Holocaust Art Disputes: The Holocaust Expropriated Art Recovery Act of 2016
The International Lawyer, Forthcoming
49 Pages Posted: 7 Dec 2017
Date Written: 2018
The Holocaust Expropriated Art Recovery Act of 2016 (HEAR) purports to extend the statute of limitations for actions to recover art and certain other items stolen during the Holocaust. The new statute of limitations would be either the old statute or a six-years-from actual discovery statute, whichever is longer. This article analyzes the likely results of that law.
It sets forth the problems leading to HEAR’s enactment, including the typical parties to art recovery controversies, the informational difficulties confronting both claimants and purchasers of art, and the elements of recovery suits. It discusses the functions of statutes of limitations, and adverse possession and prescription, in the law.
In analyzing the details of the HEAR Act, the article argues that its scope is likely to be much less broad than imagined. It will be ineffective for those works for which possession of the property has ripened into title by the doctrine of adverse possession because that would be an unconstitutional taking of property. For possession that has yet to ripen into title, it will have minimal effect in the most important jurisdiction for recovery, New York, because New York’s demand-and-refusal rule already minimizes the number of cases where possession ripens into title by adverse possession. Its effect in traditional jurisdictions is limited by the fact that adverse possession there has likely ripened into title. Its major impact will be on discovery jurisdictions.
Its effect is further limited by applying only to takings by designated institutions or people in persecution of groups as part of Nazi ideology.
The Act is likely to induce some current possessors to litigate claims outside the United States, and to put enormous pressure on the defense of laches to resolve these cases without going to trial on the merits. This is undesirable. It raises the cost of litigation because statute of limitations defenses can normally be resolved without going to the major expense of discovery, while laches defenses can seldom be resolved without costly discovery.
HEAR is likely to increase the volume of cases settled by mediation or negotiation because it increases both the uncertainty of result and the cost of litigation. One factor to be considered is the desirability of positioning the art in a museum where it will remain open to public view, rather than putting it on the art market. Tax and insurance considerations can facilitate a settlement.
Keywords: Holocaust Expropriated Art Recovery Act of 2016, HEAR, statute of limitations, adverse possession, prescription, New York demand and refusal rule, mediation, negotiation, cost of litigation, laches, provenance, implied and express warranties, Holocaust-expropriated art, commerce clause
JEL Classification: K00, K33
Suggested Citation: Suggested Citation