Este trabalho busca uma melhor compreensão do princípio do devido processo legal, positivado pelo art. 5º, LIV, da CRFB. A maior parte da literatura jurídica nacional que o aborda concentra seus esforços em proclamar a importância do princípio ou em buscar explicá-lo com base no seu desenvolvimento no direito constitucional norte-americano. Parece-nos, entretanto, que uma compreensão constitucionalmente adequada do princípio exige uma abordagem diversa, coincidente com a usual apenas no primeiro passo, que é a apreensão de seu funcionamento no ambiente jurídico de origem. Em não se tratando de um trabalho de direito comparado, outros passos devem se seguir. Assim, sua continuação consiste na pesquisa dos antecedentes doutrinários que conduziram ao transplante do due process of law para o direito constitucional brasileiro. Depois, é necessário situá-lo no contexto da Constituição analítica de um Estado que se vincula à família do direito romano-germânico. E, por fim, verificar como o princípio tem sido aplicado na prática jurídica, particularmente pelo STF, tribunal que dá a última palavra em matéria de interpretação constitucional. / This thesis aims to reach a better understanding of the due process of law principle established in the Brazilian Federal Constitution, art. 5º, LIV. Most of brazilian juridical literature on the theme concentrates its efforts on proclaiming the importance of the principle or in trying to provide an explanation on the basis of north-american constitutional experience. But we don’t think any of these approaches are able to provide a constitutionally sound understanding of the principle. We propose a different approach, that also starts by investigating the north-american constitutional experience but goes further. It continues by researching the brazilian juridical literature that dealt with due process of law before the framing of Brazilian Federal Constitution. Next step is to set up the principle in the body of the analytical Constitution of a State which follows the roman-germanic law tradition. Last, but not least, the study examines the way due process of law has been used in juridical practice. We draw particular attention to brazilian Supreme Court’s decisions on that matter, because they state the last and highest constitutional interpretation.

Este trabalho busca uma melhor compreensão do princípio do devido processo legal, positivado pelo art. 5º, LIV, da CRFB. A maior parte da literatura jurídica nacional que o aborda concentra seus esforços em proclamar a importância do princípio ou em buscar explicá-lo com base no seu desenvolvimento no direito constitucional norte-americano. Parece-nos, entretanto, que uma compreensão constitucionalmente adequada do princípio exige uma abordagem diversa, coincidente com a usual apenas no primeiro passo, que é a apreensão de seu funcionamento no ambiente jurídico de origem. Em não se tratando de um trabalho de direito comparado, outros passos devem se seguir. Assim, sua continuação consiste na pesquisa dos antecedentes doutrinários que conduziram ao transplante do due process of law para o direito constitucional brasileiro. Depois, é necessário situá-lo no contexto da Constituição analítica de um Estado que se vincula à família do direito romano-germânico. E, por fim, verificar como o princípio tem sido aplicado na prática jurídica, particularmente pelo STF, tribunal que dá a última palavra em matéria de interpretação constitucional. / This thesis aims to reach a better understanding of the due process of law principle established in the Brazilian Federal Constitution, art. 5º, LIV. Most of brazilian juridical literature on the theme concentrates its efforts on proclaiming the importance of the principle or in trying to provide an explanation on the basis of north-american constitutional experience. But we don’t think any of these approaches are able to provide a constitutionally sound understanding of the principle. We propose a different approach, that also starts by investigating the north-american constitutional experience but goes further. It continues by researching the brazilian juridical literature that dealt with due process of law before the framing of Brazilian Federal Constitution. Next step is to set up the principle in the body of the analytical Constitution of a State which follows the roman-germanic law tradition. Last, but not least, the study examines the way due process of law has been used in juridical practice. We draw particular attention to brazilian Supreme Court’s decisions on that matter, because they state the last and highest constitutional interpretation.

Este trabalho busca uma melhor compreensão do princípio do devido processo legal, positivado pelo art. 5º, LIV, da CRFB. A maior parte da literatura jurídica nacional que o aborda concentra seus esforços em proclamar a importância do princípio ou em buscar explicá-lo com base no seu desenvolvimento no direito constitucional norte-americano. Parece-nos, entretanto, que uma compreensão constitucionalmente adequada do princípio exige uma abordagem diversa, coincidente com a usual apenas no primeiro passo, que é a apreensão de seu funcionamento no ambiente jurídico de origem. Em não se tratando de um trabalho de direito comparado, outros passos devem se seguir. Assim, sua continuação consiste na pesquisa dos antecedentes doutrinários que conduziram ao transplante do due process of law para o direito constitucional brasileiro. Depois, é necessário situá-lo no contexto da Constituição analítica de um Estado que se vincula à família do direito romano-germânico. E, por fim, verificar como o princípio tem sido aplicado na prática jurídica, particularmente pelo STF, tribunal que dá a última palavra em matéria de interpretação constitucional. / This thesis aims to reach a better understanding of the due process of law principle established in the Brazilian Federal Constitution, art. 5º, LIV. Most of brazilian juridical literature on the theme concentrates its efforts on proclaiming the importance of the principle or in trying to provide an explanation on the basis of north-american constitutional experience. But we don’t think any of these approaches are able to provide a constitutionally sound understanding of the principle. We propose a different approach, that also starts by investigating the north-american constitutional experience but goes further. It continues by researching the brazilian juridical literature that dealt with due process of law before the framing of Brazilian Federal Constitution. Next step is to set up the principle in the body of the analytical Constitution of a State which follows the roman-germanic law tradition. Last, but not least, the study examines the way due process of law has been used in juridical practice. We draw particular attention to brazilian Supreme Court’s decisions on that matter, because they state the last and highest constitutional interpretation.

Adaptive governance must work "on the ground," that is, it must operate through structures and procedures that the people it governs perceive to be legitimate and fair, as well as incorporating processes and substantive goals that are effective in allowing social-ecological systems (SESs) to adapt to climate change and other impacts. To address the continuing and accelerating alterations that climate change is bringing to SESs, adaptive governance generally will require more flexibility than prior governance institutions have often allowed. However, to function as good governance, adaptive governance must pay real attention to the problem of how to balance this increased need for flexibility with continuing governance stability so that it can foster adaptation to change without being perceived or experienced as perpetually destabilizing, disruptive, and unfair. Flexibility and stability serve different purposes in governance, and a variety of tools exist to strike different balances between them while still preserving the governance institution's legitimacy among the people governed. After reviewing those purposes and the implications of climate change for environmental governance, we examine psychological insights into the structuring of adaptive governance and the variety of legal tools available to incorporate those insights into adaptive governance regimes. Because the substantive goals of governance systems will differ among specific systems, we do not purport to comment on what the normative or substantive goals of law should be. Instead, we conclude that attention to process and procedure (including participation), as well as increased use of substantive standards (instead of rules), may allow an increased level of substantive flexibility to operate with legitimacy and fairness, providing the requisite levels of psychological, social, and economic stability needed for communities to adapt successfully to the Anthropocene.

Iura novit curia in international arbitration Abstract The thesis deals with the application of the iura novit curia principle in international arbitration. At the outset, it explains the function of the principle in the civil law tradition of court procedure and the potential issues arising out of its application in arbitration, in particular with regards to the limits of arbitral power and due process. Since the rules on conduct of arbitral proceedings provide no specific guidance in this respect, the ultimate limits of the use of the principle in arbitration are set by the national courts in proceedings on annulment and recognition of arbitral awards. The thesis attempts to delineate these limits on the case law of a few chosen countries and observe the potential similarities with their civil procedure. Despite the differences in the legal traditions in the respective countries, the analysis of the case law finds a number of common features in the approaches to the application of the iura novit curia principle in international arbitration across the chosen countries. When assessing the powers of the arbitrator to apply the law as he deems appropriate, the courts seem to share similar concerns about the observation of the parties right to be heard. Despite its somewhatʼ firmer standing in investment...

Substantive due process has been of great importance to the decision of many Supreme Court cases since its beginning. Since its inception in Lochner v. New York,[1] the Supreme Court has used the theory of substantive due process in order to grant numerous rights to individuals and this theory has been interpreted differently by each Justice that has crossed its path. This thesis will explain how recent changes in the composition of the United States Supreme Court make it likely that judicial opinions involving substantive due process will be decided differently. The United States Supreme Court’s future substantive due process jurisprudence will narrow the reach of Substantive Due Process. Justices and their past opinions as well as statements on their analysis of substantive due process will be scrutinized in order to come to this conclusion. This thesis will examine the evolution of substantive due process as well as how each Justice’s distinct views affect it within the Supreme Court’s composition. By determining how the Supreme Court is most likely to proceed and examining the rights already granted through substantive due process this thesis will come to a determination on whether the protection of the rights granted to individuals would be maintained. [1] Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905)

Although the U.S. Supreme Court reached the correct result in Obergefell v. Hodges, its substantive due process and equal protection analyses were wrong. First, the majority opinion discusses the concept of equal dignity, which has no legal definition nor has it been used in prior Supreme Court jurisprudence. The majority made another mistake in using substantive due process when Obergefell could have been decided on the basis of equal protection alone. Despite these mistakes, there were parts of the opinion the Court did decide correctly. The end result -- that same-sex couples have the right to marry -- was the correct outcome. This is based on the fact that the Supreme Court has defined marriage as a fundamental right and banning marriage to same sex couples would be discrimination on the part of the government. While the majority was also correct in overruling the prior method of defining fundamental rights set forth by Glucksberg, the Court should not have made defining fundamental rights so unlimited in scope. Justice Kennedy removed the prior standard for defining fundamental rights without creating a new standard for judges to follow in the future, leaving the future of substantive due process cases uncertain. This neglect to implement a new standard to replace Glucksberg’s standard leaves substantive due process open to judicial interpretation. The Court also came close, but still neglected, to create a quasi-suspect class on the basis of sexual orientation. The Court should have created standards that were not so overly broad for future decisions regarding substantive due process, and it should have classified sexual orientation as a quasi-suspect class

Mediation of special education disputes varies between states. This study addressed the ways in which the practices and methods of evaluation differ between five states: Hawaii, Iowa, Massachusetts, Minnesota, and New Jersey. This includes such factors as provision of services, alternative dispute resolution procedures, mediation style, and mediator training. Data were examined regarding mediation rates, rates of agreement, and the types of students/issues involved. The research focused on the ways the states used participant feedback to assess their own performance. Extant data from two states, Iowa and Minnesota, were examined to determine which factors impacted overall evaluation of the mediation process and satisfaction with the outcome. States were similar regarding the provision of services, although the agency overseeing mediation differed. Methods of alternative dispute resolution varied greatly, and were strongly tied to the perspective of each state. Large differences were found between states relating to mediation usage and agreement rates. Content analyses were conducted on the survey instruments. The greatest number of questions addressed the impact on the relationship between participants, followed by fairness of the process, and then skills of the mediator. Overall, participants were satisfied with the mediation process. Satisfaction with the outcome was moderate to high, but diminished over time. There were no significant differences in satisfaction ratings between parents and school officials in either state, but individuals who reached a resolution were most satisfied with the mediation process. The ability to discuss and understand the important issues was the largest predictor of satisfaction. Improved communication in the long term was strongly related to satisfaction, but improved communication within the mediation session was not. Additionally, Iowa parents felt more satisfied when they were better able to understand their own perspective and their views were considered before any solutions or agreements were made. Iowa school officials were more satisfied when they were better able to understand the parents' perspective. In Minnesota, an improved relationship with the other party predicted greater satisfaction with the mediation outcome for the school officials, but not parents. Mediator skills and impartiality were important factors for the school officials only. / School Psychology

Research studies and commentaries have analyzed the formal mechanisms associated with special education conflict such as the use of mediation and impartial hearings to resolve disputes. However, specific information regarding the management of special education conflict at the school level is in shorter supply. This study addresses special education conflicts between school personnel and parents of children with disabilities to understand better how these conflicts might be managed more successfully. The purpose of this study was to develop recommendations and implications for managing special education conflicts at the school building level. Multi-vocal synthesis methods were used to collect and to analyze data in an iterative process incorporating results from a content analysis of previous research with analysis of interviews with stakeholders having a vested interest in managing special education conflict at the school level (Gersten & Baker, 2000; Ogawa & Malen, 1992). Findings suggest that providing parents with evidence that their child’s needs are being met would pave the way for successful school-based special education conflict management. In conclusion, the participants indicated that conflicts could be avoided or managed successfully if school personnel could provide parents with clear evidence (a) that their child’s IEP was being followed in the classroom; (b) that accommodations were provided; (c) that staff were knowledgeable about providing services in an inclusive environment; (d) that administrators were knowledgeable about special education compliance issues; and (e) that staff would be held accountable for providing an appropriate education and for demonstrating trustworthy behavior. / Ed. D.

Although some literature exists that examines special education due process practices, the studies have been done in different ways and consequently result in different outcomes. Therefore the purpose of this study was to examine the one-and two-tier due process system in the United States. The study focused on national practices of due process, issues disputed, and disability categories involved in special education conflicts. A survey of the 50 state directors of special education and the director from the District of Columbia was conducted to obtain information concerning due process hearings and dispute resolution for the time period 1986-1987 to 1990-1991. Records of all reported special education litigation for the same time period were obtained from the Law Offices of Charles L. Weatherly in Atlanta, Georgia. Data from the states providing due process information were analyzed with a t-test. The remaining data, both from the survey instrument and litigation records, were analyzed using qualitative analysis, frequency counts, and percentages of the raw data. Findings of the study reveal a slight national trend toward a one-tier due process system for special education dispute resolution. Furthermore, placement remains the most frequently litigated issue, and specific learning disability the most frequently involved category in special education disputes. Finally, there is no predictable relationship between the size of the disability population and the volume of special education litigation. The results of the study evidenced the need for continued research of national practices of due process. Additional research is also needed in the areas of mediation, the costs of due process hearings, and hearing officer's authorization to award attorney fees. / Ed. D.