I was honored to take part in a symposium last February at the University of Kansas School of Law entitled “A Museum’s Purpose,” which addressed a variety of cultural property related topics. KU was a wonderful host, and Lawrence is a charming town. I spent a great weekend in Kansas City (which was perfect aside from the then-recent Chiefs Super Bowl win-Go Pats!), saw a Jayhawks basketball game, and even visited the grave of Dr. James Naismith, who invented the great sport of basketball in Springfield, Massachusetts.
I am pleased to announce that the article I wrote for the symposium has been published in the Kansas Journal of Law & Public Policy. Entitled “Refuge in Exile—the Peculiar Category of Fluchtgut and Art Transferred by Victims in Flight from Nazi Persecution,” my paper seeks to address the legal status of works that changed hands in the Nazi era that are not strictly covered by the more familiar frameworks of Nazi expropriation and forced sales that have been the focus of most of the discussion since the Washington Conference in 1998, and propose a judicial and analytical framework to deal with them. In my own practice this year, the Allentown Cranach story is an illustrative example.
The introduction is reprinted below, the article can be found in Volume XXXIII, Number 3 of the journal (2024). I hope you will find it an interesting contribution to the discourse.
I would like to thank Symposium Editor Megan Gannon, the other presenters, and the law school for holding a wonderful event. I also congratulate Lauren Van Schilfgaarde, assistant professor of law, UCLA School of Law; Derek Fincham, law professor, South Texas College of Law Houston; and MacKenzie Mallon, provenance specialist, The Nelson-Atkins Museum of Art (who kindly showed me that incredibly museum) for their articles published in this issue. Ms. Gannon’s article with Michael Hoeflich, John H. & John M. Kane distinguished professor of law, University of Kansas School of Law, also appears in the issue and is worthy of praise.
Introduction
In the roughly twenty-five years since the Washington Conference on Holocaust-Era Assets, U.S. courts and international advisory panels have handled dozens (U.S. courts) and hundreds (foreign state advisory panels) of cases that brought claims arguing in one manner another that works of art changed hands in the Nazi era should be restituted to the original owners or their heirs. These claims are often referred to as those based on Nazi looting, theft, or confiscation, but that terminology involves multiple layers of complexity. While the initial renewed awareness in the 1990s to the history of art displaced during the Nazi era was couched in terms of Nazi theft, that quickly expanded to embrace an understanding of so-called forced sales, in which a Jewish owner in Germany or occupied territory is presumed to have been under duress absent proof to the contrary, such that the original owner is deemed never to have lost valid title.
What then, however, about those works of art that were taken from Germany or other occupied areas by their owners who fled because of anti-Semitic persecution but that were sold elsewhere outside of German-controlled territory? What should the law make of art sales in Switzerland, or in France before the occupation, where the owner may have been selling the painting as one of their few marketable pieces of property, either to provide funds for their personal survival or to escape further to the United Kingdom or the Western Hemisphere? Should the law make a distinction at all?
More than twenty years ago, a new term entered the lexicon to address this category: Fluchtgut. Fluchtgut was coined in discussions in Switzerland, not surprisingly, because of that country’s unique status both during the war and after as a non-belligerent in which the art market continued, and even thrived. Fluchtgut is translated literally as “flight goods.” The term has continued to prompt discussion, and has influenced the handful of alternative resolution panels created by European governments. Yet it has not really held sway in judicial outcomes. Here in the United States, several cases that might be described as Fluchtgut have been dismissed, but typically for reason of expired statutes of limitations and without any consideration of the concept. The category as such is unexamined in domestic caselaw and statute. Interestingly, however, the market has moved ahead of this more conservative view, and increasingly works sold in flight cannot be taken to auction without some agreement with the heirs.
Accordingly, it is time to grapple with this concept and give it some definition. The morally compelling nature of these claims is clear: where Nazi persecution is the proximate cause of the artworks finding their way into a market where they come to sale today, a pure application of domestic state law fails to meet the issue adequately. But it is also potentially destabilizing. Without a set of contours and an understandable burden of proof, the sale of such works will be paralyzed in a way that is helpful neither to the heirs of Nazi victims, nor current owners. This article will set these concepts in context and propose some aspirational goals.
The proposal is to treat these cases using not a new conceptual framework but a traditional one: unconscionability and capacity. Examining whether the contracting parties had meaningful alternatives (the most important always being the power to say not) or status in their adopted or temporary homes would give shape to a standard that so far has lacked meaningful legal definition. The stakes are not hypothetical. Uncertainty roils the market and threatens the stability of transactions not from 80 years ago, but in the last quarter century. It is time to address it, and the best way is to give courts and parties the analytical framework to assess difficult historical circumstances.
