction between form and meaning or signified and signifier. As signifiers whose forms perfectly resemble their signified, deepfakes leave no room for the person depicted to disavow their message or for the statements to transform into a parody or commentary protected by the First Amendment. Thus, the knowledge that a deepfake is fake does little to undermine the reputational harm and, consequently, the defamation claim. Finally, this Note addresses defamation law’s peculiar and controversial “actual malice” scienter requirement. As actual malice relates to knowledge or reckless disregard for the falsity of the statement and not a defamatory intent, it applies to creator-distributors who use synthetic processes to make deepfakes, albeit often claiming a benign or parodic purpose.

Contesting and Controlling Abortion in China's Courts

Molly Bodurtha, Benjamin Liebman, Li Chenqian, Wu Xiaohan — Thu, 05 Dec 2024 00:00:00 +0000

The decision of the United States Supreme Court in Dobbs v. Jackson Women’s Health Organization has brought renewed global attention to how legal systems protect and restrict women’s reproductive autonomy. Central themes have included how the rollback of reproductive rights in the United States coincides with the judiciary’s embrace of a broader “jurisprudence of masculinity” and the relationship between abortion restrictions and authoritarianism, as multiple countries have enacted restrictive measures while undergoing democratic backsliding.

Yet, the scholarly conversation on abortion, democracy, and how courts reflect and entrench gender disparities entirely omits China—the largest authoritarian state and a country with a high incidence of abortion. This is largely unsurprising: the central challenge facing Chinese women has not been abortion access but state-mandated birth control and abortion. Almost no prior scholarship examines how Chinese courts adjudicate disputes over abortion. This lack of attention reflects the common understanding that courts play no role in regulating reproduction and that abortion remains unproblematic in China.

Yet Chinese courts do confront and decide claims involving abortion. Drawing on a dataset of more than 30,000 civil cases discussing abortion, this Article examines men’s claims that their wives obtained abortions without their “authorization.” Chinese courts rarely award damages explicitly on this basis. Yet, men’s claims to have legal rights to control women’s reproductive choices are common, despite having no legal basis in Chinese law. The persistence of such claims suggests that women’s access to abortion care is more regulated in China than academic and popular accounts have conveyed.

As China shifts toward encouraging rather than restricting births, traditional views of gender roles and the family increasingly align with the Party-state’s new pro-natalist policies. Courts may be an important venue for adjudicating reproductive rights and
enforcing such policies. From a comparative perspective, China also presents an important example of how abortion and gender are contested in a legal system in which constitutional rights play little role and the legal status of abortion appears to be settled. This demonstrates that resolving the legal status of abortion may not eliminate legal conflict, but rather open up new areas of legal contestation regarding reproductive rights. Men’s claims to control women’s reproductive choices in China suggest the need for scholars to place more attention on the role of private law litigation in contesting and restricting reproduction across legal systems, and the ways in which rights advocacy can serve both regressive and progressive goals, in both democratic and authoritarian systems alike.