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Judicial opinions comprise part of the historical record. Thus, judicial attention to historical context is important, because it will influence how future generations interpret historical events. Generalist judges often have difficulty facing and interpreting difficult historical facts. The recent wave of litigation concerning Holocaust-era art demonstrates the phenomenon particularly well. Modern day judges deciding motions to dismiss under the Twombly and Iqbal standards must determine which claims are “plausible.” They bring their common sense to the decision-making process. The problem is that the Third Reich was a time and place where common sense did not reign. Nor was the international art market during or after World War II. Thus, some claimants’ true narratives seem to be fantastical, rather than entirely plausible. This Article assesses the state of claims to Holocaust-era art, concludes that claims have been dismissed improperly because they did not reconcile with judicial notions of common sense, and recommends that judges actively seek the input of historians while remaining vigilant not to allow the historical record to become politicized and biased in the advocacy process.
Jennifer Anglim Kreder, Northern Kentucky University - Salmon P. Chase College of Law
Vol. 61 Kansas Law Review, October 2012, Forthcoming