Law and the Holocaust: U.S. Cases and Materials

The Law Teacher ISSN: 0306-9400 (Print) 1943-0353 (Online) Journal homepage: https://www.tandfonline.com/loi/ralt20 Law and the Holocaust: U.S. cases and materials Thomas E. Simmons To cite this article: Thomas E. Simmons (2018) Law and the Holocaust: U.S. cases and materials, The Law Teacher, 52:2, 236-237, DOI: 10.1080/03069400.2018.1455139 To link to this article: https://doi.org/10.1080/03069400.2018.1455139 Published online: 01 May 2018. Submit your article to this journal Article views: 22 View related articles View Crossmark data Full Terms & Conditions of access and use can be found at https://www.tandfonline.com/action/journalInformation?journalCode=ralt20 THE LAW TEACHER, 2018 VOL. 52, NO. 2, 236–239 LEARNING RESOURCES REVIEWS Edited by Ben Waters Law and the Holocaust: U.S. cases and materials, by Michael J. Bazyler and Robert M. Jarvis,Durham, NC, Carolina Academic Press, 2018, 789 pp., £88.03 (hardback), ISBN 978-1-61163-015-2 The subtitle of Law and the Holocaust is descriptive of the textbook’s content. It is a collection of cases: judicial decisions from mostly US courts – and materials; topical introductions, notes and questions. It is the first and only text to organise readings on the Holocaust in a framework familiar to law teachers. As Holocaust and Holocaustrelated studies edge their way into law school curricula, this text’s format could represent familiar ground from which a law teacher could explore the topic. Utilisation of historical or social science-oriented monographs might scare away the neophyte instructor. A case book can be unpacked with traditional pedagogy. For that reason alone, the book should be welcomed. It takes aim at teachers of the law and it scores a hit. The book is organised into just four bulky parts (or chapters) as well as a worthy appendix containing original texts such as the Nuremberg Laws and the Terezin Declaration. The first chapter alone – an “Introduction” – is 160 pages long. The Introduction relies on snips of the 1946 Goering decision by the International Military Tribunal (IMT) to narrate the origin, evolution, and end of the Nazi regime. The factual sections of a few other cases complete a synopsis of the period from 1933 to 1945 in Germany and its satellites. In addition, chapter one sketches the 1948 Genocide Convention and explains the role of US courts in adjudicating Holocaust disputes. Next, chapter two concerns itself with the first of two primary foci of US Holocaust litigation: punishing the perpetrators. Indeed, that is the title of the second chapter: “Punishing the Perpetrators”. This chapter considers the IMT, Dachau, and Nuremberg Military Tribunal (NMT) trials and their underpinnings. Next, it turns to the Eichmann trial. The Israeli Supreme Court decision is reprinted along with precise explanations and extracts from the trial testimony. Chapter two then explores the United States’ post-Nuremberg deportation efforts. Here, three federal court decisions are included. Finally, the chapter concludes with “Nazi Hunting”, briefly detailing the efforts of Simon Wiesenthal and others and reprinting a fairly obscure but interesting 1989 decision by the US 9th Circuit Court of Appeals regarding a discovery dispute with the Simon Wiesenthal Center in what was essentially a defamation claim asserted by a man Wiesenthal had described as a Nazi war criminal. Chapter three distils the second of the two general categories of cases found in US Holocaust litigation: victim restitution. Here is some particularly dense but rewarding material. The co-authors identify the basic elements of a Holocaust restitution or replevin claim: a chain of title, a personal right to seek recovery, jurisdiction (both THE LAW TEACHER 237 personal and subject matter) and – perhaps most dauntingly for many of the claims today – overcoming the statute of limitations. Once these prima facie predicates are established, no fewer than five varieties of judicial abstention can be asserted by a defendant: forum non conveniens, international comity, the political question doctrine, the foreign affairs doctrine, and the Act of State doctrine. And of course the difficulty of sovereign immunity when a foreign state is being sued. Cases are arranged around each of these complex doctrines. Probably the most recognisable is the 2004 US Supreme Court decision of Republic of Austria v Altmann involving Maria Altmann’s claim to several Gustav Klimts. It was the subject of a recent Hollywood movie starring Helen Mirren. The fourth and final chapter, titled “Other Vestiges”, is a hodgepodge and something of a relief after the complexities of abstention dogma. Here, one finds a number of free speech doctrines relating to Nazi marches, beliefs, and memorabilia. Also included: a criminal case raising the Holocaust Syndrome defence, a zoning dispute about the placement of a Holocaust memorial, and a conscientious objector decision. Although I suspect that many law instructors will drop the fourth chapter if pressed for time, it deserves inclusion as much as the first three chapters, perhaps even more so. It distils the continuing impact of the Holocaust in various fields. Interspersed with the edited court decisions are helpful notes and excellent discussion points, along with citations to other sources and articles. There is also available a teacher’s manual of about 100 pages with helpful hints, resources, and suggested lines of inquiry and discussion. The teacher’s manual is not a mere afterthought, the writing of which was delegated and hastily assembled. It is polished and reflective. Law and the Holocaust represents a watershed moment in Holocaust studies: a textbook of pleasing utility and ease-of-entry for law teachers. It boasts 71 cases, 295 notes, 26 statutory appendices, 31 photographs, and three maps – more than enough material for a meaningful law school course. While it can’t be faulted by comparison since there is really nothing to which it may be compared, I would have preferred two adjustments. While the Introduction’s utilisation of case law to provide an overview of Nazi Germany fits stylistically with the rest of the casebook, I fear that students are ill equipped to apply critical analysis to the court’s summaries. Selections from a standard introductory text might better serve in this regard. Second, peppering the case book with more non-US cases would enrich the material significantly. There is no body of “Holocaust Law” per se but an array of trajectories and responses triggered by Nazi Germany, its perpetrators, and its collaborators. There’s no coherent whole that must be canvassed. Therefore, content inclusion is governed largely by the instructor’s aims for the course. The wide variety of legal issues in this textbook – from marriage annulments to copyright claims – would serve as a superb capstone course, though I would also like students to see another perspective of the Holocaust, not just a North American perspective. tom.e.simmons@usd.edu Thomas E. Simmons University of South Dakota http://orcid.org/0000-0002-3199-6838 © 2018 Thomas E. Simmons https://doi.org/10.1080/03069400.2018.1455139