Bonus 206: Legal Scholarship and the Dual State
A few thoughts on the responsibilities of legal academics in a time of increasing governmental lawlessness.
Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter (and extra issues) will remain free for as long as I’m able to do this, I put much of the weekly “bonus” issue behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and I hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit:
Back in August, I wrote a post titled “Legal Pedagogy and the Dual State,” in which I reflected a bit on the unique challenges of teaching law students (and, especially, first-semester 1Ls) in the midst of mounting concern that the United States has its own emerging version of what Professor Ernst Fraenkel called “the Dual State”—the “Normenstaat” (the “normative state,” i.e., “an administrative body endowed with elaborate powers for safeguarding the legal order as expressed in statutes, decisions of the courts, and activities of the administrative agencies,” with the goal of maintaining the existing economic order) and the “Maßnahmenstaat” (the “prerogative state,” i.e., “that governmental system which exercises unlimited arbitrariness and violence unchecked by any legal guarantees,” with the goal of advancing the governing party’s ideological agenda).
Since then, I’ve wanted to return to the relationship between my job and Fraenkel’s thesis—this time in the context of legal scholarship, and, specifically, the intersections between the work of legal academics and legal theories being advanced by the government. (For what I hope are obvious reasons, Fraenkel’s thesis is less directly relevant to how legal scholarship intersects with the behavior of private actors; this is a problem most relevant to those of us writing and working in public law.) It should go without saying that every legal academic hopes that their work will produce a meaningful impact, however that may be measured in their specific field(s). But given that my work is very public-facing to begin with (including in this newsletter), and given that some of my work is also reflected in litigation in which I’m involved (where the results can have direct real-world impacts), I spend more time than I’d care to admit reflecting upon what my goals are—and whether there are circumstances in which a particular line of work, or line of cases, or set of arguments might produce harmful results even if I think they’re correct.
In this respect, one of the essays that I come back to a lot is a book chapter written in 2019 and published in 2022 by my friend and University of Minnesota law professor Oren Gross, titled “Hitler’s Willing Law Professors” (a not-so-subtle callback to Daniel Jonah Goldhagen’s best-selling 1996 book, Hitler’s Willing Executioners). In a nutshell, the thesis of Gross’s chapter is that “the story of the moral decline of German universities and professors in general, and of German law professors in particular, was one in which professional myopia, personal opportunism, moral weakness, antisemitism, and legal jurisprudential claims had been inexorably intermingled.”
Unfortunately, there’s no easily accessible version of the essay online (if it helps you find it, it’s part of a book titled The Betrayal of the Humanities: The University During the Third Reich). But below the fold, I’ll walk through Gross’s arguments, how they have influenced my own thinking, and why I think it’s incumbent upon just about everyone doing public law scholarship these days to think about the relationship of their work to our own state—one way or the other. The point is most definitely not that our current moment can or should be analogized to anything about Nazi Germany. Rather, it’s that there are broader lessons that I, at least, have tried to take away from some of the shortcomings of legal academics in that very different time and place—lessons that some readers may find useful. As ever, though, your mileage may vary.
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