Abstract

The Holocaust Expropriated Recovery Act of 2016 (HEAR) purports to extend the statute of limitations for actions to recover art and certain other items stolen during the Holocaust. The new statute of limitations would be either the old statute or a six-years-from-actual-discovery statute, whichever is longer. This article analyzes the likely results of that law. It sets forth the problems leading to HEAR’s enactment, including the typical parties to these controversies, the informational difficulties confronting both claimants and purchasers of art, and the elements of recovery suits, and discusses the functions of statutes of limitations and adverse possession and prescription. In analyzing the details of the HEAR Act, the article argues that its scope is likely to be much less broad than imagined because the act as written is an unconstitutional taking of property that has ripened into title by the doctrine of adverse possession. It will have minimal effect in the most important jurisdiction for recovery, New York, because New York’s demand-and-refusal rule already minimizes the number of cases where possession ripens into title by adverse possession. Its effect is further limited by applying only to takings in persecution of groups as part of Nazi ideology. The Act is likely to induce some current possessors to litigate claims outside the United States, and to put enormous pressure on the defense of laches to resolve these cases without going to trial on the merits. HEAR is likely to apply to fewer cases than its proponents hope. It will have a significant impact in some cases. It should increase the volume of cases settled by mediation or negotiation because it increases both the uncertainty of result and the cost of litigation.

Keywords

Holocaust art, stolen art, limitations, demand-and-refusal, discovery rule, HEAR, good faith purchasers, choice-of-law, laches, takings, mediation, negotiation, equal protection, commerce clause, adverse possession, prescription, settlement, provenance, title security

Document Type

Article

Year

2018

Publication Info

International Lawyer

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