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Journal of Law and Policy

Authors

Alexander Hull

First Page

238

Abstract

From 1933 to 1945, Nazi German forces executed a mass campaign of property confiscation, stealing as many as 600,000 pieces of art, including paintings, tapestries and sculptures from museums and private collections across Europe. It is estimated that some 300,000 pieces of art are still missing or are currently in the possession of someone other than the so-called “true” owner, based on reviews of Nazi documentation conducted by the Jewish Restitution Organization. While Nazi art looting has been regarded as “dehumanizing,” “self-advancing” and concomitant with the Nazi regime’s larger genocidal crusade, restitution in this context has been framed as a means of rehumanization. In 2016, Congress passed the HEAR Act to “ensure that claims to artwork and other property stolen or misappropriated by the Nazis are not unfairly barred by statutes of limitations but are resolved in a just and fair manner.” The Act temporarily replaces state statutes of limitations by creating a uniform six-year statute of limitations for cases involving artwork or other property lost because of persecution during the Nazi era, but critics have pointed out that the Act may unconstitutionally preempt state property laws and may actually limit the number of claims that are timely in states that already have more claimant-friendly statutes of limitations than what the HEAR Act now offers in preemption. This Note acknowledges these arguments and responds with a slate of proposed amendments to the current language of the HEAR Act, all of which are designed to shore up the Act’s constitutionality should it be challenged in court, while ensuring that the law continues to be aligned with its original intent—to resolve these complex suits on their merits in a just and fair manner whenever possible. Specifically, this Note argues for a federal cause of action to be developed in concert with the HEAR Act that would sidestep the procedural preemption concerns. This Note further proposes that a version of New York State’s more claimant-friendly “demand and refusal” statute of limitations replace the HEAR Act’s six-year uniform statute of limitations such that it continue to preempt state statutes of limitations in this area and cement the United States as a preferred forum in which claimants can seek restitution of Nazi-confiscated art for the foreseeable future.

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