Editors’ Page: Protecting Cultural Property
Is the Law a Ass?
Come to law school with me. Imagine two looters, one in Italy and one in the United States. The Italian looter steals a gorgeous Greek vase from a museum in Italy. The American looter steals a gorgeous Greek vase from a museum in the United States. Both vases end up in the home of an innocent American couple who purchased them with no reason to believe they were stolen.
Both museums discover the stolen vases in the living room of the American couple. The looters long ago absconded.
An official from the American museum visits the United States Attorney (an official of the Department of Justice) and requests that he sue the couple to get back the vase for the museum. The U.S. Attorney says to her, “I’m sorry. You have an air-tight case, but you must bring the suit yourself. Sue the couple in an American court and you will get the vase back.”
“But that’s going to cost me a lot of money in legal fees and disrupt my staff,” says the American museum official. “I’d much rather have you do it for me.”
“I’m so sorry,” says the U.S. Attorney, “but the federal government has no interest in getting the vase back for you. Of course, if we could prosecute the looter (or thief), we would be glad to bring a criminal action to put him in jail. But you have no idea where he is, and neither do we.”
The American museum official looks thoroughly disheartened. “Don’t feel too bad,” says the U.S. Attorney. “Just yesterday, I had to give the same answer to the heir of a Jewish family from Berlin who owned a Picasso before the war. It was looted by the Nazis (we lawyers would say that technically it was stolen) and it has turned up in the home of an American couple. Just as in your case, the heir must bring the suit himself. The government won’t do it for him. But if he proves the Picasso belongs to him, he will win even if the couple who bought it had no idea the Picasso had been looted.”
The American museum official finds little comfort in this and slouches out of the U.S. Attorney’s office. As she leaves, a representative of the Italian museum enters the U.S. Attorney’s office. The door closes, but the American museum official cocks her ear to the door and hears the following conversation:
“I’m an official of an Italian museum from which a gorgeous Greek vase has been stolen. It is now in the possession of an American couple, innocent to be sure, but I’d like you to sue them to get the vase back for us.”
“I’d be delighted to,” says the U.S. Attorney.
The American museum official cannot restrain herself and she bursts into the U.S. Attorney’s office. “Hey, wait a minute. You just refused to bring this very same lawsuit for me. Why for him? He’s Italian and I’m American. 060Maybe that should not give me an advantage, but at least we should be treated the same.”
“Well, let me explain,” says the U.S. Attorney. “There’s something called the Cultural Property Implementation Act. It was passed by Congress in 1983 and gives us the authority to recover property looted from countries like Italy, with whom we have an agreement.”
“Couldn’t the Italian museum—or the Italian government, for that matter—sue in our courts just as I have to do?”
“Well, yes, but of course it’s much easier for them, and less expensive, if we do it instead.”
“Doesn’t it cost money if you bring the suit?”
“Who pays your salary?”
“You mean that I, as an American taxpayer, must pay you to bring a suit on behalf of Italy, even though Italy could bring the same suit itself in our courts, and you refuse to bring the same suit for me?”
“Well, that’s the way the law stands. It’s supposed to stop looting in foreign countries.”
“Well … Looting is a terrible scourge.”
“Well, as Charles Dickens said, ‘The law is a ass’.”
Let me change this scenario a bit. Let’s suppose that the Italian museum finds its vase in the Italian summer home of the same American couple. The Italian museum asks an Italian lawyer about bringing a suit in an Italian court to recover the vase. The lawyer asks the museum whether the American couple can show that they are completely innocent and had no reason to suspect that the vase had been stolen. The Italian museum concedes that they can; the couple is completely innocent. The Italian lawyer advises the museum that the museum will probably lose the case. The American couple is what lawyers call a bona fide purchaser for value. In Italy that’s ordinarily a good defense to the suit (although perhaps it could be argued that statutes change this result in the case of “protected cultural assets”).
But the lawyer then proceeds to give the museum a little advice. Wait till the fall, when the American couple takes the vase back to the United States. Then bring your suit there, he tells the Italian museum. In America that defense—bona fide purchaser for value—will fail in a suit to recover stolen property. “You would probably lose in an Italian court, but you will win in an American court,” he says.
Grateful, the Italian museum pays the Italian lawyer and proceeds to talk to a New York lawyer about suing the American couple as soon as they return with the vase. The New York lawyer is not only smart but honest. “Look, I would love to take the case for you. And you would win. But I would have to charge you a great deal of money. If you ask the U.S. Attorney to bring the suit in the name of the United States, you’ll get the same result, so why pay me?”
And that’s what happened. The U.S. Attorney was delighted to bring the case, and the gorgeous Greek vase was returned to the Italian museum.
End of lesson in the law. Maybe the law should be changed—in a way that would truly discourage looting.
Is the Law a Ass?