Monday, November 23, 2009

EU Holocaust Era Assets Conference and State Department Town Hall Follow-Up

As one of its last acts as EU President, the Czech Republic held a Holocaust Era Assets Conference in Prague from June 26-30, 2009. Attended by 47 country delegations, 148 organizations, and a representative of the Holy See, the conference met, in part, to evaluate progress since the 1998 Washington Conference on Holocaust-Era Assets (

Secretary Clinton appointed Ambassador Stuart E. Eizenstat to head the distinguished 24-member U.S. Delegation. Clinton also appointed Ambassador J. Christian Kennedy, Head of the State Department’s Office of Holocaust Issues, as Special Envoy for Holocaust Issues (

Among the many conference events, five working groups (Holocaust Education, Remembrance and Research, Immovable Property (Private and Communal), Looted Art, Judaica and Jewish Cultural Property, and Special Session - Caring for Victims of Nazism and Their Legacy) presented expert panel presentations.

When all was said and done, 46 country delegations signed the Terezin Declaration, a non-binding commitment to further progress regarding: (1) the welfare of Holocaust survivors, (2) real property restitution or compensation, (3) the identification and protection of Jewish cemeteries and burial sites, (4) the resolution of claims for restitution of Nazi-confiscated and looted art and other cultural property, (5) Judaica and Jewish cultural property protection and claim resolution, (6) improved archival access, (7) education, remembrance, research, and memorial sites, and (8) the formation of the European Shoah Legacy Institute in Terezin (

As a follow-up to the Prague EU Conference, the State Department held a Town Hall meeting on September 22, 2009. Emerging issues discussed included the creation of alternative mechanisms to fairly resolve Holocaust Era assets claims, including the possible formation of a national commission or panel, with representatives from the various stake holders, as well as scholars and other experts in the field. Such a commission might facilitate provenance and genealogical research as well as the informal analysis and resolution of such disputes, in an effort to avoid prolonged and expensive litigation. A Congressional hearing regarding these and other related matters is tentatively scheduled for October 29, 2009, under the leadership of Representative Robert Wexler, Chair of the Committee on Foreign Affairs, Subcommittee on Europe.

Carla Shapreau
Visiting Scholar, Institute of European Studies
University of California, Berkeley

Thursday, November 19, 2009

Announcing Winners of the 2009 Student Writing Competition in Cultural Heritage Preservation Law

The Lawyers’ Committee for Cultural Heritage Preservation (LCCHP) is pleased to announce the winners of its 2009 annual student writing competition, sponsored by Andrews Kurth LLP. The first-place winner is Amelia Sargent of Stanford University Law School for a paper entitled “New Jurisdictional Tools for Displaced Cultural Property in Russia: From ‘Twice Saved’ to ‘Twice Taken.’” The second-place winner is Melanie Greer of DePaul University College of Law for her paper entitled “Deaccessioning: A Necessary Evil?” An honorable mention went to “The Limits of the Law: The Impact of the 1970 UNESCO Convention on the Trade in Illicit Cambodian Antiquities,” by Terressa Davis of the University of Georgia.

Both winning papers will be published in the 2010 Yearbook of Cultural Property Law. The finalist paper, “Complying with NAGPRA’s Pesticide Provision: A Best Practice Guide” by Lydia Grunstra of American University Washington College of Law will also be published in the next issue of the Yearbook.

Due to the generosity of Andrews Kurth’s D.C. office, the first-place winner will receive an award of $1000 and the second-place winner will receive an award of $500. This is the fifth annual LCCHP competition, and it attracted twenty-six entries from nineteen law schools, the largest numbers of entries and law schools represented in any prior competition. We also want to thank this year’s writing competition selection committee, chaired by Sherry Hutt, and including Ricardo St. Hilaire, Lucille Roussin and Gillian Bearns.

For the third year, LCCHP is pleased to partner with Andrews Kurth in offering this competition as a means of expanding the teaching of cultural heritage preservation law in U.S. law schools. LCCHP is a nonprofit organization of lawyers, law students and interested members of the public who have joined together to promote the preservation and protection of cultural heritage resources in the United States and internationally through education and advocacy.

For more information on the annual Student Writing Competition and the other activities of the LCCHP, please visit our website at

Ninth Circuit Issues Decision in Von Saher v. Norton Simon Museum of Art

Ninth Circuit Strikes Down California's Holocaust Era Statue of Limitations in Von Saher v. Norton Simon Museum of Art, but Permits von Saher to Proceed on Other Grounds – Petitions for Rehearing Pending

On August 19, 2009, the United States Court of Appeals for the Ninth Circuit issued its opinion in Marei von Saher v. Norton Simon Museum of Art at Pasadena, 578 F.3d 1016 (9th Cir. 2009), striking down as unconstitutional California's unique Holocaust Era statute of limitations, Code of Civil Procedure section 354.3. This statute permitted suit against a museum or gallery for the recovery of Holocaust Era artwork if commenced on or before December 31, 2010, arguably permitting claims that might have expired under California's general three-year statute of limitations.

Although the court held that section 354.3 "does not conflict with any current foreign policy espoused by the Executive Branch," it nevertheless was found unconstitutional under a field preemption analysis, because it infringed on a foreign affairs power reserved by the Constitution exclusively to the federal government. The Ninth Circuit pointed out that "the relevant question is whether the power to wage and resolve war, including the power to legislate restitution and reparation claims, is one that has been exclusively reserved to the national government by the Constitution. We conclude that it has."

The dissenting opinion by Judge Pregerson asserts that the majority read the statute too broadly by concluding that section 354.3 created a world-wide forum for resolution of Holocaust restitution claims and that the statute applied to any museum or gallery, when in fact it is limited to only those entities subject to the jurisdiction of the State of California. Judge Pregerson also remarked that section 354.3 does not provide for war reparations, but rather constitutes a regulation over property within the state's jurisdiction, a subject that is traditionally and appropriately a state function.

Although the majority cut off one avenue for von Saher, it opened another by ruling that the trial court erred when it held von Saher's claim time-barred under California's general statute of limitations, Code of Civil Procedure section 338(3), which is applicable to pre-1983 claims for the recovery of stolen art and other personal property. The Ninth Circuit noted that "[f]rom the face of Saher's complaint, it is not clear that the statute of limitations has expired . . . Saher's complaint should not have been dismissed without leave to amend." The case has been remanded to the trial court for further proceedings.

It is worth nothing that the California Supreme Court has not yet ruled on what standard governs the accrual of a claim to recover artwork stolen or converted before 1983, under section 338(3), although this standard has been addressed in two California appellate court decisions. Recognizing this, the Ninth Circuit pointed out that it was bound to apply a constructive discovery accrual rule under its prior opinion in Orkin v. Taylor, 487 F.3d 734, 741 (9th Cir. 2007), which held that a constructive discovery rule would be consistent with California Supreme Court precedent. Under this standard, "Saher's cause of action began to accrue when she discovered or reasonably could have discovered her claim to the Cranachs, and their whereabouts." The court noted that it could only reconsider earlier Ninth Circuit precedent by en banc review or after an intervening Supreme Court decision.

Petitions for rehearing and rehearing en banc were filed by both von Saher and the Norton Simon Museum in September 2009. Amicus briefs were filed in early October by the State of California and EarthRights International. Therefore, California's unique Holocaust Era statute of limitations may still be resuscitated, if only until it expires by its own terms at the end of 2010.

Carla Shapreau
Visiting Scholar, Institute of European Studies
University of California, Berkeley