No. 12-1160 ================================================================

In The

Supreme Court of the United States --------------------------------- ---------------------------------

MILOS VAVRA AND LEON FISCHER,

Petitioners, v.

DAVID BAKALAR,

Respondent.

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On Petition For Writ Of Certiorari To The United States Court Of Appeals

For The Second Circuit

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BRIEF AMICUS CURIAE OF MICHAEL J. BAZYLER, HAIM BELIAK, MICHAEL BERENBAUM,

ROY H. CARLIN, JUDY CHICAGO AND DONALD WOODMAN, MARION F. DESHMUKH, HEDY EPSTEIN, KLARA AND RENEE FIRESTONE,

IRVING GREENBERG, DOUGLAS AND MARJORIE KINSEY, JENNIFER ANGLIM KREDER,

MARCIA SACHS LITTELL, HUBERT G. LOCKE, CARRIE MENKEL-MEADOW, CAROL RITTNER, JOHN K. ROTH, WILLIAM L. SHULMAN, IRINA

TARSIS, FRITZ WEINSCHENK, AND MEL WEISS, AS AMICI CURIAE IN SUPPORT OF CERTIORARI

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EDWARD MCGLYNN GAFFNEY, JR. Counsel of Record VALPARAISO UNIVERSITY SCHOOL OF LAW 656 S. Greenwich Street Valparaiso, IN 46383 219.465.7860 Edward.gaffney@valpo.edu

================================================================ COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

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TABLE OF CONTENTS

Page

BRIEF AMICUS CURIAE ..................................... 1

STATEMENT OF INTERESTS ............................. 1

SUMMARY OF ARGUMENT ................................ 2

REASONS FOR GRANTING THE PETITION ..... 4

1. Widespread Judicial Disregard for His-torical Accuracy in Dismissing Claims for Restitution of Nazi-looted Art ................... 4

2. Federal Judicial Disregard for the Comi-ty Due to Final Judgments of Foreign Nations ...................................................... 7

3. Improper Refusal to Grant Even-handed Access to Reliable Expert Witness Testi-mony ............................................................. 12

CONCLUSION ....................................................... 17

APPENDIX

Particular Statements of Interests of Amici Curiae ............................................................... App. 1

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TABLE OF AUTHORITIES

Page

CASES:

Asvesta v. Petroutsas, 580 F.3d 1000 (9th Cir. 2009) ........................................................................ 10

Crosby v. Buchanan, 90 U.S. 420 (1874) ................... 11

Csepel v. Hungary, No. 11-7096 (D.C. Cir., Apr. 19, 2013) .................................................................. 10

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) ................................................................ 14

Emory v. Grenough, 3 Dall. 369, 1 L.Ed. 640 (1797) ....................................................................... 11

Erie v. Tompkins, 304 U.S. 64 (1938) .................... 4, 12

Goldberg v. Kelly, 397 U.S. 254 (1970) ...................... 14

Republic of Austria v. Altmann, 541 U.S. 677 (2004) ............................................................. 2, 3, 4, 8

Solomon R. Guggenheim Foundation v. Lubell, 77 N.Y.2d 311 (N.Y. 1991) ...................................... 10

Swift v. Tyson, 41 U.S. 1 (1842) ................................... 4

Tumey v. Ohio, 273 U.S. 510 (1927)........................... 14

CONSTITUTION:

U.S. Const., Art. IV, § 1 .............................................. 10

U.S. Const., Amend. X ................................................ 12

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TABLE OF AUTHORITIES – Continued

Page

OTHER MATERIALS:

1955 State Treaty, TIAS 3298, 6 U.S.T. 2369 (May 15, 1955) ........................................................... 8

Deborah Lipstadt, Denying the Holocaust: The Growing Assault On Truth and Memory (1993) ......................................................................... 3

Hague Convention IV, Laws and Customs of War on Land, Arts. 46-47 and 56 (1907) ................ 13

Ingo Müller, Hitler’s Justice: The Courts of the Third Reich (1991) .................................................. 13

Irving Greenberg, “Judaism, Christianity, and Partnership after the Twentieth Century,” in Christianity in Jewish Terms 27 (Peter Ochs, ed. 2000) ........................................................................ 1

Jennifer Anglim Kreder, “Guarding the Histor-ical Record from the Nazi-era Art Litigation Tumbling Toward the Supreme Court,” 159 U. PA. L. REV. PENNUMBRA 253 (2011) .................... 4

Lieber Code, Instructions for the Government of Armies of the United States in the Field, Arts. 37-38 (1863) .................................................... 13

Martin Dean, Robbing the Jews: The Confisca-tion of Jewish Property in the Holocaust, 1933-1945 (2008) ..................................................... 13

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TABLE OF AUTHORITIES – Continued

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Stuart E. Eizenstat, Head of U.S. Delegation to the Prague Holocaust Era Assets Confer-ences, Opening Plenary Session Remarks (June 28, 2009), http://www.state.gov/p/eur/ rls/rm/2009/126158.htm ............................................. 6

Stuart E. Eizenstat, Imperfect Justice: Looted Assets, Slave Labor, and the Unfinished Bus-iness of World War II (2003) ............................... 3, 16

Terezín Declaration (2009) ....................................... 6, 9

Testimony of Stuart Eizenstat, House of Repre-sentatives Committee on the Judiciary Sub-committee on Commercial and Administrative Law, September 22, 2010, http://www.state.gov/ secretary/rm/2013/01/202932.htm ........................... 6, 9

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BRIEF AMICUS CURIAE

STATEMENT OF INTERESTS

Amici1 include scholars of many different disci-plines, including humanities, arts and sciences. Indi-vidual Amici have diverse backgrounds and various sorts of life experience. We are artists and art collec-tors; curators and historians of art and culture; edu-cators and moral philosophers; legal scholars and practitioners. The focus of the historical scholarship of the historians among us is on modern Europe and more particularly on the Shoah (the Hebrew word for “disaster” or “catastrophe”). All Amici – whether trained as historians or not – find a common purpose in sustaining the burden of accurate memory of the events of the Shoah. We urge that these things never be forgotten so that they will never be repeated.

We are religiously diverse, but all agree with one of the Amici, who once wrote: “No statement, theolog-ical or otherwise, should be made that would not be credible in the presence of burning children.” Irving Greenberg, “Judaism, Christianity, and Partnership

1 This brief is submitted in accordance with Rule 37 of this Court. Counsel of record for both parties received notice at least 10 days prior to the due date of the intention of the Amici to file this brief. All counsel have consented to the filing of this brief and the consent letters (e-mails) have been filed with the Clerk of the Court with this brief. No counsel for any party authored this brief in whole or in part, and no person or entity, other than Amici, their members, or counsel, made a monetary contribution to the preparation or submission of this brief.

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after the Twentieth Century,” in Christianity in Jew-ish Terms 27 (Peter Ochs, ed. 2000). Rabbi Greenberg’s caution extends beyond theology; it includes state-ments in lawyers’ briefs and judicial opinions.

Particular interests of Amici are set forth in Ap-pendix A.

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SUMMARY OF ARGUMENT

In Republic of Austria v. Altmann, 541 U.S. 677 (2004), this Court rejected the defense of Austria that it was immune as a foreign sovereign from litigation in American federal courts about restitution of art seized during the period of National Socialism after the Anschluss in 1938. Since Austria itself relied on a restrictive interpretation of the Federal Sovereign Immunity Act (FSIA), the Court also rejected the broader reading of the same statute advanced by the Solicitor General in the October 2003 Term that would have granted a foreign government possessing Nazi-looted art absolute immunity from litigation over disputed title to stolen property. Brief for United States as Amicus Curiae, 2003 WL 22811828 at 28. This Court ruled that the expropriation exception of the FSIA applied in Altmann and should have retro-active effect.

Since Altmann, the Court has not taken a single case involving Nazi-looted art. In the intervening period the lower federal courts have made a sham- bles of federalism by repeatedly ignoring procedural

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norms adopted by several states. They have disre-spected the principle of comity by failing to show to friendly foreign governments a decent respect for the final decrees of its courts relating to ownership of pri-vate property. And they have diminished the memory of the worst catastrophe of the past century – World War II and the Shoah – a war claiming over 60 mil-lion dead, 6 million of whom were frequently tortured and in all cases brutally murdered for the sole “crime” of being born a Jew.

The enormity of the war crimes and crimes against humanity known collectively as the Shoah is staggering. Yet crude denial of this epiphenomenon increases at an alarming rate around the world. Deborah Lipstadt, Denying the Holocaust: The Grow-ing Assault On Truth and Memory (1993). No one in high office in this country denies the reality of the crimes of the Shoah. Yet the recurrent experience of Amici is that when it comes to the “unfinished busi-ness” of the Shoah at the heart of this case – restitu-tion of property illegally seized during the twelve long years of Nazi persecution – awareness about the basic contours of events recedes, even among well-trained professionals. See Stuart E. Eizenstat, Imperfect Jus-tice: Looted Assets, Slave Labor, and the Unfinished Business of World War II (2003).

Nine years after Altmann, Amici do not intimate in this brief a view on the merits of the claims to restitution asserted by Petitioners or Respondent. Instead, we focus on the national and international

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significance of this case and offer the Court several reasons to grant the Petition.

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REASONS FOR GRANTING THE PETITION

1. Widespread Judicial Disregard for Historical Accuracy in Dismissing Claims for Restitution of Nazi-looted Art. We urge the Court to grant the Petition in this case by situating it within a long series of decisions in the past nine years involving Holocaust-era assets that have been wrongly decided. See Jennifer Anglim Kreder, “Guarding the Historical Record from the Nazi-era Art Litigation Tumbling Toward the Supreme Court,” 159 U. PA. L. REV. PENNUMBRA 253, 260-62 (2011).

A. Almost all of these post-Altmann cases in-volve – as this one does – egregious misstatements of classic principles of procedural fairness wisely adopted by state courts as part of their jurisprudence, but causally ignored or completely distorted by fed-eral courts asserting diversity jurisdiction as though we were still operating in the era of Swift v. Tyson, 41 U.S. 1 (1842), and had never heard from this Court in Erie v. Tompkins, 304 U.S. 64 (1938).

This case differs from Altmann in that it does not involve a claim of sovereign immunity by a foreign government under a federal statute codifying federal standards on the immunity of a foreign sovereign. Instead, it represents federal judicial disregard for the statutes and cases of several states and friendly

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foreign governments providing procedural safeguards to insure fairness to both sides of a disputed claim over rightful ownership of private property.

The result of the decision below is not just a single conflict between (a) the Court of Appeals for the Second Circuit, from whose judgment petitioners seek a writ of certiorari and (b) the highest tribunal of the State of New York on the same federal ques-tion. It is also one between the Second Circuit and dozens of states that have an identical rule on laches as the one the district court and the Second Circuit ignored in Bakalar II.

B. This case is not only a conflict between the summary affirmance below and the overwhelming majority of states defining technical matters on when a suit may be filed (such as statutes of limitation or rules of laches clarifying which party has a burden of acting diligently before invoking judicial power). It is also one ignoring the deference due to clear state-ments of the Executive Branch on important matters of foreign policy.

In 1998 Ambassador Stuart Eizenstat and col-leagues in the State Department enabled forty-four countries to agree to a body of principles about the restitution of stolen art and the recovery of cultural heritage, collectively known as the “Washington Prin-ciples.” In 2009 forty-six nations asserted the duty to “ensure that their legal systems or alternative pro-cesses, while taking into account the different legal traditions, facilitate just and fair solutions with

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regard to Nazi-confiscated and looted art, and . . . make certain that claims to recover such art are resolved expeditiously and based on the facts and merits.” Terezín Declaration (2009). In his keynote address to the Prague conference Ambassador Eizenstat famously noted:

I am . . . concerned by the tendency for holders of disputed art to seek redress in technical defenses to avoid potentially meritorious claims, including statutes of limitation, ad-verse possession; de-accession laws; and ex-port control laws which bar the export of looted art back to their rightful owner, even when its ownership has been established.

Stuart E. Eizenstat, Head of U.S. Delegation to the Prague Holocaust Era Assets Conferences, Opening Plenary Session Remarks (June 28, 2009), http://www. state.gov/p/eur/rls/rm/2009/126158.htm; see also Testi-mony of Stuart Eizenstat, House of Representatives Committee on the Judiciary Subcommittee on Com-mercial and Administrative Law, September 22, 2010. On January 16, 2013, Secretary of State Hillary Clinton reaffirmed this view shortly before her recent retirement from this office. See http://www.state.gov/ secretary/rm/2013/01/202932.htm.

The foreign policy of the United States – clearly articulated during and after World War II and re-cently reinforced in the Washington Principles and the Terezín Declaration – thus urges litigants, law-yers, and judges to set aside legal technicalities to afford swift disposition of claims for restitution of

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Nazi-looted property on the merits, and with full access to all documents relating to provenance. Even if federal courts choose for some bizarre, but unex-plained, reason to ignore this clear and relevant statement of foreign policy rather than defer to the Executive Branch, this decision should not mean that this Court may prudently sit by idle while lower federal courts rewrite state law on these very proce-dural matters. The time to act decisively is now.

2. Federal Judicial Disregard for the Comity Due to Final Judgments of Foreign Nations. We also urge the Court to grant the Petition because this case involves a highly sensitive issue of federal judicial disregard for the comity due to final judgments of foreign nations. This obligation has profound impli-cations for American relations with friendly nations at this delicate juncture when too much has been made of American exceptionalism and too little atten-tion has been paid to the long-term risk of setting a double standard. We lose credibility as a great power if we ignore the effect of Rabbi Hillel’s Golden Rule: “Think of the worst thing that could happen to you. Do not do that to anyone else.”

A. Ten years after the formal end of World War II American diplomats and international lawyers emphatically urged upon their counterparts in the Republic of Austria an essential pre-condition for cessation of occupation of Austria and re-entry into full normal relations with the nations of the world. These diplomats and lawyers insisted on a provision in the Austrian Constitution formally repudiating all

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so-called “transactions” between the powers govern-ing Austria from 1938 to 1945 and the primary vic-tims of its brutal thefts and murders, the Jews. Having adopted this principle in statutes, Austria also saw the wisdom of embodying the same principle in Art. 26, ¶ 1 of its 1955 State Treaty, TIAS 3298, 6 U.S.T. 2369 (May 15, 1955).

This Court took full cognizance of the significance of Austria’s commitment in Altmann, when the Court rejected the claims urged by the Republic of Austria and by the Solicitor General during the Bush ad-ministration. The Court should act with similar wisdom and courage now, when a recalcitrant district judge ignored on remand the clear implications of a thoughtful ruling from the court of appeals in Bakalar I.

In Bakalar II the district court’s acceptance of the mandate to follow New York law rather than Swiss law in disposing of this matter was formalistic. The trial court emphatically did not follow New York law on latches, but actually misconstrued clear hold-ings of New York’s highest tribunal on laches, for example, by shifting the burden of proof from re-spondent to petitioner.

What is Austria to think of our courts if this Court now ignores the flagrant disregard of lower federal courts for the very thing our country’s lawyers and diplomats demanded of Austria in 1945 and urged again in 1955 – to regard all Nazi-era “trans-actions” as null and void? It adds insult to the injury

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of a famously friendly nation when the federal district court effectively nullified the final determination of a recent probate decision of the Austrian judiciary find-ing the Petitioners to be the lawful heirs of Fritz Grünbaum; see 2.C below.

B. As noted above, the Czech Republic in the final days of its Presidency of the European Union in 2009 convened all nations involved in any way in the brutal catastrophe of the Shoah. It was on that very occasion that Ambassador Eizenstat made his famous remarks about the duty of all nations to enable re-maining victims of the Shoah to reach affordable, but imperfect, justice by arriving at a procedurally sound resolution of their claims to property stolen from them or their family during the dark days of Nazism. Eizenstat was crystal clear in articulating American foreign policy. The meaning of the Terezín Decla-ration of 2009 is plain. Judgment on claims such as the one in this case should be on the merits and unburdened with legal technicalities such as statutes of limitations and the doctrine of laches. At the very least, federal courts may not twist the teaching of state law on these matters while ignoring the inter-national accords that the Executive has entered into, frequently since the end of World War II, and culmi-nating in the Washington Principles, and the Terezín Declaration.

C. A distinct reason for granting the Petition is that the decision below effectively nullifies the whole purpose of the final probate decree of the court of the Republic of Austria in 2001 naming petitioners as the

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lawful heirs of the estate of Fritz Grünbaum: to en-able them to make an effective claim to property wrongfully seized by the Nazis. A federal court is not obliged to give to a foreign jurisdiction the full faith and credit that a New York court must give to courts of sister States of the Union, U.S. Const., Art. IV, § 1, but this case presents no issue of national security or any other aspect of foreign policy that supports the casual setting aside of this foreign judgment, without notice or a fair hearing.

Amici note that the courts of appeals are divided on the standard by which to review a district court’s decision to grant comity to a foreign judgment: de novo or abuse of discretion. See, e.g., Asvesta v. Petroutsas, 580 F.3d 1000, 1009-10 (9th Cir. 2009), cited in Csepel v. Hungary, No. 11-7096 (D.C. Cir., Apr. 19, 2013), slip op., at 25. In this instance, the court of appeals affirmed summarily, offering no rationale whatever for affirming the district court’s egregious error on the applicable law of New York on laches. The court of appeals correctly reversed the district court in Bakalar I, ordering the trial court to follow New York law, not Swiss law. On remand, however, the district court in Bakalar II evaded the mandate of the court of appeals to follow, not to distort or ignore New York law. There can be no doubt that New York law clearly teaches that the burden of proof in a claim of laches falls on the party raising this defense, see, e.g., Solomon R. Guggenheim Foun-dation v. Lubell, 77 N.Y.2d 311 (N.Y. 1991), but the court of appeals gratuitously and without any

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explanation for its decision allowed the ignoring of this landmark decision. It also allowed the ignoring of the clear teaching of this Court that a party with dirty hands may not invoke the doctrine of laches. See, e.g., Crosby v. Buchanan, 90 U.S. 420, 457 (1874); Pet. 4.

Although the court of appeals in Bakalar I clari-fied that New York is emphatically not a “finder’s keepers” state, a different panel of the court of the appeals did not even address this egregious error. This result denies to the rightful heirs of a victim of Nazi aggression the imperfect justice of returning to descendants of this victim the property the SS under Eichmann infamously stole in 1938. It makes a mockery of the diligent attention of Austrian courts in determining who those rightful heirs are – petitioners here – if their claim can so lightly and casually be dismissed in flagrant disregard for the law of the jurisdiction that the current possessor – respondent here – invoked to seek “clear title.”

This Court should grant the Petition in order to instruct lower federal courts on the limited circum-stances under which it might decline to afford to a foreign jurisdiction appropriate respect for its judg-ments and final decrees. The result below departs so far from this Court’s ancient teaching on comity in Emory v. Grenough, 3 Dall. 369, 370, 1 L.Ed. 640 (1797), as to needlessly throw in doubt the stability of international transactions essential to a well-ordered global economy that respects the rule of law in all its complexity.

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It is especially egregious when, as here, a federal court effectively sets aside a recent Austrian judg-ment on Fritz Grünbaum’s estate, only to replace it with a misstatement of the teaching of New York courts on laches. Under Erie, supra, federal courts are supposed to follow relevant state law when their jurisdiction over a case depends, as this one does, on diversity of citizenship. The Erie rule is all the more applicable when the legal dispute involves disposition of decedents’ estates – a matter that from the dawn of the Republic has been acknowledged as reserved to the domain of the several States. U.S. Const., Amend. X.

3. Improper Refusal to Grant Even-handed Ac-cess to Reliable Expert Witness Testimony. Finally, we urge the Court to grant the Petition because the district court adopted too mechanical or rigid a view of when expert testimony would be needful or at least helpful. The Shoah is such an occasion for an extra ounce of caution in getting the narrative straight, which manifestly did not occur in this record.

A. Many books are now readily available to pro-vide satisfactory depth to anyone seeking with an open mind, or wanting to know what was happening at that time and place.

Looting of property and destruction of cultural heritage has been going on as long as history has recorded conflicts. Its antiquity, however, does not make it acceptable, either in law or morality. On the contrary, looting is specifically identified as a war

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crime in the famous Lieber Code, Instructions for the Government of Armies of the United States in the Field, Arts. 37-38 (1863), and is expressly prohibited in Hague Convention IV, Laws and Customs of War on Land, Arts. 46-47 and 56 (prohibiting confiscation of private property, pillage, and seizure of works of art) (1907).

Respect for such international limits on the authority of the Third Reich was all but obliterated during the period of National Socialism. See Ingo Müller, Hitler’s Justice: The Courts of the Third Reich (1991). From the earliest period of Nazi rule, the Third Reich enforced confiscatory legislation and brutal tactics against a defenseless Jewish minority. Jews were forced to transfer their own private wealth to the Reich through special taxes, departure fees, and “Aryanization” of Jewish homes and businesses. The purposes of such confiscation were: to promote the general welfare of non-Jews in the Third Reich, to foot the bill of the Kristallnacht pogroms, and to underwrite the Wehrmacht. For those who did not survive, the grand larceny ultimately financed the roundups and transportation to the camps of mass murder in occupied Poland. See, e.g., Martin Dean, Robbing the Jews: The Confiscation of Jewish Prop-erty in the Holocaust, 1933-1945 (2008).

B. In both stages of the litigation – Bakalar I and Bakalar II – the district court refused to admit proffered expert testimony that could have shed light

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on the facts of this case. In each instance, the proffer of expert testimony was timely,2 relevant to establish facts or to rebut contrary testimony that was admit-ted by the district court, and was subject to cross-examination and rebuttal and hence not prejudicial. See, e.g., Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 584-587 (1993). This would have saved both panels of the court of appeals and this Court a lot of time and energy spent reviewing decisions premised not on reliable factual findings, but on mistaken guesswork about the past.

The result of such imaginary “findings” is that they fail to explain anything to any reader familiar with the actual experience of Vienna Ghetto after the Anschluss. For example, the district court imagined that Grünbaum’s family members (1) had easy access

2 Counsel for petitioners-defendants made the first proffer of expert testimony in December of 2007, but the district court denied the motion. Although plaintiff-respondent offered no ex-pert testimony, it became apparent before trial that plaintiff would raise at trial new issues not pleaded in the complaint. Hence counsel for petitioners-defendants renewed the proffer of expert testimony on March 25, 2008, nearly three months before the commencement of the first trial on June 14, 2008. The rulings of the district court were not even-handed. For example, the court allowed plaintiff to enter into evidence highly dubious and self-serving testimony relating to the sale of the paintings at issue in this case, but refused to allow defendants an oppor-tunity to provide a rebuttal witness. This gives rise to an appearance of unfairness difficult to reconcile with rudimentary principles of due process; see, e.g., Goldberg v. Kelly, 397 U.S. 254 (1970); Tumey v. Ohio, 273 U.S. 510 (1927) (unbiased tribunal).

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to the Grünbaum apartment while it was under the constant surveillance of the Nazis and (2) could easily have stolen a few paintings without the Nazis notic-ing that they had gone missing on their meticulous inventories. Such speculation would be given a failing grade if proffered by a student hoping to get by in a seminar without doing much homework.

Amici make this statement to this Court with all respect for the difficulty of the judicial task. We do so because most Amici are scholars who know from decades of difficult work that it is not easy to under-stand the complexities of the past, especially when in the present moment of interpretation powerful inter-ests seek to sway a decision this way or that for reasons that have little or nothing to do with what happened in the past.

Precisely because we understand the fragility of the task of historical interpretation, we are in a position to urge this Court to send all the federal courts a message to err on the side of patience in attending to the gathering of reliable evidence and of astute interpretations, with full respect for the rights of adverse parties to challenge the accuracy of such evidence and such interpretations. Nothing is served and much may be lost when federal courts close their doors prematurely to well-trained scholars who can shed light on a difficult matter that requires histori-cal analysis.

C. This case affords the Court an opportunity for America to make a significant contribution to the

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healing of one of the deepest traumas of the past century, the Shoah, with its devastating intent to destroy all Jews in Europe. This monstrous plan succeeded with over two-thirds of Europe’s Jews. No one did enough before or during the war to stop this atrocity.

After the war no one can do enough to assuage the terrifying impact of the Shoah not only on its primary victims, Jews, but also on all of us who re-main in a world where life was so denigrated and cheapened. There is no adequate recompense, no sat-isfactory compensation for such massive destruction in any genocide. As Ambassador Eizenstat rightly reminds us, all attempts at righting a wrong of such magnitude are inherently “imperfect.” See Eizenstat, Imperfect Justice, supra.

But that does not mean that the effort must not be made to achieve imperfect justice for those who survived and for their children, grandchildren or other heirs. “While this Court sits,” it should not be said of America that our federal judiciary may legally transfer or award property unquestionably stolen by the Nazis to adventitious art dealers in Switzerland or New York, or for that matter to genuine lovers of art who cannot get good title to such paintings under the law of New York.

To think otherwise trivializes the Shoah and retraumatizes descendants of its primary victims by giving the false impression that their cruelly mur-dered ancestors are unworthy of equal justice in the

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disposition of their estates decades after the original mass murders. These results are unworthy of any court in the world, including this great one.

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CONCLUSION

For the reasons stated above and in the Petition, the Court should grant the Petition.

Respectfully submitted,

EDWARD MCGLYNN GAFFNEY, JR. Counsel of Record VALPARAISO UNIVERSITY SCHOOL OF LAW 656 S. Greenwich Street Valparaiso, IN 46383 219.465.7860 Edward.gaffney@valpo.edu

App. 1

APPENDIX A

Particular Statements of Interests of Amici Curiae

Michael J. Bazyler is a Professor of Law and the “1939” Club Law Scholar in Holocaust and Human Rights Studies at Chapman University School of Law in Orange, California, where he teaches a course on Law and the Holocaust. He is the author of Holocaust Justice: The Battle for Restitution in America’s Courts (2003), and the editor of Holocaust Restitution: Per-spectives on the Litigation and Its Legacy (2005).

Rabbi Haim Beliak is Special Envoy from the World Union for Progressive Judaism to Beit Polska. He has engaged in postgraduate studies in the Holocaust program of the Hebrew University’s Institute for Contemporary Jewry. The focus of his research was on religious and psychological dimensions of the restoration of stolen goods as a dimension of restora-tive justice.

Dr. Michael Berenbaum is Professor of Jewish Studies at the American Jewish University, Los Angeles. From 1988 to 1993 he served as the Project Director of the United States Holocaust Memorial Museum, and is intimately familiar with the needs of museums for pieces of art, artifacts, and other visual means of communicating themes central to exhibi-tions. He is a prolific scholar and the Editor-in-Chief of the second edition of the Encyclopedia Judaica.

App. 2

Roy H. Carlin is a member of the New York Bar who served as lead counsel in Bodner v. Banque Paribas, 114 F. Supp. 2d 117 (E.D.N.Y. 2000). He has lectured on Holocaust Restitution cases at Dartmouth College and Vermont Law School.

Judy Chicago and Donald Woodman are artists and the authors of Holocaust Project From Darkness Into Light (1993); they are deeply sensitive to issues of devaluation of art by governmental censors.

Marion F. Deshmukh is Robert T. Hawkes Profes-sor of History at George Mason University, where she teaches German and European cultural history and German art history, including courses on 19th and 20th Century Germany, 19th and 20th Century German and Austrian Art, the Third Reich and the Holocaust.

Hedy Epstein is a survivor of the Shoah who left her home in Kippenheim, Germany in 1939 at the age of 14 as part of the Kindertransport to England. Her story is narrated in the Academy-Award winning documentary film, “Into the Arms of Strangers: Stories of the Kindertransport” (2000), and in the companion volume of the same title. She has been involved for decades in Holocaust education at all levels.

Klara Firestone is the founder and current Presi-dent of Second Generation of Los Angeles. Klara is a long time member of the Board of the Los Angeles Museum of the Holocaust. She also served as the Second Generation representative to the Council of

App. 3

Post-War Holocaust Organizations. She has lectured frequently on the Holocaust to schools and organiza-tions, and has received many awards for community service to the Holocaust survivor community.

Renee Firestone is a native of Hungary and a survivor of the Nazi killing center at Auschwitz/ Birkenau. Her story is narrated in the Academy-Award winning documentary film “The Last Days” (James Moll, 1998). She lives in Beverly Hills, Cali-fornia, and has been involved for decades in Holo-caust education at all levels. She is a lecturer at the Museum of Tolerance (Simon Wiesenthal Center) in Los Angeles, and a Board member and lecturer at the Los Angeles Museum of the Holocaust. In 2010 the University of Redlands presented her with its first honorary degree – Doctor of Educational Justice.

Rabbi Irving Greenberg is the past President of Jewish Life Network–Steinhardt Foundation and the former Chairman of the United States Holocaust Memorial Council. A prolific author, Rabbi Greenberg, has contributed significantly to the philosophical and theological implications of the Shoah.

Douglas Kinsey, Professor of Art Emeritus at the University of Notre Dame, and his wife Marjorie Kinsey, an art historian, are familiar with the long history of looting of art in time of war, by the military and private parties, from the ancient world to the present century.

Jennifer Anglim Kreder is a professor of law at the Salmon P. Chase College of Law, Northern Kentucky

App. 4

University. She has authored numerous publications in prestigious journals demonstrating the incon-sistency of recent litigation concerning Nazi-looted art with judicial precedents and decades of U.S. executive policy.

Dr. Marcia Sachs Littell is Professor of Holocaust and Genocide Studies and Director of the Master of Arts Program in Holocaust and Genocide Studies at the Richard Stockton College of New Jersey. She is a prolific author on the Holocaust and genocide.

Dr. Hubert G. Locke is professor emeritus at the University of Washington, and is the co-founder of The Scholars’ Conference on the Holocaust and the Churches. He is a prolific author on the Holocaust and genocide, and on American history, especially on race relations and the civil rights movement.

Carrie Menkel-Meadow is a second-generation survivor of the Shoah. She is the A.B. Chettle, Jr. Professor of Law, Dispute Resolution and Civil Proce-dure at the Georgetown Law Center, and Professor of Law at the University of California, Irvine School of Law. In addition to her scholarship, research and teaching on alternate dispute resolution, Menkel-Meadow often serves as a mediator and arbitrator in public and private settings and has trained lawyers, judges, diplomats, and mediators in the United States and on five continents.

Sister Carol Rittner, RSN, is Distinguished Profes-sor of Holocaust and Genocide Studies at The Richard Stockton College of New Jersey. She is a prolific

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author and editor of books relating to the Holocaust and genocide. She is also the producer-director of the Oscar award-winning documentary film, “Courage to Care,” and the editor of an accompanying volume, Courage to Care: Non-Jews Who Rescued Jews During the Holocaust (1986).

Dr. John K. Roth is the Edward J. Sexton Professor Emeritus of Philosophy and founding Director of the Center for the Study of the Holocaust, Genocide, and Human Rights at Claremont McKenna College. He is a prolific author and editor of books relating to the Holocaust and genocide, and he edits the Holocaust and Genocide Studies Series published by Paragon House.

Dr. William L. Shulman is the President of the Association of Holocaust Organizations, a network of organizations and individuals for the advancement of Holocaust programming, awareness, education, and research.

Irina Tarsis is Chair of the American Society of International Law’s Cultural Heritage & the Arts Interest Group. She is the founder of the Center for Art Law, which is an amalgam of art and cultural heritage law resources and reviews.

Fritz Weinschenk was born in Mainz, Germany, of Jewish parents. In 1935 his family emigrated to the United States to escape Nazi persecution of Jews. He fought in World War II with the US Army and sur-vived the landing at Omaha Beach. From 1946 to 1950 he served as a member of the US Army Counter

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Intelligence Corps in Germany. Admitted to the Bar of New York in 1953, he was active in many restitu-tion and indemnification cases. From 1962 to 1995 he served as a Commissioner to German courts and prosecutors in over 200 Nazi-crimes cases, and was twice awarded the Bundesverdienstkreuz (Federal Service Award). He obtained the degree of Doktor Juris from Mainz University summa cum laude. His record of pro bono service includes membership on the Board of the United Restitution Organization, the Conference on Jewish Material Claims against Ger-many, and the Jewish Philanthropic Fund of 1933, Inc.

Mel Weiss served as lead counsel in important class action lawsuits that sought to structure effective remedies for claims relating to assets seized by the Nazis and held illegally by other entities or individu-als in this country and abroad; see Stuart E. Eizenstat, Imperfect Justice: Looted Assets, Slave Labor, and the Unfinished Business of World War II 83-88, 116-75, 222-56 (2003). Mr. Weiss also founded the Holocaust Art & Remembrance Foundation. As a private collector of art, he supports full transparency in establishing the provenance of art or other objects of human and sacred value that may have been stolen during the era of Nazi persecution.