To read this paper, click here. 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 j