The Judge and the Historian: Transnational Holocaust Litigation as a New Model

Since the Nuremberg trials, the relationship between the legal process and historical research has been the subject of much scrutiny, leading to a consensus that courts produce distorted and poor historical accounts of mass atrocity. The recent shift in legal treatment of the Holocaust from criminal to civil litigation, with the Holocaust restitution lawsuits brought before American federal courts in the 1990s, has only exacerbated historians’ critique of the law. In contrast, this article argues that the restitution litigation represents a new and fruitful model for the relation of law to historical inquiry. In this model, the judge plays a facilitative and supervisory role vis-à-vis the historian, encouraging the production of broad and contextualized historical narratives.