New York attorney Raymond Dowd argues that the common law remedy of impressment of a constructive trust (trust ex malificio) is the proper approach in resolving Nazi looted art cases. He says that the New York Court of Appeals decision in the Matter of Flamenbaum (2013) should provide the rule of law consistent with international law. The continuing Cassirer v. Thyssen-Bornemisza Foundation case accepted by the US Supreme Court should have rejected the transfer of stolen art to Spain; acquisitive prescription should not ever apply in Nazi looted art cases. Acquisitive prescription traditionally required good faith and a lack of knowledge of suspicious circumstances, but the public nature of the Nazi looting put all potential buyers on notice.
The paper sets out that art collectors, museum directors and curators are drawn from the most privileged and educated segments of society. They have collectively failed to exercise diligence and have trafficked in Nazi looted artworks on an industrial scale. Even today, museums refuse to comment on the provenances of works in other museums, exercising discipline over a code of academic Omertà that puts the mafia to shame.
In early 2022, the U.S. Supreme Court will review the Cassirer question to decide the question of whether Spain may retain Nazi looted art under the doctrine of acquisitive prescription. This author urges that not only the U.S. Supreme Court but the entire world should adopt the Flamenbaum court’s approach by embracing equitable remedies that subvert the spoils of war doctrine and return Nazi looted artworks to rightful owners.
To read the paper, click here.
Paper given on 26 November 2021 at the Ius Commune Conference Maastricht November 25-26 2021 by Raymond J. Dowd, partner at Dunnington Bartholow & Miller LLP, adjunct professor Fordham University School of Law, New York.