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 May 18

On this day in ...
... 1803, the year-old Treaty of Amiens, which aimed to bring peace between Britain and France, was broken when Britain refused to withdraw its troops from Malta. As described here, the move constituted the 1st official breach of the pact (about which we also posted here), but the move was preceded by much Napoleonic behavior that threatened the balance of power contemplated in the treaty and thus riled Britain. Telling a different story is French medal at left. (credit) It depicts a British big cat mauling the treaty scroll, and carries the slogan "Le traite d'amiens rompu par l'angleterre en mai de l'an 1803."

(Prior May 18 posts are here, here, and here)

On April 27

On this day in ...
... 1848, the Conseil of the provisional government of France issued Décret relatif à l'abolition de l'esclavage dans les colonies et les possessions françaises, which outlawed slavery in all French territories. The decree stated in part:

A l'avenir, même en pays étranger, il est interdit à tout Français de posséder, d'acheter ou de vendre des esclaves, et de participer, soit directement, soit indirectement à tout trafic ou exploitation de ce genre. Toute infraction à ces dispositions entraînera la perte de la qualité de citoyen français.

That is,

In the future, even in foreign countries, every French person is forbidden to possess, to purchase, or to sell slaves, and to participate directly or indirectly in the trafficking or exploitation of slaves. Every infraction of this provision will be subject to loss of French citizenship.

This was not France's 1st go-round on the issue: Slavery had been abolished in 1794, during the French Revolution, but then was reinstated in 1802 by Napoleon. (credit for photo of 1998 commemorative stamp)



(Prior April 27 posts are here, here, and here)

On July 27

On this day in ...
… 1884 (125 years ago today), divorce was reestablished in France. Divorce first became legal in France on September 20, 1792. The divorce law, which was extremely liberal even by modern standards, reflected the French Revolution's commitment to the rights of the individual and its antipathy to Roman Catholicism. In 1816, with the rise of Napoleon and the return of Roman Catholicism, divorce again was abolished. Judicial separation became the only option. When France's aristocracy voted against the divorce bills proposed during this time, their votes were as much a rejection of the revolutionary heritage as of the social effects of divorce. The law passed on this day departed from the liberal model of 1792 and instead was conservative, based on Napoleonic law.
… 1740, Jeanne Baré (below right), botanist and explorer, was born. She was probably the 1st woman to have circumnavigated the globe. Disguised as a man, Baré enlisted as personal valet and botanical assistant to the expedition's physician and naturalist shortly before it sailed from France in 1766. (image credit) According to the account of the expedition's master, Baré proved an expert botanist who had a reputation for courage and strength, and who went cheerfully on the most troublesome excursions over rugged terrain. Her companions did not learn that Baré was a woman until they reached Tahiti; there she confessed that she knew when she boarded that the ship would go around the world, and that such a voyage had raised her curiosity.

(Prior July 27 posts are here and here.)

On July 19

On this day in ...
... 1799 (210 years ago today) , a soldier who'd accompanied French Emperor Napoleon Bonaparte on his campaign in Egypt discovered "a black basalt slab inscribed with ancient writing near the town of Rosetta, about 35 miles north of Alexandria." On it were passages in 3 scripts, Greek, Egyptian hieroglyphics, and Egyptian demotic, "all of identical meaning." The stone thus "held the key to solving the riddle of hieroglyphics, a written language that had been 'dead' for nearly 2,000 years." Seized from the French 2 years later when Napoleon was defeated, this Rosetta Stone (left) has been at London's British Museum for the last 2 centuries. (A prior IntLawGrrls post on Napoleon's Egyptian adventure is here.)
... 64 (1,945 years ago today), fire swept Rome while its Emperor Nero fabulously fiddled. "Fabulously," that is, because a near-contemporaneous account does not put that musical instrument in Nero's hands. Rather, historian Tacitus wrote in his Annals of Imperial Rome:

Now started the most terrible and destructive fire which Rome had ever experienced. It began in the Circus, where it adjoins the Palatine and Caelian hills. ...Fanned by the wind, the conflagration instantly grew and swept the full length of the Circus. There were no walled mansions or temples, or any other obstructions which could arrest it. ...
... A rumor had spread that, while the city was burning, Nero had gone on his private stage and, comparing modern calamities with ancient, had sung of the destruction of Troy. ... People believed that Nero was ambitious to found a new city to be called after himself.

In an aftermath that future residents of Chicago and San Francisco would find familiar, the charred city was rebuilt to greater glory. And whether Nero liked it or not, it kept its original name of Roma.

(Prior July 19 posts are here and here.)

On May 4

On this day in ...
... 1919 (90 years ago today), "massive popular protest ... took place in China ... following the announcement of the terms of the Versailles Treaty," which, as we've posted, ceded territories on China's mainland that formerly had been held by Germany to Japan rather than returning them to China. The 1919 protests (left) exemplified what came to be called China's "May 4th Movement," or "new culture" movement, which emerged a few years earlier out of discontent with the failure of efforts in 1911 to set up a republican government. (image credit) This website maintains:

Its importance equals if not surpasses the more commonly known political revolutions of the century. The movement articulated the contempt for traditional Chinese culture felt by many Chinese intellectuals. These intellectuals blamed traditional culture for the dramatic and rapid fall of China into a subordinate international position, and maintained that China's cultural values prevented China from matching the industrial and military development of Japan and the West. ... The way out of China's problems, many believed, was to adopt Western notions of equality and democracy and to abandon the Confucian approach which stressed hierarchy in relationships and obedience. Science and democracy became the code words of the day.

... 1814 (195 years ago today), the 45-year-old former French Emperor, Napoleon I, began an exile on Elba in accordance with the 1814 Treaty of Fontainebleau. He began his stay on the Italian island (pop. 12,000) by entering its capital city, Portoferraio, and declaring, "I want to live from now on like a justice of the peace." Within a year he would return to the European mainland to try to reclaim his prior empire. (credit for 1814 political cartoon)

(Prior May 4 posts are here and here.)

On August 10

On this day in ...

... 1988 (10 years ago today), President Ronald Reagan signed into law the Civil Liberties Act of 1988, which, as Reagan explained in his signing statement announcing restitution for what he himself called "'a mistake,'" a payment of $20,000 "to each of the 60,000 surviving Japanese-Americans of the 120,000 who were relocated or detained" by the United States during World War II. (photo credit)

... 1809, in South America, "[a] group of the leading citizens" of Quito seized power of the region, which had been controlled by a French-born ruler placed by his brother, Emperor Napoleon Bonaparte, on the Spanish throne. Known as criollos, these rebels of Spanish descent did not have popular support to sustain their uprising, and within a year a military junta took control. Today Quito is the capital of Ecuador.

On July 21

On this day in ...
... 1798 (210 years ago today) , on the western bank of the Nile River in Egypt, 10 miles from Giza, French invaders led by Napoleon Bonaparte defeated local warriors in what came to be called the Battle of the Pyramids. (image credit) Though the French won the day, "[t]he yawning cultural divide, coupled with the destruction of Napoleon’s fleet at the Battle of the Nile by Admiral Horatio Nelson 10 days later, would ensure that the French presence in Egypt was not to last long."
... 1938 (70 years ago today), Janet Reno (right) was born in Miami, Florida, the eldest of 4 children born to journalists Henry Reno and Jane Wood Reno. She was among 16 women, out of a class of 500, who earned their J.D.s at Harvard in 1963. Reno returned to Florida to practice law and, eventually, to become active in state government. In 1978 she became the 1st woman chief prosecutor for Miami's Dade County, a post she held until 1993, when President Bill Clinton appointed her as the 1st woman U.S. Attorney General.

On June 20

On this day in ...
... 1756, a nawab, or ruler, of the region of Bengal in India was reported to have held overnight in an airless room 146 British prisoners, of whom only 23 were said to have survived. Despite the notoriety of this "Black Hole of Calcutta" incident, subsequent research indicated that far fewer persons died (no more than 69, with some estimates as low as 43), that the deaths were due to "negligence rather than intention," and that the nawab did not play a role in the incident, which took place in the city now known as Kolkata. One website calls it "an extraordinary instance of the manner in which narratives are constructed and the place of iteration in historical narratives."
... 1808 (200 years ago today), Marie-Jeanne Schellinck became the 1st woman to receive the Légion d'honneur (example at left), France's highest honor. Born 50 years earlier in Ghent, Belgium, Schellinck had 1st gone to war in 1792, disguised as a man and using a pseudonym. She was discovered to be a woman not long after, while being treated for numerous saber cuts; she was allowed to continue her military career, which lasted 17 years, till the day she received the honor from Napoleon, who said:

'Gentlemen, bow before this exceptional woman. She is one of the glories of the Empire.'

On May 25

On this day in ...
... 1946, the emirate of Trans-Jordan became the independent state now known as Jordan (flag at left), with the coronation of its former emir as King Abdullah Ibn Ul-Hussein in what the New York Times' correspondent peculiarly called "spectacular ceremonies and amid a setting that in some respects resembled a frontier town in the Western United States when the first railroad came through." The 1st king was assassinated in 1951 en route to al-Aqsa mosque in Jerusalem; his great-grandson, Abdullah II, now rules the country.
... 1810, Argentinians asserted their autonomy from Napoleonic Spain, 1 of many events in what came to be known as la Semana de Mayo during which the "United Provinces of the Rio de la Plata" were established. A declaration of independence would not be formalized for another half-dozen years; a constitution not until 1853. Today is celebrated as el Día de la Revolución de Mayo in Argentina.

On May 3

On this day in ...
... 1898 (110 years ago today), Golda Mabovitch was born in Kiev, in what was then the Russian Empire and is now Ukraine. She immigrated to the United States in 1906, joining her father, a carpenter, who had made the move 3 years earlier. She lived in Milwaukee, Wisconsin, until 1921, when she, her husband, and her sister went to Palestine, then a part of the Ottoman Empire. After the establishment of the state of Israel in 1948, the woman eventually known as Golda Meir (the last name means "illuminate") entered governmental service. Among the offices she held: Member of the Knesset, Israel's Parliament, 1st Israeli Ambassador to the Soviet Union, Israel's 1st woman Foreign Minister (the only other woman, Tzipi Livni, now holds the post), and, from 1969 to 1974, Israel's only woman Prime Minister. Meir (above left) died from cancer in Jerusalem in 1978.
... 1808 (200 years ago today), near Príncipe Pío hill in Madrid, troops loyal to an appointee of France's Napoleon, who'd entered Spain and deposed the king the year before, summarily executed Spaniards who'd staged an uprising the day before. The painter Francisco Goya depicted the moment in the painting at right, entitled Los Fusilamientos del 3 de Mayo, or The Shootings of May 3rd. It was commissioned in 1814, to encourage Spaniards to resist "the forces of Napoleon."