Material Liberty and the Administrative State
This chapter draws on three aspects of German public law to throw into sharp relief the absence of substantive protection for material rights in the American administrative state. It first briefly deals with two conceptual issues important for comparative analysis: the scope of public action covered by the concept of the administrative state, and the type of rights that come under the umbrella of material liberty. The chapter then presents the American public law on individual rights and the heavily procedural cast of those rights. This is followed by a presentation of the key elements of German public law that promote substantive fairness for material rights and that bring to light the particularities of American law. The chapter concludes by pointing to the implications for general comparative law theories of the common law tradition and for the possible future development of American law.