Although less well known to social theorists than that of other Frankfurt School members, the work of Franz Neumann has recently become the focus of renewed interest. Within contemporary legal scholarship, that interest has centred largely upon how this ‘junior’ member of the Frankfurt School combined classic liberal constitutional values, particularly a belief in the rule of law, with a distinctive sociological analysis of law. Several historians have studied the wartime record of Neumann, Kirchheimer and Marcuse, but Neumann's wartime service with US military intelligence has received little attention from legal theorists, in spite of its clear relationship with his theoretical writings on war crimes and the rule of law. The following study responds directly to both this omission of Neumann's war crimes contribution by legal theorists, and to the critique recently levelled by historians such as Shlomo Aronson and Richard Breitman, who accuse Neumann, Kirchheimer and Marcuse of a ‘functionalist’ analysis of anti-semitism which exerted an all-too-practical influence at the institutional level. This critique refers to the period between 1943 and 1945 when Neumann, together with Otto Kirchheimer, a criminal law specialist, and Herbert Marcuse, worked as research analysts within the scholarly Research and Analysis (R&A) branch of the short-lived US Office of Strategic Services (‘OSS’), a newly formed military intelligence organisation. Here they co-wrote a series of detailed reports on war crimes, de-Nazification and post-war military government. According to Neumann's critics, specific individuals within OSS, such as Allan Dulles and Charles Irving Dwork, were intent upon highlighting Nazi atrocities against Jews, and this organisation more generally participated in Jewish rescue missions. However, it is alleged that the legal culmination of such efforts at the Nuremberg trials was largely frustrated because the relevant OSS team of research analysts responsible for the preparation and supervision of various prosecution briefs were heavily influenced by the functionalist ‘spearhead theory’ of anti-semitism which Neumann advanced. This theory will be discussed below.

Critics have maintained that Neumann's group of research analysts failed to discharge their specific official and moral responsibilities to the prosecution's preparation for the Nuremberg war crimes trials and that such neglect was partly responsible for the ‘understated’ place that the Holocaust occupied within the prosecution's case.