The American legal academy obeying in advance

As far as I know, the only institutional reaction from American law schools to federal results from the 2024 election has been to tell foreign law students to get to campus before Trump's inauguration, part of broader warnings from universities and colleges. I can find no record of law schools holding conferences on how to teach law when all three branches of the U.S. federal government will be controlled by officials and judges expressly opposed to rule of law and the design of the U.S. Constitution. There is no news of curricular overhaul to meet this moment, no reports of revamped legal ethics courses considering how, if at all, ethical attorneys can practice law in this environment. The Association of American Law Schools, U.S. legal education's main professional organization, has not issued any statements about what "excellence in legal education" might require when the federal legal system is about to be controlled by fascists. Though the theme of the 2025 AALS annual convention is "Courage in Action," there isn't a single panel addressing fascism, anti-democratic or authoritarian government in the U.S., or rule-of-law. There is nothing about Supreme Court corruption, though the Federalist Society, the legal organization perhaps most responsible for the appointment of some of the most problematic Justices in American history, is tightly integrated into the AALS program, sponsoring eleven sessions during the five day conference.

Let no American law professor or law school dean ever express any surprise that the entire German legal profession not only went along with the Nazi takeover of German law, it facilitated it. For more about this, do read "Judges, Lawyers, Legal Theorists and the Law in Nazi Germany (1933-38); Kristallnacht; and My Parents' Escapes from the Nazis," a 2022 article published in the UCLA Law Review. The author, Richard D. Frybel, explains how Adolph Hitler utilized Weimar Germany's law and constitution to come to power. "The courts, judges, lawyers, and legal theorists all joined in the Nazi plan and implemented it with vigor," writes Frybel. No German judge refused to swear personal allegiance to Adolf Hitler. German universities were "Aryanized" by the Nazi government, starting in 1933. They enjoyed support from academics abroad, including in America. As late as 1936, Harvard University President James Conant was justifying Harvard's participation in the Nazified Heidelberg University's 350th Anniversary Celebration. The German legal academy was never a site of resistance or opposition to Nazism.

I retired from law teaching last June. Were I still teaching, I would require all my students, in any class I taught, to read Justifying Injustice: Legal Theory in Nazi Germany by Herlinde Pauer-Studer. Published in 2022, the book is a case study in "how law can bend to a political ideology such that it completely fails to keep a state power from transgressing all common moral and legal standards." I would also be lobbying for a required course examining the role of law in totalitarian and fascist governments in addition to Nazi Germany, including in the southern U.S. states during Jim Crow, in apartheid South Africa, and in Soviet Russia - a non-exhaustive list. I believe in the case method for teaching U.S. law students. The only way for U.S. law students to prepare for what is coming is to see how fascist and authoritarian states have coopted law and legal institutions and, to the extent that any lawyers in these regimes resisted and opposed the cooptation, to see how they did.

While I might be able to argue successfully for my own academic freedom to teach such materials, including in courses like torts, which might not seem obviously related, I doubt I would have institutional support for such teaching. And I might be explicitly or implicitly prevented from it. It seems that American law schools and the American legal academy are much more interested in obeying in advance, pretending that the state of U.S. federal law and government is a regular part of a constitutional democracy premised on rule of law.