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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 shiftin 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.
Introduction
The law's treatment of the Holocaust has been a topic of continuing discussion between historians and lawyers, with the discussion centering on criminal law. In recent years, however, researchers' attention has been drawn to a new manifestation of the Holocaust in the courts: the transnational Holocaust restitution lawsuits (THL) brought before American federal courts in the 1990s. This was not the first time law other than criminal law had been used in connection with the Holocaust. In the 1950s the governments of Germany and Israel agreed to the establishment of a large reparations program for Jewish victims of Nazi persecution. In addition, there were various libel trials concerning Holocaust denial and a few attempts to sue Germany and private corporations in restitution for looted property and forced labor. The reparations program, however, was administrative in nature, and the attempts to use private law were sporadic and mostly unsuccessful. THL therefore represents the first significant instance of the use of civil litigation and private law doctrines in relation to the Holocaust.1
Beginning in 1996 with claims filed against Swiss banks on behalf of Holocaust survivors for the restitution of monies held in bank accounts since the war, the litigation soon expanded to include claims against banks in other countries, as well as claims for life insurance plans and for compensation for slave and forced labor from German and other private corporations. As Michael Marrus has noted, all lawsuits were initiated by private lawyers representing groups of victims, and in 1998 Swiss banks were the first to settle a claim,...