Courts

A New Reason To Get An Impression Of Erie

Hey, SCOTUS! Got a family who wants to get their art back. Oblige them.

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Watercolor brushes on white backdrop. Colorful art vector set

(Image by Getty)

Today, the Supreme Court will be hearing oral argument from Cassirer v. Thyssen-Bornemisza Collection Foundation. They will eventually decide if a federal court hearing state law claims brought under the Foreign Sovereign Immunities Act has to apply the state’s choice-of-law rules to determine what substantive law governs the claims at issue, or if it has to use federal common law to choose the source of the substantive law. Yes, that is an Erie question. Maybe.

In all honesty, the fact pattern reads like a less murdery and more property-ey side story from Inglourious Basterds.

In 1900, Paul Cassirer purchased Pissarro’s 1897 painting Rue Saint-Honoré, Afternoon, Rain Effect. Lilly Cassirer inherited the painting in 1926. In 1939, the painting was expropriated by the Nazis: Lilly was forced to give it up in exchange for permission to flee Germany.

Several members of the Cassirer family, including Lilly and her grandson Claude, ended up in the United States. Other members of the family, including Lilly’s sister Hannah, were murdered in the concentration camps.

In the United States, Lilly filed a claim with the U.S Court of Restitution, which, in 1954, declared her the rightful owner of the painting. In 1958, she reached a settlement with the German Federal Republic for compensation. Germany paid her approximately $13,000; the painting is estimated to be worth about $40 million today. Throughout this time, all parties assumed that the painting was lost or destroyed, although Claude – who remembered playing in the room in which it hung – continued to look for it.

Claude Cassirer never stopped looking for the painting. In 1999, he found it listed in a Thyssen-Bornemisza Collection catalog. He promptly filed a petition with Spain and the museum to force the return of the painting. He also pursued diplomatic channels to persuade Spain to return it, but to no avail.

Who this painting belongs to pivots on which set of laws are applied. If the federal court uses California’s laws, the painting goes to the family as it was stolen by the Nazis and no mere changing of hands is enough to give good title to stolen art. However, if the court uses Spanish law, it goes to the museum through adverse possession.

After reading this, I know that Civ Pro professors across the nation are biting their fingernails waiting for the verdict. Why? Because they know that this case will be all the justification they need to drop version 6 of their casebook.

For the folks who actually enjoy close readings of statutes, the opinion will likely rest on nuanced determinations like, is jurisdiction conferred under the FSIA more analogous to federal question jurisdiction than to diversity jurisdiction, making Erie and its progeny irrelevant? Should the Thyssen-Bornemisza Collection be thought of as an instrumentality of a foreign state? Once these questions and others are answered, I hope that someone will be kind enough to lend me their Quimbee login so I can read the case summary. That is how I learned Erie, after all.

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A Quest To Reclaim a Pissarro Masterpiece Hinges On The Erie Doctrine [SCOTUSblog]

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.

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