Slovakia's new leader

Slovakia's the newest country to be led by a woman, following yesterday's swearing-in of Iveta Radičová (left) as Prime Minister. Radičová's the 1st woman to hold that position in Slovakia, which joined the United Nations in 1993 following an amicable split with the Czech Republic.

Radičová, born 53 years ago in Bratislava, served as Minister for Labor, Social Affairs and Family from 2005 to 2006. She leads a 4-party center-right coalition, which takes over from the previous center-left government.

She seizes the mantle of newest woman leader from Julia Gillard, who, as posted, became Australia's PM last month.

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)

On December 31, ...

... 1992 (15 years ago today), at midnight, a country that had been designated a "Soviet Socialist Republic" for decades ceased to exist. Succeeding Czechoslovakia were 2 independents states, Slovakia and the Czech Republic (flags at left).

... 2000, then-President Bill Clinton ordered the United States' signature added to the International Criminal Court treaty. The action was taken just hours before the signature period closed; Israel followed suit in this last window of time. Little more than a year later, the administration of new U.S. President George W. Bush repudiated the country's signature; again, Israel followed suit. I've written about these developments here and here.

Europe's Brown v. Board of Education

It would be hard to exaggerate the level of racism experienced by Roma (widely known as “gypsies,” a word many Roma abhor) in virtually every facet of daily life. Hostility toward Roma runs so wide and deep that it is peculiarly difficult to dismantle: Governments that have an otherwise strong commitment to human rights all too often act on the belief that Roma have earned the stereotypes that are enforced to their detriment.
Thus it is all the more noteworthy that discrimination against Roma in the Czech Republic provided the occasion for this week’s historic judgment by the European Court of Human Rights (ECHR). In the Case of D.H. and Others v. the Czech Republic the Court’s Grand Chamber ruled on November 13, 2007, that Czech Roma have suffered unlawful discrimination in relation to education, a violation of the European Convention on Human Rights and its Protocol No. 1. (Proud disclosure: My colleagues at the Open Society Justice Initiative, James Goldston and Anthony Lester, were lead attorneys in the case.)
The decision marked a watershed in anti-discrimination law in Europe. For the first time, the ECHR found that a pattern of racial discrimination in primary education, in this case resulting in an especially pernicious form of segregation, violated the anti-discrimination provision of the European Convention.
Like many countries in Central and Eastern Europe, the Czech Republic has diverted an astonishingly large percentage of Romani children to "special schools"—schools for children with mental disabilities. The applicants in D.H. v. Czech Republic came from the Czech town of Ostrava, where at the time of one survey Romani children represented only 2.26% of pupils in primary school—yet constituted 56% of pupils placed in special schools. Every way you come at the numbers, they tell a devastating story. Here’s another cut: More than half of Ostrava’s Romani children were assigned to special schools, compared to 1.8% of non-Romani students. And another: Romani children in Ostrava were at the time of one study 27 times more likely to be shunted off to special schools than non-Roma. (photo of Ostrova family courtesy of New York Times)
The facts that gave rise to this week’s ruling should, proverbially, speak for themselves. Yet they were not enough to persuade a seven-judge Chamber of the ECHR, which had rendered judgment against the applicants in the same case in February 2006.
The Grand Chamber, in contrast, saw the problem and, along the way, brought European Convention law in line with the more protective anti-discrimination standards enforced by the European Union. Among other notables, this week’s decision affirmed in clarion terms that indirect discrimination—discrimination resulting from a harmful and disproportinate impact on a particular group despite the apparently neutral terms of a policy—is prohibited by the European human rights convention. And, the Grand Chamber affirmed, it isn’t necessary to prove discriminatory intent on the part of government authorities to find that an official policy produces unlawful indirect discrimination.
Recognizing how hard it can be to prove discrimination that is camouflaged by seemingly neutral rules, the Grand Chamber helpfully clarified what it takes to make a case: Although statistical data are not a necessary form of proof, “statistics which appear on critical examination to be reliable and significant will be sufficient to constitute . . . prima facie evidence” of indirect discrimination.
Implementing this week’s ruling will surely be as daunting as the eight-year legal odyssey that culminated in the ECHR’s breakthrough judgment. As the Grand Chamber recognized, the Czech Republic is hardly alone in its practices, and the discrimination against Roma that pervades the societies in which they live is so ingrained it can be hard even to see. (So perhaps it is not surprising that the lawyers who mounted the Czech government’s defense in Strasbourg tried to defend Ostrava’s segregated education by blaming Romani parents.) Now, though, Roma have the powerful shield of European human rights law on their side.