This chapter provides a comprehensive conceptual analysis of the first possible interpretation of “reasonable expectations”, the “cognitive model”. Where judges or other legal actors employ the cognitive model, they ask “What kind of information processing did the concerned individuals expect in fact?”. The chapter first outlines this model from a conceptual perspective, then illustrates its functioning with the help of existing case law and finally examines its normative justifiability. In this last part, the chapter first reviews (and ultimately rejects) previous academic critiques of the cognitive model, before presenting two new normative reconstructions of the cognitive model premised on the rationales of transparency and consent.

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The Cognitive Model

  • Paul Friedl

摘要

This chapter provides a comprehensive conceptual analysis of the first possible interpretation of “reasonable expectations”, the “cognitive model”. Where judges or other legal actors employ the cognitive model, they ask “What kind of information processing did the concerned individuals expect in fact?”. The chapter first outlines this model from a conceptual perspective, then illustrates its functioning with the help of existing case law and finally examines its normative justifiability. In this last part, the chapter first reviews (and ultimately rejects) previous academic critiques of the cognitive model, before presenting two new normative reconstructions of the cognitive model premised on the rationales of transparency and consent.