No. 10-1385

IN THE

2011

MARTIN GROSZ, LILIAN GROSZ,Petitioner,

V.

THE MUSEUM OF MODERN ART,Respondent.

On Petition for a Writ of Certiorari to theUnited States Court of Appeals

for the Second Circuit

BRIEF AMICUS CURIAE OF THEASSOCIATION FOR RESEARCH INTO CRIMES

AGAINST ART, THE ENTERTAINMENT,MEDIA, INTELLECTUAL PROPERTY AND

SPORTS LAW SECTION OF THE NEW YORKCOUNTY LAWYERS’ ASSOCIATION, SECONDGENERATION OF LOS ANGELES, YEHUDABAUER, MICHAEL J. BAZYLER, MICHAELBERENBAUM, JUDY CHICAGO & DONALD

WOODMAN, TALBERT D’ALEMBERTE, HEDYEPSTEIN, ~ FIRESTONE, RENEE

FIRESTONE, IRVING GREENBERG, CARRIEMENKEL-MEADOW, ARTHUR R. MILLER,STEPHEN SMITH, MEL WEISS, ET AL., AS

AMICI CURIAE IN SUPPORT OF GRANTINGTHE WRIT OF CERTIORARI

JENNIFER ANGLIM KREDER

CHASE COLLEGE OF LAWNORTHERN KENTUCKY

UNIVERSITY

Nunn Hall, Nunn Dr KYHighland Heights, KY 41099(859) 628-1152

*Counsel of Record

EDWARD GAFFNEY, JR.*VALPARAISO UNIVERSITY656 S. Greenwich StValparaiso, IN 46383(219) 465-7860edward.gaffneyC~alpo.edu

Counsel for Amicus Curiae

WILSON-EPES PRINTING Co., INC. - (202) 789-0096 - WASHINGTON, D. C. 20002

Blank Page

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................ii

STATEMENT OF INTEREST ............................1

SUMMARY OF ARGUMENT .............................2

REASONS FOR GRANTING THE WRIT ..........5

I. The Court Should Grant The Writ ToEnsure That Lower Courts Assess FairlyClaims For Restitution Of PropertyLooted In The Era Of Nazi Persecution... 5

II. The Court Should Grant The Writ ToCorrect Grave Constitutional Errors InFederalism That Interfere With Tradi-tional And Legitimate State Interests InSetting Meaningful Guidelines ForDefining When To Extend Or To TollA Statute Of Limitation, And ThatExaggerate The Federal Interest InComplete Control Over All Aspects OfThe Nazi-Looted Art Field ........................11

A. States May Validly Enact LegislationExtending or Tolling A Statuteof Limitation over Holocaust-EraClaims without Offending againstany Federal Interest in Conductingor Bringing a War to an End ...............16

B. The Federal Interest in SettingPolicies on Nazi-Looted Art Is Para-mount in a Case of Actual Conflict,But Does not Occupy the Field ...........18

(i)

iiTABLE OF CONTENTS--Continued

Page

III. The Court Should Grant The Writ ToRequire That Attentiveness To HistoricalData, Not Raw Judicial Hunch, ServeAs The Basis For Determinations OfPlausibility ................................................19

CONCLUSION ....................................................24

APPENDIX ..........................................................la

Statements of Particular Interests ofAmici Curiae .............................................la

ooo111

TABLE OF AUTHORITIES

CASES Page

American Ins. Ass’n v. Garamendi, 539U.S. 396 (2003) .....................................13-14, 16

Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) ......4, 19Bakalar v. Vavra, 2008 WL 4067335,

vacated and remanded in part, 619 F.3d136 (2d Cir. 2010) ......................................16, 22

Bell Atlantic v. Twombly, 550 U.S. 544(2007) ......................................................... 4

Bernstein v. N.V. Nederlansche-Amerika-ansche Stoomvaart-Maatschappij, 210F.2d 375 (2d Cir. 1954) .............................10, 15

Bradwell v. Illinois, 83 U.S. 130 (1872) ....... 13DeWeerth v. Baldinger, 38 F.3d 1266 (2d.

Cir.), cert. denied, 513 U.S. 1001 (1994)..17Detroit Inst. of Arts v. Ullin, 2007 WL

1016996 (E.D. Mich. Mar. 31, 2007) ........10, 21Dunbar v. Seger-Thomschitz, 615 F.3d 574

(5th Cir. 2010) ........................................... 7Erie Railroad Co. v. Tompkins, 304 U.S.

64 (1938) ....................................................,..4, 18Goodwin v. Wertheimer, 99 N.Y. 149, 1

N.E. 404 (1885) .........................................17Guggenheim v. Lubell, 77 N.Y. 2d 311

(1991) .........................................................17Museum of Fine Arts, Boston v. Seger-

Thomschitz, 2009 U.S. Dist. LEXIS58826 (D. Mass. May 28, 2009), affd,623 F.3d 1 (lst Cir. 2010) .........................21

Republic of Austria v. Altmann, 541 U.S.677 (2004) .................................................. 3

Saher v. Norton Simon Museum of Art, No.09-1254, cert. pending, 131 S. Ct. 379(2010) ....................................... 3-4, 11-12, 15, 18

iv

TABLE OF AUTHORITIES--Continued

Page

Toledo Museum of Art v. .Ullin, 477 F.Supp. 2d 802 (N.D. Ohio 2006) .................21

Universal Credit Co. v. Lowell, 2 N.Y.S.2d743 (City Ct. 1938) ....................................17

Wolman v. Walter, 433 U.S. 229 (1977) .......12Zschernig v. Miller, 389 U.S. 489 (1968) .....14, 16

FOREIGN STATUTES, INTERNATIONALAGREEMENTS, CONVENTIONS ANDTREATIES

Austrian Nullity Act May 15, 1946 .............22Austrian State Treaty (May 15, 1955) .........22Hague Convention IV, Laws and Customs

of War on Land (1907) ..............................5, 23Terezin Declaration (June 30, 2009) .... 7-9, 14, 23Washington Conference Principles on

Nazi-Confiscated Art (Dec. 3, 1998) .........7, 23

STATUTES

Holocaust Victim Insurance Relief Act of1999, Cal. Ins. Code §§ 13800-13807(2011) .........................................................13

FEDERAL RULES

Fed. R. Civ. P. 12(b)(6) .................................21, 23Fed. R. Evid. 408 ..........................................19

OTHER AUTHORITIES

GStz Aly, Hitler’s Beneficiaries: Plunder,Racial War, and the Nazi Welfare State(2007) .........................................................

John R. Crook, Brief Notes, 105 AM. J.INT’L L. 160, 161 (2011) ............................

5

6

V

TABLE OF AUTHORITIES--Continued

Page

Lucy S. Dawidowicz, The War Against theJews, 1933-1945 (1975) .............................12

Martin Dean, Robbing the Jews: TheConfiscation of Jewish Property in theHolocaust (2008) .......................................5, 23

Stuart E. Eizenstat, Imperfect Justice:Looted Assets, Slave Labor, and theUnfinished Business of World War H(2003) .........................................................2, 22

Stuart E. Eizenstat, Head of U.S.Delegation to the Prague Holocaust EraAssets Conferences, Opening PlenarySession Remarks, (June 28, 2009)http://www.state.gov/p/eur/rls/rm/2009/126158.htm .................................................8-9

Hector Feliciano, The Lost Museum: TheNazi Conspiracy to Steal the World’sGreatest Works of Art (1997) ..................... 7

Janet Flanner, "Annals of Crime: TheBeautiful Spoils," The New Yorker (Feb.22, 1947): 31-36ff., (March 1, 1947): 33-38ff., (Mar, 8, 1947): 38-42ff ..................... 7

Irving Greenberg, "Judaism, Christianity,and Partnership After the TwentiethCentury," in Christianity in JewishTerms 27 (Peter Ochs, ed. 2000) ...............1

Thomas L. Haskell, Objectivity Is NotNeutrality (1998) .......................................20

Jennifer Anglim Kreder, "Guarding theHistorical Record from the Nazi-eraArt Litigation Tumbling Toward theSupreme Court," 159 U. PA. L. REV.Pennumbra 253 (2011) .............................9-10

viTABLE OF AUTHORITIES--Continued

PageMiles Lerman, "Opening Ceremony Re-

marks," Proceedings of WashingtonConference 3 (1998) ...................................24

Lieber Code, Instructions for the Govern-ment of Armies of the United States inthe Field (1863) .........................................5

Deborah Lipstadt, Denying the Holocaust:The Growing Assault On Truth andMemory (1993) ..........................................2

Ingo Mfiller, Hitler’s Justice: The Courts ofthe Third Reich (1991) ..............................6, 23

Lynn E. Nicholas, The Rape of Europa: theFate of Europe’s Treasures in the ThirdReich and the Second World War (1994). 7

Jonathan Petropoulous, The Faustian Bar-gain: The Art World in Nazi Germany(2000) .........................................................7

Patricia Youngblood Reyhan, "A ChaoticPalette: Conflict of Laws in LitigationBetween Original Owners and Good-Faith Purchasers of Stolen Art," 50DUKE L. J. 955 (2001) ................................9

Sir Norman Rosenthal, Editorial, The TimeHas Come for a Statute of Limitations,ART NEWSPAPER, Dec. 2008, at 30,available at www.theartnewspaper.com/article.asp?id=16627 .................................20

David Roxan and Ken Wanstall, The Rapeof Art (1964) ..............................................7

David Savage, "U.S. Official Cites Deceitsin WWII Internments," Los AngelesTimes, 2011 WLNR 10395372 (May 25,2011) ..........................................................11

vii

TABLE OF AUTHORITIES--ContinuedPage

Jack Tate, Legal Adviser, State Depart-ment, Letter to Acting U.S. AttorneyGeneral Phillip B. Perlman, (May 19,1952) ..................................................... 10-11, 15

E}lank Page

STATEMENT OF INTEREST

Amicil have diverse backgrounds and various sortsof life experience. We are artists and art collectors;curators and historians of art and culture; educatorsand moral philosophers; ]egal scholars andpractitioners. ~

We are religiously diverse-~Jews, Christians,and nonbelievers. But all agree with one ofthe Amici, who wrote: "No statement, theological orotherwise, should be made that would not be crediblein the presence of burning children." Irving Green-berg, "Judaism, Christianity, and Partnership afterthe Twentieth Century," in Christianity in JewishTerms 27 (Peter Ochs, ed. 2000). Rabbi Greenberg’scaution extends beyond theology; it includes state-ments in lawyers’ briefs and judicial opinions.

The focus of historical scholarship by Amici is onmodern Europe and more particularly on the Shoah(Hebrew for "disaster" or "catastrophe"). All Amici--whether trained as historians or not--find a commonpurpose in sustaining the burden of accurate memoryof the events of the Shoah. We urge that these thingsnever be forgotten so that they will never berepeated.

1 This brief is submitted in accordance with Rule 37 of thisCourt. Counsel of record for both parties received notice at least10 days prior to the due date of the intention of Amici to file thisbrief. All counsel have consented to the filing of this brief. Theconsent letters (e-mails) have been filed with the Clerk of theCourt. No counsel for any party authored this brief in wholeor in part, and no person or entity, other than Amici, theirmembers, or counsel, made a monetary contribution to thepreparation or submission of this brief.

2

Particular interests of Amici are set forth in theAppendix.

SUMMARY OF ARGUMENT

Amici do not intimate in this brief a view on themerits of claims to restitution asserted by Petitionersor Respondents. Instead, we address the matrixwithin which this case and several others have beenproceeding through the lower federal courts in thepast several years. We urge the Court to take adecisive role in correcting fundamental constitutionalerrors that have recurred frequently in these cases,and are likely to keep recurring until this Court givesfurther guidance on these troubled matters.

1. The enormity of the war crimes and crimesagainst humanity known collectively as the Shoah isstaggering--the number of those who were murderedis rounded off to the nearest million. Yet crude denialof this epiphenomenon increases at an alarmingrate around the world. See, e.g., Deborah Lipstadt,Denying the Holocaust: The Growing Assault OnTruth and Memory (1993). No one in high office inthis country denies the reality of the crimes of theShoah. Yet the recurrent experience of the Amici isthat when it comes to the "unfinished business"2 ofthe Shoah at the heart of this case--restitution ofproperty illegally seized during the twelve long yearsof Nazi persecution--awareness about the basiccontours of events recedes.

2 Stuart E. Eizenstat, Imperfect Justice: Looted Assets, Slave

Labor, and the Unfinished Business of World War H (2003).

3

Part I describes official German-Austrian judicialapproval of discriminatory economic regulations andbrutal police power destroyed property rights duringthe era of National Socialism (1933-1945), and itcomments on recent decisions of lower federal courtsseemingly unaware of these facts.

2. In Republic of Austria v. Altmann, 541 U.S. 677(2004), Austria claimed it was immune as a foreignsovereign from litigation in American federal courts.Although Austria accepted the restrictive view ofsovereign immunity, the Solicitor General urged itsabsolute immunity. Brief for United States asAmicus Curiae 2003 WL 22811828 at 28. This Courtruled that the expropriation exception of the ForeignSovereign Immunity Act applied in Altmann andshould have retroactive effect.

Since Altmann, this Court has consistentlydeclined to review any case presenting similar claimsfor restitution. Left without further guidance fromthis Court, lower federal courts have in almost allcases denied restitution and have ignored the expressconcern of American diplomats favoring resolution ofclaims on the merits.

The time has come for the Court to address againthe issue of restitution of Nazi-looted art. In 2004 theCourt had to face the fact that stolen art gr~acing thewalls of a famous museum in Vienna was subject tolitigation in a federal court. In this case and anothercurrently pending on its docket--Saher v. NortonSimon Museum of Art, No. 09-1254, cert. pending,131 S.Ct. 379 (2010)~the Court now has an oppor-tunity to review cases claiming that looted art hangsin famous museums in Manhattan and Pasadena.

4The Court should exercise its jurisdiction in either

or both of these cases because lower federal courtshave repeatedly distorted federalism in two oppositeways. Grosz presents the question whether federalcourts have constitutional power to transform astate law issue such as a century-old "demand andreal refusal" rule into an "implied refusal" rule, inapparent disregard for Erie Railroad Co. v. Tomp-kins, 304 U.S. 64 (1938). Saher espouses the extremeview that federal courts may invalidate positive lawadopted unanimously by the California Legislatureon the dubious ground of "dormant federal foreignpolicy preemption." Both views are constitutionallyinfirm. Neither is necessary or useful to the clearlystated federal policy of trying to find a sensible waydealing with claims for restitution of Nazi-looted art.

Part II explores the history of fruitful interactionof the federal government and the several Statessince World War II to avert the possibility thatthis country would become a safe haven for stolenproperty--the very reality now unfolding without anysupervisory guidance from this Court.

3. In two recent decisions of this Court, BellAtlantic v. Twombly, 550 U.S. 544 (2007) and Ash-croft v. Iqbal, 129 S.Ct. 1937 (2009), this Court hasempowered lower federal Courts to dismiss claimslacking apparent plausibility. Twombly-Iqbal did notauthorize a crude judicial demolition project toremove without fair development of factual recordsnearly every claim for restitution of Nazi-looted art tobe decided since Altmann.

Part III shows that a precipitous approach toHolocaust-era claims is by no means required by thedecisional law of this Court, is unauthorized byCongress, and is contrary to the best efforts of the

5Executive from World War II to the present toachieve imperfect justice for victims of the Shoah.

REASONS FOR GRANTING THE WRIT

I. The Court Should Grant the Writ toEnsure that Lower Courts Assess FairlyClaims for Restitution of Property Lootedin the Era of Nazi Persecution.

Looting of property and destruction of culturalheritage has been going on as long as history hasrecorded conflicts. Its antiquity, however, does notmake it acceptable, either in law or morality. On thecontrary, looting is specifically identified as a warcrime in the famous Lieber Code, Instructions for theGovernment of Armies of the United States in theField, Arts. 37-38 (1863), and is expressly prohibitedin the Hague Convention IV, Laws and Customs ofWar on Land, Arts. 46-47, 56 (prohibiting confis-cation of private property, pillage, and seizure ofworks of art) (1907).

From the earliest period of Nazi rule, the ThirdReich enforced confiscatory legislation and brutaltactics against a defenseless Jewish minority. Thevictims of the Shoah were forced to transfer their ownprivate wealth through special taxes, departure fees,and "Arianization" of Jewish homes and businesses,to promote the general welfare of non-Jews in theThird Reich, to foot the bill of the Kristallnachtpogroms, and to underwrite the Wehrmacht. Forthose who did not survive, the grand larcenyultimately financed mass murder. See, e.g., MartinDean, Robbing the Jews: The Confiscation of JewishProperty in the Holocaust, 1933-1945 (2008); G~tzAly, Hitler’s Beneficiaries: Plunder, Racial War, and

6the Nazi Welfare State (2007); Ingo Mfiller, Hitler’sJustice: The Courts of the Third Reich (1991).

One particular form of Nazi theft--art heist--is staggering. The Task Force for InternationalCooperation on Holocaust Education, Remembrance,and Research reports that "an estimated 650,000artworks were confiscated by the Nazis in occupiedEurope .... [I]t is estimated that between 100,000 to200,000 works are still missing." John R. Crook, BriefNotes, 105 AM. J. INT’L L. 160, 161 (2011). See alsoEizenstat, Imperfect Justice, supra, at 187.

This enormous robbery also had a specificallyJewish component. Artworks of great value werestolen from Jews not only by brute force of arms, butalso through forced sales of treasures to payconfiscatory fees for exit visas or to obtain foreigncurrency necessary to emigrate.

These facts were not recently unearthed. Shortlyafter the war ended in Europe, the US Army securedvast treasuries of hoarded art. Pictures of GeneralEisenhower and his staff at these sites were featuredin mass circulation newspapers. Two members of thisCourt took a lead role on these issues decades ago.On the view that no one should profit from thesegross crimes, Justice Owen Roberts--Chair of theAmerican Commission for the Protection and Salvageof Artistic and Historical Monuments in War Areas--wrote in 1945 to American museums, art institutionsand art dealers warning them against trafficking inart whose provenance was "obscure or suspicious." Aslead counsel at the Nuremberg International MilitaryTribunal, Justice Jackson approved the prosecutionof the war crime of looting, proved by entering intoevidence the very documents the Nazis themselvesassembled as they went about their massive theft.

7

See also Janet Flanner, "Annals of Crime: TheBeautiful Spoils," The New Yorker (Feb. 22, 1947): 31-36ff., (March 1, 1947): 33-38ff., (Mar, 8, 1947): 38-42ff.; David Roxan and Ken Wanstall, The Rape ofArt (1964).

It is now beyond any doubt that museums, univer-sities, and private art collectors--including many inthis country--snapped up artworks at bargain pricesin the period from 1933-1945 and the decade or soafter the war. See, e.g., Lynn E. Nicholas, The Rape ofEuropa: the Fate of Europe’s Treasures in the ThirdReich and the Second World War (1994), HectorFeliciano, The Lost Museum: The Nazi Conspiracy toSteal the World’s Greatest Works of Art (1997);Jonathan Petropoulous, The Faustian Bargain: TheArt World in Nazi Germany (2000).

In the wake of all this scholarship, Amici find italarming that some federal judges make light of oreven call into question events described in complaintsfiled in their courts. See Dunbar v. Seger-Thomschitz,615 F.3d 574, 575 (5th Cir. 2010) (central claim placedin inverted commas, as if to cast doubt on whetherNazis really "confiscated" the painting at issue incase, or whether claimant’s ancestor was truly avictim of a "forced sale").

In 1998 Ambassador Stuart Eizenstat andcolleagues in the State Department enabled forty-four countries to agree to a body of principlesabout the restitution of stolen art and the recoveryof cultural heritage, collectively known as the"Washington Principles." Pet. App. 69a-71a. In 2009forty-six nations asserted the duty to "ensure thattheir legal systems or alternative processes, whiletaking into account the different legal traditions,facilitate just and fair solutions with regard to Nazi-

8confiscated and looted art, and ... make certain thatclaims to recover such art are resolved expeditiouslyand based on the facts and merits." Terezin Decla-ration, Pet. App. 80a. In his keynote address to thePrague conference Ambassador Eizenstat famouslynoted:

I am ... concerned by the tendency for holders ofdisputed art to seek redress in technical defensesto avoid potentially meritorious claims, includingstatutes of limitation, adverse possession; de-accession laws; anct export control laws whichbar the export of looted art back to their rightfulowner, even when its ownership has beenestablished.

Some holders of artworks have not honored thePrinciples and have gone to great lengths toretain objects in the face of facially valid claims.In the United States, declaratory judgments arebeing used to make it more difficult for claimantsto prove their ownership. Other holders of arthave simply refused to consider claims, therebyforcing the claimants either to give up theirclaims or engage in expensive and difficult legalproceedings.

I am also concerned by the tendency of holdersof disputed art to seek refuge in statutes oflimitation and laches defenses in order to blockotherwise meritorious claims even in situationswhere the claimant has not been provided withprovenance information. Given the nature of theHolocaust and the Cold War that followed, manyfamilies simply were unaware or only partiallyaware of their heritage. The difficulty in gettingdocumentation and the uncertain nature ofthe current restitution process creates further

9uncertainty. For a defendant to take advantageof circumstances totally beyond the control of theclaimant compounds the grotesque nature of theoriginal crime.

Stuart E. Eizenstat, Head of U.S. Delegation to thePrague Holocaust Era Assets Conferences, OpeningPlenary Session Remarks, (June 28, 2009) http://www.state.gov/p/eur/rls/rnd2009/126158.htm

Thus, the federal government has publicly under-taken a moral commitment before nearly all othercountries involved in these matters to provideclaimants a serious and effective means of achievingrestitution. Unlike the United Kingdom and anumber of other countries, the United States has notbuilt a commission to resolve such claims. Thus,going to court to assert a "garden variety" state lawconversion or replevin-type claim remains the onlylegal mechanism to seek restitution of Holocaust-eraart in the United States. Patricia YoungbloodReyhan, "A Chaotic Palette: Conflict of Laws inLitigation Between Original Owners and Good-FaithPurchasers of Stolen Art," 50 DUKE L.J. 955 (2001).Yet federal courts are dismissing claims such as thepresent one on grounds that are unprincipled andborder on the frivolous. This is a national embarrass-ment. These decisions render the Nation out ofcompliance with the very principles it led the worldto adopt.

Courts often construe time-bar doctrines inHolocaust-era art cases in a way that faults survivorsand their heirs for waiting too long to seekrestitution, even though in most cases it would havebeen impossible or futile to seek restitution earlier,thereby distorting discovery rule jurisprudence.Jennifer Anglim Kreder, "Guarding the Historical

10Record from the Nazi-era Art Litigation TumblingToward the Supreme Court," 159 U. PA. L. REV.PENNUMBRA 253, 260-62 (2011).

In an egregious example of such rulings, a districtjudge in Michigan granted to a museum quiet titleover stolen art on the ground that the discovery rulewas inapplicable. He reached this astonishingconclusion because of a judicially invented policyencouraging plaintiffs "to diligently pursue theirclaims." This led the judge to conclude that theMichigan statute of limitation ran in 1938, before thewar had even begun and decades before a prominentAmerican museum hung stolen art on its wall.Detroit Inst. of Arts v. Ullin, 2007 WL 1016996, at *3(E.D. Mich. Mar. 31, 2007).

Neither courts dismissing claims for restitutiondescribed in Professor Kreder’s article nor the amicusbriefs recently submitted to the Court by the SolicitorGeneral cite with approval or attempt to distinguishBernstein v. N.V. Nederlansche-Amerikaansche Stoom-vaart-Maatschappij, 210 F.2d 375, 376 (2d Cir. 1954)(reversing an earlier judicial order once the courtbecame aware of the views of the Executive Depart-ment expressed in the "Tate Letter" written by JackB. Tate, Acting Legal Advisor, Department of State).This Court is, of course, aware of the Tate letter,which it cited in Altmann, supra, 541 U.S. at 689-690.

Since lower federal tribunals and the ActingSolicitor General and current Legal Adviser appearto overlook its significance, we cite it here as theCourt decides whether to review this case:

[The U.S.] Government’s opposition to forcibleacts of dispossession of a discriminatory and

11

confiscatory nature practiced by the Germans onthe countries or peoples subject to their controls¯.. [and] the policy of the Executive, with respectto claims asserted in the United States forrestitution of such property, is to relieveAmerican courts from any restraint upon theexercise of their jurisdiction to pass upon thevalidity of the acts of Nazi officials.

II. The Court Should Grant the Writ toCorrect Grave Constitutional Errors inFederalism that Interfere with Tradi-tional and Legitimate State Interestsin Setting Meaningful Guidelines forDefining When to Extend or to Toll aStatute of Limitation, and that Exag-gerate the Federal Interest in CompleteControl over All Aspects of the Nazi-Looted Art Field.

In the view of the Amici, two Nazi-looted art casesnow pending on the Court’s docket--this onel No. 10-1385, and Saher v. Norton Simon Museum of Art,No. 09-1254--illustrate a deep misunderstanding offederalism that threatens to become pervasive in themany Nazi-looted art cases now percolating in thecourts of appeals.

For this reason, Amici part company with theActing Solicitor General, who recently filed two briefsof the United States as Amicus Curiae in response tothis Court’s request for views, urging the Court todeny the writ of certiorari in Saher. See No. 09-1254,Brief of the United States, 20-22. Without commen-ting on the cert-worthiness of Saher at length, weview as sensible the reasons offered for granting thewrit set forth in the Petition and the recently filedSecond Supplemental Brief in Support of Petition,

12and in the Briefs Amicus Curiae filed by the State ofCalifornia and by Bet Tzedek.

We offer comments on the decisions of the NinthCircuit in Saher and the Second Circuit in this casenot because they are in conflict with one another,but because both cases reflect an extreme positionattempting to destroy the key role of States in thetask of restituting property after so massive anassault on a religious and ethnic minority as thewanton violence of the Shoah. See Lucy S. Dawidowicz,The WarAgainst the Jews, 1933-1945 (1975).

Horrific conflicts in other contexts illustrate thepossibility that the pain of atrocities may recede oreven be healed. But in each instance--South Africaor Rwanda, Guatemala or E1 Salvador--truth-tellingusually precedes reconciliation. Lies and coverups donot heal the injuries of war, especially war on amassive and inhuman scale.

The Solicitor General recently proclaimed a similartruth boldly, denouncing the shameful deception ofthis Court by his predecessor during World War II.The Court relied to its detriment on misrepresen-tations about the plausibility of serious risk tonational security posed by the Issei and Nissei. DavidSavage, "U.S. Official Cites Deceits in WWII Intern-ments," Los Angeles Times, 2011 WLNR 10395372(May 25, 2011). The threats to national securityposed by those who were rounded up and involun-tarily "relocated" were akin to what Justice ThurgoodMarshall would later describe in a different contextas "imaginable but totally implausible evils." Wolmanv. Walter, 433 U.S. 229, 260 (1977) (Marshall, J.,concurring and dissenting).

13Three days later, the Solicitor General filed a brief

urging this Court to deny review in a case involvingactual victims of the same war seeking redress forreal crimes--not imaginable or implausible ones--committed by a very real enemy against theirancestors.

Whether this result is required under this Court’sruling about an earlier California law, the HolocaustVictim Insurance Relief Act of 1999, might beillustrated in a fragment from a recent imaginary butentirely plausible conversation in Berkeley betweenHarriet Boaltwoman (an earnest young student at alocal law school) and Sojourner Truth IV (a professorwho is the only living descendant of a womanrenowned for succinct analysis of the law at amoment before women were admitted to the bar; seeBradwell v. Illinois, 83 U.S. 130 (1872)).

HB: Who allowed Ms. Saher a forum in which toplace a petition for redress of grievance about artlooted by Hermann G~ring?

ST: The unanimous legislature--a pretty frac-tious body--decided to clarify the timeliness ofclaims by victims of a war crime called looting totraditional state law remedies such as replevin.

HB: Who nullified the law?

ST: Not the Republican Governor, who has stateconstitutional authority to veto legislation hedeems unwise, but who in this instance washappy to sign the law. It was two federal circuitjudges purporting to act on the authority ofthe Supreme Court in American Ins. Ass’n v.Garamendi, 539 U.S. 396 (2003).

14HB: Where in Garamendi does the Court requirethis result?

ST: Nowhere. No one suggests there is an actualconflict between the state law nullified by thecourt of appeals and a current Act of Congress orany other federal policy.

HB: So why did the court of appeals strike downa law extending a statute of limitation?

ST: Because it conflated Garamendi with Zscher-nig v. Miller, 389 U.S. 489 (1968), a case thatspoke to dormant foreign policy power, or theneed of the federal government to occupy theentire field of foreign policy, including the powerto begin and end a war.

HB: Are you sure there is no basis for the court’sview in some congressional hearing?

ST: Positive. About a decade ago Congressconsidered the adjudication of claims relating toHolocaust-era property. At that time Congressassumed that State law governing propertydisputes would be the most plausible vehicle forresolving disputes over rightful ownership ofNazi-looted art that could not be reconciled inADR or through a negotiated settlement.

HB: How about some federal policy articulatedby someone in the Executive Branch?

ST: Not really. The record from the LondonDeclaration in 1943 to the Prague conference in2009 is a pretty consistent repudiation of looting.At first, the Army thought the job was just to getlooted art back to the country of origin. But thenthe policy shifted to return of stolen property toits rightful owner.

15

HB: What about judicial deference to theExecutive Branch for setting foreign policy?

ST: That used to be the norm. So Learned Handrefused to criticize a confiscation of propertyperpetrated when Germany was known as theThird Reich. But Jack Tate, the Legal Adviser atState during the Eisenhower Administration,wrote a strong letter stating that courts mayfreely impose legal consequences on the Naziswithout anyone in Bonn or Berlin being offended.That led the Second Circuit to change its mind inthe Bernstein case.

HB: But as I recall dormant Commerce Clauseanalysis, the sleeping beauty of this power isthat nobody in the federal government has toexercise any regulatory power, no?

ST: That’s right. It keeps the States out of anarea of decision-making in which they don’tbelong.

HB: Don’t States retain the right or the powerunder the Tenth Amendment to define the timewithin which someone may bring a lawsuit?

ST: That depends. The Justice Department fileda brief with the Court suggesting that recovery ofproperty stolen during a war is not a "traditionalstate interest" and that defining access to Statetribunals under those circumstances is not a"traditional state responsibility."

HB: But didn’t the Ninth Circuit say recentlythat California may protect victims of theArmenian Genocide?

ST: Yes, that’s what a different panel concluded.I think they said: "Yes, we can!"

16HB: Did the State Department object becauseTurkey might be displeased?

ST: Nope. Not a word from State.

HB: So California may protect victims of theArmenian Genocide, but not victims of theShoah?

ST: I’m stumped on that one. Maybe it’s time forthe Supremes to have another thought about thiswhole dormant foreign policy preemption thing.Justice Ginsburg noted in her Garamendidissent: "We have not relied on Zschernig since itwas decided." That was in 1968.

A. States May Validly Enact LegislationExtending or Tolling A Statute ofLimitation over Holocaust-Era Claimswithout Offending against any FederalInterest in Conducting or Bringing aWar to an End.

Grosz offers the Court a vehicle for clarifying thatthe several States are free to establish variousprocedural norms governing access to their Statetribunals for adjudication of property disputes,include those involving Holocaust-era art.

States may, of course, establish differing sub-stantive standards about presumptions of ownership.In some states, mere possession of a piece of propertymay indeed count for something like nine points ofthe law. Other States, such as New York, may enacta law seeking to protect its reputation as the artcapital of the world and insisting on much morerigorous demonstration of plausible evidence ofrightful ownership. Bakalar v. Vavra, 619 F. 3d 136,141-142 (2d Cir. 2010).

17As the record in Grosz reflects, New York may also

establish procedural norms governing how a statuteof limitation is to be construed. The principal issue inthis case one of "pure law," not simply a spat overwho did what and to whom--is over the applicationor misapplication of the "demand and refusal"rule, announced over a century ago, Goodwin v.Wertheimer, 99 N.Y. 149, 1 N.E. 404 (1885), andfollowed continuously in New York’s courts eversince. Under this rule a claimant of stolen goods mustdemand that the possessor return the stolenproperty. Then the burden shifts to the possessor,who must authorize an unequivocal refusal of thedemand. Universal Credit Co. v. Lowell, 2 N.Y.S.2d 743 (City Ct. 1938) (in a matter still open tonegotiation, there was neither an adequate demandnor a clear-cut refusal).

The New York Court of Appeals reiterated andclarified this rule in Guggenheim v. Lubell, 77 N.Y.2d 311 (1991). The highest state tribunal was forcedto wait for an appropriate case to emerge on itsdocket to correct the erroneous tightening of itsstraightforward rule by a federal court gratuitouslyadding that the claimant or true owner act "withdiligence." DeWeerth v. Baldinger, 38 F.3d 1266 (2d.Cir.), cert. denied, 513 U.S. 1001 (1994).

The Second Circuit in Grosz has now repeated thesame mistake it made in DeWeerth. This casepresents a pure question about a rule of law: Dofederal courts have constitutional power to transforma unique, century-old "demand and real refusal" ruleinto an "implied refusal" rule, based on improper useof off-the-record settlement conversations?

18Under Erie federal judges exercising diversity

jurisdiction may not rewrite State law, but mustsimply apply it to the case before them. New York’sunique demand-and-refusal rule is the most protect-tive of true owners of stolen art. This Court shouldgrant the writ to protect the legitimate interests ofNew York from having its policy choices needlesslynullified by a lower federal court.

B. The Federal Interest in Setting Policieson Nazi-Looted Art Is Paramount in aCase of Actual Conflict, But Does notOccupy the Field.

Saher offers the Court a good vehicle for clarifyingthat foreign policy has always been a complementaryresponsibility shared by the federal government andthe several States.

Some foreign policy powers are exclusive to thefederal government: the congressional powers todeclare war, appropriate funds for military expen-ditures, and regulate the armed forces; the Senatorialconsent to ambassadors and treaties; and the Execu-tive powers relating to ambassadors and treaties andcommanding the armed forces.

But States have a vital--even essential--role toplay. For example, the Holocaust Claims ProcessingOffice of the New York State Banking Departmenthelps locate lost and stolen art, www.claims.state.ny.us/hist.htm, and States are free under Erie toarticulate state law governing disputes over lost andstolen property.

Amici favor the creation of alternative mechanismsto resolve these disputes without the cost and delayof litigation. But in the absence of any systemicsupport for such mechanisms and in the wake of a

19

series of aggressive moves by museums to shut downclaims on technical grounds without even adhering totheir promises of transparency of provenance docu-ments, it is naive for the Solicitor General to pin allfederal hopes on ADR and settlement negotiations.See No. 09-1254, Brief for the United States asAmicus Curiae, at 18.

Indeed, in the wake of serious judicial misuse ofcorrespondence discussing potential settlement in theGrosz case in clear violation of Rule 408, Fed. R.Evid., such feigned interest in promoting ADR andsettlements is worse than feeble. It is an abandon-ment of decades of strong diplomacy supporting thefederal interest in protecting restitution of Nazi-looted art to its rightful owners.

III. The Court Should Grant the Writ toRequire that Attentiveness to HistoricalData, Not Raw Judicial Hunch, Serveas the Basis for Determinations ofPlausibility.

This Court in Iqbal recently attempted to clarifyfor lower court judges that "[d]etermining whether acomplaint states a plausible claim for relief will . . .be a context-specific task that requires the reviewingcourt to draw on its judicial experience and commonsense." Iqbal, 129 S.Ct. at 1950. Context-specificityand common sense should, of course, inform alldecision-making, especially that of federal judgessworn to behave as independent magistrates.

Yet the experience of Arnici discloses that severalcases discussed in this brief, including Grosz, arevulnerable to overconfidence in a capacity to graspthe significance of past events merely by being ajudge, without any attentiveness to historical data

2Osome judges evidently neither know about nor evenwant to. This oversight leads in turn to mistakenjudgments. In short, differentiating between commonsense and common nonsense is harder than oneimagines if a knotty problem is dismissed summarilyas a stale claim.

Professor Thomas Haskell, an expert in historicalmethodology, explains the recurrent problem ofrelying on common sense:

Common sense is a high tribunal, never ignoredwith impunity. And yet its limitations aredeservedly notorious, partly because of itscommonness, but also because it is in motion.Far from being the fixed standard it alwayspretends to be, common sense is a historicalphenomenon, about which histories can andshould be written. And as common sense changes,so do the explanatory schemes it authorizes.

Thomas L. Haskell, Objectivity Is Not Neutrality 5(1998).

In fact, societal "common sense" often presumesthat historical claims cannot or should not be viabletoday, either because too much time has passed orbecause of ungrounded beliefs about the proper roleof courts. E.g., Sir Norman Rosenthal, Editorial, TheTime Has Come for a Statute of Limitations, ARTNEWSPAPER, Dec. 2008, at 30, available at www.theartnewspaper.com/article.asp?id= 16627.

The problem is exacerbated when cases do not getout of the starting gate into merits discovery becausethey have been dismissed on technical grounds.The instant case is but one of many dismissed ontechnical grounds without proper consideration of theviolent context within which the events narrated

21were occurring. This-sadly accounts for erroneous"fact-finding" that is itself improper in the context ofa motion to dismiss under Rule 12(b)(6).

Though steeped in experience and common sense,most judges lack training in historical method. Mostare aware of the history of World War II in generalterms, but not with sufficient specificity to renderwell-informed, critical assessments of data thatmust precede an evaluation of the plausibility ofHolocaust-era claims they face.

Like the rest of us, well-meaning and thoughtfuljudges can make improper factual assumptions. Forexample, the district court in the instant case basedher conclusion on the dismissal of the suit on ageneral assumption that Holocaust survivors andtheir heirs have waited too long to file suit. Anothercourt mischaracterized a survivor as having the"same opportunity to obtain the evidence" as one ofthe most prestigious museums in the world. Museumof Fine Arts, Boston v. Seger-Thomschitz, 623 F.3d 1(lst Cir. 2010).

One district court did not comprehend that atransfer in Switzerland could have resulted fromNazi coercion. Toledo Museum of Art v. Ullin, 477 F.Supp. 2d 802, 804 (N.D. Ohio 2006).

Another district court treated a forced sale in NaziGermany as though it were a routine commercialtransaction under the UCC, and on that basis barredthe claim as of 1941. Detroit Inst. of Arts v. Ullin,2007 WL 1016996 (E.D. Mich. 2007). This error isparticularly egregious because, as a condition for thepossibility that Germany and Austria might return tothe family of nations, the United States insistedthat in their constitutive documents these countries

22expressly repudiate all so-called "transactions" duringthe National Socialist period. See, e.g., AustrianNullity Act (May 15, 1946); State Treaty of Austria(1955).

During the first Holocaust-era art trial in fortyyears, the district judge rejected the proffered reportof a distinguished historian presenting detailedevidence of Nazi confiscation. The result waspredictable. Record evidence shows that FritzGrunbaum was arrested in Vienna shortly after theAnschluss, taken to Dachau, and forced to sign adocument surrendering all his property--includingmany artworks--to the Nazis. After Fritz wasmurdered, the Nazis also forced his wife to sign asimilar surrender of all interests in his estate. Yetthe judge ruled out coercion in these "transactions."Bakalar v. Vavra, 2008 WL 4067335.

Judge Edward Korman--who presided for yearsover the major class action litigation on the Shoah inthe 1990s, see Eizenstat, Imperfect Justice, supra, at83-85,121-122,166-170,180--sat by designation in theBakalar appeal, and wrote the opinion of the court ofappeals reversing the district court. 619 F. 3d 136 (2dCir. 2010). On remand, previous issues persist; thedistrict court still refuses to look at the expertwitness report.

In Grosz, the district court viewed itself asconfronted "with a legal, not a historical, question."Pet. App. 20a. This self-understanding falsely dichot-omizes the act of judging. Discerning good and bad,true and false typically requires attentiveness tofacts. Questions about an event (Who? What? When?Where?) usually precede questions for understanding(Why?). The district court in Grosz suggestedmwrongly and without supporting evidence--that the

23

Jewish art dealer Flechtheim went out of business in1933 because he was in "acute financial troubles"Pet. App. 39a, and had committed "financial mis-steps." Pet. App. 40a. Speculative guesswork--alwaysimproper is egregious in the procedural setting of aruling on a 12(b)(6) motion. Factual errors, moreover,are easily corrected by attentiveness to unassailableinformation about systematic boycotting and extor-tion of Jews to gain their property from the veryinception of the bureaucratic regulations of Hitler’slawyers and judges. See Martin Dean, Robbing theJews, and Ingo Mfiller, Hitler’s Justice.

Trial courts cannot be expected to know, uponfiling, the complete historical context of all cases thatcome before them, but this Court should not turn ablind eye to widespread lower court ignorance ofwidely known historical facts about the Shoah thathas badly infected decision-making as to whether aclaim is plausible.

This country has frequently expressed repugnanceto war-time theft--from the prohibition of lootingduring the American Civil War, through ourratification of the Hague Convention defining lootingas a war crime in 1907, through our announcement inthe London Declaration of 1943 that this crime wouldbe vigorously prosecuted, Pet. App. 89a-90a, to ourleadership in the formation of the WashingtonPrinciples (1998) on restitution of looted art, Pet.App. 69a-71a, and our similar role in the formation ofthe Terezin Declaration (2009), Pet. App. 72a-88a.

Neither the Solicitor General nor counsel for one ofthe Nation’s greatest cultural treasures shouldnow be heard to denigrate or diminish the globalsignificance of these federal commitments. Thejustice sought in these cases is imperfect, but we are

24

bound to strive for it in the darkness after NaziGermany’s systematic efforts to destroy completelythe entire Jewish community in Europe.

It is much too soon to ignore what Miles Lerman--a resistance fighter in Nazi-occupied Poland--toldthe Washington Conference in 1998:

What really shocked the conscience of the worldwas the discovery that even after the war, somecountries tried to gain materially from thiscataclysm by refusing to return to the rightfulowners what was justly theirs. The refusal torespond to these rightful claims was a greatinjustice, a moral wrong which cannot beignored.

Proceedings of Washington Conference 3.

CONCLUSION

For the reasons stated above, the Court shouldgrant the Writ.

Respectfully submitted,

JENNIFER ANGLIM KREDERCHASE COLLEGE OF LAWNORTHERN KENTUCKY

UNIVERSITY

Nunn Hall, Nunn Dr KYHighland Heights, KY 41099(859) 628-1152

*Counsel of Record

EDWARD GAFFNEY, JR.*VALPARAISO UNIVERSITY656 S. Greenwich StValparaiso, IN 46383(219) 465-7860edward.gaffney@valpo.edu

Counsel for Amicus Curiae