The following appeared in Apollo magazine online on December 4, 2017

Congress has passed and President Obama is expected to sign two bills related to looted art and the availability of U.S. courts to hear disputes over them.  The Holocaust Expropriated Art Recovery (HEAR) Act of 2016 and the Foreign Cultural Exchange Jurisdictional Clarification Act (FCEJCA, for lack of a handy acronym) were both passed without objection both the House of Representatives on December 10, 2016, and are expected to be signed by President Obama shortly.  The HEAR Act is a major shift in the law of Nazi-looted art claims specifically, while the FCEJCA is controversial but unlikely to have a broad impact one way or another.  It is perhaps most remarkable that in an era of unique partisanship and political polarization, members of Congress from both parties and the President agreed on anything, let alone unanimously (sponsors include such unusual allies as Ted Cruz, Richard Blumenthal, John Cornyn, and Charles Schumer).

Three New Members Are Added but German Museums Can Still Decline to Participate

After nearly a year of hinting at changes the Advisory Commission in Germany that makes recommendations to state museums on claims for allegedly Nazi-looted works in their collections (“Beratende Kommission im Zusammenhang mit der Rückgabe NS-verfolgungsbedingt entzogener Kulturgüter, insbesondere aus jüdischem Besitz,” or “Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property”), the federal government announced last week the addition of three new members.  Yet despite public outcry over the outdated and opaque procedures of the commission (better known as the Limbach Commission, in reference to the late Jutta Limbach, presiding member and former judge of the Constitutional Court), none of the fundamental flaws in the panel have been confronted or addressed.  Instead, the occasion has served as little more than another photo opportunity for federal Minister of Culture Monika Grütters, whose visage dutifully accompanies all the recent announcements.

The Holocaust Expropriated Art Recovery (HEAR) Act of 2016 has been pending for several monthsnow, and was recently recommended favorably by the Senate Judiciary Committee in September. The bill would create a uniform six-year statute of limitations for Nazi-looted art claims, harmonizing an otherwise patchwork state by state system.  While that consistency was laudable, our concern was that the bill as proposed would overrule New York’s important demand and refusal approach to statutes of limitations, with the effect that many otherwise timely claims in New York might become barred.  The bill’s text has been quietly amended to correct that, and in other interesting ways as well.  With the Presidential election just two weeks away, however, it remains anyone’s guess if the bill will become law before the new Congress is seated in January.

Two restitution related bills have advanced past the Judiciary Committee of the United States Senate: the Holocaust Expropriated Art Act (S.B. 2763, the HEAR Act), and the Foreign Cultural Exchange Jurisdictional Clarification Act, S.B. 3155.  Their advancement for consideration by the full Senate is interesting since in many ways they are at cross purposes with each other.  The analytical coverage of each has also been somewhat frustrating insofar as much of the reasons expounded by their proponents do not really describe what the bills would do.  The HEAR Act would not restitute any Nazi looted art, rather, it would harmonize as federal law the statute of limitations on such claims.  The Foreign Cultural Exchange Jurisdictional Clarification Act would not “reward” Russia or other foreign museums with art claimed by others, it would eliminate a jurisdictional scenario that has only happened once.  The fact is that both bills are of dubious merit because they are of limited effect, and may cause more harm than good.

The Senate Judiciary Committee held a hearing this week (video available here) on the Holocaust Art Recovery Act (the “HEAR Act”) that drew welcome attention to the ongoing challenges to the restitution of Nazi-looted art. We were skeptical about the bill’s chances for passage when it was proposed for largely structural reasons: it is the summer before a Presidential election, which is a time when things rarely get done in Washington. Yet it is undeniable that with its bipartisan sponsors Richard Blumenthal, Charles Schumer, Ted Cruz, and John Cornyn—strange political bedfellows under any circumstance—the hearing was an open and constructive discussion that showcased real momentum towards passage. Senator Chuck Grassley’s expediting of the hearing is also a sign that there may be a vote soon. This is important, because recent bills to amend the FSIA as to looted art claims, for example, have never even had a hearing in the Judiciary Committee, let alone gotten a vote (they did pass the House first). Yesterday’s hearing definitely moves the bill into a different category with regard to its prospects. The President has not made any comments on it—yet.

Just three months after the Supreme Court denied certiorari review of last year’s Ninth Circuit decision finding California’s Resale Royalty Act unconstitutional under the Dormant Commerce Clause in part—but also valid in part—the U.S. District Court in Los Angeles has ruled the entire law invalid as preempted by copyright law. Critically, the opinion relies on last year’s Ninth Circuit ruling on the Commerce Clause issue to overrule a 1980 Ninth Circuit case that expressly rejected the idea that the law was preempted. This core holding of yesterday’s opinion is hard to square with Ninth Circuit precedent, but that will be tested on appeal, for sure. As before, expect proponents of Congressional efforts to enact national legislation to use this decision as support for the idea that a federal solution is necessary, but those efforts have born little fruit to date.

Among the many challenges that litigants over Nazi-looted art face in the United States is a lack of uniformity.  Statutes of limitations vary from jurisdiction to jurisdiction, and interpretations of jurisdictional laws like the Foreign Sovereign Immunities Act differ from one Court of Appeals to another.  This is particularly challenging in the context of the Washington Conference on Nazi Looted Art of 1998 because private disputes are where the issue has meaning in the United States.  There is no national commission to address potentially looted art in public possession like those in Austria, Germany, or the Netherlands (however well or poorly some of those commissions perform) because there is very little art in national ownership about which the federal government has any power to decide.  Thus, in assessing U.S. compliance with the Washington Principles, it is often left to private litigants to argue about what the Principles mean in individual disputes.  Happily, appellate courts have begun to reject consistently the denialist defenses of foreign countries that wish to keep stolen art just because they say so, holding that the Washington Principles support the ability of heirs to pursue claims.  Yet the uneven landscape is still daunting.

A new bill introduced this week would address that, though its chances of passage into law in a contentious election season are hard to be optimistic about. 

We have focused recently on the proposed legislation in Germany to make its cultural heritage export laws stricter, of which we have been critical here and in recent discussions.As ill-advised as we consider the proposed German law to be, to be fair, it is not unique. Its chief flaw is in seeking a solution (a stricter law) in pursuit of a problem.

The U.S. Supreme Court has declined to hear an appeal of last year’s Ninth Circuit decision striking down part of the California Resale Royalty Act. The law provided royalties to artists on sales after the work leaves the artists’ ownership, on the grounds that artists often fail to enjoy the benefit of an increase in value in their works. Such royalties are more common in Europe, but they are controversial there, too. Opponents argue that it is a deterrent to art trade, and in any event while there is a patchwork of laws, encourages sellers to forum shop to avoid the royalties.