Navigating the Ambiguities and Uncertainties of the Holocaust Expropriated Art Recovery Act of 2016

Abstract

With an admirable purpose, a celebrity endorsement from Dame Helen Mirren, and unanimous support in Congress, the Holocaust Expropriated Art Recovery Act (HEAR Act), passed in late 2016, appears to be a rare legislative success. Its congressional momentum, however, belies the pitfalls that inhere in its text. The Act’s nuanced and often ambiguous language raises many questions to be addressed in future litigation over restitution claims to Nazi-looted art. The HEAR Act was meant to address a perceived problem that legitimate claims to recover art looted by the Nazis were not being heard “on the merits” in U.S. courts, but were instead too frequently being dismissed as brought too late—in particular, blocked by courts’ application of state statutes of limitations. And, at a minimum, disputes over the timeliness of claims to Nazi-looted art rendered litigation of such claims protracted and costlier. The Act sought to relieve claimants of these obstacles by instituting a nationwide six-year limitations period running from “actual knowledge” of the relevant facts. Despite its relatively short length, the HEAR Act brings a number of interpretive difficulties that will give rise to a new set of litigation hurdles for both claimants and possessors of artworks subject to claims. This Article is meant as a guide to courts and litigants in navigating key ambiguities and uncertainties in the statute. The Article discusses the Act in three parts. First, we briefly explain the context in which the Act was enacted: the history of United States and international efforts to return art lost during the Holocaust to rightful owners. Second, we describe the Act’s consideration by Congress and its operative provisions. We finally discuss half a dozen instances in which the HEAR Act’s language is unclear, ambiguous, or raises difficult issues about the application or scope of the statute. Several of these instances are ambiguities created by the text of the statute, which is often in tension with its legislative history; others reflect an apparent mismatch between the statutory language and the practical reality of litigation. Where possible, we suggest what we believe is the most plausible and compelling reading of problematic statutory language in light of the text, history, and purposes of the Act, as well as the realities of litigation over Nazi-era art restitution claims. Our concern with the uncertainties created by the Act’s language is not theoretical. Litigants are already espousing conflicting interpretations of the Act’s language on some of the points discussed below, and courts have already reached holdings at odds with the statute’s language or legislative history (and sometimes both). All in, an Act meant to streamline claims to recover Nazi-looted art may well end up making such litigation costlier and more time-consuming for parties and courts as litigants argue for their preferred meaning of the Act’s terms.