Sunday, July 25, 2010

On Art! History & Holocaust claims

(Today alumna Jennifer Kreder contributes another On Art! guest post, prompted by her work in a pending looted-art case; her prior, related posts are here and here)

What judges think of their function and task undoubtedly informs their understanding of their power or jurisdiction.
In a March 3d order denying reconsideration of her January 6th dismissal of the heirs' lawsuit in the Nazi-looted-art case of Grosz v. MoMA, U.S. District Court Judge Colleen McMahon (below right) of the Southern District of New York stated on page 11 that the court was confronted
with a legal, not a historical, question.
This view is a false dichotomizing of the judicial function.
Judges cannot be expected to know intimately the historical context of all cases that come before them. But under precedents like Iqbal, Twombly and their progeny, judges should not ignore widely accepted historical facts when deciding whether a claim arguing that a seemingly voluntary transaction was, in fact, made under duress is “plausible.”
From the very beginning of the Nazi era, law and jurisprudence became a strong component of justification of regulations that deprived “enemies of the State” of their liberty and property, and these deprivations led in turn to mass murder.
Indeed, as documented in Robbing the Jews: The Confiscation of Jewish Property in the Holocaust, 1933-1945 (2008), by a Research Scholar at the Center for Advanced Holocaust Studies of the U.S. Holocaust Memorial Museum, Martin C. Dean, the “legalized” grand larceny became a form of financing the mass murder.
The FĂĽhrerprinzip demanded unquestioning loyalty to the concentrated power of a “unitary executive.” Both legislators and judges in Nazi Germany participated in the normalization of practices of State grand theft that were engineered to make involuntary transactions appear “ordinary and legal” from the very first weeks of the Nazi regime early in 1933, even before the infamous racist Nuremberg laws of “blood and honor” in 1935, and even before the final push to a “Final Solution.” The U.S. Consul General in Vienna, immediately after the Anschluss of Austria in March 1938, poignantly observed:
There is a curious respect for legal formalities. The signature of the person despoiled is always obtained, even if the person in question has to be sent to Dachau in order to break down his resistance.
Jews were systematically excluded from professions and forced to compile inventories to streamline the despoliation of their property from 1933 to 1942, when Jews had little or no property left to rob, and when the focus turned to “cost-efficient” mass murder in the death camps of occupied Poland.
It is a gross distortion of reality to suggest that the financial despair of Jews in 1933, during widespread, sporadic boycotts and until the passage of the first Nuremberg law in 1935, resulted from a series of isolated private setbacks brought about by generalized, severe financial conditions akin to the Great Depression. The National Socialist platform, adopted as official German state policy as of 1933, was committed to driving Jews and other “enemies of the State” out of economic life.
This is the historical context in which modern claims to Nazi-looted art should be viewed.
Too frequently, some of our judges seem to have forgotten history. In kneejerk fashion, some seem to assume that claims 70 years old simply cannot be viable. This reaction is contrary to history, and to the U.S. executive policy. Consider, in addition to documents on which I earlier posted, this August 27, 1951, statement, "The Recovery of Cultural Objects Dispersed during World War II," by Ardelia R. Hall, the Fine Arts & Monuments Adviser to the U.S. State Department, which appeared in the Department's Bulletin:
For the first time in history, restitution may be expected to continue for as long as works of art known to have been plundered during a war continue to be rediscovered.
The executive branch has not deviated from this position to date.

(A version of this post appears at PrawsfBlog)

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