ABSTRACT
Germany and the United States diverge sharply, however, in the external constraints they impose on high-level bureaucrats. The German public law system focuses mainly on the protection of individual rights against the state, rather than on the oversight of executive processes. This chapter focuses on two contrasting reform proposals for the United States, both of which can be critically examined in light of the German experience. One group of reformers deplores the adversarial quality of the administrative process and urges the adoption of consensus-building procedures. The second group argues that judicial review of the administrative process should focus on the preservation of individual rights in the face of state power. The chapter argues that neither advocates of regulatory negotiation nor supporters of reduced judicial oversight have offered acceptable solutions to the problems of the American regulatory state. The German approach differs from the American, however, because Germany's constitution, the Grundgesetz, explicitly limits the regulatory activity of the executive.
