Rutgers Law Review article advocates replacing restitution litigation with prosecutions

Lexology 22 May 2013
By Nicholas M O'Donnell

The Rutgers Journal of Law and Religion has published a provocative article that advocates a bold new take on Holocaust art restitution litigation. The thesis of the piece is easily gleaned from its title: “Nazi Looted Art and Cocaine: When Museum Directors Take It, Call the Cops.” In a nutshell, the article argues that if artwork were stolen during World War II, it can never be acquired legitimately thereafter, and its possession is by definition a violation of the National Stolen Property Act, 18 U.S.C. § 2314—or even the Racketeer-Influenced Corrupt Organizations Act (RICO).

As author Raymond Dowd himself summarizes it in his Copyright Litigation Blog (which, as an aside, is consistently excellent):

[T]he U.S. government clearly condemned the theft of artworks from victims of Nazism and that federal and state statutes have consistently forbidden the traffic and concealment of stolen property. As such, Nazi looted art should be treated as a contraband substance, like cocaine, and should be returned to its true owners under the common law precept that no one can take good title from a thief.

Dowd was lead counsel in Bakalar v. Vavra, a restitution case that was ultimately decided on the basis of a laches defense. Dowd makes a compelling argument in the Rutgers article that laches should not be applied in restitution cases, because it is an equitable defense. Equitable defenses, Dowd rightly points out, are intended to avert injustice. His point is that asserting laches against the owner from whom a work was stolen is inconsistent with the doctrine. It should be noted, however, that Bakalar was one of the few cases where the court actually reached the question of fact as to whether work in question was stolen (finding that it was not). Dowd also argues against application of statutes of limitations, as many others have (and as the Washington Principles advocate), but those are typically state statutes that cannot simply be ignored (compared to the discretionary application of equitable defenses).

But Dowd raises some not-easily-answered questions that the museum community should take seriously. Given courts’ increasing refusal to decide restitution cases on the merits for prudential reasons as between civil litigants, Dowd’s argument fits into the remaining void: the power of the federal prosecutor. Interestingly, apart fromPortrait of Wally epic and the Christ Carrying the Cross Dragged by a Rogue (by Girolamo Romano) case last year, stolen property prosecutions and seizures are far more common in the realm of antiquities and cultural property, even though, as Dowd notes, the records with respect to Nazi-stolen art are often meticulous.

The piece is a noteworthy contribution to the debate and worth a careful read no matter what your interest in the issue. Expect this to be a point of conversation at the ARCA Conference next month.
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