This research was focused on analyzing and interpreting the U.S. Supreme Court’s holdings in several cases that directly affect the juvenile justice system and the sentencing process of youth offenders. Drawing primarily from Miller v. Alabama (2012) and the Supreme Court’s ‘Miller doctrine’, this thesis goes against the viewpoints of many policymakers, arguing that life without parole and mandatory adult sentence minimums for youth offenders are ‘cruel and unusual’ punishments that are unconstitutional as sentencing options for a juvenile offender. In order to arrive at the conclusion that the aforementioned punishments violate a youth’s 8th Amendment right to a proportional sentence, this thesis drew from previously unavailable research in modern neuroscience that substantiates the Supreme Court’s claim that “Children are different” on a developmental basis and thus, can never possess the same degree of culpability for a crime as an adult offender. If one accepts the conclusions made in this thesis, it is a matter only of when, not if, the sentencing process for youth offenders experiences a paradigm shift on a legislative level, and becomes a much more efficient and successful process where rehabilitation becomes the foremost goal. If science and developmental psychology support the Supreme Court’s assertion that nearly all juvenile crime-activity is the result of “transient immaturity,” then why are 16 year olds being sentenced to life without the possibility of parole? This thesis explores the possible answers to this question, and anticipates the possible impediments to national changes in juvenile sentencing procedures.

Over the last decade, Supreme Court copyright jurisprudence has undergone dramatic changes, concurrent with governmental copyright reform initiatives. Both the Supreme Court and the government have used the popular but unhelpful language of “balance” to explain and justify their initiatives. Unfortunately, there is no consensus as to what constitutes an appropriate balance or how to facilitate this and the two initiatives have been moving in opposite directions. The changes in the Supreme Court have altered the purpose and application of copyright law in a way that favours user access to works. Conversely, had they passed, government amendments would have increased owner rights and incentives, moving in a protectionist direction and restricting access and use. This would have the potential to impede future innovation. This thesis suggests that balance is an inadequate metaphor, examines the differences between the Supreme Court and governmental conception of “balance” and proposes reasons for these differences.

Over the last decade, Supreme Court copyright jurisprudence has undergone dramatic changes, concurrent with governmental copyright reform initiatives. Both the Supreme Court and the government have used the popular but unhelpful language of “balance” to explain and justify their initiatives. Unfortunately, there is no consensus as to what constitutes an appropriate balance or how to facilitate this and the two initiatives have been moving in opposite directions. The changes in the Supreme Court have altered the purpose and application of copyright law in a way that favours user access to works. Conversely, had they passed, government amendments would have increased owner rights and incentives, moving in a protectionist direction and restricting access and use. This would have the potential to impede future innovation. This thesis suggests that balance is an inadequate metaphor, examines the differences between the Supreme Court and governmental conception of “balance” and proposes reasons for these differences.

Submitted by André Rosilho (arosilho20@gmail.com) on 2011-12-02T13:49:32Z No. of bitstreams: 1 20111018 - Versão Final Dissertação (depósito) .pdf: 1888418 bytes, checksum: a256425fdfd27ab500cc6c3bad20108d (MD5) / Rejected by Gisele Isaura Hannickel (gisele.hannickel@fgv.br), reason: Prezado André, A 4ª folha deve conter a composição da banca. Favor verificar o exemplo no item de normalização de trabalhos, disponível no site da biblioteca. att, Secretaria de Registro. on 2011-12-02T14:57:26Z (GMT) / Submitted by André Rosilho (arosilho20@gmail.com) on 2011-12-02T19:05:49Z No. of bitstreams: 1 20111018 - Versão Final Dissertação (depósito) .pdf: 1888910 bytes, checksum: 1ce46540d98c00fada82782bea68259f (MD5) / Rejected by Gisele Isaura Hannickel (gisele.hannickel@fgv.br), reason: Prezado André, Na 4ª folha falta o seu nome no cabeçalho, logo abaixo o título de sua dissertação e na sequencia o texto: "Dissertação apresentada à Escola de Direito de São Paulo da Fundação Getulio Vargas, como requisito para obtenção do título de Mestre em Direito" Favor verificar exemplo no link da Biblioteca, serviços, manuais: normalização de trabalhos acadêmicos. Att, Secretaria de Registro on 2011-12-05T11:03:49Z (GMT) / Submitted by André Rosilho (arosilho20@gmail.com) on 2011-12-05T17:12:07Z No. of bitstreams: 1 20111018 - Versão Final Dissertação (depósito) .pdf: 1884801 bytes, checksum: 9d03b7ba55c309814844a512130afeeb (MD5) / Approved for entry into archive by Gisele Isaura Hannickel (gisele.hannickel@fgv.br) on 2011-12-06T14:34:36Z (GMT) No. of bitstreams: 1 20111018 - Versão Final Dissertação (depósito) .pdf: 1884801 bytes, checksum: 9d03b7ba55c309814844a512130afeeb (MD5) / Made available in DSpace on 2011-12-06T15:04:32Z (GMT). No. of bitstreams: 1 20111018 - Versão Final Dissertação (depósito) .pdf: 1884801 bytes, checksum: 9d03b7ba55c309814844a512130afeeb (MD5) Previous issue date: 2011-11-01 / The research aims to understand the characteristics and objectives of the current legal model of public procurement in Brazil. It wants to analyze the course and the context of federal legislative reforms undertaken on the subject. The research identifies that up to the enactment of Law nº 8.666/93, the institute of public bidding was characterized by a process of increasing legalization focused, on one hand, in the expansion of the duty to bid and, on the other hand, the unification of the bidding system in the public administration. It also noted that there was a trend whose apex was reached when Law nº 8666/93 was passed, aimed at restricting the discretion of the public administrator to decide, in specific cases, the best way to bid. Also notes that special interest groups – the average emerging contractors – were able to capture the legalization process of the procurement system, and influence it in their favor. Finally, it showed that the general legislation on public procurement have been built on a model of law excessively standardized and rigid, that was responsible, directly and indirectly, to the fragmentation of the procurement system. / A pesquisa tem o objetivo de compreender as características e objetivos do atual modelo legal das licitações públicas no Brasil. Para isso, propõe a análise do percurso e do contexto das reformas legislativas federais realizadas sobre o tema. A pesquisa identifica que até a edição da Lei nº 8.666/93 o instituto das licitações públicas foi marcado por um processo de crescente legalização voltado, de um lado, à ampliação do dever de licitar e, do outro, à unificação do regime das licitações a que os entes da administração pública da União, dos Estados e dos Municípios estão sujeitos. Também constatou haver uma tendência, cujo ápice se atingiu com a edição da Lei nº 8.666/93, voltada à restrição da discricionariedade do administrador público para decidir, concretamente, a melhor forma de licitar. Verificou, ainda, que o processo de legalização das licitações resultante na Lei nº 8.666/93 foi capturado por grupos de interesses específicos – as médias empreiteiras emergentes – que foram capazes de influir em seu favor na modelagem das normas jurídicas. Por fim, demonstrou que o fato de a legislação geral sobre licitações públicas ter sido construída sobre um modelo legal excessivamente normatizado, rígido e procedimentalizado foi responsável, direta e indiretamente, pela fragmentação do sistema de licitações e contratos e pelo surgimento de um movimento de fuga da Lei nº 8.666/93.

HIV/AIDS continues to pose some of the most significant social, political and legislative challenges globally. This project explicates the text-mediated processes by which many HIV-related laws are becoming created transnationally though the use of omnibus HIV model laws. A model law is a particular kind of regulatory text with a set of relations of use. Model laws are designed to be taken, modified and used by stakeholders in the creation of state laws. Because they are already framed in legislative language, model laws are worded in ways that can be expeditiously activated and translated into state law. The problematic of this inquiry arises from the activities of a constellation of legislative actors including human rights lawyers, policy analysts, academics and activists who have worked to critique aspects of the United States Agency for International Development/Action for West Africa Region (USAID/AWARE) Model Law (2004) and subsequent state laws this text has inspired across West and Central Africa. I argue that mapping the origin and uptake of this omnibus guidance text is optimally achieved through a sustained analytic commentary on the institutional genre of “best practice”. Explicating the coordinating function of this textual genre is central to understanding the rapid spread of HIV/AIDS laws across at least 15 countries in West and Central African between 2005-2010. The work processes of legislative creation, challenge and reform under investigation demand an interrogation of complex ruling apparatuses regulated by text, talk and capital relations. The USAID/AWARE Model Law is rife with contestation: from its name, scope, funding source and process of development, dissemination and domestication to its legislative content and role in protecting or violating women’s rights and public health objectives. Many of the policy actors critiquing this USAID-funded initiative have been engaged in the development of alternative HIV-related model laws and the shaping of a global anti-criminalization discourse to respond to the increasing use of criminal law governance strategies to prosecute HIV-related sexual offenses and the rise in new HIV-specific criminal laws in and beyond sub-Saharan Africa. This study maps relations that rule, and makes processes of power understandable in terms of everyday transnational work activities organized by the language of law. My research method is informed by the critical research strategy of institutional ethnography. This complex legislative process was made visible through participant observation, archival research, textual analysis and informant interviews with national and international stakeholders. This has involved research in Canada, the United States, Switzerland, Austria, South Africa and Senegal (2010-2011). / Graduate

This thesis examines the validity of exclusionary clauses in medical contracts, more especially, hospital contracts in which the healthcare provider exonerates itself against edictal liability arising from the negligent conduct of its staff, resulting in the patient suffering damages. In assessing whether these types of clauses should be outlawed by our courts, this thesis attempts to synthesize six major traditional areas of law, namely, the law of delict, the law of contract, medical law and ethics, international and foreign law, statutory law and constitutional law into a legal conceptual framework relating specifically to exclusionary clauses in medical contracts in South Africa. This thesis highlights systemic inconsistencies with regard to the central issue, namely, whether these types of clauses are valid or not, especially, given the fact that the practice of exclusionary clauses or waivers in hospital contracts has hitherto traditionally been assessed within the framework of the law of contract. The alignment of the various pre-existing areas of statutory and common law with the Constitution highlights that an inter-disciplinary and purposive approach under the value-driven Constitution, brings about a less fragmented picture in assessing the validity of these types of clauses. This approach accords with the new solicitude of the executive, the judiciary, the legislature and academia to transform the South African legal system not only in terms of procedural law but also substantive law. This has resulted in the alignment with constitutional principles and the underlying values to test the validity of these types of clauses, alternatively, contracts. Whereas pre-constitutionally the assessment of disclaimers in hospital contracts was done against the stratum of antiquated principles, namely, freedom of contract and the sanctity of contract, ignoring values such as reasonableness, fairness and conscionability, post-constitutionally, because the values that underlie the Bill of Rights and which affects all spheres of law, including the law of contract, concepts such as fairness, equity, reasonableness should weigh heavily with the decision-maker. In this regard, broader medico-legal considerations, normative medical ethics and the common law principles of good faith, fairness and reasonableness play a fundamental role in the assessment of contractual provisions, including the practice of disclaimers or exclusionary clauses in hospital contracts. This thesis critically examines how these types of clauses or contracts ought to be adjudicated eventually against the background of such alignment. It concludes that the entering into a hospital contract, in which the patient exonerates a hospital and its staff from liability flowing from the hospital or its staff's negligence causing damages to the patient, would be inconsistent with the Constitution and invalid. In the old order in which traditional divisions of law have been encouraged, a fragmented approach resulted in legal in congruencies which, in turn, created turbulence and a lot of uncertainty. This approach is apposite to that which the new constitutionally based legal system, aims to achieve. The rights in the Bill of Rights which are interconnected and which influences all spheres of law, including contract law, offers a fairer basis upon which, the validity of contracts, or contractual provisions, can be measured than, the pure contract approach. In this regard, although contracts or contractual provisions in the past may have been unfair and unreasonable, the courts, however, refused to strike them down purely on this basis. The law of contract, as a legal vehicle for adjudicating the validity of exclusionary clauses or waivers in hospital contracts, is therefore not ideal. This is primarily due to the antiquated approach the South African courts have always taken in this area of law. The law of delict, statutory law and medical law, standing alone, also does not provide a satisfactory answer. What is needed is an integrated approach in which the traditional areas of law are united and wherein constitutional principles and values, give much guidance and direction. Alternatively, should the unification of the traditional areas of law not be possible in bringing about fair and equitable results, the introduction of legislative measures may very well be indicated. / Thesis (LLD)--University of Pretoria, 2009. / Public Law / unrestricted