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Why Is Historical Context Important for Understanding How Jurisdictional Issues Have Created American Indian Over-Representation in the Criminal Justice System?

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It is well settled that jurisdiction' and the merits of a case are separate matters. The Supreme Court has explained it in the following way: Jurisdiction is power. In its absence, the court can do nothing but dismiss the case. Without jurisdiction, the court cannot proceed to judgment on the merits; if it does, the result is coram non judice-a nullity. Conversely, if the court possesses jurisdiction, its judgment on the merits will be binding even if the court has reached the wrong result by way of seriously flawed process.

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In the U.S., the Due Process clause of the Constitution's Fourteenth Amendment sets the outermost limits of personal jurisdiction. If a party has substantial systematic and continuous contacts with the forum, a court may exercise jurisdiction over a party for any dispute, even one arising out of conduct unrelated to the forum. This is known as general jurisdiction. For example, a corporation or person can always be sued in its state of residence or citizenship or its principal place of business, regardless of whether or not the claim arose there. If a party is not present in the state or does not have systematic and continuous contacts with the state, courts may exercise jurisdiction over a party for causes of action arising out of his contacts with the state, or arising out of activities taking place outside the state expressly intended to cause an effect within the state. This "effects" test is described from the American Law Institute's Restatement (Second) of Conflict of Laws 37 (1971), which provides: "A state has power to exercise judicial jurisdiction over an individual who causes effects in the state by an act done elsewhere with respect to any cause of action arising from these effects unless the nature of the effects and of the individual's relationship to the state make the exercise of such jurisdiction unreasonable." To do this, the court must look to the state's "long-arm" statute, which sets the parameters for the state's exercise of its constitutional power to govern conduct by non-citizens (including both Americans and foreigners)

Long-arm statutes vary widely from state to state. For example, Arizona grants the broadest possible freedom to its courts: "Arizona will exert personal jurisdiction over a nonresident litigant to the maximum extent allowed by the federal constitution." New York, on the other hand, gives a more restricted and specific charge to its courts with its statute, which allows personal jurisdiction over those who transact business or commit a tortious act within the state of New York, and over those who commit an act outside the state that could reasonably be expected to have a tortious effect within New York. The Federal courts have the equivalent of a long-arm statute of their own, in Federal Rule of Civil Procedure 4(k) (Rule 4(k)), which provides three basic grants of jurisdiction. First, it authorizes federal courts to "borrow" the long-arm statute of the state in which the federal court is located. Second, Rule 4(k) authorizes federal courts to exercise grants of personal jurisdiction contained in federal statutes, such as the federal securities and antitrust law, which have their own jurisdiction provisions. And third, Rule 4(k)(2) grants long-arm jurisdiction in an international context, within the boundaries of the Constitution, over parties to cases arising under federal law who are not subject to the jurisdiction of any particular state. The concept of being able to have minimum contacts with the United States as a whole has profound implications for the Internet and international jurisdiction. Users all over the world, without establishing contacts in a particular state, could establish contacts with the entire country with nearly every foray into cyberspace.

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Enforcement Jurisdiction is applicable only with respect to people, belongings, or behaviors. The connection between the two forms of laws is comprehensible. A state cannot implement enforcement jurisdiction unless it subscribes to prescriptive jurisdiction (Brownlie 2008, p. 38). A good example that elucidates this connection is the Canadian Criminal code, which states that the state can exercise authority over any individual within Canada. An individual can be impeached whether in a foreign state or in his own country as long as he/she committed an offence. Judges Higgins and Kooijmans categorize this type of jurisdiction accurately. Prosecuting an individual present in the state is termed as ‘in personam’

Prosecution of an individual who sought refuge to another state is termed as ‘in absentia’ (O’Keefe 2004, p. 755). The decision to implement international law uniformly is meant to bring peace and tranquility in the global society. In case a state would wish to prosecute its citizen abroad, it has to issue an arrest warrant to the foreign state and urge the same state to assist in arresting the culprit. It is therefore evident that the power to prescribe and the power to enforce are not compatible at all (O’Keefe 2004, p. 740).

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On the whole, jurisdiction, in law, the authority of a court to hear and determine cases. This authority is constitutionally based. Examples of judicial jurisdiction are: appellate jurisdiction, in which a superior court has power to correct legal errors made in a lower court; concurrent jurisdiction, in which a suit might be brought to any of two or more courts; and federal jurisdiction (as opposed, for example, to state jurisdiction)

A court may also have authority to operate within a certain territory.

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Brownlie, P 2008, Principles of Public International Law, 7th edn, Oxford University Press, Oxford.

O’Keefe, R 2004, “Universal Jurisdiction, clarifying the basic concept”, Journal of International Criminal Justice, Vol. 2, no. 3.

Shaw, MN 2003, International Law, 5th edn, Cambridge University Press, Oxford.

Simma, B & Paulus LA 1999, “Symposium on method in International Law: The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View”, American Journal of International Law, Vol. 93, no. 302.

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