Cover

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Half Title, Summary, About the Author, Title Page, Copyright, Dedication

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Contents

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pp. vii-viii

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Acknowledgments

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pp. ix-xii

This book grew out of my enduring fascination with the challenge that the Holocaust presents to both jurists and historians. For many years I studied the ways the criminal law has shaped and reshaped our understanding of that pivotal event. But it was an invitation to comment on historian Michael Marrus’s book about the Holocaust restitution struggles of the 1990s that led me to consider the road less traveled: ...

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Introduction

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pp. 1-14

In Kafka’s short story “Before the Law,” a man tries to gain entry to the law but is told by the law’s gatekeeper that he cannot enter at the present time. The man decides to wait. He attempts periodically to obtain permission to enter, answering the gatekeeper’s questions and spending all his resources trying to win over the gatekeeper, but he is repeatedly told that his time to enter the law has not yet come. ...

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Chapter 1. Corporate Accountability and Collective Guilt

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pp. 15-34

The Holocaust posed a difficult dilemma for the law: how to judge bureaucratically organized crimes. In the postscript to her book Eichmann in Jerusalem (1963), Hannah Arendt argued that the problem stemmed from the attempt to apply a legal system and juridical concepts that were not intended to deal with “the facts of administrative massacres organized by state apparatus.”1 ...

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Chapter 2. Transnational Holocaust Litigation: Between International Criminal Law and Structural Reform

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pp. 35-55

Until the Holocaust litigation of the 1990s (THL), corporations had been largely immune from liability for their complicity in the Nazi crimes. As we saw in the previous chapter, criminal law has proven to be a limited tool for addressing corporate liability for involvement in atrocities; treaties establishing reparations mechanisms, ...

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Chapter 3. Rethinking Settlement

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pp. 56-76

In the previous chapter I argued that THL should be read as a hybrid legal mechanism drawing on developments in international criminal law and on the structural reform model of litigation to overcome the de facto immunity of corporations. Settlement of the lawsuits in THL, however, appears to undermine the public objectives of each of the bodies of law ...

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Chapter 4. Transnational Litigation and the Legitimacy of Domestic Courts

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pp. 77-88

The issue of settlement, discussed in the previous chapter, was one of the two principal lines of criticism leveled against THL. The second, which will be discussed here, related to the transnational dimensions of the litigation and the legitimacy of American courts to manage these claims.1 ...

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Chapter 5. A Process-Oriented Approach to Corporate Liability for Human Rights Violations

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pp. 89-113

In the previous chapter, I showed that Alien Tort Statute (ATS) litigation against corporations is usually seen as a procedural extension of the circle of defendants, with the goal of ending corporate impunity. This view is based on a sharp distinction between international law norms (such as the prohibition of slavery and crimes against humanity) and procedure. ...

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Chapter 6. Humanitarian Payment and Corporate Responsibility

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pp. 114-125

Contrary to the critics who saw THL as a failure of justice, in this book I have until now discussed the litigation in terms of accountability. Yet talk of accountability may leave some readers unconvinced, since, as noted in previous chapters, in both the Swiss and the German cases the defendant corporations and the states (Germany and Switzerland) ...

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Chapter 7. The Judge and the Historian

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pp. 126-142

The previous chapters identified in THL a new mode of legal accountability and discussed its significance for theorization about transnational law. This and the following chapter explore the implications of THL for the relationship between law and historical inquiry. Much attention has been given to trials as a site narrating historical events, ...

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Chapter 8. Commissioned Corporate History

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pp. 143-165

This chapter delves more deeply into the “work product” of the historical commissions established by German corporations in response to THL. These histories offer a rare attempt to address business responsibility for participation in atrocities. What account of corporate responsibility did they produce? ...

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Conclusion: Transnational Holocaust Litigation as a Source of Theorization and Strategy

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pp. 166-172

This book has analyzed the transnational Holocaust litigation as a milestone in the ongoing attempt to hold corporations accountable for participation in the crimes of the Third Reich. The question of corporate accountability for involvement in mass violence is currently at the forefront of global struggles for justice pursued through a variety of means, ...

Notes

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pp. 173-236

Index

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pp. 237-240