Administrative Law of the USA and Germany: a comparison of their models, principles and doctrines

• Applicant: Professor Dr. Eberhard Schmidt-Aßmann
• Subject Area: Public Law
• Term: from 2014 to 2019
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 260639043

When we speak of administrative law in US or UK law or of Allgemeines Verwaltungsrecht in German law, then we make use of a legal construct. It is based on underlying assumptions, premises and expectations that we are aware of, at least subconsciously. We can expect these assumptions to be known and understood as the common basis of our legal discourse. That, however, is only true as long as we speak to lawyers from the same (our own) legal order. In contrast, in the field of comparative law the foremost condition for a fruitful exchange of ideas is first to identify the assumptions and secondly to choose those for closer examination, which might be representative so as to help the counterpart develop an overall idea of the respective legal order. So the starting point of the study I propose to undertake is the fact that different legal orders have different understandings of what administration is: In German law Verwaltung is understood in organisational terms as the historically grown, preexisting and complex structure of federal and state authorities and autonomous entities of local and professional self-government. Against that background, judicial, legislative and academic interest alike focuses on low level procedures and more importantly results of individual decision-making: police orders, building permits, the individual grant of social benefits. High level administrative rule-making instead is not so important. By contrast, in US law the concept of administrative law primarily refers to far-reaching regulatory activities of (independent) agencies on the federal level. Of course US law must deal with police orders, building permits etc. as well. Yet as this diverse field can hardly be found explained in Admin. law textbooks. That lack of interest is exemplified and, in turn, also reinforced by the fact that most textbooks focus on procedural issues, especially those raised by the Administrative Procedure Act (APA). So the central assumption of this study is that these different background ideas of what administration actually is predetermine in a decisive way the concept of administrative law as a whole and with regard to different legal doctrines. These unconscious ideas of what the normal case is will then invariably influence academic and judicial doctrines such as the non-delegation-doctrine in US law or the German idea that the application of the law is a more mechanical process. This study aims at clarifying the interconnections between such underlying assumptions and premises on the one hand and the fundamental doctrines of administrative law on the other hand, focussing on these three central issues: the procedures of administrative decision-making, judicial review, and information law.

• DFG Programme: Research Grants