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Dormant Foreign Affairs Preemption and Von Saher v. Norton Simon Museum: Complicating the ‘Just and Fair Solution’ to Holocaust-Era Art Claims

2010

28 Law & Inequality: A Journal of Theory and Practice

Sutherland Attorney Mikka Gee Conway addresses dormant foreign affairs preemption with respect to claims for property misappropriated during World War II. She argues that Von Saher and the precedent upon which it relied were wrongly decided. Absent either a clear conflict with a federal statute or treaty, or an affirmative action by the federal government, courts should apply a more stringent test than was applied in Von Saher or its predecessors before preempting state law on this basis. Moreover, she describes the nature and scale of the looting of works of art in Nazi-controlled territories during the war, which targeted Jews and other minorities in particular, and the participation of the U.S. government in mitigating and rectifying the resulting losses. Part II provides background on states' ability to resolve claims related to the Holocaust. She also describes the categories of Holocaust-related litigation in the United States since 1996, when the first high-profile cases were filed, as well as the foreign policy dimensions of each.

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