By Jason Barnes*
The recent movie Woman of Gold and the Holocaust Expropriated Art Recovery Act enacted in 2016 reflect a steady interest in U.S. restitution of Nazi-expropriated art. It is thus with impeccable timing that Nicholas O’Donnell’s first book— A Tragic Fate: Law and Ethics in the Battle over Nazi-Looted Art (2017), arrives on the scene, offering a treatise on the restitution of Nazi-looted art in the United States. In it, O’Donnell describes the most important restitution-related litigation, international gatherings, and treaties in remarkable narratives that manage to stay fascinating while incorporating immense detail and nuance.
O’Donnell’s success on this front likely results from his background. He studied art history at Williams College and law at Boston College Law School. Now, he works as litigation partner at the Boston law firm, Worcester & Sullivan, where he has tried important art restitution cases, such as Philipp et al. v. Federal Republic of Germany et al., 15-cv-00266 (D. D.C.) (restitution of the Guelph Treasure). He serves as the editor of the Art Law Report and is a member of the Art Law Committee for the New York City Bar Association. A Tragic Fate really combines O’Donnell’s two loves—art and law—making him perfectly situated to write on the subject of Nazi-era looted art. O’Donnell is at an ease in his discussion of both the complex litigation procedural devices as well as the artists and art at issue in various cases. His passion and knowledge of the subject are readily apparent in the monograph.
O’Donnell is at his best when telling the war stories in the battle for Nazi-looted art in the legal arena. Most of the book is divided by restitution narratives, with each chapter covering an individual “battle” to recover an artwork through litigation. These case-summary narratives include most, if not all, of the key restitution cases in the United States: The Portrait of Wally (Chapter 3), Portrait of Adele Bloch Bauer (Chapter 4), the Herzog Collection (Chapter 7) and so on. It is through telling these narratives that O’Donnell explains the laws governing restitution. Any one of these individual case summaries on its own is illuminating but it is having them compiled together under one cover that makes the book particularly valuable. It welcomes the juxtaposition of the different barriers to recovery, exposes the good-faith purchasers and jurisdictions that display a heightened hostility towards restitution claims, and shows how the obstacles to restitution claims have evolved over time.
The author’s skill of narrative is not confined to discussing U.S. litigation. It likewise applies to his discussion of the important international gatherings that form the international framework for the restitution of Nazi-looted art. O’Donnell spends pages analyzing the 1998 Washington Conference—the first and arguably most important gathering on the restitution of Nazi-looted art. In his exposition of the seminal conference, O’Donnell analyzes many of the nations’ statements offered at the conference. This tact allows O’Donnell to nicely introduce the differing ways in which nations have responded to the issue of the restitution of artwork looted during the Nazi era. He later returns to comparative law in Chapter 19, wherein he discusses nation-based restitution regimes. These introductions to comparative law are a welcome addition to a book primarily focused on U.S. restitution because they give the reader the necessary context to make any normative judgments on U.S. restitution or ruminate on potential reforms.
Because of the technical nature of the book and O’Donnell’s consistent preference for both detail and accuracy, A Tragic Fate may be less accessible to a non-lawyer. Chapters, especially those focusing on particular litigation cases, read very much like a brief, both in structure and language. The book is riddled with legal jargon, cross referencing, and is written in a style that though clear, at times, feels too formal. Arguably the biggest impediment to lay readers is the immense substantive legal detail that O’Donnell covers in the book. At the same, this very feature will certainly be welcomed by law students and lawyers interested in delving into the intricacies of property restitution practice.
The substantive content alone favors those with some formal legal education. The introduction quickly breezes through important aspects of U.S. restitution law, including discussion of statute of limitations rules such as discovery and demand-and-refusal. But this introduction functions more as a refresher for those far removed from law school than a sufficient exposition for someone never introduced to those concepts before. This criticism applies with even greater force to later discussions of complicated legal concepts, such as the Act of State Doctrine, Bernstein letters, general versus specific jurisdiction, Foreign Sovereign Immunities Act (FSIA), Federal Tort Claims Act (FTCA), and so on.
In the midst of the case summaries, O’Donnell also opts to go into immense detail on the procedural nuances of the various cases – the different iterations of the lawsuit, how the parties have changed over time, jurisdictional issues. For instance, in the chapter on Femme en Blanc (Chapter 3, pp 79-82), O’Donnell discusses the motions practice of the various litigants, including procedural decisions like a §1404 venue transfer request. It’s noble that O’Donnell focuses on the procedural minutiae which oftentimes prove very important for ultimate success in trial. But one wonders if the benefit of accuracy and detail is outweighed by decreased accessibility. O’Donnell tries to militate against this unfortunate result by consistently defining terms and including a nice glossary and index to the end of his monograph.
A Tragic Fate is an educational journey – well worth undertaking. The book is well-researched and written with the clarity one would expect from an effective advocate and proponent of restitution of Nazi-era looted art. The book will serve as good educational resource to law students and practitioners interested in learning more about this particular area of art law or simply general litigation in the United States; or those looking for mere entertainment by some incredible stories on some very important artwork.
Disclaimer: Book reviews are no substitute for reading and interacting with the book herein reviewed.
About the reviewer: Jason Barnes is a third-year JD candidate at Columbia Law School. He is serving as the Fall 2017 Legal Fellow with the Center for Art Law. His note on the Holocaust Expropriated Art Recovery Act is forthcoming in the Columbia Journal of Transnational Law. He can be reached at firstname.lastname@example.org.