Home > Journals > LAWREVIEW > Vol. 92 > No. 3 (2018)
Ethical Quandaries: The Holocaust Expropriated Art Recovery Act and Claims for Works in Public Museums
The unusual circumstances surrounding the recent return of the Geldorp portrait to a public museum gives rise to the issue this Article covers: whether the status of claimants and defendants in Holocaust-era art claims as public entities or private citizens implicates ethical issues that should bear on the disposition of these cases, and if so, to what extent.
Part I considers the origins of these claims during WWII, and the temporal legal obstacles they may encounter many years after the events that engendered them. Part II discusses the recently enacted Holocaust Expropriated Art Recovery Act of 2016 (“HEAR”), which established a national six-year statutory limitation period applicable exclusively to claims for artworks lost as a result of Nazi expropriation.
Part II examines specific disputes that are identified in HEAR’s text as demonstrating the need for this legislation, and also claims purportedly enabled by its subsequent enactment. While these disputes have involved temporal defenses, the courts adjudicating them have also exhaustively reviewed the factual bases of the claims and, in every case, found them deficient. In other words, these claims would fail on their merits alone, regardless of the fact that they also involved obstacles based upon “legal technicalities.” This raises the question whether HEAR’s prohibition of temporal defenses may be used, at least in part, as a pretext by which to reopen, or affect the disposition of, disputes already adjudicated or currently being litigated.
Most of these claims have targeted works in public collections. Part III considers the public’s role in generating value, and thereby an element of public ownership, in artworks in museums. Part IV concludes with the suggestion that, as private claimants become increasingly attenuated from forbears whose property was appropriated by a genocidal political regime, the public interest should progressively bear upon the resolution of claims involving works now in the collections of museums and other public trusts.