Wednesday, July 7, 2010

On Art! Grosz miscarriage of justice

(Delighted to welcome back alumna Jennifer Kreder, who contributes this On Art! guest post)

Pending in the U.S. Court of Appeals for the Second Circuit is Grosz v. The Museum of Modern Art, a challenge to the January dismissal-as-time-barred of a lawsuit brought in 2009 by heirs who claim that 3 George Grosz paintings in MoMA's extensive Grosz collection are illegally obtained Nazi loot. (Among the disputed works is the 1920 watercolor below right, entitled "Republican Automatons," and the 1928 painting below left, "Self-Portrait with Model") (image credits here and here)
I have co-authored an amicus brief, filed in the case last month, in which a number of Jewish community leaders, Holocaust educators, artists and art historians, and legal scholars and practitioners support the heirs' bid for reversal of the trial court's decision and reinstatement of the case.
Too many of us, unfortunately including a fair number of federal judges, seem to presume that claims to property taken long ago must be time-barred under some legal doctrine.
That presumption, however, is blocking our ability to bring sunlight to the dark, hidden history of the vastness of:
► Nazi looting,
► The art market’s greed in secretly snapping up bargains, and
► The fact that claimants often were unable to make claims in the postwar period.
Too many in the art community would have us believe that the fact that Nazis plundered more art than any other regime in history, surpassing even Napoleon, remained a mystery until academics and lawyers turned their attention to newly opened archives in the mid-1990s. This simply is not true, and it is directly relevant to whether purchasers acted in good faith and whether claimants could have identified their property claims and asserted them before now.
Diplomats from the U.S. State Department played a leading role in securing public commitment by the forty-four nations that adopted the Washington Conference Principles on Nazi-Confiscated Art in 1998 and the Terezín Declaration that emerged from the international conference hosted by the Czech Republic in June 2009. These instruments call for effective, fact-based resolution of Nazi-looted art claims – not for defeating them in court on statute of limitations grounds.
The brief that I filed along with my co-counsel, Valparaiso Law Professor Edward McGlynn Gaffney Jr., captures the current hostile climate for claims to Nazi-looted art. Museums are trampling the conciliatory and transparency touchstones in the Washington Principles, in the Terezin Declaration, and in their own guidelines. In so doing, they are convincing federal courts to accept distorted versions of historical fact going back to 1933, and to contravene consistent Executive Branch policies dating back to 1943.
Some American museums and others have managed to convince our federal courts that claims to Nazi-looted art are not worthy of treatment on the merits – grossly distorting the historical record in the process. Some courts seem to have been convinced that enemies of the Third Reich could all freely engage in voluntary property and business transactions up until the passage of the Nuremberg Laws, or even as late as 1938. Our brief uses irrefutable historical evidence to demonstrate the falsity of this position. The art world had contemporary knowledge of the massive infection of the art market with “flight art” starting in 1933.
In the Grosz case, the district court, in contradiction to Federal Rule of Evidence 408, took snippets of settlement discussions completely out of context, and so improperly ruled that MoMA's Director had refused the claim before, in fact, MoMA clearly did so. This ruling led to the conclusion that the plaintiff heirs had missed their court filing window by a few months. This flies in the face of the court’s express finding that the Director’s language was

almost certainly designed to entice plaintiffs to continue negotiating and to prevent the dispute from becoming public or escalating into litigation.

The district court’s ruling:
► Calls out for application of the equitable doctrines of tolling and estoppel;
► De-incentivizes good faith negotiation, while incentivizing museums to draw out negotiations in the hopes that plaintiffs will miss the limitations cutoff; and
► Guts Executive Branch policy since 1943.
Executive policy clearly acknowledges the length to which the Nazis went to mask aryanizations and forced sales of real and personal property as voluntary transactions and calls for their un-winding. Recent U.S.-led efforts, like the Washington and Terezín instruments described above, support resolution of Nazi-looted art claims via alternative dispute resolution methods that are premised on liberal access to provenance -- that is, ownership history -- records in order that the factual merits may be fully aired. Guidelines promulgated by the Association of American Museum Directors and the American Association of Museums mirror these standards.
MoMA has trampled over these declarations and guidelines.
MoMA refuses to disclose provenance records relevant to the Grosz case, much less to resolve the claim on the merits, despite 1998 testimony in which its Director told Congress that MoMA and the museum community support transparency, and despite MoMA’s website statement that its archives are open to all serious researchers.
As we argue in our brief, the district court seems to have prejudged the case at the motion-to-dismiss stage, by:
► Characterizing evidence about the tainted history of the paintings at issue as “rank hearsay” despite logical inferences to be drawn from the true historical context;
► Endorsing MoMA’s protestations of confidentiality; and
► Inappropriately accepting MoMA's statute of limitations arguments mischaracterizing settlement communications.
The creator of the paintings at issue, Berlin-born Grosz, fled Germany for the United States in 1933, shortly before his 40th birthday. Later he was later declared an “enemy of the State” by the Nazi regime. Grosz left his art with a Jewish art dealer, who also later fled. The historical record documents that the dealer’s galleries were "aryanized." MoMA bought one of Grosz’ paintings in 1947, and another in 1954. (Grosz attained U.S. citizenship but eventually returned to Berlin, where he died in 1959.) Two "red flag" names identified as traffickers by the Art Looting Investigation Unit of the U.S. Office of Strategic Services, which would be familiar to any provenance researcher, appear in the provenances of the paintings at issue. Not caring does not equate to not knowing.
Unfortunately, this case is not unusual.

(A version of this post appeared at PrawfsBlawg, where I'm guesting this month)

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