State Law Holocaust-Era Art Claims and Federal Executive Power
105 Nw. U.L. Rev. Colloquy 315 (2011)
17 Pages Posted: 4 Jun 2011 Last revised: 6 Sep 2013
Date Written: June 1, 2011
Doctrines of judicial restraint in international cases take many forms, but they all have at their heart a concern about the proper role of courts, be they federal or state. This Article explores the proper role of courts in deciding state law conversion claims for art stolen or subject to forced or duress sale during the Nazi era. Many presume, incorrectly, that such claims must be precluded by separation of powers and federalism doctrines. This Article demonstrates the inaccuracy of such presumptions.
Holocaust-era claims lie at the intersection of separation of powers and federalism doctrines, neither of which restricts the courts in this context. To explain, it is necessary to cover quite a bit of doctrine. Thus, this Article is divided into the following parts. Part I discusses the general roles of the executive, legislative, and judicial branches of the federal government, as well as state versus federal government, in regard to foreign affairs – historically and in today's globalized world. Part II specifically addresses Holocaust-era art claims by offering the history essential to understanding the Holocaust-era art problem. Part III discusses the role of judicial restitution in the United States in augmenting executive policy to restitute Holocaust-era art, regardless of whether claims are filed in federal or state courts. Part IV, with a special emphasis on one particularly problematic Ninth Circuit case, Von Saher v. Norton Simon Museum of Art at Pasadena, analyzes how courts, seemingly out of a misguided attempt to avoid intruding on foreign affairs, are misapplying state law time-bar and other technical doctrines in Holocaust-art litigation. In light of the emphasis in this Article on judicial restitution failures, Part V discusses present legal efforts to restore power to claimants seeking restitution of Holocaust-era art. Part VI concludes that it is essential for the Supreme Court to correct the judicial errors and reclaim the judicial role in Holocaust-era art restitution. If it fails to do so, neither Congress nor the executive branch is likely to come to the rescue given the present crises, which now absorb those branches' attention.
Keywords: WWII, World War II, Nazi, Holocaust, art, art theft, looted art, art litigation, cultural property, act of state doctrine, state law, judicial restitution
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