This chapter examines the ‘indirect application model’ in constitutional law whereby fundamental rights do not apply ‘directly’ to the relations between individuals but nevertheless influence the content of the private law legal rules that apply between non-state actors. The legal rules though articulate the obligations of non-state actors and, if fundamental rights affect those rules, they affect the obligations of non-state actors. I argue that the indirect application model has several drawbacks – including weakening rights and undermining their relational dimension - but ultimately collapses into a form of direct application model. I thus examine, through this lens, seminal cases in Germany and South Africa, seeking to understand what approach courts utilize to construct the substantive content of the obligations of non-state actors. The analysis highlights that courts draw on a number of factors together with an amorphous balancing process to determine those obligations – similar to the other models analysed in the book.

This chapter considers evaluation of student learning in a transformative classroom as assessing the degree of personal development: direct application, to near transfer, to transfer. Concurrent with these stages are three levels of emotional experience: memorable (emotional without insight), meaningful (emotion with insight), and transformative (emotion with insight, reflection, and change in behavior or attitude). These experiences can be positive or negative, with negative experiences being often found to be more formative. Examples are provided for teaching and testing on the basis of the intersection of these three levels of instruction and three levels of experience from an understanding of achievement, performance, and proficiency tests, along with the impact of testing on instruction – examples of both positive and negative impact of testing are given, and the case is made for aligning testing format and content with desired learning outcomes. Finally, a systematic flaw, of which testing is a part, in instructional system design that impairs formative assessment is pointed out, and suggestions are provided for integrating assessment into TLLT.