Before SCOTUS Hears Another Looted Art Case, Should Congress Reform the Foreign Sovereign Immunities Act?

September 9, 2024

By Joseph G. Scapellato

Holocaust survivors and their heirs face substantial challenges in suits to recover Nazi-looted art in U.S. courts. First, a potential claimant must locate a lost work of art from an evidentiary record tainted by forcible displacement, fraud, and genocide. After locating the artwork, the claimant must then prove that they have clear title, or rightful ownership, to the work from the same evidentiary record.^[1] Even when a claimant can convincingly establish clear title, difficulties persist when the possessor of the work is a foreign governmental entity.

Historically, sovereign states have been immune from lawsuits in courts outside their national borders. In the United States, the Foreign Sovereign Immunities Act (“FSIA”) grants immunity to foreign governments and their agencies from civil actions filed within the U.S.^[2] If an American were to walk through the British Museum and slip on water in the absence of a “Wet Floor” sign, the FSIA prevents that person from suing the British government in an American court.^[3] In an increasingly globalized world, the justification behind the FSIA is commonsensical. Every nation should recognize the sovereignty of other nations within their own borders as “exclusive and absolute,”^[4] so the judiciary—at the behest of a private citizen—should not be able to drag a foreign government into American court.^[5]

This traditional operation of foreign sovereign immunity is problematized when claimants seek to recover property from governments that possess art looted during the Holocaust. When a government dispossesses a people of their rightfully owned property in the furtherance of a genocide, postwar settlements should allow victims to sue that government in the country where they currently reside. The FSIA acknowledges this reality and provides an exception to foreign sovereign immunity, dubbed the “expropriation exception,”^[6] for suits involving property taken “in violation of international law.”^[7] To strip a foreign sovereign of immunity, the suit must involve (1) rights in property taken in violation of international law, and (2)(a) such property must be present in the United States in connection with a commercial activity carried on by the foreign state, or (2)(b) must be possessed by an “agency or instrumentality” of the foreign state that also carries on commercial activity in the United States.^[8]

When claimants file suit against foreign governments that do business in the United States, satisfying this exception should not be difficult. Indeed, genocide is the height of conduct forbidden under international law.^[9] But two recent cases––Federal Republic of Germany v. Philipp, in the Supreme Court,^[10] and Simon v. Republic of Hungary, in the U.S. Court of Appeals for the D.C. Circuit^[11]––narrowed the interpretation of the phrase “rights in property taken in violation of international law.”^[12] And last June, the Supreme Court agreed to hear Simon v. Republic of Hungary, another FSIA case, to determine whether the commingling of allegedly looted property with other economic assets is sufficient to fulfill the second part of the expropriation exception.^[13]

This article will briefly examine the history of Nazi-era art-looting, the FSIA, and U.S. cases to recover property looted during the Holocaust. Through an art historical analysis of Nazi-looting, the article argues that the distinctly international scale of art theft committed in furtherance of the Holocaust compels a broader reading of the expropriation exception. Because courts’ current trajectory has been to add barriers for claimants in suits to reclaim Nazi-looted art, the Supreme Court will likely further narrow the commercial activity requirement under the FSIA in its forthcoming Simon decision. As such, the article concludes by proposing ways for Congress to amend FSIA section 1605(a)(3) to facilitate a more just system for reclaiming Nazi-looted art.

Nazi Art-Looting and the Ideological Aims of the Third Reich

From 1933 to 1945, the genocidal Third Reich effected the largest displacement of art in human history.^[14] Oftentimes, the German military forcibly looted a museum, a bank, or a family collection;^[15] while at other times, Jewish people had to hurriedly sell their art at below-market rates under the threat of persecution.^[16] This widespread theft not only benefited the finances of the Nazi regime, but it played an important role in propaganda. Seeking the total domination of Europe, this international scale of art-looting buttressed the Nazis’ ambitions to inherit Europe’s history and culture.

The Nazis exhibited looted art to both extol German virtue and denigrate marginalized peoples. The Nazis first gathered antiquities and masterpieces that they considered “Aryan” to exemplify the values of Nazi society.^[17] To this end, Herman Göring tasked Austrian art historian Kajetan Mühlmann with identifying art to be expropriated from occupied countries, such as what the Nazis referred to as the “‘former’ Polish state.”^[18] Hitler personally provided Mühlmann with a contingent of around two dozen soldiers,^[19] and Mühlmann used these soldiers to plunder the aristocratic Czartoryski family collection.^[20] The Polish family’s collection included iconic works such as Leonardo da Vinci’s Lady with an Ermine (1489) and Rembrandt van Rijn’s Landscape with the Good Samaritan (1638).^[21] While Mühlmann purloined these emphatically non-German artworks, he simultaneously argued that other European peoples represented a mere facsimile of German history and culture.^[22] Of Polish history, he contended that Poland was previously settled by Germans and that Kraków was actually a German city.^[23]

The Nazis also appropriated aesthetics from ancient Greece and Rome to adorn themselves as the inheritors of a pan-European identity.^[24] Many were fond of Plato for his antipathy to democracy and his advocacy for dividing society into classes based on innate characteristics.^[25] They also admired Spartan society for its bellicose militarism, widespread use of eugenics, and exploitation of nearby city-states.^[26] To adopt ancient Greek and Roman aesthetics, the Nazis amassed a sumptuous collection of antiquities that included works like the Lancelloti Discobolus^[27]—while also appropriating ancient motifs, such as the display of Athena, to decorate Nazi art exhibitions.^[28]

While the Nazis used looted art to glorify German identity, they also displayed it in a manner that demeaned marginalized groups and non-German cultures. In 1937, the Nazi “Ministry for Propaganda and Popular Enlightenment” planned an exhibition entitled Entartete Kunst (“Degenerate Art”).^[29] The ideological goal of Degenerate Art was to “raise alarm” about the corrosive effects of modernism on German art and culture.^[30] The exhibition featured works from the Dada and Expressionist movements that were looted from artists’ collections, museums, and galleries.^[31] The works were displayed in a slipshod manner, and many were accompanied by wall labels mocking them as exorbitantly priced.^[32] Some of the works were later sold to collectors, serving the dual purpose of ridding undesirable art from German state collections while turning a quick profit.^[33] Degenerate Art was a flashpoint in the Nazis’ denigration of modernism, abstraction, and non-European cultures, linking these allegedly corrupting influences to a conspiracy involving Jewish people’s plans to degrade German identity.^[34]

In sum, the Nazis’ extensive agglomeration of art benefited the finances of the regime while constructing a myth of German supremacy over Europe. Celebration of masterful “Aryan” art—often appropriated from other cultures—was juxtaposed with anachronistic “degenerate” art—often made by German artists. This looting was not a series of isolated incidents, but it was an essential part of a broader imperial regime. The international scope of the Nazis’ theft makes the reasoning behind the Supreme Court’s decision in Federal Republic of Germany v. Philipp blinkered to the scale of property expropriation during the Third Reich.

The Anatomy of a Looted Art Case

Before examining the FSIA and Philipp, this part will give a brief overview of Nazi-looted art cases in the United States, detailing the parties involved, the typical causes of action, and common strategies in causes to recover allegedly looted art.

1. The Parties Involved.––Claimants in Nazi-era looted art cases today are overwhelmingly the heirs of the original owners of the art; most Holocaust survivors have since died.^[35] The current possessors of the art involve museums, private individuals, or foreign governmental galleries and collections.^[36]

2. The Causes of Action.––To recover a work of Nazi-looted art, a claimant will typically assert state-law claims of conversion and replevin.^[37] To establish a claim for conversion, a claimant must prove that a defendant (1) intentionally and without authority, (2) exercised dominion or control over the property of the claimant, which (3) seriously interfered with the claimant’s right of possession.^[38] To establish a claim of replevin, the claimant must prove that the defendant (1) possesses the plaintiff’s property (2) to which the plaintiff has a superior right of possession.^[39] Beyond the elements necessary to establish each cause of action, the differences between replevin and conversion lie in their remedies.^[40] While a claim of conversion seeks relief in the form of monetary damages for the value of the unlawfully taken property, a claim of replevin seeks relief through the return of the unlawfully taken property.^[41]

3. Forum of Law.––Nazi-looted art litigation typically involves state law claims,^[42] beginning in state court.^[43] However, the case can also be filed in federal court if the projected value of the looted art exceeds $75,000.00 USD and involves parties from different states.^[44] When a foreign defendant invokes the FSIA, however, the FSIA allows that defendant to remove the case to federal court, even without the consent of other defendants.^[45] This ensures that a foreign defendant has the opportunity to be heard in a federal court, which the FSIA suggests as being more appropriate for foreign entities.^[46]

4. Establishing Heirship and Good Title as a Plaintiff.––Given the amount of time that has passed between 1933–1945 and the present,  most lawsuits to recover looted art are carried on by the heirs of those victimized by Nazi persecution.^[47] In estate law, heirship refers to the legal right of an individual to inherit property, money, or possessions from a deceased person.^[48] To receive property as an heir, the deceased person must have had “good title” to the property that is to be passed on after death.^[49] When a person has “good title” to property, that person’s ownership of the property is free from legal encumbrances or serious doubts from a fairly deducible record.^[50] However, the Nazis systematically murdered their victims, so establishing good title as an heir can prove to be an intractable task.^[51] Good title to a work of looted art can be established through receipts of purchase, auction records, provenance records, and catalogues raisonné.^[52] Because heirs often lack direct knowledge of the work’s ownership history, an heir’s personal records—such as insurance policies or photographs documenting the painting in the original owner’s home—are essential to establishing good title and heirship.^[53]

Heirs seeking to recover looted art may appropriately initiate suit under the tort doctrine of “intentional interference with inheritance.”^[54] When a defendant intentionally prevents another person from receiving a benefit deriving from a relationship with a third party, the defendant may be liable to that person for the loss of the inheritance or gift.^[55] In an action to recover Nazi-looted art, the defendant would be the current possessor of the art, the person despoiled of the benefit or inheritance would be the heir of the original owner of Nazi-looted art, and the third party would be the heir’s ancestor whose artwork was taken under Nazi persecution.

5. Establishing the Current Possessor as a Defendant.––In the United States, thieves cannot pass good title to stolen property onto another person, even when that person unknowingly purchased the stolen property in good-faith.^[56] Accordingly, the original owner typically occupies a superior legal position to claim title over a good-faith purchaser, whose “chain of possession was at one point, and may continue to be, ‘wrongful.’”^[57] The burden of proof, then, falls on the defendant to demonstrate that their claim to good title trumps the claim of the heir to the original owner.^[58]

Furthermore, when the current possessor of an allegedly looted work of art was not the original wrongdoer, a claimant may still file suit against the current possessor under the doctrine of “assumpsit for money had and received.”^[59] “Assumpsit for money had and received” is an equitable doctrine that enables a plaintiff to recover money or property that the defendant ought not have retained.^[60] Plaintiffs may assert this doctrine in cases to recover stolen property, which includes actions to recover Nazi-looted art.^[61]

There are more difficulties to asserting a claim to recover a looted work of art; however, these complexities all come before a foreign governmental defendant asserts sovereign immunity under the FSIA. In the next two sections, the article will discuss how foreign sovereign immunity has become an increasingly difficult barrier for claimants to surmount in cases to recover Nazi-looted art.

FSIA Jurisprudence and Simon’s Pro-Defendant Trend

Under FSIA section 1605(a)(3), to divest a foreign sovereign of immunity in U.S. courts, a plaintiff must demonstrate that their lawsuit involves the following: (1) rights in property taken in violation of international law, and (2)(a) the property is either present in the United States in connection with a commercial activity carried on in the United States, or (2)(b) the property is possessed by an agency or instrumentality of the foreign government that carries on commercial activity in the United States.^[62] This section will examine how U.S. courts have dealt with each of these requirements in actions to recover Nazi-looted property, arguing that recent decisions overwhelmingly favor defendants.

1. Rights in Property Taken in Violation of International Law.––As stated in the first part of this article, art expropriation during the Holocaust was not a series of isolated incidents, but an essential part of the Nazis’ broader imperialist regime. In 2012, the Seventh Circuit acknowledged that reality in Abelesz v. Magyar Nemzeti Bank, ruling that property taken by the Hungarian government from its own citizens during the Holocaust violated international law.^[63] The court specifically noted that property expropriation during the Holocaust had “the ghoulishly efficient result of both paying for the costs associated with a systematic attempt to murder an entire people and leaving destitute any who manage to survive.”^[64] However, in Federal Republic of Germany v. Philipp, the Supreme Court reversed course.

In Philipp, the Supreme Court remarkably held that property bought from German Jews under Nazi duress did not fall under the FSIA’s expropriation exception.^[65] The case involved heirs of a Jewish-owned art consortium that owned medieval German treasures called the “Welfenschatz.”^[66] After the Nazis’ ascent, Herman Göring, Hitler’s deputy, learned that the consortium owned the Welfenschatz, and he coerced its sale to the Nazis for approximately one-third of its market value.^[67] The plaintiffs, heirs of the consortium’s owners, filed suit in the U.S. District Court for the District of Columbia, but Germany moved to dismiss under the FSIA, arguing that the plaintiffs’ suit did not satisfy the expropriation exception.^[68] The district court denied Germany’s motion, and the D.C. Circuit affirmed.^[69]

In February 2021, the Supreme Court vacated the lower courts’ decisions.^[70] Writing for a unanimous Court, Chief Justice John G. Roberts, Jr., ruled that the phrase “rights in property taken in violation of international law” applies only to suits involving property owned by a person that was taken by the government of another country.^[71] The Court reasoned that FSIA’s expropriation exception incorporates what is known as the “domestic takings rule,” which holds that “what a country does to property belonging to its own citizens within its own borders is not the subject of international law.”^[72] Philipp effectively overturned the Seventh Circuit’s holding in Abelesz, requiring claimants to demonstrate that they were not citizens of the nation whose government allegedly dispossessed them of their property.^[73] Whether the alleged looting was done in furtherance of a genocide was immaterial; according to the Court, such taking was not “in violation of international law” under the FSIA.

After Philipp, the D.C. Circuit further narrowed the expropriation exception in Simon v. Republic of Hungary.^[74] Simon involved two cohorts of claimants alleging that the Hungarian government looted property from their ancestors during World War II.^[75] Czechoslovakian nationals comprised the ancestors of one group, and so-called “stateless persons” comprised the other.^[76] Cognizant of the Supreme Court’s ruling in Philipp, the D.C. Circuit held that property taken from “de facto stateless” persons––persons devoid of rights or legal protection by their own government^[77]––did not amount to rights in property taken in violation of international law.^[78] The court did, however, allow the case involving the group descended from Czechoslovakian nationals to proceed.^[79]

Taken together, Philipp and Simon allow suits against foreign governments to recover Nazi-looted art only when those suits are initiated by persons who were foreign nationals at the time of the alleged expropriation.

2. The Commercial Activity, or “Nexus,” Requirement.––If such suit does involve “rights in property taken in violation of international law,” the next provision of section 1605(a)(3) requires a plaintiff to prove that such property is either (1) present in the United States in connection to a commercial activity carried on in the U.S., or (2) owned by an agency or instrumentality of the foreign government that also conducts business in the U.S.^[80]

The case Republic of Austria v. Altmann represents perhaps the most notable instance of the commercial activity requirement in operation.^[81] Ferdinand Bloch-Bauer was a Jewish sugar magnate who owned valuable paintings by Gustav Klimt,^[82] an influential artist in the Viennese Modernist movement.^[83] One of Klimt’s paintings depicting Ferdinand’s wife, Portrait of Adele Bloch-Bauer (1907) (“the Klimt Painting”), was “Aryanized” when the Nazis annexed Austria in 1938.^[84] After the war, the painting resided in the Austrian Gallery, which allegedly made false assertions that Adele Bloch-Bauer had voluntarily bequeathed the painting.^[85] Maria Altmann, Ferdinand Bloch-Bauer’s niece and sole surviving heir, escaped Austria in 1938, filing suit to reclaim the painting in the U.S. District Court for the Central District of California.^[86] Austria moved to dismiss under the FSIA, arguing that the Austrian Gallery did not engage in commercial activity in the United States, but the district court denied the motion.^[87]

The Ninth Circuit affirmed.^[88] First, the FSIA defines commercial activity as “either a regular course of commercial conduct or a particular commercial transaction or act.”^[89] Because the Austrian Gallery used images of the Klimt Painting in advertising, books, and promotional materials distributed throughout the U.S., such conduct was sufficiently continuous to constitute regular commercial activity divesting the gallery—an instrumentality of the Austrian government—of immunity under section 1605(a)(3).^[90] The Supreme Court later declined to review this part of the Ninth Circuit’s ruling,^[91] and after victory with an arbitration panel in Vienna, the Austrian Gallery returned the Klimt Painting to Altmann.^[92]

Finally, the D.C. Circuit has recently taken a novel, pro-claimant interpretation of the commercial activity requirement in de Csepel v. Republic of Hungary.^[93] In de Csepel, the plaintiffs were heirs of Baron Mór Lipót Herzog, a Hungarian-Jewish art collector who amassed an extensive collection of works from El Greco to Claude Monet.^[94] After the outbreak of World War II, Herzog hid his collection in his basement, only to be discovered by the Nazis and their alleged Hungarian collaborators.^[95] The works were later placed into Adolf Eichmann’s personal collection.^[96] The plaintiffs brought suit against the Republic of Hungary, three Hungarian art museums, and Hungarian National Asset Management, Inc. (“MNV”) in the U.S. District Court for the District of Columbia.^[97] MNV moved to dismiss, arguing that it was immune from suit under the FSIA.^[98] The district court denied this motion,^[99] and the D.C. Circuit affirmed.^[100]

The second half of section 1605(a)(3) of the FSIA provides that agencies or instrumentalities of foreign sovereigns are not immune from U.S. jurisdiction when such an entity is merely engaged with commercial activity in the United States.^[101] Importantly, the D.C. Circuit interpreted this provision separately from the first part of the subsection—which was at issue in Philipp and Simon—because it was separated by the conjunction “or.”^[102] The court construed the statute’s use of the word “or” to mean that agencies and instrumentalities of foreign governments may be divested of sovereign immunity if they merely conduct commercial activity in the U.S., and this applies irrespective of whether they took property from a citizen or noncitizen.^[103] Because Herzog was a Hungarian national, and MNV is an agency or instrumentality of Hungary, it is unclear whether the D.C. Circuit missed Philipp‘s holding on the meaning of “rights in property taken in violation of international law,” or MNV simply failed to raise the issue. Finally, the court ruled that the commercial activity that the agency or instrumentality conducts in the U.S. need not be connected to the looted property itself.^[104] MNV appealed the ruling, but the Supreme Court denied cert.^[105]

With the exception of de Csepel, U.S. courts have recently been reluctant to extend their jurisdiction over foreign governments. Indeed, the trend in FSIA jurisprudence has been to add barriers to suits to reclaim Nazi-looted art, not lower them. As such, Congress should reform section 1605(a)(3) of the FSIA to assert pro-claimant interpretations of the expropriation exception and the commercial activity requirement.

Possible Reforms to the FSIA Before the Supreme Court Hears Simon

In its upcoming decision in Simon v. Republic of Hungary, the Supreme Court will answer whether a foreign sovereign bears the burden of producing evidence to affirmatively disprove that property allegedly looted in violation of international law has a commercial connection to the United States.^[106] If the Court rules in favor of Hungary, such a result would further tilt the scales against Holocaust victims and their heirs, requiring lengthier periods of discovery to determine exactly whether the proceeds from looted property were used in relation to commercial activity in the United States. Such added difficulties should impel Congress to reform the FSIA with language that cements a more pro-claimant future.

Congress could first reverse the Supreme Court’s decision in Philipp by defining the phrase “rights in property taken in violation of international law” to include all suits to reclaim property involving victims of a genocide—irrespective of nationality. The Holocaust included some of the most egregious instances of forcible displacement in human history,^[107] and property taken during the Holocaust was used to finance the genocide itself.^[108] This reform would codify the Seventh Circuit’s reasoning in Abelesz, and it would also affirm the principles behind punishments for genocide under international law, which provides that complicity in genocide is itself a distinct crime.^[109]

Further, Congress could codify the holding in de Csepel v. Republic of Hungary by clarifying that when agencies or instrumentalities of foreign governments, which merely engage in separate commercial activity in the United States, possess allegedly looted property, they are divested of sovereign of immunity. Because claimants would only have to prove that an agency possessing looted art engages in some form of commercial activity in the U.S., this reform would significantly reduce claimants’ costly informational barriers. It would also get ahead of the Supreme Court’s forthcoming ruling in Simon, where the Court may be poised to further tighten the commercial activity requirement. Finally, such an amendment would not be unprecedented; Congress has actually reformed the FSIA in the past to benefit defendants, providing certain circumstances under which looted art can be present in the United States without divesting a foreign sovereign of immunity.^[110]

After World War II, the United States and its allies extirpated Nazism from the governments of Europe. The institutions formed after the war sought to prevent another calamity of that scale, while also providing victims with a small measure of justice. To give the heirs of Nazi-looted art a fairer chance to prevail in U.S. courts, Congress should reform the FSIA.

About the Author

Joseph Scapellato is a 3L at the University of Pittsburgh School of Law who currently serves as Executive Editor on the Pitt Law Review and Secretary of the Student Bar Association. He studied History of Art & Architecture at the University of Pittsburgh, where he was a three-time guest lecturer for the department. His legal interests include art restitution cases, intellectual property law, and nonprofit governance. He hopes to combine his interests in art history and the law to serve clients in the arts industry. Joseph can be reached for questions or comments at jgs52@pitt.edu.

Bibliography:

1. E.g., Herbert I. Lazerow, Holocaust Art Disputes: The Holocaust Expropriated Art Recovery Act of 2016, 51 Int’l Law. 195, 200 (2018). ↑
2. Foreign Sovereign Immunities Act, 28 U.S.C. § 1604. ↑
3. There are also, obviously, difficulties and particularities associated with suing the Crown in a British court. See Crown Proceedings Act 1947, 10 & 11 Geo. 6 c. 2 (Eng.). ↑
4. The Schooner Exch. v. M’Faddon, 11 U.S. 116, 136 (1812); see also Republic of Austria v. Altmann, 541 U.S. 677, 688 (2004) (endorsing Chief Justice John Marshall’s view of sovereign immunity in M’Faddon). ↑
5. See, e.g., Vivian G. Curran, The Foreign Sovereign Immunities Act’s Evolving Genocide Exception, 23 UCLA J. Int’l L. & Foreign Affs. 46, 49–50 (2019) (discussing the conceptual background to the FSIA); Ian Brownlie, Principles of Public International Law 326 (7th ed. 2008). ↑
6. F.R.G. v. Philipp, 592 U.S. 169, 179 (2021). ↑
7. 28 U.S.C. § 1605(a)(3). ↑
8. Id.; Agudas Chasidei Chabad of U.S. v. Russian Fed’n, No. 23-7036, 12 (D.C. Cir. Aug. 6, 2024). ↑
9. See, e.g., Raphael Lemkin, Genocide as a Crime Under International Law, 41 Am. J. Int’l L. 145, 150 (1946) (“By declaring genocide a crime under international law and by making it a problem of international concern, the right of intervention on behalf of minorities slated for destruction has been established.”); Convention on the Prevention and Punishment of Genocide, 78 U.N.T.S. 277, S. Treaty Doc. No. 81-15 (1948) [hereinafter “Genocide Convention”]; Steven R. Ratner, The Genocide Convention After Fifty Years, 92 Challenge Non-State Actors 1, 1 (1998) (“[The Genocide Convention] builds on the Universal Declaration of Human Rights and its starting point: that governments have duties not merely to foreigners through the notion of state responsibility for injury to aliens, but to their own citizens as well.”) (emphasis added); William J. Clinton, Speech to Rwandans at the Airport in Kigali, Rwanda (Mar. 25, 1998) (“The international community, together with nations in Africa, must bear its share of responsibility for [the Rwandan Genocide], as well . . . [W]e must as an international community have the ability to act when genocide threatens.”). ↑
10. 592 U.S. 169 (2021). ↑
11. 77 F.4th 1077 (D.C. Cir. 2023). ↑
12. 28 U.S.C. § 1605(a)(3). ↑
13. 23-867 HUNGARY V SIMON, Sup. Ct. of the U.S. (June 24, 2024) [hereinafter “Simon Questions Presented”], https://www.supremecourt.gov/qp/23-00867qp.pdf. ↑
14. E.g., Holocaust Expropriated Art Recovery Act of 2016, Pub. L. No. 114-308, § 2(1), 130 Stat. 1524, 1524 (“It is estimated that the Nazis confiscated or otherwise misappropriated hundreds of thousands of works of art . . . as part of their genocidal campaign against the Jewish people and other persecuted groups. This has been described as the ‘greatest displacement of art in human history.’”); Alex Shoumatoff, The Devil and the Art Dealer, Vanity Fair (Apr. 2004), https://archive.vanityfair.com/article/2014/4/the-devil-and-the-art-dealer. ↑
15. See Jonathan Petropoulos, Art Historians and Nazi Plunder, 21 New Eng. Rev. 5, 18 (2000). ↑
16. See Zuckerman v. Metropolitan Museum of Art, 307 F. Supp. 3d 304, 308–10 (S.D.N.Y. 2018) (describing the hardships faced by Paul and Alice Leffmann selling Picasso’s The Actor (1904–05) below market in order to finance their escape from Fascist Italy); see also Philipp, 592 U.S. at 173–74 (describing Hermann Göring’s tactics of coercion against a Jewish art consortium to buy the German medieval treasures called the “Welfenschatz” below market). ↑
17. Jennifer A. Kreder, Analysis of the Holocaust Expropriated Art Recovery Act of 2016, 20 Chap. L. Rev. 1, 1–2 (2017). ↑
18. Petropoulos, supra note 14. ↑
19. Id. at 18. ↑
20. Id. at 5. ↑
21. Id. ↑
22. Id. at 19. ↑
23. Id. ↑
24. Johann Chapoutot, Greeks, Romans, Germans: How the Nazis Usurped Europe’s Classical Past (2016). ↑
25. Id. at 199; see Plato, The Republic (ca. 375 B.C.E.). ↑
26. Id. at 216, 222, 224. ↑
27. Id. at 176. Hitler even stated that the Lancellotti Discobolus was the aesthetic ideal to which German men should aspire. Id. ↑
28. Steven Kasher, The Art of Hitler, 50 Oct. 48 (1992). Nazi eugenicist Fritz Lenz spoke highly of Spartan eugenics, stating that, “It is well known to all that the exclusion of weak infants was practiced among the ancient Spartans. According to Plutarch, the legislator Lycurgus had very specific selective goals in mind [and] . . . [t]his custom appears to have been a trait of the Indo-Germanic race.” Chapoutot, supra note 22, at 222. ↑
29. Neil Levi, “Judge for Yourselves”—The Degenerate Art Exhibition as Political Spectacle, 85 Oct. 41, 42 (1998). ↑
30. Id. at 42. ↑
31. Id. ↑
32. Degenerate Art, Museum of Modern Art, https://www.moma.org/calendar/exhibitions/3868 (last visited July 20, 2024). ↑
33. Jonathan Petropoulos, Art Dealer Networks in the Third Reich and in the PostWar Period, 52 J. Contemp. Hist. 546, 548 (2017). ↑
34. Neil Levi, Modernist Form and the Myth of Jewificiation 55 (2013). ↑
35. Lazerow, supra note 1, at 196. ↑
36. Id. at 199. ↑
37. E.g., Reif v. Nagy, 175 A.D.3d 107, 117 (App. Div. 1st Dept. 2019); Von Saher v. Norton Simon Museum of Art, 754 F.3d 712, 720 (9th Cir. 2014). ↑
38. E.g., Restatement (Second) of Torts § 222A (Am. L. Inst. 1965); Reif, 175 A.D.3d at 120 (“A conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person’s right of possession.”). ↑
39. E.g., Askari v. McDermott, Will & Emery, LLP, 179 A.D.3d 127, 154 (App. Div. 2d Dept. 2019). ↑
40. E.g., 66 Am. Jur. 2d Replevin § 5 (2024). ↑
41. Id.; Noble Systems Corp. v. Alorica Central LLC, 543 F.3d 978, 986 (8th Cir. 2008) (“Replevin, like conversion, is a way to test the superiority of property rights, but with the ability to recover the property itself instead of damages.”). ↑
42. See discussion supra Section II.2. ↑
43. See, e.g., Reif, 175 A.D.3d 107; Gowen v. Helly Nahmad Gallery, Inc., 60 Misc. 3d 963 (N.Y. Sup. Ct. 2018); Estate of Kainer v. UBS AG, 181 N.E.3d 567 (N.Y. 2021). ↑
44. 28 U.S.C. § 1332(a)(1). ↑
45. See, e.g., In re Asbestos Prods. Liab. Litig., 536 Fed. Appx. 183, 187 (3d Cir. 2013) (citing 28 U.S.C. § 1441(d)). Section 1441(d) of the FSIA states, “Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(d). For the FSIA’s procedure on removing a state case to federal court, see id. § 1447. ↑
46. See, e.g., Ogi Grp. Corp. v. Oil Projects Co. of the Ministry of Oil, Baghdad, Iraq (SCOP), No. 19-cv-2619 (APM), at 19–20 (D.C. Dist. October 10, 2020) (interpreting the FSIA’s venue provisions in sections 1391(f)(3) and 1391(f)(4) as favoring federal venues for both foreign governments and their agencies and instrumentalities). ↑
47. Lazerow, supra note 1. ↑
48. E.g., Dunham v. Stitzberg, 201 P.2d 1000, 1010 (N.M. 1948) (“A deceased person’s heirs at law are those persons who succeed to his estate under statutes of descent and distribution.”); Dickey v. Walrond, 253 P. 706, 708 (Ca. 1927) (“‘The word “heirs” means the persons who would be entitled to succeed at his death to his estate in case of intestacy, by virtue of our statutes relative to succession.’”). ↑
49. See, e.g., Bakalar v. Vavra, 619 F.3d 136 (2d Cir. 2010) (involving a dispute over the ownership of Egon Schiele drawings between heirs to the original owner who was subjected to detention in the Dachau concentration camp against a purportedly innocent purchaser of the looted artwork in a New York art gallery). ↑
50. E.g., First Mont. Title Co. v. N. Point Square Ass’n, 782 P.2d 376, 379 (Mont. 1989) (“A good title is one free from litigation, palpable defects and grave doubts, comprising both legal and equitable titles, and fairly deducible of record.”); Fairchild Heights, Inc. v. Amaro, 976 A.2d 668 (Conn. 2009) (“[Good title is] free from any encumbrances, burdens, or other limitations.”) (citing Good Title, Black’s Law Dictionary (7th ed. 1999)). ↑
51. Lawrence M. Kaye, Avoidance and Resolution of Cultural Heritage Disputes: Recovery of Art Looted During the Holocaust, 14 Williamette J. Int’l L. & Disp. Resol. 243, 256 (2006); Patricia Y. Reyhan, A Chaotic Palette: Conflict of Laws in Litigation Between Original Owners and Good-faith Purchasers of Stolen Art, 50 Duke L.J. 955, 968 (2001). ↑
52. Lazerow, supra note 1, at 204–08. ↑
53. Id. ↑
54. See, e.g., Restatement (Third) of Torts § 18 (Am. L. Inst. 1995); Restatement (Second) of Torts § 774B (Am. L. Inst. 1979). ↑
55. Restatement (Third) of Torts § 18 (Am. L. Inst. 1995) (“A defendant is subject to liability for interference with economic expectation if: (a) the plaintiff had a reasonable expectation of economic benefit from a relationship with a third party; (b) the defendant committed an independent and intentional legal wrong; (c) the defendant intended to interfere with the plaintiff’s expectation; (d) the defendant’s wrongful conduct caused the expectation to fail; and (e) the plaintiff suffered economic loss as a result.”); Restatement (Second) of Torts § 774B (Am. L. Inst. 1979) (“One who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift.”). ↑
56. E.g., Cassirer v. Thyssen-Bornemisza Collection Found., 69 F.4th 554, 557 (9th Cir. 2023) (“[U]nder the laws of California, a person may not acquire title to a stolen item of personal property (because a thief cannot pass good title, and California has not adopted the doctrine of adverse possession for personal property)[.]”); Bakalar v. Vavra, 619 F.3d 136, 140–41 (2d Cir. 2010) (“Unlike Switzerland, in New York, a thief cannot pass good title.”); Solomon R. Guggenheim Found. v. Lubell, 569 N.E.2d 426, 429 (N.Y. 1991) (“New York case law has long protected the right of the owner whose property has been stolen to recover that property, even if it is in the possession of a good-faith purchaser for value[.]”). ↑
57. Reyhan, supra note 50, at 969 (scare quotes in original). ↑
58. Id. ↑
59. See, e.g., Moses v Macferlan [1760] 97 Eng. Rep. 676, (Eng.) (originating the “money had and received” phraseology); Nash v. Towne, 79 U.S. 689, 702 (1867) (“Assumpsit for money had and received is an equitable action to recover back money which the defendant in justice ought not to retain, and it may be said that it lies in most, if not all, cases where the defendant has moneys of the plaintiff which, ex equo et bono, he ought to refund.”). ↑
60. Nash, 79 U.S. at 702 (1867); Assumpsit, Ballentine’s Law Dictionary (3d ed. 1969) (“[Assumpsit is a] common law action by which compensation in damages may be recovered for the nonperformance of a contract express or implied, written or verbal, but not under seal and not of record.”). ↑
61. See, e.g., Tatiana R.S. Cutts, Modern Money Had and Received, 38 Oxford J. Legal Studs. 1, 6–14 (2018). ↑
62. 28 U.S.C. § 1605(a)(3). ↑
63. Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 674–76 (7th Cir. 2012). ↑
64. Id. at 675. ↑
65. F.R.G. v. Philipp, 592 U.S. 169, 173 (2021). ↑
66. Id. ↑
67. Id at 173–74. ↑
68. Id at 173–74. ↑
69. Id at 174–75. ↑
70. Id at 187. ↑
71. Id. at 180. ↑
72. Id. at 176. This statement seems to contradict the international consensus on genocide being universally proscribed by international law. See sources supra note 9. However, the case comes to a similar conclusion as how the U.K. deals with property allegedly expropriated by a claimant’s own government. See Princess Paley Olga v Weiz [1929], 1 KB 718 (Eng.). ↑
73. See id.; see also Abelesz, 692 F.3d at 675. ↑
74. 77 F.4th 1087 (D.C. Cir. 2023). ↑
75. Id. at 1088. ↑
76. Id. ↑
77. Id. at 1093. ↑
78. Id. at 1088–89. ↑
79. Id. at 1089. ↑
80. 28 U.S.C. § 1605(a)(3). ↑
81. 541 U.S. 677 (2004). The case was later made into a movie, entitled Woman in Gold (2015). ↑
82. Id. ↑
83. Laura Morowitz, ‘Heil the Hero Klimt’: Nazi Aesthetics in Vienna and the 1943 Gustav Klimt Retrospective, 39 Oxford Art J. 107, 107 (2016). ↑
84. Altmann, 541 U.S. at 682. ↑
85. Id. at 683. ↑
86. Id. at 680, 685. ↑
87. Altmann v. Republic of Austria, 317 F.3d 954, 954 (9th Cir. 2002). ↑
88. Id. at 968–69. ↑
89. 28 U.S.C. § 1603(d). ↑
90. Altmann v. Republic of Austria, 317 F.3d at 969. After Altmann, the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (“FCEICA”) clarified that an art exhibition in the United States designated by the President as being culturally significant to the United States is not a commercial activity under section 1605(a)(3). Foreign Cultural Exchange Jurisdictional Immunity Clarification Act, Pub. L. No. 114-319, § 2, 130 Stat. 1618, 1618 (2016) (codified at 28 U.S.C. § 1604(h)). However, this exception does not apply to cases to recover Nazi-looted art. 28 U.S.C. § 1604(h)(2). ↑
91. Republic of Austria v. Altmann, 541 U.S. 677, 692 (2004). ↑
92. Id. at 692. ↑
93. 27 F.4th 736, 743 (D.C. Cir. 2022). ↑
94. Id. ↑
95. Id. ↑
96. Id. ↑
97. Id. at 741. ↑
98. Id. at 742. ↑
99. Id.  ↑
100. Id. at 743. ↑
101. 28 U.S.C. § 1605(a)(3). ↑
102. See id. ↑
103. See de Csepel, 27 F.4th at 743. ↑
104. See id. at 745. ↑
105. Museum of Fine Arts v. De Csepel, 143 S. Ct. 630 (2023). ↑
106. Simon Questions Presented, supra note 13. ↑
107. Leonard Dinnerstein, The U.S. Army and the Jews: Policies Toward the Displaced Persons After World War II, 68 Am. Jewish Hist. 353, 354 (1979) (“When World War II ended, more than eight million uprooted people wandered Europe.”). ↑
108. See discussion supra Part I; see also Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 675 (7th Cir. 2012). ↑
109. Genocide Convention, supra note 9, art. 3(e). ↑
110. See Foreign Cultural Exchange Jurisdictional Immunity Clarification Act, Pub. L. No. 114-319, § 2, 130 Stat. 1618, 1618 (2016) (codified at 28 U.S.C. § 1604(h)). ↑