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Friday, July 02, 2010

Thanks for the Invitation - My Topic: Historical Cultural Property Claims

Thanks to Dan Markel and everyone else at PrawfsBlawg for the invitation to write this month.  Since 1999, I’ve been working as a practitioner and then an academic on Holocaust-era claims.  My posts will focus on cultural property law, a subset of property law and international law. 

Co-counsel, Prof. Edward McGlynn Gaffney, Jr., and I filed this amicus brief within the last ten days on behalf American Jewish Congress, Commission for Art Recovery and the following Jewish community leaders, Holocaust educators, artists and art historians, and legal scholars and practitioners dedicated to the promotion of alternative dispute resolution:  Filippa Marullo Anzalone, Yehuda Bauer, Michael J. Bazyler, Bernard Dov Beliak, Michael Berenbaum, Donald S. Burris, Judy Chicago and Donald Woodman, Talbert D’Alemberte, Marion F. Desmukh, Hedy Epstein, Hector Feliciano, Irving Greenberg, Grace Cohen Grossman, Marcia Sachs Littell, Hubert G. Locke, Carrie Menkel-Meadow, Arthur R. Miller, Carol Rittner, John K. Roth, Lucille A. Roussin, William L. Shulman, Stephen D. Smith and Fritz Weinschenk. 

Prawfs readers may recognize Profs. Anzalone, Bazyler, D’Alemberte, Menkel-Meadow, Miller and Roussin.

This Second Circuit appeal concerns the dismissal of Grosz v. The Museum of Modern Art (MoMA).  Too many of us, unfortunately including a fair number of federal judges, seem to presume that claims to property taken long ago must be time-barred under some legal doctrine.  That presumption, however, is blocking our ability to bring sunlight to the dark, hidden history of the vastness of Nazi-looting, the art market’s greed in secretly snapping up bargains and the fact that claimants often were unable to make claims in the post-war period.  Too many in the art community would have us believe that the fact that Nazis plundered more art than any other regime in history, surpassing even Napoleon, remained a mystery until academics and lawyers turned their attention to newly opened archives in the mid-1990s.  This simply is not true, and it is directly relevant to whether purchasers acted in good faith and whether claimants could have identified their property claims and asserted them before now. 

United States diplomats from the State Department played a leading role in securing public commitment by the forty-four nations that adopted the Washington Conference Principles on Nazi-Confiscated Art in 1998 and the Terezín Declaration, which emerged from the international conference hosted by the Czech Republic in June 2009.  These declarations call for effective, fact-based resolution of Nazi-looted art claims – not defeating them in court on statute of limitations grounds.  

The brief captures the current hostile climate for claims to Nazi-looted art, wherein museums are trampling the conciliatory and transparency touchstones in the Washington Principles, Terezin Declaration and their own guidelines while convincing federal courts to accept distorted versions of historical fact going back to 1933 and contravene consistent executive branch policies dating back from today to 1943. 


Some American museums and others have managed to convince our federal courts that claims to Nazi-looted art are not worthy of treatment on the merits – grossly distorting the historical record in the process.  Some courts seem to have been convinced that enemies of the Third Reich could all freely engage in voluntary property and business transactions up until the passage of the Nuremberg Laws or even as late as 1938.  This brief uses irrefutable historical evidence to demonstrate the falsity of this position and that the art world had contemporary knowledge of the massive infection of the art market with “flight art” starting in 1933. 


In the Grosz case, the district court, in contradiction to Fed. R. Ev. 408, took snippets of settlement discussions completely out of context to improperly rule that MoMA Director Glenn Lowry refused the claim before MoMA clearly did so, such that the plaintiffs missed their court filing window under New York’s “demand and refusal” rule by a few months.  This ruling flies in the face of the court’s express finding that Lowry’s language was “almost certainly designed to entice plaintiffs to continue negotiating and to prevent the dispute from becoming public or escalating into litigation.”  The court’s ruling calls out for application of the equitable doctrines of tolling and estoppel and de-incentivizes good faith negotiation while incentivizing museums to draw out negotiations in the hopes that plaintiffs will miss the limitations cut-off.


This ruling guts executive policy since 1943.  Executive policy clearly acknowledges the length to which the Nazis went to mask aryanizations and forced sales of real and personal property as voluntary transactions and calls for their un-winding (London Declaration, Tate Letter, Military Government Law 59, Nuremberg Trials, etc.).  Moreover, recent U.S.-led efforts achieved the support of 44+ nations of declarations signed in Washington (1998), Vilnius (2000) and Terezín (2009) supporting resolution of Nazi-looted art claims via ADR premised on liberal access to provenance (ownership history) records to air the factual merits.  Association of American Museum Directors (AAMD) and American Association of Museums (AAM) Guidelines mirror these standards. 


MoMA, trampling over the declarations and guidelines, refuses to disclose provenance records relevant to the case, much less resolve the claim on the merits, despite Lowry’s 1998 testimony to Congress stating that MoMA and the museum community support transparency and MoMA’s words on its own web site stating that MoMA’s archives are open to all serious researchers.  The court seems to have pre-judged the case at the motion to dismiss stage, characterizing evidence about the tainted history of the paintings at issue as “rank hearsay” despite logical inferences to be drawn from the true historical context, endorsing MoMA’s protestations of confidentiality and inappropriately accepting MoMA's statute of limitations arguments mischaracterizing settlement communications. 


This case concerns paintings by George Grosz, who fled Germany in 1933 and was later declared an “enemy of the State” by the Nazi regime.  He left his art with Jewish art dealer Alfred Flechtheim, who also later fled.  The historical record documents that his galleries were aryanized.  MoMA bought one of Grosz’ paintings in 1947, and another in 1954.  Two "red flag" names identified as traffickers by the Art Looting Investigation Unit of the Office of Strategic Services, which would be familiar to any provenance researcher, appear in the provenances of the paintings at issue.  Not caring does not equate to not knowing.


Unfortunately, this case is not unusual.  More to come in my next post.  In the meantime, here's my web page if you'd like to contact me.

Posted by Jen Kreder on July 2, 2010 at 02:41 PM in Property | Permalink


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I see that you said non-fiction, but somehow I read right past the "non". So, my response did not need to be quite so harsh, but I do disagree with the widespread sentiment that the claims do not deserve a chance in court. The irony is that on the surface almost everyone in the field is in agreement that the claims should be resolved out of court, but that should happen fairly in acccordance with the AAMD guidelines, American Association of Museums guidelines, Washington Principles, Vilnius Declaration and Terezin Declaration. What is happening is that some museums and other present-day-possessors are running to court to shut down the claim on procedural grounds instead of the merits, which contravenes all of these guidelines.

Posted by: Jen Kreder | Jul 3, 2010 10:57:08 AM

Respectfully, BL1Y, you make my point exactly, and you are mistaken. The most massive art heist in history was not a fiction. Nor are its reverberations throughout the modern art market. I teach procedure. Many of these claims are viable. That is why, for example, Christie’s has a full-time Nazi-era provenance expert full-time on staff. Hundreds, and more probably thousands, of objects have been restituted or been the subject of private settlements since 1998 when the Association of American Museum Directors issued its guidelines and forty-four nations signed the Washington Principles calling for transparent provenance research to encourage claimants to come forward to resolve claims without being forced into court. Some of our federal judges are being duped. Our executive branch is not. The State Department right now is currently working to create a Nazi-looted Art Commission to catch up to Europe, which has outpaced the U.S. on restitution since the U.S. previously exercised leadership in this arena during the Clinton administration. I left Big Law after Clinton signed the last Holocaust-era assets treaty with France on his last day in office. Lest you think I suffer from advocate’s fever, I will disclose here that my client was Die Deutsche Bank. When Holocaust-era claims first arrived on the scene, so many presumed in knee-jerk fashion that the plaintiffs’ lawyers who filed Holocaust-era asset claims and slave and forced labor claims spent too much time reading fiction. Over $10 B (depending on the currency converter you use) has since flowed to survivors and heirs through the European foundations that arose out of those efforts. Some very powerful people currently are calling for criminal RICO prosecution of esteemed “benefactors” of the arts for trafficking in stolen property. I’ll lay out more of the history for you in my next post. In other posts, I’ll lay out more about modern litigation in the field and the State Department’s efforts.

Posted by: Jen Kreder | Jul 2, 2010 5:05:08 PM

"Too many of us, unfortunately including a fair number of federal judges, seem to presume that claims to property taken long ago must be time-barred under some legal doctrine. That presumption, however, is blocking our ability to bring sunlight to the dark, hidden history of the vastness of Nazi-looting, the art market’s greed in secretly snapping up bargains and the fact that claimants often were unable to make claims in the post-war period."

Having an interesting, important story to tell shouldn't override the rules of procedure. Seems like this is something better suited for the B&N New in Non-Fiction section than a court room.

Posted by: BL1Y | Jul 2, 2010 4:12:15 PM

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