EXAMINING THE POLICY IMPLICATIONS OF THE CASSIRER DECISION.

Author:Charron, William L.
 
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INTRODUCTION: THE IMPORTANCE OF 'COMITY'

The recent decision in the California federal court case of Cassirer v. Thyssen-Bornemisza Collection Foundation, (1) concludes with a question that is really more of a starting point for legal and philosophical discussion: if a work of art is now known to have been stolen by Nazis, is it morally 'just and fair' to allow a current, good faith owner of the art to keep it if the relevant national and international laws direct such an outcome?

This question puts a spotlight on legal rule-making. Laws are organisational constructs for societies. Laws are also based on public policy choices. When a society is relatively small, the local community standards that drive policy choices can be relatively monolithic and thus easy to implement.

But when the 'society' to be regulated expands to a national or international size, the sensibilities and public policies can and often do diverge. The doctrine of'comity', or respect for the laws and judgments of our neighbours, has been conceived for an international society to harmonise its various, constituent rules. (2) Comity is based on the public policy choice that it would be better to co-exist peacefully with our neighbours by tolerating their occasionally divergent standards, than to insist upon our own sense of moral and legal absolutism. (3)

In the United States, application of comity rests upon an inquiry into whether a foreign law or judgment has been the product of what we consider to have been basic 'due process', which is part of our Bill of Rights. (4) If one of our international neighbours has enacted a law or decreed a ruling in a manner that does not offend our national sense of procedural due process--even though the end result may not be viewed as substantively 'desirable' according to our preferences--then comity operates to credit that foreign law or ruling in the name of good relations (and, ultimately, peace). (5) It is difficult to argue against the importance and value of comity as a public policy.

As discussed below, the decision in Cassirer is based on the doctrine of comity. The case pits two innocent parties against one another: one (the family of the victim of Nazi looting) advocating from the basic policy principle that theft is wrong; and the other (the current owner of the formerly stolen art) arguing from the policy principle that people should not be dispossessed of property that they acquired through good faith and lawful conduct. Such cases present zero-sum outcomes: one side will win, and the other side will equally lose.

Different societies and jurisdictions balance these competing interests through different legal rules and public policies. In the United States, it is generally held that even a good faith possessor of formerly stolen property may not retain the property and must restitute it to the victim of the theft (or that victim's successor). (6) In Cassirer, however, the laws of Switzerland and Spain dictated the result, and those countries are not as reflexively inclined to negate good faith commercial transactions. The court in Cassirer, in an exercise of comity, applied and respected the laws of Switzerland and Spain in reaching its result. The decision is thorough and well-reasoned, and, from this author's perspective, is correct ... meaning that it is also 'just and fair'.

THE FACTS AND OUTCOME IN CASSIRER

Cassirer concerns a painting by Camille Pissarro known as Rue St Honore, apres-midi, effet depluie (the 'Painting'). (7) It is undisputed that Nazis looted the Painting from Lilly Cassirer Neubauer ('Lilly') through a forced, below-market sale in Germany in 1939. (8) The Painting is owned today by the Thyssen-Bornemisza Collection Foundation ('TBC'), which is an agency of the Kingdom of Spain. (9)

The record reflected the following specific lineage of the Painting after its theft from Lilly in 1939:

* Later in 1939, the Nazi dealer who forced Lilly to sell the Painting traded it with a Jewish owner of other art (Julius Sulzbacher) in another forced, below-market trade for three different paintings. The Gestapo later confiscated the Painting from Sulzbacher. (10)

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