I am pleased to be taking part in a symposium at the Skirball Center in Los Angeles on September 26, 2018, “The Future of Nazi Looted Art Recovery in the US and Abroad.” Presented by Cypress LLP and the Sotheby’s Institute of Art/Claremont Graduate University, the program assembles an impressive group of presenters in whose company I’m grateful to be included. Registration is available here, and the schedule is below:
Topics: Nazi-looted art, Daniel McClean, Cypress LLP, Jonathan Neil, Sotheby’s Institute of Art, Skirball Center, Eyal Dolev, Simon Goodman, The Orpheus Clock, Jonathan Petropolous, Claremont McKenna College, The Faustian Bargain, The Art World in Nazi Germany, Dr. Lynn Rother, Holocaust Expropriated Art Recovery Act, HEAR Act, Laurence Eisenstein, Eisenstein Malanchuk LLP, Lothar Fremy, Rosbach & Fremy, Nicholas M. O'Donnell, Sullivan & Worcester LLP, Thaddeus Stauber, Nixon Peabody LLP, Mark Labaton, Stephen Clark, Getty Institute, Simon Frankel, Covington & Burling LLP, Anne Webber, Commission for Looted Art in Europe, Bob Muller, René Gimpel, Lucian Simmons, Sotheby's, Isabel von Klitzing
Since the passage in 2016 of the Holocaust Expropriated Art Recovery (HEAR) Act, many commenters (here included) have grappled with what the implications of the law will be on the scope and frequency of future claims. Even as litigants are faced with policy arguments about whether individual claims belong in U.S. courts—arguments that the HEAR Act should have put to rest—it is occasionally worthwhile to consider how prior cases would have been affected. Such analysis can draw into relief why the law was such a significant step forward. This week, news that a painting by Vincent Van Gogh once owned by Elizabeth Taylor will go to auction again provides one such example. A beautiful painting in the collection of the biggest movie star in the world makes for a great sales pitch, but missing in the coverage is any mention of Margarethe Mauthner, a German Jew who owned the painting before fleeing the Nazi regime. The exact circumstances under which she lost possession of the painting are unclear, but those circumstances might have had the chance to be determined had the HEAR Act been passed earlier. The importance of that opportunity is worth considering as the law is assessed going forward.
Topics: Margarethe Mauthner, Christie's, Sotheby's, A Tragic Fate, Nazi-looted art, Elizabeth Taylor, Van Gogh, Vue de l'asile et de la Chapelle de Saint-Rémy, HEAR Act, Holocaust Expropriated Art Recovery Act, Holocaust Victims Redress Act, Paul Cassirer, Alfred Wolf
Congress has passed and President Obama is expected to sign two bills related to looted art and the availability of U.S. courts to hear disputes over them. The Holocaust Expropriated Art Recovery (HEAR) Act of 2016 and the Foreign Cultural Exchange Jurisdictional Clarification Act (FCEJCA, for lack of a handy acronym) were both passed without objection both the House of Representatives on December 10, 2016, and are expected to be signed by President Obama shortly. The HEAR Act is a major shift in the law of Nazi-looted art claims specifically, while the FCEJCA is controversial but unlikely to have a broad impact one way or another. It is perhaps most remarkable that in an era of unique partisanship and political polarization, members of Congress from both parties and the President agreed on anything, let alone unanimously (sponsors include such unusual allies as Ted Cruz, Richard Blumenthal, John Cornyn, and Charles Schumer).
Topics: Holocaust Expropriated Art Recovery Act, Immunity from Seizure Act, 22 U.S.C. § 2459, Russia, Chabad, 28 U.S.C. § 1605, expropriation exception”, FSIA, Foreign Sovereign Immunities Act, Welfenschatz, Alfred Flechtheim, Foreign Cultural Exchange Jurisdictional, Guelph Treasure, World War II, Restitution, Nazi-looted art, NS Raubkunst, Legislation, Ted Cruz, Charles Schumer, John Cornyn, Richard Blumenthal, Mikhail Piotrovsky, Politico, State Hermitage Museum, Anita Difanis
Among the many challenges that litigants over Nazi-looted art face in the United States is a lack of uniformity. Statutes of limitations vary from jurisdiction to jurisdiction, and interpretations of jurisdictional laws like the Foreign Sovereign Immunities Act differ from one Court of Appeals to another. This is particularly challenging in the context of the Washington Conference on Nazi Looted Art of 1998 because private disputes are where the issue has meaning in the United States. There is no national commission to address potentially looted art in public possession like those in Austria, Germany, or the Netherlands (however well or poorly some of those commissions perform) because there is very little art in national ownership about which the federal government has any power to decide. Thus, in assessing U.S. compliance with the Washington Principles, it is often left to private litigants to argue about what the Principles mean in individual disputes. Happily, appellate courts have begun to reject consistently the denialist defenses of foreign countries that wish to keep stolen art just because they say so, holding that the Washington Principles support the ability of heirs to pursue claims. Yet the uneven landscape is still daunting.
A new bill introduced this week would address that, though its chances of passage into law in a contentious election season are hard to be optimistic about.