Holocaust Art Disputes: The Holocaust Expropriated Art Recovery Act of 2016

• Author: Herbert I. Lazerow
• Position: Professor of Law, University of San Diego. A.B. Pennsylvania, J.D. Harvard, LL.M. George Washington, D.E.S.S. Paris I Panth´eon-Sorbonne. I very much appreciate the contributions to these ideas made by my colleagues Lawrence Alexander, Derrick Cartwright, Kevin Cole, Walter Heiser, Shaun Martin, Adam Hirsch, Maimon Schwarzschild, Allen Snyder,...
• Pages: 195-258

Holocaust Art Disputes: The Holocaust

Expropriated Art Recovery Act of 2016

H

ERBERT

I. L

AZEROW

*

I. Introduction

In the waning days of the Obama presidency, Congress passed and the

President signed the Holocaust Expropriated Art Recovery Act (HEAR).

1

That law purports to extend the statute of limitations for actions to recover a

large group of items, principally art, stolen during the Holocaust.

2

The new

statute of limitations would be either the old statute or a six-years-from-

actual-discovery statute, whichever is longer, to expire at the end of 2026.

3

This article analyzes the likely results of HEAR.

4

Part I sets forth the problems leading up to HEAR’s enactment, including

the typical parties to these controversies, the informational difficulties

* Professor of Law, University of San Diego. A.B. Pennsylvania, J.D. Harvard, LL.M.

George Washington, D.E.S.S. Paris I Panth´eon-Sorbonne. I very much appreciate the

contributions to these ideas made by my colleagues Lawrence Alexander, Derrick Cartwright,

Kevin Cole, Walter Heiser, Shaun Martin, Adam Hirsch, Maimon Schwarzschild, Allen Snyder,

and Sally Yard, as well as by Philip Hackney of Louisiana State University, Thomas R. Kline of

Cultural Heritage Partners (Washington), Simon Frankel of Covington & Burling (San

Francisco), Vivien Shelanski of JAMS (New York), Pierre Ciric of Ciric Law Firm (New York),

K-Rae Nelson of San Diego and Paris, Clarence Epstein, Executive Director, Max and Iris

Stern Foundation, Horatia Muir Watt of the Law School, Institut d’ `

Etudes Politiques (Paris),

Sergio DellaPergola of Hebrew University (Jerusalem), and Kenneth Abraham and Steven Walt

of the University of Virginia. I am especially indebted to Nancy Karrels, Illinois Distinguished

Fellow at the University of Illinois Urbana-Champaign, for her help with the details of

provenance research; to my research assistant, Kelsey Chiodo, Class of 2019, University of San

Diego School of Law, for her research and excellent editorial skills; and to Jane Larrington,

Associate Director & Head of Public Services at the Pardee Legal Research Center and her staff

who produced numerous obscure documents that made this paper richer. I also appreciate the

comments of the participants at the 2018 Southern California International Law Scholars

Workshop at UCLA. Thanks also to the University of San Diego for a summer 2017 research

grant.

1. Holocaust Expropriated Art Recovery Act of 2016, Pub. L. No. 114-308, 130 Stat. 1528.

[hereinafter HEAR].

2. See id. at Sec. 5(a).

3. See id. at Sec. 5(a), (g).

4. The earliest attempt was by Jennifer Anglim Kreder before the Senate Report on the law

became available. See Analysis of the Holocaust Expropriated Art Recovery Act of 2016, 20

C

HAPMAN

L. R

EV

.

1 (2017). An article by Charles Cronin of the University of Southern

California, written shortly after HEAR’s passage, is helpful in understanding the law. See

Ethical Quandaries: The Holocaust Expropriated Art Recovery Act and Claims for Works in Public

Museums (Feb. 10, 2017), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2915

276.

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confronting both claimants and purchasers of art, and the elements of

recovery suits. Part II discusses the functions of statutes of limitations,

adverse possession, and prescription. Part III analyzes the details of HEAR

and explains its effect in typical jurisdictions. Part IV speculates on the law’s

likely impact on the resolution of Holocaust art disputes. Part V concludes

that the effect of HEAR will be small in volume but large in particular cases.

II. Problems of Art Recovery Cases

A. T

HE

P

LAYERS

1. Original Owner’s Representatives

Judging from current cases, the original owners of art seized around the

time of the Holocaust are dead.

5

As such, the cases are being brought by

their heirs.

6

Some of the heirs are the grandchildren and great-

grandchildren of the original owners. A curious aspect of these cases is that

often, the heirs are not direct descendants, but rather the descendants of

siblings or companions of the original owners.

7

The main reason for this is

that a high percentage of the original owners did not have children.

8

In most cases, the original owner’s representatives are individuals or, more

commonly, a group of individuals who had the consanguinity to the original

owner.

9

One original owner left a foundation to support several colleges as

5. The only original owner I have found among the cases and newspaper articles is Erna

Menzel. Her case was first decided in 1966, more than half a century ago. Her husband was

already deceased. Menzel v. List, 49 Misc.2d 300, 267 N.Y.S.2d 804 (Sup. Ct. NY County

1966), modified on other grounds 28 A.D.2d 516, 279 N.Y.S.2d 608 (1967), modification reversed 24

N.Y.2d 91, 246 N.E.2d 742, 298 N.Y.S.2d 979 (1969).

6. See id.

7. As a legal matter, the closeness of the heir to the ancestor in consanguinity should make no

difference for purposes of inheritance. To paraphrase Gertrude Stein, “an heir is an heir is an

heir.”

8. The author is unaware of whether the lack of procreation among European dealers and art

collectors is unusual in general or whether it was unusual for European Jewish circles at the

time. It should be noted that the author’s sample is quite small, composed of court opinions

and newspaper articles in which the author can determine the identity of the person from whom

the art was stolen and whether that person had children. In total, this sample consists of

twenty-two owners, only eleven of whom had children. A demographer who studies the Jewish

people reported that the highest childless percentage of a population he had found was twenty

percent. E-mail from Sergio DellaPergola, Professor, Hebrew University Jerusalem (Sept. 24,

2017) (on file with author). See Sergio DellaPergola & Judith Evan, Some Fundamentals of Jewish

Demographic History, in

P

APERS IN

J

EWISH

D

EMOGRAPHY

11–33 (1997).

9. See, e.g., Von Saher v. Norton Simon Museum of Art, 592 F.3d 954, 959 (9th Cir. 2010)

(representative was only surviving heir of deceased art dealer).

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2018] HOLOCAUST ART DISPUTES 197

his residuary legatee.

10

It is possible that an original owner’s representative

might be a museum or a government,

11

though such a case has yet to arise.

Most of the original owners were either art dealers or major collectors.

12

This is reasonable. In order to make a claim, one must have proof of

ownership. A dealer would have kept regular business records indicating all

the transactions of his gallery. A major collector is more likely to keep

records than someone who has only a few artworks. Further, when dealers’

businesses were taken over in the process of Aryanization, it is likely that the

new owners would have retained the records of the business, causing the

survival of those records, absent war damage.

13

Sometimes original owners,

unable to take their art with them, made notebook inventories of their

collections for easy portability.

14

2. The Lawyers

It appears that each heir of an original owner tends to be represented by

the same lawyer in all his claims.

15

This should not be surprising. Being

represented by the same lawyer has the advantage of economy, as many of

the facts that need to be proven will be the same from one claim to the next.

In the case of a wholesale confiscation, the circumstances of the confiscation

will be the same for all works. A second common fact that must be proven is

that the claimant is the heir of the original owner.

10. In Vineberg v. Bissonnette, 548 F.3d 50 (1st Cir. 2008), the claimant was the Max and Iris

Stern Foundation, which benefits Concordia and McGill Universities in Canada and The

Hebrew University of Jerusalem. See Max Stern Art Restitution Project,

C

ONCORDIA

, https://

www.concordia.ca/arts/max-stern.html (last accessed Jan. 31, 2018). As of February 2017, the

Foundation had recovered sixteen of Stern’s works. Amah-Rose Abrams, FBI Restitutes Nazi-

Looted Painting to the Max and Iris Stern Foundation,

A

RTNET

N

EWS

(Feb. 9, 2017), https://

news.artnet.com/art-world/fbi-returns-painting-max-stern-foundation-853031. Toledo

Museum of Art v. Ullin, 477 F. Supp. 2d 802 (N.D. Ohio 2006) (where the claimants were nine

heirs).

11. Some people leave their property to institutions or the state. The intestacy statutes in

some jurisdictions provide that if a decedent is not survived by a spouse or a relatively close

blood relative, the property goes to the state. See, e.g.,

U

NIF

. P

ROBATE

C

ODE

§§ 2-101 to 2-

105 (amended 2010) (stating if no surviving spouse or heirs of grandparents [first cousins or

their progeny], property goes to the state). Given the carnage of World War II, it is entirely

possible that an owner of art might have died without leaving a single surviving close relative.

12. See, e.g., Von Saher, 592 F.3d at 959.

13. For example, many of the records of the German Lempertz Auction House were

destroyed by bombing during World War II. See Vineberg, 548 F.3d at 53.

14. The Dutch dealer Jacques Goudstikker so listed his inventory or more than a thousand

works. See Von Saher, 592 F.3d at 959.

15. Local counsel may be involved if the litigation takes place outside lead counsel’s

jurisdiction, but it is likely that lead counsel will be the same in all cases. For procedural rules in

federal court, see Commencing a Federal Lawsuit: Overview Practical Law Practice Note 5-509-1323,

W

ESTLAW

P

RACTICAL

L

AW

(2017).

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