Settled Law

Settled law” appears frequently in judicial opinions—sometimes to refer to binding precedent, sometimes to denote precedent that has acquired a more mystical permanence, and sometimes as a substantive part of legal doctrine. During judicial confirmation hearings, the term is bandied about as Senators, advocacy groups, and nominees discuss judicial philosophy and deeper ideological commitments. But its varying and often contradictory uses have given rise to a concern that settled law is simply a repository for hopelessly disparate ideas. Without definitional precision, it risks becoming nothing more than empty jargon.

We contend that settled law is actually a meaningful concept, even though it does not embody any single, unified idea. First, we argue that controlling law, which essentially corresponds to binding precedent, is a fundamentally distinct concept that is neither synonymous with nor a subset of settled law. Second, we draw on seminal jurisprudential theories to build a taxonomy of five frameworks that capture how legal actors can invoke settled law, both rhetorically and doctrinally. Third, we demonstrate how a clearer understanding of settled law can make doctrine more coherent and administrable. Situating certain doctrines within the appropriate frameworks, and not conflating controlling law and settled law, would resolve myriad doctrinal anomalies. Moreover, greater conceptual precision can improve political rhetoric during the confirmation process by promoting clearer dialogue and discouraging legal actors from talking past one another.

Introduction

What does it mean to say that Roe v. Wade1.410 U.S. 113 (1973).Show More is “settled law”? Or Citizens United v. FEC?2.558 U.S. 310 (2010).Show More Or even Brown v. Board of Education?3.347 U.S. 483 (1954).Show More

The idea of settled law has played a pivotal role in Supreme Court confirmation hearings for more than thirty years, and it has animated myriad legal doctrines as far back as the eighteenth century.4.See, e.g., Penhallow v. Doane’s Adm’rs, 3 U.S. (3 Dall.) 54, 118 (1795) (Cushing, J.) (describing as “settled law and usage” the idea that “courts of Admiralty can carry into execution decrees of foreign Admiralties”).Show More Yet the meaning of settled law has proved stubbornly elusive. Does it refer simply to the idea that the Supreme Court has decided a particular issue, or does it connote something more enduring about particular precedents? Does it imply that a precedent is somehow “right”? Which courts (or other legal actors) have the power to settle the law? And how exactly does that happen?

Even though settled law had come up during earlier confirmation hearings,5.See, e.g., Nomination of Justice William Hubbs Rehnquist: Hearings Before the S. Comm. on the Judiciary, 99th Cong. 356 (1986) (statement of Rehnquist, J.) (declaring that the incorporation of the right to a speedy trial through the Fourteenth Amendment “is settled law, and [his] opinions reflect it”); Nomination of Judge Antonin Scalia: Hearings Before the S. Comm. on the Judiciary, 99th Cong. 83 (1986) (statement of Sen. Specter) (asking whether Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), “is a settled issue”); id. at 104 (statement of Sen. Biden) (“If it’s on the books, if it is settled constitutional law for an extended period of time, and the argument to overturn that settled constitutional principle does not in fact meet the test of on its face being consistent with what the correct constitutional principle is, do you have to stick with what the settled law is?”).Show More it first took center stage in the political arena during the Bork hearings. Under intense scrutiny about his academic writings, Judge Bork repeatedly tried to parry criticism of his controversial views by promising over and over that he would respect “settled law,” even if he disagreed with it.6.See, e.g., Nomination of Robert H. Bork To Be Associate Justice of the Supreme Court of the United States: Hearings Before the S. Comm. on the Judiciary, 100th Cong. 279 (1987) (statement of Bork, J.) (repeatedly calling Brandenburg v. Ohio, 395 U.S. 444 (1969),“settled”); id. at 327 (declaring that “I certainly have no desire to go running around trying to upset settled bodies of law”); id. at 423 (“It seems to me that the settled law is now that the person writing the book does not have to prove that it is political or any way connected to politics. The settled law is the Government has to prove it is obscene.”); id. at 428 (“I am not changing my criticism of [Brandenburg]. I just accept it as settled law.”); id. at 434 (“It’s settled law. . . . I have said that I accept that body of precedent and will apply it. That’s all I’ve said.”); id. at 438 (declaring that “some things are absolutely settled in the law” and that “[a]ny judge understands that you don’t tear those things up”); id. at 587 (“I accept them as settled law. I have not said that I agree with all of those opinions now, but they are settled law and as a judge that does it for me.”); id. at 667 (“I have repeatedly said there are some things that are too settled to be overturned.”).Show More And notably, Judge Bork used that term to mean something quite distinct from the familiar principles of stare decisis.7.See id. at 989 (statement of Sen. Specter) (“[Judge Bork] flatly made a commitment to accept settled law. On the privacy cases he has not made that commitment. He has talked about various considerations of reliance and stare decisis, but he has made no commitment on privacy . . . .”).Show More Since then, every Supreme Court nominee has faced questions about settled law, even as the term’s ambiguity has grown increasingly apparent.8.See infra notes 278–85 and accompanying text.Show More

Discussions of settled law have become even more prominent in recent years as President Trump’s judicial nominees faced pointed questions about whether they agreed with certain precedents or, at a minimum, regarded them as settled.9.SeeLaura Meckler & Robert Barnes, Trump Judicial Nominees Decline To EndorseBrown v. Board Under Senate Questioning, Wash. Post (May 16, 2019, 7:28 PM), https://www.washingtonpost.com/local/education/trump-judicial-nominees-decline-to-endo­rse-brown-v-board-under-senate-questioning/2019/05/16/d5409d58-7732-11e9-b7ae-390de­4259661_story.html [https://perma.cc/F5FK-GNPW] (describing how Sen. Blumenthal frequently asks whether nominees regard Brown as correct); Marcia Coyle, Revisiting Amy Coney Barrett Statements About Abortion Rights, Nat’l L.J. (Sept. 25, 2020, 3:12 PM), https://www.law.com/nationallawjournal/2020/09/25/revisiting-amy-coney-barrett-statemen­ts-about-abortion-rights/?slreturn=20200908080816 [https://perma.cc/2EKP-YDQE] (des­cribing how Sen. Blumenthal asked then-nominee Amy Coney Barrett if she “think[s] Roe v. Wade was correctly decided”).Show More Sometimes nominees have refused to engage.10 10.See Meckler & Barnes, supra note 9 (describing nominees who refused to directly answer Sen. Blumenthal’s question about Brown); see alsoAriane de Vogue, Judicial Nominees Are Changing Their Approach to the ‘Brown v. Board’ Question at Senate Hearings, CNN (Feb. 10, 2019), https://www.cnn.com/2019/02/10/politics/brown-v-board-senate-judicial-nom­inees/index.html [https://perma.cc/8BP5-7PBZ] (noting that in response to Sen. Blumenthal’s question about Brown, now-Judge Neomi Rao described the case as “longstanding precedent of the Supreme Court,” declared that it was “not appropriate” to comment on the “correctness of particular precedents,” but argued that “it’s hard for me to imagine a circumstance in which Brown v. Board would be overruled by the Supreme Court”).Show More On other occasions, Senators and nominees have appeared to use “settled law” in conspicuously different ways,11 11.For example, in 2010, then-Senator Sessions suggested that “settled law” connoted “a more firm acknowledgment of the power of that ruling” than mere “precedent” and asked then-U.S. Solicitor General Elena Kagan whether she was using “settled law” and “precedent” interchangeably. The Nomination of Elena Kagan To Be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 111th Cong. 231 (2010) (statement of Sen. Sessions). She responded: “I don’t mean any difference.” Id. (statement of Elena Kagan, Solicitor General of the United States).Show More a phenomenon brought into stark relief during Justice Kavanaugh’s confirmation hearing. Responding to a question from Senator Feinstein, the future Justice declared that Roe v. Wade was “settled as a precedent of the Supreme Court, entitled to respect under principles of stare decisis.”12 12.C-SPAN, Supreme Court Nominee Brett Kavanaugh Confirmation Hearing, Day 2, Part 1, C-SPAN (Sept. 5, 2018), https://www.c-span.org/video/?449705-1/supreme-court-nom­inee-brett-kavanaugh-confirmation-hearing-day-2-part-1 [https://perma.cc/7N8B-S2­MC] (relevant exchange occurring from 48:25 to 49:10).Show More The next day, The New York Times published a previously confidential e-mail from 2003 in which Kavanaugh had written: “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since [the] Court can always overrule its precedent, and three current Justices on the Court would do so.”13 13.Charlie Savage, Leaked Kavanaugh Documents Discuss Abortion and Affirmative Action, N.Y. Times (Sept. 6, 2018), https://www.nytimes.com/2018/09/06/us/politics/­kavanaugh-leaked-documents.html [https://perma.cc/3C4Q-7SAH].Show More These statements provided grist for some to call him disingenuous.14 14.See, e.g.,Igor Bobic, Susan Collins Downplays Brett Kavanaugh Email About Abortion Rights and ‘Settled Law’, HuffPost (Sept. 6, 2018, 4:58 PM), https://www.huffpost.com/­entry/brett-kavanaugh-susan-collins-roe-v-wade_n_5b9165b1e4b0511db3e04121 [https://p­erma.cc/4YMT-J9S5] (quoting Sen. Blumenthal urging undecided Republicans to “read this [email] and then tell [him] Judge Kavanaugh has been candid with [them]”).Show More Others argued that he was making distinct and mutually consistent claims—a prediction of whether the Court would revisit the abortion precedents versus an assessment of whether those precedents should stand undisturbed.15 15.See, e.g., id. (quoting Sen. Collins saying that Kavanaugh “was merely stating a fact, which is that three [Justices] on the [C]ourt were anti-Roe,” and “[i]f that’s the case and he was not expressing his view, then [she was] not sure what the point of it [was]”).Show More

Settled law is far more than an enigmatic buzzword that gets bandied about during confirmation hearings, though; it also serves an important structural role and has profound doctrinal implications. For example, lower-court judges often speak about their duty to follow the settled law of superior courts.16 16.See infra notes 26–27 and accompanying text.Show More Most surprisingly, an array of doctrines depend substantively on whether the law is “settled.” In the realm of constitutional torts, for instance, a plaintiff attempting to bring a Section 1983 claim usually must overcome the defendant’s qualified immunity by showing that the defendant violated a constitutional rule that was “clearly established” under “settled law.”17 17.District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018); see also id. at 591 (“The rule applied by [the court below] was not clearly established because it was not ‘settled law.’” (quoting Hunter v. Bryant, 502 U.S. 224, 228 (1991))).Show More So, too, settled law undergirds the circumstances when post-conviction relief is available,18 18.E.g., In re Jones, 226 F.3d 328, 333–34 (4th Cir. 2000) (holding that whether the settled law established the legality of a conviction is part of the Fourth Circuit’s three-prong test to determine the availability of a writ of habeas corpus).Show More lawyers’ ethical obligations under Rule 11,19 19.E.g., Pro. Mgmt. Assocs. v. KPMG LLP, 345 F.3d 1030, 1033 (8th Cir. 2003) (remanding and ordering the lower court to impose a Rule 11 sanction to a plaintiff’s counsel for ignoring the “well-settled law” of res judicata under the circumstances of the case).Show More standards of review,20 20.E.g., United States v. Gary, 954 F.3d 194, 202 (4th Cir. 2020) (quoting United States v. Ramirez-Castillo, 748 F.3d 205, 215 (4th Cir. 2014)) (holding that “if the settled law of the Supreme Court or this circuit establishes that an error has occurred,” the error satisfies the plain error standard of review).Show More and a host of other doctrines.21 21.See, e.g., Hunter v. Philip Morris USA, 582 F.3d 1039, 1043 (9th Cir. 2009) (quoting Hamilton Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007)) (fraudulent joinder).Show More Across these contexts, though, a firm understanding of what counts as settled law has proved chimerical.

Given the definitional morass, one might conclude that “‘settled law’ is just a euphemism.”22 22.Ilya Somin, Why “Settled Law” Isn’t Really Settled—and Why That’s Often a Good Thing, Reason: The Volokh Conspiracy (Sept. 9, 2018, 3:57 PM), https://reason.com/­2018/09/09/why-settled-law-isnt-really-settled-and/ [https://perma.cc/4N­SU-3N4A].Show More On this view, the term is so capacious as to become meaningless, conveying nothing useful about the weight that precedent deserves or the conditions (if any) under which a court should overrule it.

Our principal goal is to show that settled law does coherent and powerful work, even though it resists a single, overarching definition. In fact, settled law makes sense only when one appreciates that it comprises several distinct notions that do not share a common attribute. A more precise understanding of this hydra-like term has the power to clarify doctrine and improve political rhetoric. What seem like conceptual oddities in a number of doctrines actually make good theoretical sense when viewed through the lens of settled law. Moreover, settled law can play a meaningful role in confirmation hearings, but only if legal actors fully grasp its multifaceted nature. It offers a productive way to explore how politicians, judicial nominees, and the general public understand the judicial role, including how the obligations of Supreme Court Justices differ from those of lower-court judges.

We begin in Part I by differentiating between two concepts that we call controlling law and settled law. Controlling law essentially refers to the concept of binding precedent, including in its most conspicuous manifestation: an inferior court’s duty to follow the precedents of superior courts. Although one might think of controlling law as a species of settled law, we argue that the two are actually distinct ideas that address very different questions and are, at most, only tangentially related. Much of the confusion about settled law, in fact, stems from conflating these concepts. Not allowing discussions of settled law to revert into the familiar language of controlling law is thus a critical first step.

Part II demonstrates that settled law is not just an empty euphemism, even though it doesn’t embrace a single idea. In fact, settled law makes sense only when one appreciates that it comprises several notions that do not share a common attribute.

On an intuitive level, the starkest divide lies between normative and descriptive claims about settled law. For example, someone might classify Brown as settled law, normatively, because it achieved the right substantive result. Or, irrespective of Brown’s fundamental correctness, one might view it as descriptively settled because everyone recognizes that it’s here to stay. Even within these broad categories, though, variation abounds. For example, calling Brown normatively settled could mean that the decision was consonant with the original meaning of the Fourteenth Amendment or, alternatively, that it achieved a socially desirable outcome by advancing the cause of racial justice. Calling Brown descriptively settled could mean that the Supreme Court has left the precedent undisturbed for more than fifty years, that a future Court is unlikely to overrule it, that principles of stare decisis have effectively entrenched it, or that it has achieved wide popular acceptance.

We bring theoretical rigor to this intuition about the descriptive-normative divide by overlaying it with seminal jurisprudential theories: formalism, realism, and legal process theory. Based on these theories, we develop a taxonomy of five concepts that “settled law” can embrace.

The first two concepts derive from legal formalism.23 23.See, e.g., Warren Sandmann, The Argumentative Creation of Individual Liberty, 23 Hastings Const. L.Q. 637, 645 (1996) (“Legal formalism . . . is in its many guises one of the more dominant approaches to judicial decisionmaking.”).Show More As a normative matter, a formalist insists that law is settled when it has achieved the demonstrably “right” result based on the law’s internal logic.24 24.Thomas C. Grey, Langdell’s Orthodoxy, 45 U. Pitt. L. Rev. 1, 8 (1983).Show More But from a descriptive perspective, a formalist might accept that law is settled—even if it has not reached the objectively correct result—when the concerns of stare decisis, such as reliance, predictability, and basic fairness, are paramount.25 25.See Randy J. Kozel, Settled Versus Right: Constitutional Method and the Path of Precedent, 91 Tex. L. Rev. 1843, 1874 (2013) (citing Lawrence B. Solum, The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights, 9 U. Pa. J. Const. L. 155, 186, 192–95 (2006)) (describing a “neoformalist” model of stare decisis in which even judicial “mistakes” can and should create binding precedents, if they are decided through a formalistic process of reasoning); Amy Coney Barrett, Originalism and Stare Decisis, 92 Notre Dame L. Rev. 1921 (2017) (describing Justice Scalia’s approach to the tension between the value of stare decisis and a formalistic, originalist reading of the Constitution).Show More

The next two concepts of settled law draw on the legal realist school.26 26.SeeFrederick Schauer, Legal Realism Untamed, 91 Tex. L. Rev. 749, 749 (2013) (“Legal Realism is conventionally understood, in part, to question legal doctrine’s determinacy and positive law’s causal effect on judicial decisions.”).Show More Descriptively, a realist regards law as settled when it faces no material threat of reversal.27 27.As we build out below, it essentially constitutes an exercise in Holmesian Prediction Theory. SeeO.W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 460–61 (1897).Show More Normatively, a realist will insist that law is settled only when it has achieved the “right” result, but she understands that idea very differently than a formalist does. The correct result for a legal realist corresponds to some external frame of reference, such as utility, efficiency, or social justice.28 28.For the foundational realist works encouraging an interdisciplinary approach to law, see Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809 (1935); Jerome Frank, Law & the Modern Mind (Transaction Publishers 2009) (1930); Karl N. Llewellyn, Law and the Social Sciences—Especially Sociology, 62 Harv. L. Rev. 1286 (1949); Roscoe Pound, The Scope and Purpose of Sociological Jurisprudence (pts. 1 & 3), 24 Harv. L. Rev. 591 (1911), 25 Harv. L. Rev. 489 (1912).Show More

The fifth and final concept of settled law draws on legal process theory, which focuses on a legal decision’s methodological process rather than its substantive outcome.29 29.The seminal tome of the legal process school is Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994). For an overview of the related concept of procedural justice, see Lawrence B. Solum, Procedural Justice, 78 S. Cal. L. Rev. 181 (2004).Show More For the legal process theorist, law is settled if and when a duly constituted court reaches a decision through an appropriate methodology, and within this framework the descriptive and normative perspectives essentially become inseparable.

A simple illustration might help reify these five theoretical concepts. Consider the question: “Is Marbury v. Madison settled law?” Nearly everyone would say “yes,” but Table 1 identifies more precisely the five different ideas that someone could intend to communicate when asserting that Marbury is settled.

Table 1: The Taxonomy of Settled Law

Framework

Marbury v. Madison is settled law.

Normative Formalism

Marbury arrived at the objectively correct understanding of constitutional law.

Descriptive Formalism

Principles of stare decisis require continued adherence to Marbury.

Descriptive Realism

There is no material chance that the Supreme Court will overrule Marbury in the near future.

Normative Realism

Marbury achieved a desirable outcome in light of its intra- and extra-legal consequences.

Legal Process

Marbury merits continued adherence because it was issued by a duly constituted court employing an appropriate methodology.

In Part III, we show why developing a clearer understanding of settled law is far more than an academic exercise. At the intensely practical level, settled law suffuses a diverse array of doctrines, and failing to appreciate how it functions has led to pervasive confusion and mistakes. Our principal example comes from the qualified immunity context. Although courts often cast the relevant inquiry in terms of controlling law—whether binding precedent has clearly established that a particular right exists—this approach has invited a host of anomalies and errors. Instead, we argue that viewing qualified immunity through the lens of settled law makes much more sense doctrinally and normatively. Moreover, understanding qualified immunity as turning on settled law—specifically, two of the taxonomy’s five concepts—alleviates nearly all of the current conceptual problems and has the potential to refocus courts on the heart of the inquiry.

Finally, we argue that a more nuanced understanding of settled law can enhance legal dialogue, particularly the conversation about judicial nominations. Too often legal actors talk past one another because they use “settled law” to convey different ideas, and that in turn can lead to unfounded allegations of bad faith. On this level, the taxonomy is not a panacea; far from it. But greater conceptual clarity about settled law can train attention on the debates that truly matter rather than a bewitching semantic game.

Can the Reasonable Person Be Religious? Accommodation and the Common Law

Since the 1990s, in theory, the Supreme Court has applied rational basis review to neutral and generally applicable laws that incidentally burden religious practice. Strict scrutiny is reserved for those laws that lack neutrality or general applicability. In practice, however, free exercise jurisprudence has developed quite differently. Employing an aggressive exemption strategy, many petitioners have argued, and many courts have accepted, that the existence of but one secular exemption eliminates the neutrality and general applicability of a law. As such, strict scrutiny is applied. For those who would prefer to return to the free exercise jurisprudence that predated Employment Division v. Smith, this result may seem welcome, even a victory. This Note, however, suggests that such an approach should raise concern.

This Note argues that this aggressive exemption free exercise theory requires the reasonable person standard of torts to accommodate parties’ religious beliefs. Many courts that have addressed the issue have found the same. This Note then surveys the three responses courts have taken to accommodate religious belief in tort law: the “objective” approach, “the reasonable believer” test, and the “case-by-case” method. Fundamental Free Exercise and Establishment Clause problems with the “objective” and “reasonable believer” approaches demonstrate the superiority of a “case-by-case” analysis. That any accommodation is required, however, should give pause.

It is not the specific contours of tort law that give rise to the required accommodation, but rather the heavily individualized decision-making process that tort law uses. Individualized decision-making is not a symptom, but rather a feature, of the common law. As such, finding a required religious accommodation to tort law has broad ramifications for our standards-based legal system. This Note argues that this outcome suggests a fundamental flaw with the Court’s aggressive exemption free exercise jurisprudence.

Introduction

Marbury v. Madison teaches us that the judicial branch has the power to review the constitutionality of governmental acts.1.5 U.S. (1 Cranch) 137, 177–78 (1803).Show More This power of review comes up most frequently when congressional or state legislative acts run afoul of the Constitution. But what happens when someone claims that the common law, a product of judges and purportedly applied uniformly to all citizens, burdens a constitutional right? Can people demand exemptions from a tort standard solely because of a claim of individualized burden? Consider the following scenarios:

In May 1991,2.Verdict Form, Williams v. Bright, 632 N.Y.S.2d 760 (N.Y. Sup. Ct. 1995) (No. 17261/92), 1994 WL 16200195.Show More Gwendolyn Robbins was traveling through upstate New York with her father when he swerved their vehicle off the road and into a culvert at sixty-five miles per hour. Mrs. Robbins, severely injured in the crash, was rushed to a local hospital for surgery. Once there, however, she learned that proper treatment would require blood transfusions. She refused on grounds that it would violate her religious beliefs as a Jehovah’s Witness. In the face of increased medical expenses and a reduced quality of life, Mrs. Robbins remained steadfast in refusing surgery. She later pressed for damages and the cost of continuing care in a negligence suit against the owner of the car.3.Facts consolidated from trial and appellate court decisions. Williams v. Bright, 632 N.Y.S.2d 760, 762–63 (N.Y. Sup. Ct. 1995), rev’d in part, 658 N.Y.S.2d 910, 911 (N.Y. App. Div. 1997).Show More

In August 1963, sixteen-year-old Ruth Eider was in a chairlift traveling down a mountain when the operator negligently stopped the lift. It was late afternoon and she and her nineteen-year-old male companion were stuck. After fifteen minutes of yelling, it became clear that no one was coming to help. Raised in an ultra-orthodox Jewish household, Ms. Eider had been taught that spending the night with a man in a place inaccessible to a third party was an overwhelming moral sin. Facing this prospect, Ms. Eider jumped from the lift. She eventually sued the State of New York (the operator of the mountain) for the cost of the injuries sustained in the jump.4.Friedman v. State, 282 N.Y.S.2d 858, 859–63 (N.Y. Ct. Cl. 1967), modified, 297 N.Y.S.2d 850 (N.Y. App. Div. 1969).Show More

In March 2006, Marine Lance Corporal Matthew Snyder was killed in the line of duty in Iraq. Shortly thereafter, his father scheduled a funeral to commemorate his life for close friends and family. Members of the Westboro Baptist Church, a fundamentalist Christian sect, used this funeral as an opportunity to highlight their condemnation of homosexuality. They protested outside the ceremony carrying signs with slogans like “Thank God for dead soldiers,” “God hates you,” and “Semper fi fags” to spread their message. Mr. Snyder’s father sued the Church for intentional infliction of emotional distress (“IIED”). In response, the Westboro Baptist Church claimed complete immunity from tort liability on both free speech and free exercise of religion grounds.5.Snyder v. Phelps, 533 F. Supp. 2d 567, 569–70 (D. Md. 2008), rev’d, 580 F.3d 206 (4th Cir. 2009), aff’d, 562 U.S. 443 (2011). The district court dismissed the free exercise claim, distinguishing statutory and criminal restrictions on religious practice from other types of restrictions. Id. at 579. This Note suggests that the case law and logic of free exercise jurisprudence do not support such a distinction.Show More

Although these three incidents, separated by over four decades, would seem to have little in common, the tort suits they spawned had to grapple with a question that has beguiled courts for years: In determining culpability, to what extent can tort law be modified to accommodate the strongly held religious beliefs of a party?6.The first court to address this question was the Supreme Court of Errors of Connecticut in Lange v. Hoyt,159 A. 575, 577–78 (Conn. 1932). Understanding the difficulty of the issues raised, “[n]ot surprisingly, the Connecticut trial court ducked the issue and the Connecticut Supreme Court (of Errors as it then was) affirmed the ducking” by allowing the jury to consider that the plaintiff’s religious beliefs were widely held in determining reasonableness. Guido Calabresi, Ideals, Beliefs, Attitudes, and the Law: Private Law Perspectives on a Public Law Problem 47 (1985). Modern courts have similarly struggled with this question. SeeMunn v. S. Health Plan, Inc., 719 F. Supp. 525, 526 (N.D. Miss. 1989) (“This wrongful death case [involving a decedent who refused a blood transfusion on religious grounds] presents some of the most difficult questions which this court has ever been asked to resolve.”); Rozewicz v. N.Y. City Health & Hosps. Corp., 656 N.Y.S.2d 593, 594 (N.Y. Sup. Ct. 1997) (“[T]he issues before me dealing with the deceased’s refusal to accept blood transfusions raise[] some of the most difficult legal issues I have been faced with during my years on the bench.”).Show More That is, when, if ever, can religion be a valid justification for ignoring the purportedly generally applicable standards of the common law?

At first glance, the answer to that question would seem to be never. The basic command of tort law is to “be reasonable.”7.“Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances.” Restatement (Second) of Torts § 283 (Am. L. Inst. 1965).Show More Reasonableness permeates the legal system in one form or another, a lodestar which guides court decision-making,8.See Benjamin C. Zipursky, Reasonableness In and Out of Negligence Law, 163 U. Pa. L. Rev. 2131, 2135–46 (2015) (detailing the many permutations of reasonableness).Show More and is determined “objectively.”9.See Vaughan v. Menlove (1837) 132 Eng. Rep. 490 (C.P.) (discussing the importance of an objective standard of reasonableness and rejecting inquiry into subjective motivation).Show More This would appear to foreclose any consideration of parties’ subjective religious motivation. Over the years, however, a number of courts and commentators have realized that the answer is not that simple, particularly when “objective” reasonableness conflicts with the Religion Clauses of the First Amendment.10 10.Seesupra note 6; see, e.g., Jeremy Pomeroy, Note, Reason, Religion, and Avoidable Consequences: When Faith and the Duty To Mitigate Collide, 67 N.Y.U. L. Rev. 1111 (1992); Note, Medical Care, Freedom of Religion, and Mitigation of Damages, 87 Yale L.J. 1466 (1978) [hereinafter Medical Care].Show More In response, these courts and commentators have wrestled with a framework for accommodating religious belief in reasonableness calculations. Most of these approaches, however, arose well before the Supreme Court’s modern free exercise jurisprudence came into focus in Employment Division v. Smith.11 11.Emp. Div., Dep’t of Hum. Res. v. Smith, 494 U.S. 872 (1990).Show More Consequently, they do not deal with current developments in First Amendment law. Furthermore, they fail to grapple with the serious Establishment Clause concerns raised by exempting individuals from complying with a reasonableness standard.12 12.See Anne C. Loomis, Thou Shalt Take Thy Victim as Thou Findest Him: Religious Conviction as a Pre-Existing State Not Subject to the Avoidable Consequences Doctrine, 14 Geo. Mason L. Rev. 473, 505–09 (2007) (purporting to address Establishment Clause concerns but failing to consider the full gamut outlined infra in Part II).Show More In our common law system, which is built upon a similar edifice of individualized reasonableness determinations, these considerations could reverberate broadly. This Note will attempt to address these issues.

Part I will argue that the Supreme Court’s First Amendment jurisprudence after Smith not only allows, but requires, religious accommodation where application of the reasonable person standard burdens sincerely held religious belief. In reaching this conclusion, this Part will first show that the reasonable person standard lacks the neutrality and general applicability required under Smith and its Free Exercise Clause companion, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah.13 13.508 U.S. 520 (1993).Show More This Part will then demonstrate that a lack of neutrality and general applicability can and will undermine any compelling interest the state could put forth in application. Thus, a religious adjustment is necessary.

Part II will discuss the three approaches that courts have taken to adjust the reasonable person standard for sincerely held religious belief. It will first address the “objective” test, which purports to reject consideration of subjective thought and prohibits courts from including religious belief in reasonableness determinations. The requirement of some accommodation under Smith and Lukumi makes this approach unworkable. This Part will then address the “reasonable believer” test, in which courts treat religion as an immutable characteristic of the party, similar to the “eggshell skull” rule in torts. It will reject this test on both Free Exercise and Establishment Clause grounds. Finally, this Part will discuss the “case-by-case” approach in which religion is one of many equally weighted factors used to determine the reasonableness of an action. It will contend that this approach alleviates some of the Free Exercise and Establishment Clause problems of the “reasonable believer” standard and is the best option given the demands of the Supreme Court’s First Amendment jurisprudence.

In the admittedly small arena of “failure to mitigate damages” cases, this outcome may seem palatable and even appropriate. But the implications of finding a required adjustment are far-reaching. If something as generic as a reasonableness standard is susceptible to required religious accommodation, what other purportedly generally applicable laws or standards are similarly vulnerable? Take, for example, Snyder v. Phelps, the Westboro Baptist Church case discussed above.14 14.See supra text accompanying note 5.Show More Although the Supreme Court decided the issue in the Church’s favor on free speech grounds,15 15.Snyder v. Phelps, 562 U.S. 443, 461 (2011).Show More suppose, instead, that it had tackled the free exercise question.

Should the tort of IIED be subject to required religious accommodation because it has exemptions for speech protected under the First Amendment’s Free Speech Clause? An aggressive exemption strategy to religious accommodation under Smith and Lukumi may suggest that the answer is yes. That outcome seems unsettling. It also begs for clarity on what laws or standards, if any, are so fundamental as to avoid required religious accommodation. This Note uses the finding of a required religious accommodation to the reasonable person standard to suggest the fundamental inadequacy of the Court’s aggressive exemption jurisprudence under the Free Exercise Clause.

The Role of the Doctrine of Laches in Undermining the Holocaust Expropriated Art Recovery Act

From 1933 to 1945, the Nazi regime looted art on a scale with few historical competitors. The Nazis used this state-sanctioned theft to dehumanize the Jewish population and carry out the “Aryanization” of German society.

To provide redress for the victims of Nazi looting, the United States and the international community adopted the Washington Principles in 1998—a set of guidelines intended to promote a “just and fair” solution for claims over Nazi-looted art. Unfortunately, despite this commitment, lawsuits to recover stolen artwork are often barred by time-based defenses.

In 2016, Congress passed the Holocaust Expropriated Art Recovery Act (“HEAR Act”) to promote resolution on the merits by effectively removing the statute of limitations as an affirmative defense. Surprisingly, however, Congress left the doctrine of laches available, thereby frustrating the effectiveness and stated purpose of the HEAR Act. The doctrine of laches bars a claim upon a showing that the claimant unreasonably delayed in bringing suit, and that the delay caused the artwork’s possessor to suffer prejudice. Yet because lawsuits for restitution of Nazi-looted artwork have only recently become viable, delay and the resulting prejudice—taking the form of lost evidence—are inherent in these claims. The doctrine of laches thereby undermines resolution on the merits, which is antithetical to the HEAR Act’s putative goals.

This Note argues that for the HEAR Act to provide the relief it ostensibly envisions, the doctrine of laches should be precluded as an available defense. Alternatively, the ability to assert the defense should be restricted to those parties who acquired contested artwork in true good faith. By revising the HEAR Act accordingly, a “just and fair” solution can be achieved.

Introduction

The destruction of Jewish cultural and economic identity was an integral component of the Nazi regime’s genocidal campaign.1.Ori Z. Soltes, Cultural Plunder and Restitution and Human Identity, 15 J. Marshall Rev. Intell. Prop. L. 460, 461–62 (2016).Show More The Nazis partly carried out this aim through the systematic looting of artwork, stripping the Jewish population of their possessions and casting them as outsiders.2.See Jonathan Petropoulos, Art as Politics in the Third Reich 14, 92–94 (1996); discussion infra Part I.Show More The scale of the theft highlights its importance to the Nazis—in 1948, the United States estimated that it had found approximately 10.7 million looted art and cultural objects.3.Presidential Advisory Comm’n on Holocaust Assets in the U.S., Plunder and Restitution: The U.S. and Holocaust Victims’ Assets (2000), at SR–97 [hereinafter Commission Report].Show More The United States and European governments set up restitution programs,4.Id. at SR–137 to SR–139.Show More though these efforts soon gave way to a focus on the Cold War.5.See Nicholas M. O’Donnell, A Tragic Fate: Law and Ethics in the Battle Over Nazi-Looted Art, at xi (2017).Show More After the Soviet Union fell, however, interest re-emerged in the Holocaust, as Allied governments declassified archives and scholars devoted attention to the unresolved problem of Nazi-looted art.6.See Commission Report, supra note 3, at 4–5; O’Donnell, supra note 5, at 29, 46; Phillipe de Montebello, Dir., Metro. Museum of Art, Panel at National Press Club Luncheon: Art Plundered During the Holocaust (July 14, 1998), transcript available at https://www.metmuseum.org/-/media/files/about-the-met/provenance-research/philippe-de-montebello-transcript.pdf [https://perma.cc/7V4W-57G9]) (commenting that “the fall of the Iron Curtain” led to “the declassification of a host of national archives”).Show More In 1998, at the Washington Conference on Holocaust-Era Assets, the representatives of forty-four countries, including the United States, agreed to a set of guidelines known as the Washington Principles.7.See U.S. Dep’t of State & U.S. Holocaust Memorial Museum, Proceedings of the Washington Conference on Holocaust-Era Assets, app. G., at 791–92 (1998) [hereinafter Washington Principles]; Stuart E. Eizenstat, Imperfect Justice: Looted Assets, Slave Labor, and the Unfinished Business of World War II, at 196–99 (2003).Show More This document set forth the parameters for countries to work within their own legal systems to promote the “just and fair” resolution of claims for Nazi-looted art.8.Washington Principles, supra note 7, at 972 (Principles VIII & IX).Show More Since the adoption of the Washington Principles, United States courts have heard a growing number of cases seeking the restitution of artwork stolen by the Nazis.9.See infra Part II.Show More

Despite the United States’ commitment to the Washington Principles, time-based defenses like the statute of limitations and its equitable counterpart, the doctrine of laches, have been used to bar many of these claims.10 10.See id.Show More A laches defense is intended to prevent a claimant from delaying in asserting her rights in a way that—in the context of this Note—harms the party in possession of disputed artwork.11 11.The doctrine is an application of equity’s maxim that its jurisdiction is meant to “aid[] the vigilant.” See Bert Demarsin, Has the Time (of Laches) Come? Recent Nazi-Era Art Litigation in the New York Forum, 59 Buff. L. Rev. 621, 627 n.28 (2011) (citing Stone v. Williams, 873 F.2d 620, 623 (2d Cir. 1989)).Show More Recognizing the obstacles posed by time-based defenses, Congress acted in 2016 to reduce the difficulties descendants face in obtaining restitution.12 12.See Holocaust Expropriated Art Recovery Act of 2016, Pub. L. No. 114-308, § 3(2), 130 Stat. 1524, 1526.Show More The resulting legislation, the Holocaust Expropriated Art Recovery Act (“HEAR Act”), set a federal statute of limitations for actions seeking the recovery of Nazi-looted art.13 13.Id. § 5(a). The most common claims are for replevin and conversion. See, e.g., Zuckerman v. Metro. Museum of Art, 307 F. Supp. 3d 304, 315 (S.D.N.Y. 2018), aff’d on other grounds, 928 F.3d 186 (2d Cir. 2019), cert. denied, 140 S. Ct. 1269 (2020) (mem.). For a summary of these causes of action, see Emily J. Henson, Comment, The Last Prisoners of War: Returning World War II Art to Its Rightful Owners—Can Moral Obligations Be Translated Into Legal Duties?, 51 DePaul L. Rev. 1103, 1137–41 (2002).Show More This six-year limitations period starts running when a claimant gains knowledge of the “identity and location of the artwork” and “a possessory interest” in the artwork.14 14.Holocaust Expropriated Art Recovery Act § 5(a).Show More However, the HEAR Act’s final text did not address laches.15 15.See id. Compared to the initial draft discussed infra Section I.C, there is no mention of equitable defenses or the doctrine of laches in the Act’s operative provision.Show More Legislative history suggests that Congress intended for the defense to remain available. The initial draft explicitly precluded the doctrine of laches,16 16.S. 2763, 114th Cong. § 5(a) (2016).Show More but the enacted bill removed this language.17 17.Holocaust Expropriated Art Recovery Act § 5(a).Show More Congress knew that the change would restrict the HEAR Act’s impact and allow laches to frustrate the efforts of the very families the Act purported to help.18 18.S. 2763, the Holocaust Expropriated Art Recovery Act—Reuniting Victims with Their Lost Heritage: Hearing on S. 2763 Before the S. Subcomm. on the Const., Subcomm. on Oversight, Agency Action, Fed. Rts. & Fed. Cts., 114th Cong. 2–3 (2016) (statement of Agnes Peresztegi, President, Comm’n for Art Recovery), https://www.judiciary.senate.gov/­meetings/s-2763-the-holocaust-expropriated-art-recovery-act_reuniting-victims-with-their-lost-heritage [https://perma.cc/ETQ7-S8AQ] [hereinafter Peresztegi Testimony] (To access the hearing transcript, click on the first hyperlink and scroll down to the various witnesses. Under each witness is a link to the transcript of that individual’s hearing testimony. The second “permanent” hyperlink links directly to the cited hearing testimony transcript.).Show More

This Note focuses on Congress’s decision to leave laches intact—along with its consequences for claimants—and two possible revisions to the HEAR Act. By making the statute of limitations a non-issue in many disputes, Congress sought to ensure that these cases would be decided on the merits, thereby increasing the availability of restitution. Leaving laches intact, however, undermines that goal. A successful laches defense requires the party in possession19 19.The labels for the party seeking restitution and the party currently in possession of the artwork will occasionally change throughout the text. For the party in possession, this Note will generally use “possessor” and, in certain contexts, “purchaser.” For the party seeking restitution, this Note will use “claimant,” “victim,” or “descendant.” “Plaintiff” and “defendant,” while simple, do not always reflect the claimant and possessor, as some current possessors will bring declaratory suits as the plaintiff. See, e.g., Bakalar v. Vavra, 819 F. Supp. 2d 293, 294 (S.D.N.Y. 2011), aff’d, 500 F. App’x 6 (2d Cir. 2012).Show More of the artwork to show: (1) that the claimant unreasonably delayed in bringing suit against the possessor, and (2) that the delay caused prejudice to the possessor.20 20.Conopco, Inc. v. Campbell Soup Co., 95 F.3d 187, 192 (2d Cir. 1996) (citing Tri-Star Pictures, Inc. v. Leisure Time Prods., B.V., 17 F.3d 38, 44 (2d Cir. 1994); Saratoga Vichy Spring Co. v. Lehman, 625 F.2d 1037, 1040 (2d Cir. 1980)).Show More This defense is frequently easy for possessors of Nazi-looted art to demonstrate. These claims are inevitably delayed because the world largely treated art restitution as “a closed chapter” for half a century after World War II.21 21.S. 2763, the Holocaust Expropriated Art Recovery Act—Reuniting Victims with Their Lost Heritage: Hearing on S. 2763 Before the S. Subcomm. on the Const., Subcomm. on Oversight, Agency Action, Fed. Rts. and Fed. Cts., 114th Cong. 1 (2016) (statement of Monica Dugot, Int’l Dir. of Restitution, Senior Vice President, Christie’s Inc.), https://www.judiciary.senate.gov/meetings/s-2763-the-holocaust-expropriated-art-recovery-act_reuniting-victims-with-their-lost-heritage [https://perma.cc/2TY6-KZY4] (To access the hearing transcript, click on the first hyperlink and scroll down to the various witnesses. Under each witness is a link to the transcript of that individual’s hearing testimony. The second “permanent” hyperlink links directly to the quoted hearing testimony transcript.).Show More Moreover, possessors can show prejudice based on lost evidence, as potential witnesses have passed away in the intervening decades. Even though such circumstances are inherent to these claims, courts have held that the doctrine of laches should prevent resolution on the merits.

Since passage of the HEAR Act, the tension between the legislation’s purpose to grant relief and the availability of laches has played out in two cases. The first, Zuckerman v. Metropolitan Museum of Art, in the Second Circuit, demonstrates how a laches defense can decide a dispute otherwise capable of resolution on the merits.22 22.928 F.3d 186, 193–94 (2d Cir. 2019).Show More The second, Reif v. Nagy, in New York state courts, shows how an expansive, albeit incorrect, purposive reading of the HEAR Act can sidestep laches and facilitate relief on the merits.23 23.80 N.Y.S.3d 629, 634–35 (N.Y. Sup. Ct. 2018) (taking note of the guidance provided by the HEAR Act’s purpose and holding that laches is unavailable); see also Simon J. Frankel & Sari Sharoni, Navigating the Ambiguities and Uncertainties of the Holocaust Expropriated Art Recovery Act of 2016, 42 Colum. J.L. & Arts 157, 176–77 (2019) (concluding that Reif held laches unavailable under the HEAR Act).Show More Recently, the appellants in Zuckerman had their petition for certiorari to the Supreme Court denied,24 24.Zuckerman v. Metro. Museum of Art, 140 S. Ct. 1269 (2020) (mem.).Show More meaning that the availability of laches under the HEAR Act is now binding precedent in the Second Circuit. Reif, on the other hand, signals that the New York state courts may prove to be a more hospitable forum for claimants going forward.

It is not too late to aid survivors and their families in their quest for justice. Over a year after passing the HEAR Act, Congress enacted the Justice for Uncompensated Survivors Today (JUST) Act of 2017.25 25.Pub. L. No. 115-171, 132 Stat. 1288 (2018).Show More The JUST Act directs the State Department to report on the steps taken by countries that, like the United States, have themselves committed to promoting restitution for Holocaust survivors.26 26.Id. § 2(b).Show More And in early 2020, New York Governor Andrew Cuomo announced a conference “aimed at improving the State’s ability to help recover works of art and other property lost due to Nazi persecution.”27 27.Press Release, Governor Andrew M. Cuomo, On Holocaust Remembrance Day, Governor Cuomo Announces International Conference Aimed at Helping Victims of Nazi Crimes Recover Stolen Property (Jan. 27, 2020), https://www.governor.ny.gov/news/holocaust-remembrance-day-governor-cuomo-announces-international-conference-aimed-helping [https://perma.cc/ZR3S-TM86].Show More Congress should build on the political will in this area of bipartisan consensus28 28.Press Release, Senator Ted Cruz, Sens. Cruz, Cornyn Praise Unanimous Passage of the Bipartisan HEAR Act, (Dec. 10, 2016), https://www.cruz.senate.gov/?p=press_release&­id=2916 [https://perma.cc/3326-7EVS].Show More and modify the HEAR Act to ensure that claimants are able to resolve their claims on the merits.

Part I of this Note provides a brief history of Nazi looting as well as a history of the Washington Principles and other international and domestic initiatives prior to the HEAR Act. This background illustrates the moral and legal issues that Congress designed the Act to address. The remainder of Part I traces the HEAR Act’s legislative history and the explanations Congress did and did not offer for setting a statute of limitations while leaving laches untouched.

Part II then discusses a sample of the case law in the state and federal courts of New York, the international art capital of the world. Courts in New York have had frequent occasion to consider the application of laches to claims for artwork looted during World War II due to the state’s “demand and refusal” rule.29 29.See discussion infra Section II.A. Under this rule, the statute of limitations does not begin to run until the claimant demands that the possessor return the artwork, and the possessor refuses that demand. See Menzel v. List, 267 N.Y.S.2d 804, 809 (N.Y. Sup. Ct. 1966). As a result, laches has been invoked to reduce the potential unfairness that results from such a generous limitations period. Demarsin, supra note 11, at 621–22, 658.Show More

Part III presents the argument briefly described above—that application of the doctrine of laches to claims for restitution of Nazi-looted art is irreconcilable with the HEAR Act and the Washington Principles. Part III then proposes two solutions. The first, and preferable, solution is to preclude a laches defense entirely, faithful to the first draft of the HEAR Act. This would guarantee that the Act fulfills the Washington Principles’ call to promote “a just and fair” solution.30 30.Washington Principles, supra note 7, at 792 (Principles XIII & IX).Show More As a more moderate solution, courts should be directed to inquire into whether a possessor sufficiently investigated title to contested artwork. This will allow courts to determine whether current possessors acquired artwork in true good faith, or whether they have dealt in Nazi-looted art when problems with a piece’s provenance31 31.“Provenance is a technical art world term meaning documentation of origin or history of ownership.” Kelly Diane Walton, Leave No Stone Unturned: The Search for Art Stolen by the Nazis and the Legal Rules Governing Restitution of Stolen Art, 9 Fordham Intell. Prop. Media & Ent. L.J. 549, 551–52 (1999). Provenance as used in this Note is therefore distinct from the actual ownership history of a work.Show More should have been apparent. Only when a possessor exercised appropriate diligence would a laches defense be available.

  1. * J.D., University of Virginia School of Law, 2020. I am grateful to Professor Julia Mahoney for her guidance throughout the drafting of this Note. Thank you to Samantha Caravello, Read Mills, and Anna Rennich for their thoughtful comments on earlier versions. I also owe thanks to the members of the Virginia Law Review, especially Andrew Kintner, for diligent editing and insightful feedback. All errors are my own.
  2. Ori Z. Soltes, Cultural Plunder and Restitution and Human Identity, 15 J. Marshall Rev. Intell. Prop. L. 460, 461–62 (2016).
  3. See Jonathan Petropoulos, Art as Politics in the Third Reich 14, 92–94 (1996); discussion infra Part I.
  4. Presidential Advisory Comm’n on Holocaust Assets in the U.S., Plunder and Restitution: The U.S. and Holocaust Victims’ Assets (2000), at SR–97 [hereinafter Commission Report].
  5. Id. at SR–137 to SR–139.
  6. See Nicholas M. O’Donnell, A Tragic Fate: Law and Ethics in the Battle Over Nazi-Looted Art, at xi (2017).
  7. See Commission Report, supra note 3, at 4–5; O’Donnell, supra note 5, at 29, 46; Phillipe de Montebello, Dir., Metro. Museum of Art, Panel at National Press Club Luncheon: Art Plundered During the Holocaust (July 14, 1998), transcript available at https://www.metmuseum.org/-/media/files/about-the-met/provenance-research/philippe-de-montebello-transcript.pdf [https://perma.cc/7V4W-57G9]) (commenting that “the fall of the Iron Curtain” led to “the declassification of a host of national archives”).
  8. See U.S. Dep’t of State & U.S. Holocaust Memorial Museum, Proceedings of the Washington Conference on Holocaust-Era Assets, app. G., at 791–92 (1998) [hereinafter Washington Principles]; Stuart E. Eizenstat, Imperfect Justice: Looted Assets, Slave Labor, and the Unfinished Business of World War II, at 196–99 (2003).
  9. Washington Principles, supra note 7, at 972 (Principles VIII & IX).
  10. See infra Part II.
  11. See id.
  12. The doctrine is an application of equity’s maxim that its jurisdiction is meant to “aid[] the vigilant.” See Bert Demarsin, Has the Time (of Laches) Come? Recent Nazi-Era Art Litigation in the New York Forum, 59 Buff. L. Rev. 621, 627 n.28 (2011) (citing Stone v. Williams, 873 F.2d 620, 623 (2d Cir. 1989)).
  13. See Holocaust Expropriated Art Recovery Act of 2016, Pub. L. No. 114-308, § 3(2), 130 Stat. 1524, 1526.
  14. Id. § 5(a). The most common claims are for replevin and conversion. See, e.g., Zuckerman v. Metro. Museum of Art, 307 F. Supp. 3d 304, 315 (S.D.N.Y. 2018), aff’d on other grounds, 928 F.3d 186 (2d Cir. 2019), cert. denied, 140 S. Ct. 1269 (2020) (mem.). For a summary of these causes of action, see Emily J. Henson, Comment, The Last Prisoners of War: Returning World War II Art to Its Rightful Owners—Can Moral Obligations Be Translated Into Legal Duties?, 51 DePaul L. Rev. 1103, 1137–41 (2002).
  15. Holocaust Expropriated Art Recovery Act § 5(a).
  16. See id. Compared to the initial draft discussed infra Section I.C, there is no mention of equitable defenses or the doctrine of laches in the Act’s operative provision.
  17. S. 2763, 114th Cong. § 5(a) (2016).
  18. Holocaust Expropriated Art Recovery Act § 5(a).
  19. S. 2763, the Holocaust Expropriated Art Recovery Act—Reuniting Victims with Their Lost Heritage: Hearing on S. 2763 Before the S. Subcomm. on the Const., Subcomm. on Oversight, Agency Action, Fed. Rts. & Fed. Cts., 114th Cong. 2–3 (2016) (statement of Agnes Peresztegi, President, Comm’n for Art Recovery), https://www.judiciary.senate.gov/­meetings/s-2763-the-holocaust-expropriated-art-recovery-act_reuniting-victims-with-their-lost-heritage [https://perma.cc/ETQ7-S8AQ] [hereinafter Peresztegi Testimony] (To access the hearing transcript, click on the first hyperlink and scroll down to the various witnesses. Under each witness is a link to the transcript of that individual’s hearing testimony. The second “permanent” hyperlink links directly to the cited hearing testimony transcript.).
  20. The labels for the party seeking restitution and the party currently in possession of the artwork will occasionally change throughout the text. For the party in possession, this Note will generally use “possessor” and, in certain contexts, “purchaser.” For the party seeking restitution, this Note will use “claimant,” “victim,” or “descendant.” “Plaintiff” and “defendant,” while simple, do not always reflect the claimant and possessor, as some current possessors will bring declaratory suits as the plaintiff. See, e.g., Bakalar v. Vavra, 819 F. Supp. 2d 293, 294 (S.D.N.Y. 2011), aff’d, 500 F. App’x 6 (2d Cir. 2012).
  21. Conopco, Inc. v. Campbell Soup Co., 95 F.3d 187, 192 (2d Cir. 1996) (citing Tri-Star Pictures, Inc. v. Leisure Time Prods., B.V., 17 F.3d 38, 44 (2d Cir. 1994); Saratoga Vichy Spring Co. v. Lehman, 625 F.2d 1037, 1040 (2d Cir. 1980)).
  22. S. 2763, the Holocaust Expropriated Art Recovery Act—Reuniting Victims with Their Lost Heritage: Hearing on S. 2763 Before the S. Subcomm. on the Const., Subcomm. on Oversight, Agency Action, Fed. Rts. and Fed. Cts., 114th Cong. 1 (2016) (statement of Monica Dugot, Int’l Dir. of Restitution, Senior Vice President, Christie’s Inc.), https://www.judiciary.senate.gov/meetings/s-2763-the-holocaust-expropriated-art-recovery-act_reuniting-victims-with-their-lost-heritage [https://perma.cc/2TY6-KZY4] (To access the hearing transcript, click on the first hyperlink and scroll down to the various witnesses. Under each witness is a link to the transcript of that individual’s hearing testimony. The second “permanent” hyperlink links directly to the quoted hearing testimony transcript.).
  23. 928 F.3d 186, 193–94 (2d Cir. 2019).
  24. 80 N.Y.S.3d 629, 634–35 (N.Y. Sup. Ct. 2018) (taking note of the guidance provided by the HEAR Act’s purpose and holding that laches is unavailable); see also Simon J. Frankel & Sari Sharoni, Navigating the Ambiguities and Uncertainties of the Holocaust Expropriated Art Recovery Act of 2016, 42 Colum. J.L. & Arts 157, 176–77 (2019) (concluding that Reif held laches unavailable under the HEAR Act).
  25. Zuckerman v. Metro. Museum of Art, 140 S. Ct. 1269 (2020) (mem.).
  26. Pub. L. No. 115-171, 132 Stat. 1288 (2018).
  27. Id. § 2(b).
  28. Press Release, Governor Andrew M. Cuomo, On Holocaust Remembrance Day, Governor Cuomo Announces International Conference Aimed at Helping Victims of Nazi Crimes Recover Stolen Property (Jan. 27, 2020), https://www.governor.ny.gov/news/holocaust-remembrance-day-governor-cuomo-announces-international-conference-aimed-helping [https://perma.cc/ZR3S-TM86].
  29. Press Release, Senator Ted Cruz, Sens. Cruz, Cornyn Praise Unanimous Passage of the Bipartisan HEAR Act, (Dec. 10, 2016), https://www.cruz.senate.gov/?p=press_release&­id=2916 [https://perma.cc/3326-7EVS].
  30. See discussion infra Section II.A. Under this rule, the statute of limitations does not begin to run until the claimant demands that the possessor return the artwork, and the possessor refuses that demand. See Menzel v. List, 267 N.Y.S.2d 804, 809 (N.Y. Sup. Ct. 1966). As a result, laches has been invoked to reduce the potential unfairness that results from such a generous limitations period. Demarsin, supra note 11, at 621–22, 658.
  31. Washington Principles, supra note 7, at 792 (Principles XIII & IX).
  32. “Provenance is a technical art world term meaning documentation of origin or history of ownership.” Kelly Diane Walton, Leave No Stone Unturned: The Search for Art Stolen by the Nazis and the Legal Rules Governing Restitution of Stolen Art, 9 Fordham Intell. Prop. Media & Ent. L.J. 549, 551–52 (1999). Provenance as used in this Note is therefore distinct from the actual ownership history of a work.