bluuebunny/crossref_metadata_2025 huggingface dataset:
Unconscious processing in neglect
Authors: Berti Anna
Published: April 2012

This chapter outlines the evidence demonstrating the existence of unconscious processing of unperceived stimuli in neglect and related disorders, together with the evidence showing how awareness for contralesional stimuli is not an all-or-nothing phenomenon. Implicit processing and modulation of awareness is also discussed with reference to a theory that considers neglect as being due to a disturbance of space awareness. Evidence illustrates that the extraction of three-dimensional information from a real object is not sufficient to trigger a conscious representation of it. Moreover, the study of both extinction and neglect patients has demonstrated that the fate of the unreported stimuli is not necessarily that of being completely lost by the nervous system.
Encoding, representing, and estimating event frequencies: a multiple strategy perspective
Authors: Brown Norman R.
Published: April 2012

People use several formats to represent frequency information and they use several strategies to generate frequency judgements. These observations are at the core of an approach to event frequency called the Multiple Strategy Perspective (MSP). This chapter provides an overview of the MSP and a review of pertinent research methods and findings. The overview catalogues the common frequency formats, estimation strategies, and performance patterns. It also identifies a set of systemic relations which first links encoding factors and event properties to frequency representations, then links these frequency representations to strategy selection, and finally links strategy selection to estimation performance (i.e. speed, accuracy, and bias). Strategy selection and implication for basic and applied research are considered in the concluding sections of the chapter.
Effects of processing fluency on estimates of probability and frequency
Authors: Reber Rolf , Zupanek Natasha
Published: April 2012

People may apply multiple strategies for estimating frequency or probability of occurrence. One of them is the use of the availability heuristic, which is the ease of retrieving instances from memory. However, this kind of processing fluency often is confounded with an amount of recall. This chapter presents a new paradigm that helps to resolve this issue. In two experiments, participants were repeatedly exposed to two events; one could be processed more easily than the other. Objective probabilities of occurrence for the fluent event were 25%, 50%, and 75%. Participants had to judge probability (Experiment 1) or frequency (Experiment 2) of occurrence. In both experiments, estimates were biased by manipulated fluency of the event.
Problems of learning and memory: one or multiple memory systems?
Authors: WEISKRANTZ L.
Published: April 2012

Learning, and hence memory, is ubiquitous not only throughout the animal kingdom, but apparently throughout many regions of the brain. Is all learning reducible to a single common form? Neuropsychological dissociations suggest that the mammalian brain possesses a number of different and potentially independent memory systems, with different mechanisms and anatomical dispositions, some of which are neurally widely dispersed and others of which are narrowly organized. Among the types considered are: short-term memory; knowledge and skills; stable associative memory; event memory; and priming. As double or multiple dissociations do not lead to logically inevitable conclusions, it has been argued that an alternative to multiple memory systems is variable modes of processing. Multiple memory systems may possibly share some common cellular mechanisms, but such mechanisms do not define the separate properties at the systems level.
Song learning: the interface between behaviour and neuroethology
Authors: MARLER PETER
Published: April 2012

Research on behavioural development is closely associated with studies of the physiology of development. The two are mutually synergistic, and the synergism is well displayed in research on song learning in birds. This review of some of the characteristics of avian vocal learning as derived from behavioural studies, indicates lacunae in our knowledge about the ethology of song learning, and suggests how the comparative study of vocal development can pave the way for new insights into the underlying neurobiology.
Spatial memory in food-storing birds
Authors: SHETTLEWORTH SARA J.
Published: April 2012

In the wild, several species of birds among the parids (tits and chickadees) and corvids store food in scattered locations and find it again days or months later. The food storers that have been tested use memory to recovery their stores in the laboratory. The importance of memory to a food-storing way of life suggests that these birds possess an adaptive specialization of some aspect or aspects of memory. Recent work has focused on analysing how memory is involved in recovering stored food, discovering how this memory can be tested in tasks that do not involve food storing, and comparing the memory of storing birds with that of their non-storing relatives in a variety of tasks.
Cognition with and without awareness
Authors: Underwood Geoffrey , Bright James E. H.
Published: April 2012

This chapter discusses the issues involved in establishing an implicit/explicit distinction and the necessity of awareness for information processing. Most of the evidence reviewed in the chapter suggests that the recognition of simple stimuli can be achieved without attention and awareness, but this fact does not imply that attention serves no purpose or that awareness adds nothing to cognition. On the other hand, when we focus our attention, we are selectively aware of some parts of the environment while leaving out of other parts and these changes in perception can be observed in our behaviour. This chapter also explains that the difference between implicit and explicit memories has been used to describe performance in amnesic, hypnotic, anaesthetized, and normal subjects, and this confirms the evidence of remembering while devoid of awareness of memories. Memories that do not comprise conscious representations are not inevitably dormant. Awareness of an experience is neither a necessary consequence nor condition for cognition.
Development of visual motion processing
Authors: Wattam-Bell John R. B.
Published: April 2012

Motion is perhaps the most fundamental visual dimension. It provides one of the richest and least ambiguous sources of information about the contents and layout of the environment, and about the observer's own movement within it. Hence it is not surprising that, unlike other visual dimensions such as colour and stereopsis, motion sensitivity is apparently present in all visual systems, from the most primitive to the most advanced. From an evolutionary point of view, detection of relative motion is the primary method of segmenting the visual scene, and that object vision emerges in higher animals as an elaboration of this basic mechanism. This suggests that motion might play a fundamental role in the development of vision, and that motion sensitivity might be one of the first visual functions to appear. Full use of motion information requires sensitivity to speed and direction, and is it generally thought that the first stage of motion analysis consists of more-or-less local estimates of these basic quantities by directionally selective mechanisms. These low-level mechanisms provide the foundation for more global perceptual processes, and insight into their development provides an important first step towards a full understanding of the development of visual motion processing.
Issues in infant vision screening and assessment
Authors: Atkinson Janette
Published: April 2012

This chapter considers methods of infant vision testing applied in two practical contexts, screening and assessment. The demands of these two applications are quite different. Screening is the attempt to identify undetected vision problems, or their precursors, in the population as a whole. Screening has to be targeted on specific disorders for which there are clear benefits in early detection, and the methods must be appropriate, in terms of costs to the health care system and demands on families, for use with large numbers of children most of whom will turn out to be normal. Visual assessment deals with much smaller numbers of children who are already believed to have a problem with vision. The detailed nature of the problem in each case needs to be determined for purposes of diagnosis, clinical management, rehabilitation, and the understanding of the impact of any visual disability on everyday activities.
Striate cortex, extrastriate cortex, and colliculus: some new approaches
Authors: Braddick Oliver , Atkinson Janette , Hood Bruce
Published: April 2012

Many aspects of visual development over the first months of life can be understood in terms of visual function becoming increasingly dominated by cortical processes. More recent formulations have developed this idea in terms of cortical processes modulating continuing visual functions of subcortical structures and of differential development of distinct visual cortical streams and areas. One important source of evidence for visual cortical development is the development of capabilities that require the specific kinds of stimulus selectivity found in cortical neurons. These include selectivity for orientation, for directional motion selectivity, and binocular disparity. This chapter concentrates on three other lines of evidence; from the control of shifts in visual attention, from optokinetic responses in children with localized brain damage, and from sensitivity to ‘second-order’ stimuli that are presumed to require relatively elaborate cortical processing. These new kinds of evidence are consistent with the broad idea of increasing cortical dominance in the early months but also make clear that the developmental relationships between cortical and subcortical processing, and between cortical areas, are complex ones.
Development of binocularity and its sexual differentiation
Authors: Held Richard , Thorn Frank , Gwiazda Jane , Bauer Joseph
Published: April 2012

Several different testing procedures all failed to find any evidence for stereopsis prior to approximately six weeks of age, although infants are quite capable of making other sorts of visual discrimination at, and prior to, this age. The average age of onset of a selective response to binocular disparity is between twelve and fourteen weeks. Almost all infants have acquired it by six months of age. Following an abrupt onset—from absent when tested during one week to present during the next—of selective response to coarse disparity, stereo acuity rises rapidly. Several theories of the neuronal substrate of this process have been proposed and some have led to further insights into binocular development. However, to date, no significant sex differences have been found between sensitivities during the age of acquisition.
Extrastriate visual areas
Authors: Rolls Edmund T.
Published: April 2012

This chapter discusses the anatomical and functional continuation of the three parallel visual pathways in cortical areas beyond the striate cortex. These partially segregated visual streams are the magnocellular system, the parvocellular-interblob system, and the parvocellular-blob system. The findings indicate that visual attentional mechanisms allow these processing streams to interact and the attentional effects are implemented via top-down feedback parallel interactions.
Visual attentional mechanisms
Authors: Rolls Edmund T.
Published: April 2012

This chapter examines the classical psychophysical view of selective visual attention, and the physiological findings that suggest an alternative neurodynamical view based on the biased competition hypothesis. It discusses the computational models of visual attention, the biased competition hypothesis in single-cell studies, and the neuropsychology of attention. The chapter concludes that human neuroimaging experiments have extended the validity of the biased competition hypothesis from the neuronal level to the intermediate level of cortical areas, and suggests candidate areas from where the biasing signal may originate.
Fundamentals of cognitive rehabilitation
Authors: Mateer Catherine A.
Published: April 2012

This chapter describes the major conceptual approaches for working with individuals with acquired cognitive impairments, and provides guidelines for selecting effective intervention strategies. It briefly describes environmental interventions, implementation of compensatory devices, restorative approaches to improving attention, and the use of specialized instructional techniques. It also emphasizes the need to address the emotional needs of individuals and families that commonly arise as a function of living with persistent cognitive impairments.
The assessment of memory for memory rehabilitation
Authors: Bradley Veronica A. , Kapur Narinder , Evans Jonathan
Published: April 2012

This chapter discusses the assessment of memory as part of the process of memory rehabilitation in terms of practical considerations and a conceptual framework. It describes the sources of evidence with particular reference to formal tests which may be useful in this context, and offers some suggestions are as to the value of certain tests or other assessment procedures in answering frequently-asked questions in the rehabilitation setting. In the future, some tests may be administered through the Internet, or by means of a videophone, there is a need for memory tests specifically designed to monitor the effects of therapeutic intervention.
Can memory impairment be effectively treated?
Authors: Glisky Elizabeth L.
Published: April 2012

This chapter reviews evidence for the effectiveness of memory rehabilitation approaches that have focused on the treatment of memory impairment. Interventions targeting impairment have usually involved either the use of repetitive practice or the teaching of mnemonic strategies. Although patients with memory disorders have learned new information using these methods, generalization to materials and situations beyond the training context has seldom been found, and so there is little evidence that impairment has been reduced. Nevertheless, in the context of disability-focused treatments, there is some evidence that a general mnemonic skill can be acquired after considerable practice of functionally-relevant specific behaviors. Similarly, strategy training may be more effective when focused on real-world problems.
The effective treatment of memory-related disabilities
Authors: Wilson Barbara A
Published: April 2012

Everyday problems arising from organic memory impairment are the most handicapping for people with organic memory impairment and for their families. It is these problems that should be targeted in rehabilitation. Although there is little evidence that rehabilitation can restore lost memory functioning, there is considerable evidence that disabilities can be treated. This chapter presents evidence from a randomized control trial in which people were randomly allocated to a pager or to a waiting list. At a later stage, those with the pager were then monitored without the pager and those on the waiting list were given a pager. Significant improvements in remembering everyday targets only occurred once the pager had been received. It is also possible to improve the learning ability of memory impaired people through a teaching technique known as errorless learning.
Theories of frontal lobe executive function: clinical applications
Authors: Burgess Paul W. , Simons Jon S.
Published: April 2012

Many of the symptoms that are particularly difficult to treat are associated with damage to the frontal lobes. There are a very large number of symptoms which are collectively referred to as ‘dysexecutive symptoms’. This chapter describes some of the latest findings about the functional anatomy of the frontal lobes, the main clusters of frontal lobe symptoms, how they relate together, and their relative importance. It explains the main theories of how the frontal lobe executive system works and how they relate to the symptoms seen day to day. It also offers some predictions about therapeutic methods that might be worth pursuing based on these theories.
The neural basis for a theory of cognitive rehabilitation
Authors: Robertson Ian H.
Published: April 2012

Throughout the previous chapters, it can be seen that some cognitive functions in some people can benefit from certain types of cognitive rehabilitation. This chapter aims to address the question of how these effects might be mediated in the brain, with a view to establishing a theoretical framework for cognitive rehabilitation. Such a framework can enable improvements in cognitive rehabilitation strategies in the future and better synchronise them with the pharmacological and other related methods that will become increasingly available over the next decade.
Resulting Trusts
Authors: Chambers Robert
Published: April 2012

Resulting trusts have received little attention in recent years and this may be because, until relatively recently, the law relating to resulting trusts was thought to be settled and uncontroversial. Most of the current academic writing about resulting trusts is found in established textbooks on equity and trusts, but these tend to provide little more than catalogues of the situations in which resulting trusts arise. There is, however, very little consensus on the principle by which the resulting trust operates, including the fundamental question of whether it arises by operation of law or depends on the presumed intention to create a trust. This book examines the true nature of the resulting trust and the question of whether the trusts brought into being to reverse unjust enrichment should not include resulting trusts. It then considers whether, when resulting trusts are properly understood, it does turn out that it is through the resulting trust that equity makes its principle contribution to reversing unjust enrichment. This book examines principally the case law of the UK, Canada and Australia, and it also makes reference to the views of academic commentators as found in the standard texts and law journals.
Quistclose Trusts
Authors: Chambers Robert
Published: April 2012

Quistclose trust is still the subject of academic debate. This chapter looks at resulting trusts which arise when property has been transferred to be utilized for certain purposes and those purposes become incapable of fulfillment. Three propositions are presented. One, the loan of money to be used for a particular purpose does not generate a trust for the benefit of the intended recipients of the money and nor does the lender retain full equitable ownership of it. The borrower receiving the entire beneficial ownership of the money is subjected to the lender's right to prevent it being used for any other purpose. Two, if the purpose fails, there is a resulting trust in favour of the lender. Last, the Quistclose trust is not restricted to loans for the purposes of paying other creditors of the borrower.
Vitiated Intention
Authors: Chambers Robert
Published: April 2012

As one of the three chapters that explores the extent of the resulting trust's response to enrichments which are unjust on the basis of non-voluntary transfer, this chapter focuses on those cases in which the provider's intention to benefit the recipient is absent or vitiated. Two bases for restitution are discussed. This chapter begins with a discussion on the traditional categories of resulting trust while the latter part of this chapter concentrates on the unjust factors which motivate restitution on the basis of either an absent or vitiated intention to benefit the recipient. A ‘sliding scale’ of defective intention is set out by the chapter. These unjust factors include ignorance, incapacity, mistake, duress, undue influence, and unconscionable conduct.
Qualified Intention
Authors: Chambers Robert
Published: April 2012

This chapter focuses on cases in which property has been transferred and the provider of that property did not intend to benefit the recipient in the particular circumstances which have occurred. It explores the issue on whether the vitiation or qualification of the provider's intention to benefit the recipient makes the enrichment of the recipient unjust and whether giving rise to a right of restitution also gives rise to a resulting trust. One of the assertions of this chapter is that when the recipient is unaware that the provider has only a qualified intention to transfer the benefit of the property, the resulting trust is still possible, unless the recipient is entitled to the defence of bona fide purchase or good faith exchange. Requirements for a resulting trust, void contracts, recipient's knowledge, and a brief summary serve as the main sections of this chapter.
Competition Law and Regional Trade Agreements: An Overview
Authors: Desta Melaku Geboye , Barnes Naomi Julia
Published: April 2012

This chapter presents an overview of the application of competition law in regional trade agreements (RTA). It explains that competition law became a common element of bilateral and regional trade agreements because private business conduct, if left unregulated, can distort and defeat the intended effects of trade agreements. However, competition provisions are usually not consistent in their scope and terms, and they often include important exemptions from competition regimes.
Is Mutual Recognition an Alternative to Harmonization? Lessons on Trade and Tolerance of Diversity from the EU
Authors: Davies Gareth
Published: April 2012

This chapter discusses the lessons from the European Union's (EU) experience with mutual recognition of standards for goods and services that may be applicable to other regional trade agreements (RTA) and the World Trade Organization (WTO). It examines the nature of the dichotomy between mutual recognition and harmonization in an abstract way and discusses the advantages and disadvantages of mutual recognition. It explains that while mutual recognition offers an attractive alternative to harmonized rules it has a self-destructive quality, and while it is effective in enabling trade it rapidly creates the conditions in which domestic lobbies push for harmonized rules.
The EU and its Member States in the WTO—Issues of Responsibility
Authors: Piet Eeckhout
Published: April 2012

This chapter examines how the World Trade Organization (WTO) dispute settlement tackles the issue of joint membership of the European Community (EC) and its Member States. It describes actual practices in WTO dispute settlement and considers some of the underlying theoretical questions in the current debates concerning the International Law Commission (ILC). The WTO appears to accept the practice that the EC is responsible for violations, even by its Member States.
Towards a rational theory of human information acquisition
Authors: Nelson Jonathan D.
Published: April 2012

This chapter considers the crucial question of the usefulness of data, with respect to a set of hypotheses under consideration. Some data are clearly irrelevant to the hypotheses of concern; some decisively favour one hypothesis or another. But, in general, data modifies the probability of the hypotheses, but to a modest degree. Only with a measure of the usefulness of data is it possible to formulate a theory of which experiments should be carried out, or which observations should be made. It provides a thorough analysis of the strengths and weaknesses of a range of measures of evidential usefulness, drawn from a variety of fields of cognitive science.
A decision-by-sampling account of decision under risk
Authors: Stewart Neil , Simpson Keith
Published: April 2012

This chapter outlines a possible extension of Stewart et al.'s (2006) decision by sampling theory, to account for how people integrate probability and value information in considering ‘gambles’. The resulting account provides a theory of decision-under-risk that is directly comparable to prospect theory (Kahneman & Tversky,1979) and its competitors (e.g. Brandstatter et al. 2006). The model correctly predicts the direction of preference for all 16 prospects from the Kahneman and Tversky (1979) data set and produces a high correlation between choice proportions and model predictions.
Rational analysis as a link between human memory and information retrieval
Authors: Steyvers Mark , Griffiths Thomas L.
Published: April 2012

This chapter provides a complementary Bayesian analysis of the problem of memory retrieval. A Bayesian model that is able both to classify words into semantically coherent groups, merely from observing their co-occurrence patterns in texts, is used as the basis for understanding aspects not only of how some linguistic categories might be created, but also how relevant information can be retrieved, using probabilistic principles. This work can be viewed as a natural follow-on from Anderson and colleagues' pioneering rational analyses of memory (Anderson & Milson, 1989; Anderson & Schooler, 1991). This chapter uses innovations in information retrieval as a way to explore the connections between research on human memory and information retrieval systems. It also provides an example of how cognitive research can help information retrieval research by formalizing theories of knowledge and memory organization that have been proposed by cognitive psychologists.
Causality in time:
Authors: Huber David E.
Published: April 2012

This chapter puts a specific priming effect in memory under the microscope, from a probabilistic point of view. Priming effects in word recognition and memory have typically been viewed as side-effects of the mechanisms of recognition — e.g. as arising from associations between lexical items, which operate automatically. It suggests, instead, that many priming phenomena may arise from the structure of the probabilistic reasoning problem that the perceiver faces. The perceiver has a range of pieces of evidence, but has to infer their likely source. When a piece of evidence from one source is attributed to another, priming may be observed. Huber demonstrates that experimentally observed priming is sensitive to the rational structure of the ‘attribution’ problem, rather than to the operation of mere associative mechanisms.
Through the looking glass: a dynamic lens model approach to multiple cue probability learning
Authors: Speekenbrink Maarten , Shanks David R.
Published: April 2012

This chapter considers a probabilistic perspective on a classic problem of human contingency learning: finding the relationships between a category or outcome, for which there are several probabilistic cues. It provides an analysis within the framework of Brunswik's (1955) lens model. It focuses on the dynamics of learning, e.g. the rate of learning and how the learner may respond to changing contingencies — which are, presumably, the norm, in many real-world contexts.
Semi-rational models of conditioning:
Authors: Daw Nathaniel D. , Courville Aaron C. , Dayan Peter
Published: April 2012

This chapter considers the question of how learning adapts to changing environments, with particular reference to animal studies of operant and classical conditioning. It discusses a variety of probabilistic models, with different assumptions concerning the environment; and contrasts this type of model with a model by Kruschke (2006) which carries out local, approximate, Bayesian inference. It further suggests that it may be too early to incorporate mechanistic limitations into models of conditioning — enriching the understanding of the environment, and working with a ‘pure’ Bayesian rational analysis for that environment, may provide an alternative, and perhaps theoretically more elegant, way forward.
The value of rational analysis:
Authors: Sloman Steven , Fernbach Philip M.
Published: April 2012

This chapter provides a skeptical analysis of the technical machinery of causal Bayesian networks. It points out that this machinery provides valuable insights into how the representational power of probabilistic method is of crucial importance. But the learning algorithms for such networks do not provide a good model of human causal learning. It argues that human causal learning is rational, to some degree — but also exhibits large and systematic biases. Models of causality learning that are exclusively based on rational principles are unlikely to be successful.
EU-NATO Relations: Consistency as a Strategic Consideration and a Legal Requirement
Authors: Terpan Fabien
Published: April 2012

This chapter explores the EU-NATO relations with regard to security and defence matters. In both NATO and the EU there is a legal basis for the development of a European role in security and defence. When one looks at overall objectives and main principles, there is consistency between the EU and NATO. This does not guarantee that both organisations will evolve in the same direction: arrangements must be made in order to put this theory into practice. NATO-EU relations face three major challenges: subsidiarity, interoperability, and a more balanced partnership between European members and the United States.
Cognitive and social cognitive development: Dual-process research and theory
Authors: Klaczynski Paul A.
Published: April 2012

This chapter describes some counterintuitive age trends, presents a developmental dual-process theory that affords a more parsimonious interpretation of these trends than offered by traditional theories of development, and surveys a research program intended to test developmental predictions derived from dual-process theories. It begins by outlining evidence that contravenes traditional, unidirectional theories of development and then presents an amended version of the developmental dual-process theory the author has advocated in recent years. Next, the chapter presents research that has upheld several dual-process predictions, challenges black-and-white conceptions of rationality, and supports the ‘levels of rationality’ approach advocated by Reyna and her colleagues. It concludes by discussing briefly some theoretical and methodological shortcomings of developmental dual-process theories. Most of the chapter refers to two forms of processing: ‘experiential’ and ‘analytic’.
Institutional Balance as a Guarantee for Democracy in EU Governance
Authors: Lenaerts Koen , Verhoeven Amaryllis
Published: April 2012

The notion of institutional balance is firmly embedded in the constitutional language of the European Union. Its content and language, however, are far from clear. This chapter begins by fleshing out the contours of the notion of institutional balance as it emerges from the current constitutional acquis and providing it with some theoretical underpinnings. It then uses this theoretical framework to address two unresolved questions on the relationship between the institutional players within the EU. Section II is devoted to the role of the Commission and its relationship to the European Parliament and Council. In particular, it considers how the accountability of the Commission can best be ensured. Section III discusses the budgetary procedure and, in particular, the role of the European Parliament therein.
The Judge and the Community's Administrative Governance
Authors: Azoulay Loïc
Published: April 2012

This chapter also focuses on the search for a ‘new institutional balance’, but addresses a series of tensions that need to be balanced. The potential of law to resolve social problems may be jeopardized by the respect for the rule of law. The judiciary is nevertheless expected to promote ‘good governance’ while simultaneously protecting individual rights and supervising public authorities. It is argued that the legitimacy problems of European market governance differ significantly between the areas of economic and social regulation. The core problem of economic regulation is the discretionary power granted to the European Commission. The challenges in the field of social regulation require a more fundamental re-orientation: the search for legitimacy no longer involves the democratic nature of government. It now involves local and operational forms of administrative coordination.
Delegation is Dead, Long Live Delegation: Managing the Democratic Disconnect in the European Market-Polity
Authors: Lindseth Peter
Published: April 2012

This chapter portrays the EC as a supranational, administrative, non-democratic, and non-national agent. The legitimacy of this institution is not directly derived from the people but must be mediated. In that sense, the legal character of the Community is essentially ‘administrative’, and the juridification of Community governance seems to belong within the domain of ‘administrative law’. The idea of the Community as a system of ‘transnational governance’ provides a promising conceptual terrain on which to develop a sophisticated understanding of the relationship between national constitutional orders and supranational regulatory processes.
Directly-Deliberative Polyarchy: An Institutional Ideal for Europe?
Authors: Gerstenberg Oliver , Sabel Charles F.
Published: April 2012

The continuing effort to harmonize the laws of EU Member States and the prospect of extending EU membership to new states intensifies the debate already underway in the Atlantic political community about the connections between democracy and nation state as we have known it since the time of the American and French Revolutions. This chapter argues that the opening boundaries of the modern polity, the undeniable increase in heterogeneity that follows, and the manifold institutional responses that these changes in turn provoke are better seen as creating the occasion for, indeed in part anticipating, a radical redefinition of constitutional and democratic ideals, rather than as signs of democratic declension. The exploration of difference, as it may occur in choosing among diverse solutions to the pressing problems of daily life, can provide a basis for protecting the economically vulnerable and the politically disdained that may become as effective under emerging conditions as the policies of redistribution and judicial determination of rights have been in the world that is passing.
Introduction
Authors: Lazarus Liora
Published: April 2012

This introductory chapter begins with a brief comparison of prisoners' rights in England and Germany. It then discusses some of the methodological problems facing comparative law, and the methodology and structure of this book.
Preparing for Accession to the European Union: How to Establish Capacity for Effective and Credible Application of EU Rules
Authors: Nicolaides Phedon
Published: April 2012

This chapter is developed along a series of questions exploring the issue of effective policy implementation, in general, and that of EU rules, in particular. The questions and the answers given eventually lead to a proposal on how candidate countries may establish capacity for the effective implementation of the acquis communautaire. The recommendations made by the EU to the candidates in this connection and the information provided by the candidates back to the EU have centred on what may be called the ‘M&M solution’: i.e. it is expected that EU rules will be effectively applied and enforced in the candidates once sufficient and properly qualified staff are hired and adequate amounts of resources are committed to those purposes (hence, the ‘money & men’ (M&M) solution). By contrast, this chapter advocates an institutional approach to building that kind of capacity.
The Rationales for Judicial Restraint
Authors: Oesch Matthias
Published: April 2012

Apart from considerations of allocation of power, other aspects are also relevant for determining whether panel restraint is appropriate in certain circumstances or not. This chapter examines the value of the commonly invoked rationales in favour of panel deference. In particular, methods of treaty interpretation, expertise in and knowledge of factual and legal matters, and purely practical considerations are discussed. Section I focuses on rationales for judicial restraint towards legal issues. Section II turns to those commonly invoked for judicial restraint towards factual issues.
The General Framework and the Method of Fact-Finding
Authors: Oesch Matthias
Published: April 2012

The previous chapter revealed that the wording of both Article 11 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) and Article 17.6(i) of the AD Agreement is equivocal as to the exact degree of panel deference towards factual findings. Therefore, the job of carving out appropriate standards of review applicable in specific cases has been tacitly delegated to panels and the Appellate Body. Reliable guidance as to the panels' mandate under Article 11 of the DSU and Article 17.6(i) of the AD Agreement may only be found in the growing body of panel and Appellate Body practice. This chapter discusses the general framework and examines the method of fact-finding by which panels inform themselves about the relevant factual evidence.
Domestic Law
Authors: Oesch Matthias
Published: April 2012

This chapter deals with the issue of standard of review relating to domestic law. The crucial question is to what extent and with what intensity a panel should review the interpretation of domestic law and, if not convinced, come up with its own interpretative conclusion. Section I examines the panels' and the Appellate Body's jurisdiction to decide on the correct interpretation and application of domestic law. Section II turns to the case law concerning standards of review. For methodological purposes, the practice is reviewed case-by-case before the common traits are filtered out. Section III summarizes the practice and critically assesses it in the light of general standard-of-review principles.
The Public Interest in Regulatory Practice: the UK
Authors: Feintuck Mike
Published: April 2012

This chapter considers, on a practical level, the extent to which substantive public interest values are present and identified in current regulatory activity, and how regulatory procedures serve, or fail to serve, these values. It discusses the constitutional and legal background and ‘social regulation’ of the utility industries in the United Kingdom. The perceived constitutional impropriety of the British judiciary reviewing the substance of primary legislation seems to have led to a broader position, whereby the judiciary will seek at almost any cost to confine its decisions to the procedure of administrative decision-making rather than risking giving the slightest appearance of reviewing the substance of decisions. This chapter discusses the constitutional law and administrative law in the UK, as well as regulation in pursuit of social objectives associated with the public interest, the role of citizenship in the liberal-democratic social enterprise, food industries and food safety, the Food Standards Agency, the European Food Safety Authority, the precautionary principle, regulation of mass media in the public interest, Public Service Broadcasting, and commercial freedom and democratic values.
A Coherent Concept of the Public Interest in Regulation
Authors: Feintuck Mike
Published: April 2012

This chapter seeks to establish an argument for the advisability, or even the necessity, of the adoption of a value-laden concept of public interest, and examines the content and purpose of such a construct in the context of regulation. Philip Selznick defines regulation as ‘the use of the concept of the public interest as a justification for regulatory intervention into private activity, limiting the exercise of private power, in pursuit of objectives valued by the community’. It is assumed that there are a range of values associated with liberal democracy, especially relating to citizenship expectations and collective interests, which are commonly associated with the concept of ‘public interest’ and which are left vulnerable to social and economic forces if not adequately protected. While a case can be constructed which argues for a constitutional response to the dominance of market economics, the case will be weak for so long as there is no clear specification of the precise values which are threatened.
Wider Applications of the Public Interest
Authors: Feintuck Mike
Published: April 2012

This chapter considers other areas in which the concept of public interest might be used to facilitate the legal system's potential to reflect fundamental, substantive, democratic expectations. The areas covered here suggest some preliminary thoughts and agendas for future research, where public interest values arising from expectations of equality of citizenship may appear to relate closely to existing or nascent legal principles, both in public law and private law. In essence, the agenda identifies a range of areas in which private property power is, or might be, limited by reference to non-commodity values. The focus of this book has been from the outset specifically on the impact of regulation in the name of the public interest rather than broader questions of the constitutional order. Thus, this chapter explores potential edifices for legitimate public interest intervention which highlight the actuality of, or potential for, the lawyer acting as institutional architect in pursuit of constitutional objectives. The focus is on the extent to which law may fulfil its potential as a ‘surrogate political process’ in relation to democratic values.
Summary and Conclusions
Authors: Feintuck Mike
Published: April 2012

The essential argument of this book has been that ‘the public interest’ need not be a cover for ignorance, or an empty vessel, and that seeking to understand it need not be comparable with the mythical quest for the Holy Grail. Rather, the concept has the potential to serve fundamental democratic values. Viewed holistically, both civic republicanism in the United States and liberalism in the United Kingdom acknowledge democratic values beyond those of the market, and identify citizenship concerns as central to the democratic settlement. In addition to the hegemony of market-individualist ideology and the rise of global capital, a combination of other factors have led to the ‘non-commodity values’ contained within democracy being put under severe threat. While in practice it is likely that the term ‘public interest’ will continue to be used loosely, and will carry a variety of meanings, a core meaning could be established in the context of regulation which identifies it closely with the values of equality of citizenship within democracy.
The Long Farewell
Authors: Stolleis Michael
Published: April 2012

This chapter gives a brief sketch of the most important factual developments that provided the foundation of the academic and intellectual world of public law in the year 1914. The book does not move ‘forward’ along a single ideational track, nor is it even possible to determine criteria for such a ‘track’. Moreover, the notion of ‘development’, which generally contains elements of determinism or suggests progress, is, if anything, misleading in the field of jurisprudence. On the basis of texts of ‘established law’, the actors in this process communicate about a hierarchy of linguistic patterns that are used to interpret and regulate social reality. This chapter attempts to sketch the atmospheric background, and to illuminate how the teaching and research of public law unfolded within the social and political context of the time, reacted to this context, and in part helped to shape it.
State Law and Administrative Law after the Nazi Seizure of Power
Authors: Stolleis Michael
Published: April 2012

The swift measures that followed the torchlight procession in Berlin on 30 January 1933, made it very clear that a continuation of politics under the Weimar Constitution was out of the question. With the suspension of the most important basic rights by the Decree of 28 February 1933, and the Enabling Act of 24 March 1933, the hated ‘interim constitution’, the ‘un-German interim Reich of anti-Bismarckian Marxism’, the ‘liberal Rechtsstaat’ was at an end. Still, many jurists entertained the illusion that the new regime, once the initial revolutionary phase was over, would establish itself as a ‘national Rechtsstaat’. The signing of the Reich Concordat in July 1933, the measures against unemployment, and the initial diplomatic successes of the regime did their part to feed the optimism that everything would return to the right track once the revolutionary ‘excesses’ had dissipated.
The Destruction and Self-Destruction of a Scholarly Discipline
Authors: Stolleis Michael
Published: April 2012

With the suspension of basic rights in the wake of the Reichstag fire and the Enabling Act of 24 March 1933, key pieces had been wrenched from the first and second main sections of the Weimar Constitution. The legally protected distance between state and citizen had been abolished along with the parliamentary system. After the elections of 5 March 1933, the Reichstag was merely an organ of acclamation, further weakened by the fact that the regime could also appeal to the people to render its acclamation directly. The sole ‘positive, valid basic law of the present polity’ was now ‘the unconditional primacy of political leadership’. As decisions were increasingly concentrated in the dictator or were delegated by him — in circumvention of the relevant offices — to agents, who then had to amass their authority from the traditional departments, the state became less and less ‘constitutional’.
Administrative Law and International Law
Authors: Stolleis Michael
Published: April 2012

The ‘shift toward administrative law’ during the Nazi period was an attempt by state law jurists to avoid the dangerous questions about what form the state would take. Furthermore, what kept the state running was an administration that was guided by emergency decrees and operated in accordance with traditional rules. Carl Schmitt made this clear in 1932 in a suggestive way in a discussion of the classic theory of the separation of powers. He had argued that the legislative state, was today paralysed, its legitimacy exhausted. The jurisdictional state (Uurisdiktionsstaat), he claimed, was static, habitually conservative, and incapable of creative action. The governing state (Regierungsstaat) was marked by sovereign will and authoritarian. The legislative, no longer functional, was to be replaced by the will of the leadership, while a ‘restored’ professional civil service was to realize the common good defined by authoritarian fiat.
The End
Authors: Stolleis Michael
Published: April 2012

The outbreak of the Second World War in 1939, led to an enormous push toward discipline and regimentation. On one hand, an administration that functioned according to rules seemed necessary to run the war machine. On the other hand, the very adherence to the rules aroused the suspicion of the regime, which wanted to smell ‘bureaucracy’ behind it. However these clashes ended, it was patently obvious that law was no longer an end in itself, but a means that could be cast aside as soon as a more suitable instrument was available. Winning the war was paramount and this goal soaked up whatever remnants of liberty and the Rechtsstaat still existed. The outbreak of the war was greeted for the most part with depressed silence. After an ‘intermediate high’ in 1940–1, when Hitler's position seemed unassailable, approval for the regime gradually declined as defeat loomed increasingly on the horizon.