Jurisdiction

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Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility. The term is also used to denote the geographical area or subject-matter to which such authority applies.

Jurisdiction draws its substance from public international law, conflict of laws, constitutional law and the powers of the Executive (government) and Legislature branches of government to allocate resources to best serve the needs of its native society.

Unlike state laws that emanate from the common law right of the states to legislate against many types of crime, the federal criminal law must have an appropriate jurisdictional basis to avoid constitutional challenge. The subsections of the Computer Fraud and Abuse Act reflect different jurisdictional bases.FN20

West Virginia is the only state to specifically define personal jurisdiction in a computer crime case. It provides that any person who violates any provision of a computer crime law, and in doing so, accesses, permits access to, causes access to or attempts to access a computer, computer network, computer data, computer resources, computer software or computer program, which is located in whole or in part, within West Virginia or passes through this state in transit, shall be subject to criminal prosecution and punishment in West Virginia and to the civil jurisdiction of the courts of this state.FN21

International Dimension

International laws and treaties provide agreements which nations agree to be bound to.

Political issue

Supranational organizations provide mechanisms whereby disputes between states may be resolved through arbitration or mediation. When a country is recognized as de jure, it is an acknowledgment by the other de jure nations that the country has sovereignty and the right to exist.

However, it is often at the discretion of each state whether to co-operate or participate. If a state does agree to participate in activities of the supranational bodies and accept decisions, the state is giving up its sovereign authority and thereby allocating power to these bodies.

Insofar as these bodies or nominated individuals may resolve disputes in a judicial or quasi-judicial fashion, or promote treaty obligations in the nature of laws, the power ceded to these bodies cumulatively represents its own jurisdiction. But no matter how powerful each body may appear to be, the extent to which any of the Legal judgments may be enforced, or proposed treaties and conventions may become or remain effective within the territorial boundaries of each nation is a political matter under the sovereign control of the relevant representative government(s) which, in a democratic context, will have electorates to satisfy.

International and municipal jurisdiction

The fact that international organizations, courts and tribunals have been created raises the difficult question of how to co-ordinate their activities with those of national courts. If the two sets of bodies do not have concurrent jurisdiction but, as in the case of the International Criminal Court (ICC), the relationship is expressly based on the principle of complementarity, i.e. the international court is subsidiary or complementary to national courts, the difficulty is avoided. But if the jurisdiction claimed is concurrent, or as in the case of International Criminal Tribunal for the former Yugoslavia (ICTY), the international tribunal is to prevail over national courts, the problems are more difficult to resolve politically.

The idea of universal jurisdiction is fundamental to the operation of global organizations such as the United Nations and the International Court of Justice (ICJ), which jointly assert the benefit of maintaining legal entities with jurisdiction over a wide range of matters of significance to states (the ICJ should not be confused with the ICC and this version of "universal jurisdiction" is not the same as that enacted in the War Crimes Law (Belgium) which is an assertion of extraterritorial jurisdiction that will fail to gain implementation in any other state under the standard provisions of public policy (law)). Under Article 34 Statute of the ICJ only states may be parties in cases before the Court and, under Article 36, the jurisdiction comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force. But, to invoke the jurisdiction in any given case, all the parties have to accept the prospective judgment as binding. This reduces the risk of wasting the Court's time.

Despite the safeguards built into the constitutions of most of these organizations, courts and tribunals, the concept of universal jurisdiction is controversial among those states which prefer unilateral to multilateral solutions through the use of executive or military authority, sometimes described as realpolitik-based diplomacy.

Within other international contexts, there are International organizations such as the World Trade Organization (WTO) that have socially and economically significant dispute resolution functions but, again, even though their jurisdiction may be invoked to hear the cases, the power to enforce their decisions is at the will of the states affected, save that the WTO is permitted to allow retaliatory action by successful states against those states found to be in breach of international trade law. At a regional level, groups of states can create political and legal bodies with sometimes complicated patchworks of overlapping provisions detailing the jurisdictional relationships between the member states and providing for some degree of harmonization between their national legislative and judicial functions, for example, the European Union and African Union both have the potential to become federated states although the political barriers to such unification in the face of entrenched nationalism will be very difficult to overcome. Each such group may form transnational institutions with declared legislative or judicial powers. For example, in Europe, the European Court of Justice has been given jurisdiction as the ultimate appellate court to the member states on issues of European law. This jurisdiction is entrenched and its authority could only be denied by a member state if that member State asserts its sovereignty and withdraws from the union.

International and municipal law

The standard treaties and conventions leave the issue of implementation to each state, i.e. there is no general rule in international law that treaties have direct effect in municipal law, but some states, by virtue of their membership of supranational bodies, allow the direct incorporation of rights or enact legislation to honor their international commitments. Hence, citizens in those states can invoke the jurisdiction of local courts to enforce rights granted under international law wherever there is incorporation. If there is no direct effect or legislation, there are two theories to justify the courts incorporating international into municipal law:

  • Monism
This theory characterizes international and municipal law as a single legal system with municipal law subordinate to international law. Hence, in the Netherlands, all treaties and the orders of international organizations are effective without any action being required to convert international into municipal law. This has an interesting consequence because treaties that limit or extend the powers of the Dutch government are automatically considered a part of their constitutional law, for example, the European Convention for the Protection of Human Rights and Fundamental Freedoms and the International Covenant on Civil and Political Rights. In states adopting this theory, the local courts automatically accept jurisdiction to adjudicate on lawsuits relying on international law principles.
  • Dualism
This theory regards international and municipal law as separate systems so that the municipal courts can only apply international law either when it has been incorporated into municipal law or when the courts incorporate international law on their own motion. In the United Kingdom, for example, a treaty is not effective until it has been incorporated at which time it becomes enforceable in the courts by any private citizen, where appropriate, even against the UK Government. Otherwise the courts have a discretion to apply international law where it does not conflict with statute or the common law. The constitutional principle of parliamentary supremacy permits the legislature to enact any law inconsistent with any international treaty obligations even though the government is a signatory to those treaties.

In the United States, the Supremacy Clause of the United States Constitution makes all treaties that have been ratified under the authority of the United States and customary international law, …the "Supreme Law of the Land" (U.S. Const.art. VI Cl. 2) and, as such, the law of the land is binding on the federal government as well as on state and local governments. According to the Supreme Court of the United States, the treaty power authorizes United States Congress to legislate under the Necessary and Proper Clause in areas beyond those specifically conferred on Congress (Missouri v. Holland, 252 U.S. 416 (1920)).

The jurisdiction between and within states

This concerns the relationships both between courts in different jurisdictions, and between courts within the same jurisdiction. The usual legal doctrine under which questions of jurisdiction are decided is termed forum non conveniens.

International

To deal with the issue of forum shopping, states are urged to adopt more positive rules on conflict of laws. The Hague Conference on Private International Law and other international bodies have made recommendations on jurisdictional matters, but litigants with the encouragement of lawyers on a contingent fee continue to shop for forums.

Supranational

At a supranational level, countries have adopted a range of treaty and convention obligations to relate the right of individual litigants to invoke the jurisdiction of state courts and to enforce the judgments obtained. For example, the member states of the European Economic Community signed the Brussels Regime in 1968 and, subject to amendments as new states joined, it represents the default law for all twenty-seven Member States of what is now termed the European Union on the relationships between the courts in the different countries. In addition, the Brussels Regime (1988) binds the European Union and the European Free Trade Association.

In effect from 1 March, 2002, all the member states of the EU except Denmark accepted Brussels Regime, which makes major changes to the Brussels Convention and is direct effect in the member states. In some legal areas, at least, the CACA enforcement of foreign judgments is now more straightforward. At a state level, the traditional rules still determine jurisdiction over persons who are not domicile (law) or habitually resident in the European Union or the Lugano area.

National

Many nations are subdivided into states and provinces (i.e. a state (subnational)). Federation (as can be found in States and territories of Australia, States of Brazi, States and territories of India, States of Mexico and the U.S. State) and these subunits will exercise jurisdiction through the court systems as defined by the executives and legislatures.

When the jurisdictions of governmental entities overlap, one another for example, between a state and the federation to which it belongs their jurisdiction is shared or concurrent jurisdiction.

Otherwise, one government entity will have exclusive jurisdiction over the shared area. When jurisdiction is concurrent, one governmental entity may have supreme jurisdiction over the other entity if their laws conflict. If the executive or legislative powers within the jurisdiction are not restricted or restricted only by a number of limited restrictions, these government branches have plenary power such as a national police power. Otherwise, an enabling act grants only limited or enumerated powers.

The problem of forum shopping also applies as between federal and state courts.

United States

The primary distinctions between areas of jurisdiction are Codification (law) at a national level. As a common law system, jurisdiction is conceptually divided between jurisdiction over the subject-matter jurisdiction of a case and jurisdiction over the person of the litigants. (See personal jurisdiction.) Sometimes a court may exercise jurisdiction over property located within the perimeter of its powers without regard to personal jurisdiction over the litigants; this is called jurisdiction in rem.

A court whose subject-matter jurisdiction is limited to certain types of controversies (for example, suits in admiralty law or suits where the monetary amount sought is less than a specified sum) is sometimes referred to as a court of special jurisdiction or court of limited jurisdiction.

A court whose subject-matter is not limited to certain types of controversy is referred to as a court of general jurisdiction. In the U.S. states, each state has courts of general jurisdiction; most states also have some courts of limited jurisdiction. Federal courts (those operated by the Federal government of the United States) are courts of limited jurisdiction. Federal jurisdiction (United States) is divided into federal question jurisdiction and diversity jurisdiction. The United States district courts may hear only cases arising under federal law and treaties, cases involving ambassadors, admiralty cases, controversies between states or between a state and citizens of another state, lawsuits involving citizens of different states, and against foreign states and citizens.

Certain courts, particularly the United States Supreme Court and most state supreme courts, have discretionary jurisdiction, meaning that they can choose which cases to hear from among all the cases presented on appeal. Such courts generally only choose to hear cases that would settle important and controversial points of law. Though these courts have discretion to deny cases they otherwise could adjudicate, no court has the discretion to hear a case that falls outside of its subject-matter jurisdiction.

It is also necessary to distinguish between original jurisdiction and appellate jurisdiction. A court of original jurisdiction has the power to hear cases as they are first initiated by a plaintiff, while a court of appellate jurisdiction may only hear an action after the court of original jurisdiction (or a lower appellate court) has heard the matter. For example, in United States federal courts, the United States district courts have original jurisdiction over a number of different matters (as mentioned above), and the United States court of appeals have appellate jurisdiction over matters appealed from the district courts. The U.S. Supreme Court, in turn, has appellate jurisdiction (of a discretionary nature) over the Courts of Appeals, as well as the state supreme courts, by means of writ of certiorari.

However, in a special class of cases, the U.S. Supreme Court has the power to exercise original jurisdiction. The Supreme court has original and exclusive jurisdiction over controversies between two or more states, and original (but non-exclusive) jurisdiction over cases involving officials of foreign states, controversies between the Federal government of the United States and a state, actions by a state against the citizens of another state or foreign country.

The word "jurisdiction" is also used, especially in informal writing, to refer to a State (country subdivision) or political subdivision generally, or to its government, rather than to its legal authority.

Cumulative Supplement

Cases:

Individual who, while residing in Russia, gained root access to business's computers in Connecticut obtained access to business's intangible property, for purposes of Computer Fraud and Abuse Act (CFAA), in Connecticut, even if data was moved from Connecticut computer to computer located in Russia, and thus federal court in Connecticut had subject matter jurisdiction over individual's prosecution. 18 U.S.C.A. § 1030(a)(4). U.S. v. Ivanov, 175 F. Supp. 2d 367 (D. Conn. 2001); West's Key Number Digest, Telecommunications Key Symbol461.15.

The transmission of photographs by means of the Internet is tantamount to moving photographs across state lines and thus constitutes transportation in interstate commerce. U.S. v. Albert, 195 F. Supp. 2d 267 (D. Mass. 2002); West's Key Number Digest, Commerce Key Symbol59.

Nonresident spammer: Exercise of specific personal jurisdiction in Virginia over nonresident defendants which allegedly transmitted millions of unsolicited bulk e-mails (UBEs or spam) to and through internet service provider's (ISP) servers in Virginia did not violate due process; defendants reasonably should have expected to be haled into court in Virginia for deliberately exploiting ISP's e-mail servers for pecuniary gain while trespassing on ISP's property, the causes of action under Virginia Computer Crimes Act, the Federal Computer Fraud and Abuse Act, as well as common law trespass to chattel and conspiracy arose from defendants' activities in Virginia, and defendants' actions had a substantial enough connection with ISP and Virginia to make the exercise of personal jurisdiction over defendants constitutionally reasonable. U.S.C.A. Const.Amend. 14; 18 U.S.C.A. §§ 1030 et seq.; West's V.C.A. §§ 18.2 to 152.2 et seq. Verizon Online Services, Inc. v. Ralsky, 203 F. Supp. 2d 601 (E.D. Va. 2002); West's Key Number Digest, Constitutional Law Key Symbol305(5).

Wire Act, Travel Act and Wagering Paraphernalia Act all apply to operation of an Internet casino licensed by a foreign government, despite the fact that the betting instructions are transmitted from outside the United States over the Internet. 18 U.S.C.A. §§ 1084(a), 18 U.S.C.A. §§ 1952, 1953(a). People ex rel. Vacco v. World Interactive Gaming Corp., 714 N.Y.S.2d 844 (Sup 1999); West's Key Number Digest, Commerce Key Symbol82.10.

Foreign corporation's New York activities were sufficient to meet the minimum contacts requirement for personal jurisdiction, where corporation worked from New York in conjunction with another New York-based company to design the graphics for an Internet gambling casino, downloaded, viewed, and edited Internet casino website from its New York headquarters, and engaged in advertising campaign all over the country to induce people to visit website and gamble, knowing that the ads were reaching thousands of New Yorkers. U.S.C.A. Const.Amend. 14. People ex rel. Vacco v. World Interactive Gaming Corp., 714 N.Y.S.2d 844 (Sup 1999); West's Key Number Digest, Corporations Key Symbol665(1).

Foreign corporation and its Antiguan subsidiary violated both Wire Act and Travel Act by establishing Internet gambling site in Antigua; Internet site created a virtual casino within the user's computer terminal, and by hosting the casino and exchanging betting information with the user, an illegal communication in violation of the Wire Act and the Travel Act occurred. 18 U.S.C.A. §§ 1084(a), 1952. People ex rel. Vacco v. World Interactive Gaming Corp., 714 N.Y.S.2d 844 (Sup 1999); West's Key Number Digest, Commerce Key Symbol82.10.

See also

External links