Friday, June 29, 2012

The Holocaust, Law, Morality, and Stolen Property

    In recent years there has been there considerable litigation over property seized by the Nazis before and during World War II. The members of a Jewish family, or descendants of a Jewish family, which owned valuable paintings or other property, will claim that the paintings or property were either stolen by the Nazis, or the original owners were forced by draconian Nazi laws to sell the paintings or property to non-Jews for a pittance.
    The cases provide an easy confluence of law and morality: the law says a thief cannot pass good title, and property taken by the Nazis should be returned to its true owner or his descendants.
    The Appellate Division, Second Department, has just granted leave to appeal to the New York Court of Appeals in a case which presents an unusual legal twist on property stolen during World War II, Matter of Flamenbaum.  
    When Riven Flamenbaum died in 2003, among his possessions was a small inscribed gold tablet which research disclosed dates to the years 1243-1207 BCE. The tablet was discovered by a team of German archaeologists prior to World War I in what is now northern Iraq. The tablet was loaded on a freighter bound for Germany, but with the outbreak of World War I the ship was forced to stop in Lisbon where the tablet was stored until 1926. (This sounds like an Indiana Jones script.) The tablet eventually was shipped to Germany where it was put on display in a German museum from 1934 until the outbreak of World War II in 1939, when it was put in storage. 
    At the end of the war the tablet was found missing. While not mentioned in the Appellate Division decision, news accounts state that after Flamenbaum was released from a concentration camp he obtained the tablet from Russian soldiers who purportedly stole it from the museum. When the tablet came to light after Flamenbaum's death, the museum made a claim for the tablet in Surrogate's Court, Nassau County.
   The Surrogate ruled that while the museum established a superior legal claim to the tablet, its claim is barred by laches. The Appellate Division reversed, ruled for the museum, and has now sent the case to the Court of Appeals for a final determination.
    The appeal has all the ingredients of a World War II case: concentration camp victim, Russian soldiers, stolen property, German museum. But there is the fascinating twist: the concentration camp survivor is not the victim of the theft; he is the recipient of property stolen from a German museum. How do law and morality resolve this?
    The Appellate Division decision can be found here.  

Thursday, June 28, 2012

Predicting Supreme Court Decisions

    Predicting decisions of the United States Supreme Court is a chancy affair, especially with an ideologically divided Court on an ideological issue.
    While I do not ordinarily like to boast, I did predict the outcome of today's ruling on the Affordable Care Act, National Federation of Independent Business v. Sebelius.
    For months I have been telling people two things. First, the Court will uphold the statute--and particularly the individual mandate--under the Congress' taxing power.
    Second, I have been saying that Chief Justice John Roberts will vote with the majority. In fact, I said this to my wife Jacqueline as I left the house this morning. 
    From Chief Justice Roberts' point of view this is a legacy case. Just as the Warren Court is remembered for Brown v. Board of Education and Miranda v. Arizona, the Roberts Court will be seen in the future as the Court which ruled on health care in the United States. By many accounts, Roger Taney was a great Chief Justice, but he is best remembered for his Dred Scott decision a few years before the Civil War. 
    I have always thought that Chief Justice Roberts did not want his Court to be seen as being on the wrong of history with respect to medical care for Americans. He achieved this result skillfully, ruling that the individual mandate, by forcing people to do something--buy insurance--was beyond the commerce clause powers of the federal government, but that the imposition of a tax on people who do not have health insurance is a reasonable exercise of the taxing power. By also ruling that the federal government cannot coerce the states into providing greater Medicaid coverage, he made a point regarding federalism which is important to conservatives. The decision can be found here.