Amicus Curiae Brief — Laurel Zuckerman, as Ancillary Administratrix of the Estate of Alice Leffmann, Petitioner v. The Metropolitan Museum of Art

No. 19-942

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------LAUREL ZUCKERMAN, AS ANCILLARY

ADMINISTRATRIX OF THE ESTATE

OF ALICE LEFFMANN,

Petitioner,

v.

THE METROPOLITAN MUSEUM OF ART,

Respondent.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

---------------------------------♦--------------------------------AMICUS CURIAE BRIEF OF THE LAW FIRM

OF BYRNE GOLDENBERG & HAMILTON, PLLC

IN SUPPORT OF PETITIONER

---------------------------------♦--------------------------------THOMAS J. HAMILTON

Counsel of Record

JOHN J. BYRNE, JR.

BYRNE GOLDENBERG & HAMILTON, PLLC

1025 Connecticut Avenue, N.W.

Suite 1012

Washington, DC 20036

Telephone: (202) 857-9775

tj.ham@cox.net

jjb@bghpllc.com

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

I.

INTEREST OF AMICUS CURIAE............

1

II.

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

1

III.

BACKGROUND AND STATEMENT OF

FACTS........................................................

5

IV.

ARGUMENT .............................................. 10

A. THE COURT – FOR SEVERAL REASONS – SHOULD FORMULATE A

UNIFORM FEDERAL COMMON LAW

STANDARD FOR DEFINING WHAT

ARTWORKS LOST AS A CONSEQUENCE OF NAZI PERSECUTION

U.S. FOREIGN POLICY SEEKS TO

RESTITUTE (NAZI-CONFISCATED

ARTWORKS) ....................................... 10

1. The Court Should Propound an Appropriate Federal Common Law

Standard for the Reasons Stated

in Clearfield Trust Co. v. United

States, 318 U.S. 363, 366-67 (1943):

Federal Foreign Policy and the Federal Tax Exemption of 26 U.S.C.

§ 501(c)(3) Both Derive from the

U.S. Constitution, and Entail Uniformity that the “Vagaries” of the

Multifarious and Incoherent State

Common Laws of Economic Duress

and Related Choice of Law Rules

Sabotage ......................................... 11

ii

TABLE OF CONTENTS – Continued

Page

a. The Authority of Congress and

the President to Formulate and

Execute Foreign Policy is Grounded

Expressly in the Federal Constitution and the Court Consistently

Has Refused to Permit Provincial

State Laws to Undermine the Uniformity that Foreign Policy Requires ......................................... 13

b. The State Common Law of Economic Duress and Related Choice

of Law Rules Create a “Chaotic

Palette” in Judicial Claims to Recover Nazi-Confiscated Artworks

that Negate the Uniformity that

U.S. Foreign Policy Demands ...... 15

1.

The State Common Law of

Economic Duress is Notoriously Confused, Inconsistent,

and Multifarious ................ 15

2.

Problematic State Choice

of Law Rules Amplify the

Scope for Diverse and Unpredictable Results in Judicial Claims Seeking to

Recover Nazi-Confiscated

Artworks ............................ 18

iii

TABLE OF CONTENTS – Continued

Page

c. The Federal Income Tax Exemption of § 501(c)(3) – Which

Enabled the MET to Acquire

The Actor as a Charitable Donation in 1952 and for Which all

Other U.S. Taxpayers Necessarily

Were “Vicarious Donors” – Similarly Is Grounded in the Federal

Constitution (16th Amendment)

and Must Be Interpreted Uniformly ........................................ 21

1.

The Incoherent State Common

Laws of Economic Duress –

Which Focus Upon Whether

the Duress at Issue Somehow “Overcame the Will” of

the Transferor – Conflict with

the Consistent U.S. Foreign

Policy to Restitute Artworks

Lost Merely as a Consequence

of Paradigmatically Wrongful Nazi Persecution as Well

as With Customary International Law............................. 23

iv

TABLE OF CONTENTS – Continued

Page

2.

Interpreting the Term “NaziConfiscated Artwork” Appropriately in the HEAR Act Represents Merely an Exercise of

the Court’s Plenary Authority

to Construe Federal Statutory

Terms According to Federal –

and Not State – Law and

Policy and to Fill the Interstices in an Exclusively Federal Statutory Framework..... 24

3.

Through the Terezin Declaration and the HEAR Act

Congress Has Authorized –

and Indeed Intends – that

the U.S. Judiciary and the

Court Proactively Employ the

U.S. Legal System and Develop Federal Common Law

to Facilitate the Foreign Policy Goal to Restitute NaziConfiscated Artworks........... 26

v

TABLE OF CONTENTS – Continued

Page

B. SECTION 14 OF THE RESTATEMENT

(THIRD) OF RESTITUTION AND UNJUST ENRICHMENT (DURESS) (2011)

PROVIDES A SOUND LEGAL TEMPLATE FOR APPROPRIATELY DEFINING THOSE ARTWORKS THAT

U.S. FOREIGN POLICY SEEKS TO

RESTITUTE (“NAZI-CONFISCATED

ARTWORKS”) THAT WILL ELIMINATE THE CONFUSION, DISORDER,

AND CONCOMITANT WASTE OF RESOURCES THAT CURRENTLY AFFLICT RECOVERY CLAIMS ............... 27

IV.

CONCLUSION .......................................... 30

vi

TABLE OF AUTHORITIES

Page

CASES

American Insurance Association v. Garamendi,

539 U.S. 396 (2003) .................................................14

Banco Nacional de Cuba v. Sabbatino,

315 U.S. 376 (1964) .................................................14

Bank of America National Trust and Savings

Association v. Parnell,

352 U.S. 29 (1956) ...................................................12

Bob Jones University v. United States,

461 U.S. 574 (1983) ...................................................6

Boyle v. United Technologies Corp.,

487 U.S. 500 (1988) ........................................... 12, 14

Burnet v. Harmel,

287 U.S. 103 (1932) .................................................21

Clearfield Trust Co. v. United States,

318 U.S. 363 (1943) ................................. 3, 11, 12, 19

Erie v. Tompkins,

304 U.S. 64 (1938) ............................................. 13, 14

Miree v. Dekalb County, Georgia,

433 U.S. 25 (1977) ...................................................12

Mississippi Band of Choctaw Indians

v. Holyfield,

490 U.S. 30 (1989) ............................................. 24, 25

National Society of Professional Engineers

v. United States,

435 U.S. 679 (1978) .................................................27

vii

TABLE OF AUTHORITIES – Continued

Page

Oetjen v. Central Leather Co.,

246 U.S. 297 (1918) .................................................13

Sosa v. Alvarez-Machain,

542 U.S. 726 (2004) .................................................14

Texas Industries, Inc. v. Radcliff Materials,

451 U.S. 630 (1981) ..................................... 11, 14, 27

Textile Workers Union of America v. Lincoln

Mills of Alabama,

359 U.S. 448 (1957) .................................................27

United States v. Brosnan,

363 U.S. 237 (1960) ................................................12

United States v. Kimbell Foods, Inc.,

440 U.S. 715 (1979) .................................................12

United States v. Pelzer,

312 U.S. 399 (1941) .................................................21

United States v. Pink,

315 U.S. 203 (1942) .................................................13

Zuckerman v. The Metropolitan Museum of Art,

307 F. Supp. 3d 304 (S.D.N.Y. 2018) .......................20

Zuckerman v. The Metropolitan Museum of Art,

928 F.3d 186 (2d Cir. 2019) .......................................9

STATUTES AND REGULATIONS

U.S. CONST. amend. XVI ....................................... 2, 21

26 U.S.C. § 170 .......................................................... 2, 6

26 U.S.C. § 501(c)(3) ........................................ 2, 3, 6, 21

viii

TABLE OF AUTHORITIES – Continued

Page

Holocaust Expropriated Art Recovery Act

of 2016, Pub. L. No. 114-308, 130 Stat. 1524

(2016) .........................................................................9

Military Government Law No. 59,

12 Fed. Reg. 7983 (November 29, 1947) ...................7

Treas. Reg. § 1.501(c)(3)-1(c)1 ......................................6

OTHER AUTHORITIES

Terezin Declaration on Holocaust Era Assets

and Related Issues ................................................ 3, 8

Washington Conference Principles on NaziConfiscated Art ..........................................................8

19 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 4514-16 (3d ed.

2019) ............................................................ 10, 23, 25

Alan Ullberg, Museum Trusteeship (1981) ..................5

Grace M. Giesel, A Realistic Proposal for the

Contract Duress Doctrine, 107 W. Va. L. Rev.

442 (2005) ................................................................17

Irwin Cotler, The Holocaust, Thefticide, and Restitution: A Legal Perspective, 20 Cardozo L.

Rev. 601 (1998) ........................................................15

Julie Kostritsky, Stepping Out of the Morass of

Duress Cases: A Suggested Policy Guide, 53

Alb. L. Rev. 581 (1989).............................................17

Karl Llewellyn, What Price Contract – An Essay

in Perspective, 40 Yale L. J. 704 (1931) ...................18

ix

TABLE OF AUTHORITIES – Continued

Page

Otit Gan, Contractual Duress and Relations of

Power, 83 Harv. J.L. & Gender 171 (2013)............... 17

Patricia Youngblood Reyhan, A Chaotic Palette:

Conflict of Laws in Litigation Between Original Owners and Good-Faith Purchasers, 50

Duke L. J. 955 (2001) ..............................................19

Patty Gerstenblith, Acquisition and Deacquisition of Museum Collections and the Fiduciary

Obligations of Museums to the Public, 11

Cardozo J. Int’l & Comp. L 409 (2003) .....................6

Sian E. Provost, A Defense of Rights-Based Approach to Identifying Coercion in Contract

Law, 73 Tex. L. Rev. 629 (1995) ..............................17

Steve W. Feldman, Pre-Dispute Arbitration Agreements, Freedom of Contract, and Economic Duress Defense: A Critique of Three Commentaries,

64 Clev. St. L. Rev. 37 (2015) ...................................... 16

Restatement (Third) Foreign Relations § 102(2)

(1987) .........................................................................7

Restatement (Third) of Restitution and Unjust

Enrichment § 14 (2011) ................................... passim

1

INTEREST OF AMICUS CURIAE

I.

The Washington, D.C., law firm Byrne Goldenberg

& Hamilton, PLLC (BGH) respectfully submits this

brief with the consent of both parties.1 BGH represents

claimants seeking to recover artworks lost as a consequence of Nazi policies, and so has a strong interest in

the wrongful presence of these materials in the public

collections of U.S. tax-exempt museums.

II.

SUMMARY OF ARGUMENT

BGH treats additional matter that will help frame

the broader legal and constitutional context of this

case. BGH agrees with Petitioner that the HEAR Act

does not countenance equitable exceptions to its uniform statute of limitations. But the substantive rights

and obligations of the parties, however, necessarily

are governed by federal common law – rather than the

provincial and conspicuously skewed New York state

common law of economic duress. The District Court

misapplied New York law to achieve a preposterous result: when the Leffmanns sold The Actor while fleeing

for their lives and after years of racially exclusionary

and genocidal Nazi persecution had all but dispossessed them, their “will” had not been “overcome.”

BGH gave counsel of record for both parties notice of its intent to file this brief more than 10 days before the deadline, and

both have consented to the filing in writing. BGH alone authored

the brief and paid for it, and no counsel for either party contributed money to prepare or submit it.

1

2

Zuckerman presents whether a particular artwork

lost as a direct consequence of abhorrent Nazi policies

and concomitant duress that violated the modern

international law of human rights (Nazi-confiscated

artwork) – and which a U.S. tax-exempt § 501(c)(3) museum and federal public trustee misappropriated in

reckless disregard of express governmental warnings,

fiduciary duties, and statutory obligations to adhere to

signal U.S. policies – lawfully should be restituted

within the objectives of the HEAR Act and U.S. foreign

policy. Accordingly, this controversy reflects an exercise

by the U.S. Government of two exclusively federal prerogatives textually grounded in the Constitution, both

of which the Court has said entail uniformity: the conduct of foreign affairs under Articles I and II, and the

authority to impose a federal income tax and grant related exemptions under Amendment XVI. Therefore,

the Court should preempt the body of notoriously confused, incoherent, and multifarious state common law

of economic duress that the District Court misapplied

with a uniform, “bright line” federal common law

standard for identifying what particular artworks lost

as a direct consequence of the Nazi genocidal campaign

against Jews U.S. foreign policy seeks to restitute.

Such a rule is essential so both U.S. foreign policy as

well as the federal income tax scheme of charitable donations under 26 U.S.C. §§ 170 and 501(c)(3) can function intelligibly and uniformly as the Court has said

they require.

BGH also seeks to persuade the Court that the

state common law of economic duress – which legal

3

scholars have condemned for many decades as incoherent and dysfunctional and which focuses inappositely

upon whether the subjective “will” of the duress victim

somehow was “overcome” – constitutes an inappropriate body of law for implementing both foreign as well

as federal income tax policies in this context. State

choice of law rules amplify the conflict and uncertainty

in both areas in violation of Clearfield Trust Co. v.

United States, 318 U.S. 363, 367-68 (1943). In Clearfield Trust, the Court declared that when the federal

government exercises an authority grounded expressly

in the U.S. Constitution and that requires uniform

rules, federal common law necessarily preempts state

law whenever state law fosters uncertainty in how the

rights and obligations of the United States are determined. The state common law of economic duress that

Zuckerman misapplied – and which also necessarily

govern all other judicial claims in U.S. courts seeking

to recover Nazi-confiscated artworks – not only sabotage the uniformity that foreign policy and the federal

income tax demand, but also conflict impermissibly

with U.S. foreign policy and customary international

law in this area.

Finally, BGH invites the Court to invoke its plenary equitable authority to accomplish the discrete

statutory objectives and policies of both the HEAR Act

and § 501(c)(3) in this context, as well as to exercise

the additional federal common law authority that

the HEAR Act delegates. Section 3(1) of the HEAR

Act makes clear that the 2009 Terezin Declaration

prescribes U.S. policy for the restitution of Naziconfiscated artworks. And the Terezin Declaration

4

commits all stakeholders – including the U.S. Government – to “ensure that their legal systems” “facilitate

just and fair solutions with regard to Nazi-confiscated

and looted art,” “to make certain that claims to recover

such art are resolved expeditiously and based on the

facts and merits,” and to consider how applying various “legal provisions” “may impede the restitution of

art.”2

These directives encourage the Court to develop

federal common law proactively in this area, thereby

augmenting its already abundant and plenary federal

common law authority. And because both political

branches have made clear their objective – to facilitate

the restitution of Nazi-confiscated artworks within the

meaning of U.S. foreign policy – the Court need consult

no other authority of the U.S. government to do so.

Section 14 of the Restatement (Third) of Restitution and Unjust Enrichment (2011) (Duress) provides

an appropriate legal template for the Court to develop

a uniform rule that coheres with U.S. foreign policy

and customary international law, and implements

the goals of Congress and the President. Section 14

expressly eschews inapposite inquiries concerning

whether the subjective “free will” of a duress victim

somehow has been “overcome,” and focuses instead exclusively upon whether the duress that induced the

disputed transfer was wrongful. The genocidal Nazi

campaign to exclude Jews from the economy and culture of Germany – (and applied later in Nazi-affiliated

2

See https://2009-2017.state.gov/p/eur/rls/or/126162.htm.

5

or occupied countries such as Italy) – that violated the

modern international law of human rights was paradigmatically wrongful. So the doctrine of restitution

necessarily entails that property transferred incident

to Nazi duress be returned to its rightful owner unless

the current possessor acquired it for value and without

constructive notice of the duress. The Petition establishes that the MET cannot make this showing.

For these reasons BGH respectfully requests that

the Court also grant certiorari on the following essential question: Whether a uniform federal common law

standard preempts the multifarious state common law

rules of economic duress for judicial claims seeking to

restitute Nazi-confiscated artworks in the publicly

funded collections of U.S. tax-exempt § 501(c)(3) museums and public trustees?

III. BACKGROUND AND

FACTS

STATEMENT

OF

BGH incorporates the Statement of the Case in

the Petition for Writ of Certiorari (Petition).

The MET is a New York not-for-profit corporation

with fiduciary duties to the public to take appropriate

precautions against acquiring Nazi-confiscated and

other contraband.3 The failure of U.S. museums such

as the MET “to consider adequately the security of

3

Alan Ullberg, Museum Trusteeship (1981) at 17.

6

title” when acquiring artworks violates duties of loyalty and care.4

The MET also is tax-exempt under 26 U.S.C.

§ 501(c)(3) with a putative exempt purpose to educate

the public about art. Under 26 U.S.C. § 170 the MET is

eligible to receive charitable donations of property and

cash. The “operational test” of Treas. Reg. § 1.501(c)(3)1(c)1 prohibits the MET from attempting to accomplish

charitable objectives in an illegal manner, or in a way

that encourages crime or illegality such as recklessly

acquiring problematic artworks such as The Actor so

as to sustain the illicit commerce in Nazi-confiscated

artworks, stolen art, and other cultural contraband.

As a public, tax-exempt charity the MET also must

adhere to important U.S. public policies.5 Accordingly, the

signal U.S. foreign policy to restitute Nazi-confiscated

artworks – discussed infra – as well as the policy that

necessarily must preclude publicly supported museums from knowingly using materials taken in violation

of the international law of human rights to perform

their exempt “educational” function – inform the

MET’s fiduciary and public policy obligations regarding The Actor.

Patty Gerstenblith, Acquisition and Deacquisition of Museum Collections and the Fiduciary Obligations of Museums to the

Public, 11 Cardozo J. Int’l & Comp. L. 409, 454 (2003).

5

In Bob Jones University v. United States, 461 U.S. 574, 587

(1983), the Court ruled that to maintain its tax exemption under

§ 501(c)(3), an entity must operate consistent with signal U.S.

public policies. Otherwise, the entity would undermine – rather

than promote – the public good that justifies its exemption. Id.

4

7

The U.S. government implemented its formal policy for the restitution of personal property sold under

duress during the Nazi era (1933-1945) in 1947 with

Military Government Law No. 59 (“MGL No. 59”), 12

Fed. Reg. 7983 (November 29, 1947), which applied in

special restitution courts in post-war Germany. MGL

No. 59 employed the term “confiscation” to prescribe

broadly the property lost as consequence of Nazi policies and persecution that it intended to restitute. Part

II of MGL No. 59 defined expansively and inclusively

the “Acts of Confiscation” the property that it intended

to restitute.

MGL No. 59 viewed Nazi economic and political

duress as so inherently coercive as to justify a legal

presumption that any transfer of personal property

by a persecuted person – including expressly in transactions between private parties – was involuntary as

a matter of law and so subject to restitution. (Article

3 entitled “Presumption of Confiscation”).

MGL No. 59 became the model for similar postWar legislation, and also has become a standard

practice today among affected countries seeking to restitute artworks lost “because of ” Nazi duress. Because

affected countries apply it now out of sense of legal obligation, the “presumption of confiscation” enjoys likely

status as customary international law.6

The U.S. consistently has reaffirmed its foreign

policy goal to restitute Nazi-confiscated artworks. The

6

Restatement (Third) Foreign Relations § 102(2) (1987).

8

1998 Washington Conference Principles on Nazi-Confiscated Art (Washington Principles or Principles)7, prescribe how countries affected by Nazi art looting

should address this subject. These non-binding Principles state eleven (11) tenets or guidelines about how

each of the 44 signatory countries (stakeholders)

should deal with artworks that the Nazi regime wrongfully confiscated during the years 1933-1945. The Principles expressly invoke the phrase “Nazi-confiscated

art” ten (10) discrete times. The Principles refer repeatedly to the restitution of Nazi-confiscated artworks.

The 2009 Terezin Declaration (Declaration)8 reaffirms the Washington Principles and repeatedly invokes the term Nazi-confiscated art and the objective

of U.S. policy to restitute these materials. The Declaration relates that Nazi policies “confiscated” artworks

through various means, “including theft, coercion . . .

and on grounds of relinquishment as well as forced

sales and sales under duress, during the Holocaust

era between 1933-45 . . . ,” and urges all participating

states to restitute artworks wrongfully so taken “in a

manner consistent with national laws and regulations

as well as international obligations.”9

Moreover – and as noted – the Declaration urges

all stakeholders to ensure that their respective legal

systems facilitate restitution claims.

See https://2009-2017.state.gov/p/eur/rt/hlcst/122038.htm.

See https://2009-2017.state.gov/p/eur/rls/or/126162.htm.

9

Id.

7

8

9

The Holocaust Expropriated Art Recovery Act of

2016 (“HEAR Act”) reaffirms the restitution policies of

the Washington Principles and the Terezin Declaration.10 The HEAR Act states as an express purpose to

help claimants recover “Nazi-confiscated artworks”: “[t]o

ensure that laws governing claims to Nazi-confiscated

art and other property further United States policy as

set forth in the Washington Conference Principles on

Nazi-Confiscated Art, the Holocaust Victims Redress

Act and the Terezin Declaration.”11

The HEAR Act defines broadly the category of artworks that Congress intends to restitute: “any artwork

or other property that was lost during the covered period because of Nazi persecution.”12 (Emphasis and

italics supplied). The statute also defines the term

“Nazi persecution” expansively.13

Zuckerman rebuked the proposal of amicus Holocaust Art Restitution Project that the court formulate

a uniform federal common law standard to identify

those artworks that U.S. foreign policy seeks to restitute.14

HEAR ACT Findings ¶¶ 3, 4, 5.

HEAR Act § 3(1).

12

HEAR Act § 5.

13

Id. at § 4(5).

14

Zuckerman v. The Metropolitan Museum of Art, 928 F.3d

186 n.9 (2d Cir. 2019).

10

11

10

IV. ARGUMENT

A. THE COURT – FOR SEVERAL REASONS

– SHOULD FORMULATE A UNIFORM

FEDERAL COMMON LAW STANDARD

FOR DEFINING WHAT ARTWORKS LOST

AS A CONSEQUENCE OF NAZI PERSECUTION U.S. FOREIGN POLICY SEEKS

TO RESTITUTE (NAZI-CONFISCATED

ARTWORKS)

No “bright lines” delineate when federal courts apply federal common law, and each exercise “is sui generis in that is the product of the unique interplay of

specific statutory or constitutional language, case sensitive policy concerns, and other case specific factors.”15

Nonetheless, federal common law is necessary in several loosely defined and overlapping contexts: (1) when

“there is a strong national or federal concern originating from the Constitution” and “there is a possibility

that local law will not be sufficiently sensitive to federal concerns” or “is not likely to be uniform across

state lines . . . ”; (2) when federal policy conflicts impermissibly with state law, and; (3) when the policy of

the law is so dominated by federal concerns that federal law necessarily must apply.16 Federal common law

19 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 4514 (3d ed. 2019).

16

Id.

15

11

also applies when Congress envisions that federal

courts will develop law in a particular area.17

A uniform federal common law standard defining

what constitutes a Nazi-confiscated work subject to

restitution satisfies these criteria.

1. The Court Should Propound an Appropriate Federal Common Law

Standard for the Reasons Stated in

Clearfield Trust Co. v United States,

318 U.S. 363, 366-67 (1943): Federal

Foreign Policy and the Federal Tax

Exemption of 26 U.S.C. § 501(c)(3)

Both Derive from the U.S. Constitution, and Entail Uniformity that the

“Vagaries” of the Multifarious and Incoherent State Common Laws of Economic Duress and Related Choice of

Law Rules Sabotage

Clearfield Trust Co. v. United States, 318 U.S. 363

(1943) confirms that a uniform federal common law

definition of the term Nazi-confiscated artwork is required to ensure that U.S. foreign policy and the federal income tax exemption – both textually grounded

in the Constitution – have uniform meaning throughout the several states. In Clearfield Trust, the Court

ruled that the rights and obligations regarding U.S.

commercial paper necessarily are governed by federal

See, e.g., Texas Industries, Inc. v. Radcliff Materials, 451

U.S. 630, 643 (1981), discussed infra.

17

12

law rather than by the law of the state where a particular check was issued. The Court instructed that because the authority of the federal government to issue

commercial paper derives from the U.S. Constitution

and entails uniform rules, federal – and not state law

– necessarily governed. Id. at 366.

The Court underscored the potential for diverse

state laws – as well as state conflict of law rules – to

spawn unacceptable uncertainty in the law applying to

U.S. commercial paper, and declared that these considerations made state law unacceptable: “[t]he application of state laws, even without the conflict of law rules

of the forum, would subject the rights and duties of the

United States to exceptional uncertainty. It would lead

to great diversity of results by making identical transactions subject to the vagaries of the several states.”18

(Italics added).

The Court consistently has reaffirmed the Clearfield Trust principle.19 See also United States v. Kimbell

Foods, Inc., 440 U.S. 715, 728 (1979), “[u]ndoubtedly,

federal programs that ‘by their very nature are and

must be uniform in character throughout the Nation’

necessitate formulation of controlling federal rules.”

(Citation omitted); Boyle v. United Technologies Corporation, 487 U.S. 500, 508 (1988), “[i]n some cases . . .

where the federal interest requires a uniform rule, the

318 U.S. at 367.

See, e.g., Bank of America National Trust and Savings Association v. Parnell, 352 U.S. 29, 33 (1956); United States v.

Brosnan, 363 U.S. 237, 260 (1960); Miree v. Dekalb County, Georgia, 433 U.S. 25, 28-29 (1977).

18

19

13

entire body of state law applicable to the area conflicts

and is replaced by federal rules.” (Italics added).

U.S. foreign policy and the federal income tax exemption – both of which derive textually from the Constitution – similarly entail that the Court give the

pivotal term “Nazi-confiscated artwork” a uniform definition. The “entire body” of conflicting, incoherent, and

multifarious state common law of economic duress

which currently governs claims for the restitution of

these materials – such as Zuckerman applied – makes

this conclusion inescapable.

a. The Authority of Congress and the

President to Formulate and Execute Foreign Policy is Grounded

Expressly in the Federal Constitution and the Court Consistently

Has Refused to Permit Provincial

State Laws to Undermine the Uniformity that Foreign Policy Requires

The Constitution delegates authority to decide

U.S. foreign policy exclusively to Congress and the

President. Oetjen v. Central Leather Co., 246 U.S. 297,

302 (1918); United States v. Pink, 315 U.S. 203, 222-23

(1942).

Since Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)

the Court consistently has reaffirmed that federal

common law continues in discrete enclaves in which

14

uniquely federal interests are implicated.20 These

include both the rights and duties of the United States

as a sovereign nation, and foreign affairs.21 For example, in Banco Nacional de Cuba v. Sabbatino, 376 U.S.

398, 425 (1964), the Court, in a case based upon diversity jurisdiction, observed that “rules of international

law should not be left to divergent and perhaps parochial state interpretations,” and so displaced state law

with federal common law because the subject matter of

the litigation (the act of state doctrine) raised uniquely

federal interests. See also, e.g., American Insurance Association v. Garamendi, 539 U.S. 396, 413 (2003) (concern for uniformity in foreign affairs can displace state

law); Sosa v. Alvarez-Machain, 542 U.S. 726 (2004) (asserting competence to formulate federal common law

in foreign relations).

Erie, of course, abrogated “federal common law” which permitted federal judges sitting in diversity to fashion “rules of general common law.” Boyle v. United Technologies Corp., 487 U.S.

500, 517 (1988). But after Erie federal courts continue to apply

federal common law in certain discrete areas where the interests

of the U.S. as a sovereign are concerned, such as when the rights

and obligations of the U.S. are at issue or in foreign affairs. Id. at

518.

21

Texas Industries v. Radcliffe Materials, Inc., 451 U.S. 630,

641 (1981).

20

15

b. The State Common Law of Economic Duress and Related Choice

of Law Rules Create a “Chaotic

Palette” in Judicial Claims to Recover Nazi-Confiscated Artworks

that Negate the Uniformity that

U.S. Foreign Policy Demands

1. The State Common Law of Economic Duress is Notoriously

Confused, Inconsistent, and

Multifarious

For several reasons the inherently skewed N.Y.

common law principles of economic duress that

Zuckerman applied are unsuitable for restituting

Nazi-confiscated artworks. First, state jurists did not

formulate these principles to redress the Nazi war

crimes upon which judicial claims for the restitution of

these materials are predicated, and – of course – lack

such authority. As legal scholar Irwin Cotler points

out, “restitution for Nuremberg crimes – genocide,

war crimes, and crimes against humanity – is something dramatically different in precedent and scope.”22

(Italics supplied). Rather, the provincial common

aw of economic duress of New York and other states

instead seek merely to sustain local commerce by

protecting reasonable contract expectancies in transactions affecting a particular state. Indeed, one

commentator characterizes duress as “A Doctrine of

Last Resort and a Policy to Safeguard Freedom of

Irwin Cotler, The Holocaust, Thefticide, and Restitution: A

Legal Perspective, 20 Cardozo L. Rev. 601, 601-02 (1998).

22

16

Contract,” contemplating the “adverse impact of readily available rescission upon the legitimate interest of

vendors of goods and services, many of which are small

businesses living on tight profit margins.”23 Accordingly, applying muddled legal principles that state jurists formulated merely to safeguard local commerce to

preclude judicial claims for the restitution of artworks

coercively transferred as a consequence of systematic

Nazi violations of the international law of human

rights and incident to genocide is inherently anomalous.

Second, these principles are intrinsically flawed,

and notoriously inadequate to achieve even their

limited intended objective. Legal scholars long have

criticized the traditional state common law of duress

such as Zuckerman applied as being illogical, incoherent, and unmanageable. Writing in 2005, one commentator observed that for nearly 60 years legal scholars

have faulted the prevailing common law of duress as

disjunctive and chaotic:

The snapshot of the duress doctrine today is

bothersome. Over and over again modern day

courts struggle with defining the parameters

of this doctrine. These courts state illogical or

nonsensical tests for application of the doctrine and then apply the test conclusory or

with an implausible or impossible explanation or rationale. Not surprisingly, the courts

Steve W. Feldman, Pre-Dispute Arbitration Agreements,

Freedom of Contract, and Economic Duress Defense: A Critique of

Three Commentaries, 64 Clev. St. L. Rev. 37, 61 (2015).

23

17

manifest a complete inability or unwillingness to apply the doctrine to the facts in any

sort of reasoned way.

The result is a complete failure of the duress doctrine. First, courts rarely find duress

or even make a decision in favor of finding duress. In addition, the decision of the courts are

extraordinarily valueless as precedent: they

provide virtually no instruction as to application of the doctrine.24 (Emphasis and Italics

supplied).

Commentary to § 14 of the Restatement (Third) of

Restitution and Unjust Enrichment (2011) (discussed

infra) reaffirms this view, and similarly advances legal

scholarship rebuking the common law rules of economic duress. Reporter’s Note b.

Especially problematic in many formulations of

the duress doctrine – such as the District Court in

Zuckerman applied – is the requirement that the duress at issue “overcome the will” of the dispossessed

Grace M. Giesel, A Realistic Proposal for the Contract Duress Doctrine, 107 W. Va. L. Rev. 442, 446 (2005). See also Sian E.

Provost, A Defense of Rights-Based Approach to Identifying Coercion in Contract Law, 73 Tex. L. Rev. 629, 633 (1995), “[t]he terminology that courts use to invalidate or alter contracts on

grounds of coercion differs from jurisdiction to jurisdiction and

even from case to case. Moreover, the law makes little attempt to

define the terms precisely”; Julie Kostritsky, Stepping Out of the

Morass of Duress Cases: A Suggested Policy Guide, 53 Alb. L. Rev.

581, 592 (1989), observing that “[c]onfusion prevails in duress

law.” Otit Gan, Contractual Duress and Relations of Power, 83

Harv. J.L. & Gender 171, 176 (2013), commenting that “duress

doctrine has been criticized for its confusing nature.”

24

18

victim. As commentary to § 14 points out, however,

merely because the “will” of one party to a transaction

has been “overcome” does not justify voiding the transaction: “[t]he conclusion of every bargain transaction

might be said to involve overcoming the other party’s

will, but few bargains will be condemned as involuntary. The fact that one party to a bargain has been

obliged to choose between undesirable courses of action . . . does not of itself make a bargain involuntary,

so long as the other party’s threat or refusal is not

regarded as wrongful.”25 (Italics supplied). Notwithstanding the conceptual flaws inherent in this inquiry,

most states continue to invoke it. Amicus has identified

more than 30 states that continue to apply the “overcoming the will” standard.

2. Problematic State Choice of

Law Rules Amplify the Scope

for Diverse and Unpredictable

Results in Judicial Claims Seeking to Recover Nazi-Confiscated

Artworks

State choice of law rules similarly frustrate U.S.

foreign policy to facilitate restitution and to resolve

claims expeditiously, and further dilute the uniformity

See also Karl Llewellyn, What Price Contract – An Essay

in Perspective, 40 Yale L. J. 704, 728 n.49 (1931), observing that

“[t]he attempt to solve legal problems by the touchstone of ‘free

will,’ by postulating an individual will insulated from the social

environment, only serves to obscure the genuine problems of ethics and policy.” (Cited in Reporter’s Note b to Restatement § 14).

25

19

that Clearfield Trust demands. Claims for the recovery

of stolen and Nazi-confiscated artworks often involve

multiple jurisdictions with different substantive rules

prescribing when property stolen or transferred under

duress can be recovered, as well as varying choice of

law rules.26 So the affected states and nations often

have “adopted significantly varied rules to reach divergent resolutions of complicated issues of public policy

and private right.”27 Varying state choice of law rules

complicate even further how these claims are resolved,

and preclude any possibility that U.S. foreign policy to

resolve restitution claims “on their merits” and expeditiously can be realized: “[t]he result on a macro-level is

virtually certain to undermine all relevant policy aspirations.”28 (Italics added). So “[u]ntil a domestic or

international consensus is reached as to if and how

Nazi-tainted thefts are to be treated differently than

other thefts,” “Nazi-tainted art ownership disputes will

be decided by application of the same legal rules and

subject to the same chaos as surrounds routine art theft

cases.”29 (Italics added). The “chaotic palette” of divergent substantive as well as choice of law rules can be

ameliorated only by employing a single, universal legal

standard for stolen art recovery claims.30

Patricia Youngblood Reyhan, A Chaotic Palette: Conflict

of Laws in Litigation Between Original Owners and Good-Faith

Purchasers, 50 Duke L. J. 955 (2001).

27

Id. at 955.

28

Id.

29

Id. at 964.

30

Id. at 1042-43.

26

20

Zuckerman corroborates this view. The District

Court and parties invested heavily in choice of law

analysis about what law should apply to decide ownership rights to an alleged Nazi-confiscated artwork

within the meaning of U.S. foreign policy in the tortious possession of a U.S. tax-exempt museum and public trustee.31 Remarkably, however, neither the court nor

the parties considered the overarching U.S. governmental interest in prescribing the relevant legal standard.

Obtuse to the properly controlling federal interests,

the District Court then misapplied the notoriously

problematic and dysfunctional New York state common law of economic duress to dismiss Zuckerman’s

meritorious claim. As discussed, infra, the uniform federal common law remedy proposed herein provides an

appropriate legal standard for adjudicating claims for

the restitution of Nazi-confiscated artworks that both

coheres with consistent U.S. foreign policy and customary international law, and that will eliminate the

wasteful and immaterial choice of law inquiries that

currently skew how these claims are resolved.

Zuckerman v. The Metropolitan Museum of Art, 307

F. Supp. 3d 304, 316-25 (S.D.N.Y. 2018).

31

21

c. The Federal Income Tax Exemption of § 501(c)(3) – Which Enabled the MET to Acquire The

Actor as a Charitable Donation in

1952 and for Which all Other U.S.

Taxpayers Necessarily Were “Vicarious Donors” – Similarly Is

Grounded in the Federal Constitution (16th Amendment) and

Must Be Interpreted Uniformly

Congressional authority to impose a federal income tax – and to grant exemptions such as § 501(c)(3)

– derives from Amendment XVI to the U.S. Constitution which prescribes as follows:

Income Tax

The Congress shall have power to lay

and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and

without regard to any census or enumeration.

The Court has declared that federal income tax

statutes such as §§ 501(c)(3) and 170 must be interpreted uniformly. See, e.g., Burnet v. Harmel, 287 U.S.

103, 110 (1932); United States v. Pelzer, 312 U.S. 399,

402 (1941).

Just as foreign policy cannot depend upon the multifarious and skewed state common law of economic

duress, neither can federal income tax policy concerning the charitable donation of artworks to tax-exempt

22

museums. Whether a particular artwork is “Naziconfiscated” – and so necessarily ineligible for charitable donation as well as for use by a tax-exempt museum in performing its exempt educational function –

properly cannot be determined haphazardly either by

the local provincial state law of economic duress or the

malleable choice of law rules of the particular state

where the prospective donee museum is located.

Rather, works of art transferred as a direct consequence of unconscionable Nazi duress were wrongfully

taken in violation of both the international law of human rights and within the meaning of established restitution doctrine, and so have no lawful place in

publicly supported, tax-exempt federal trusts.

23

1. The Incoherent State Common

Laws of Economic Duress –

Which Focus Upon Whether the

Duress at Issue Somehow “Overcame the Will” of the Transferor

– Conflict with the Consistent

U.S. Foreign Policy to Restitute

Artworks Lost Merely as a Consequence of Paradigmatically

Wrongful Nazi Persecution as

Well as With Customary International Law

Federal common law also is appropriate – if not

imperative – when state law conflicts with an important federal objective.32

U.S. foreign policy consistently has sought to restitute artworks lost as a mere consequence of Nazi policies and related persecution, and never has inquired

whether the subjective “will” of the Nazi victim somehow was “overcome.” This conclusion is evident in how

MGL No. 59 presumed that any transfer of property

by a persecuted person during the Nazi era (19331945) was a “confiscation” entitling the victim to restitution, and how subsequent U.S. policy statements

invoke the term “confiscation” liberally. The uniform

current practice of other affected countries applying

this presumption in restitution proceedings further

See 19 Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 4514 (3d ed. 2019).

32

24

supports this view and likely constitutes customary international law on this issue.33

The HEAR Act corroborates this conclusion, suspending otherwise applicable statutes of limitations

for judicial claims seeking to recover artworks lost “because of ” “Nazi persecution” which the Act defines

broadly to include “any persecution” of a specific group

based upon Nazi ideology.

2. Interpreting the Term “NaziConfiscated Artwork” Appropriately in the HEAR Act Represents Merely an Exercise of

the Court’s Plenary Authority

to Construe Federal Statutory

Terms According to Federal –

and Not State – Law and Policy

and to Fill the Interstices in an

Exclusively Federal Statutory

Framework

When Congress enacts a statute it presumably intends that federal courts interpret it uniformly as federal law, and is “not making the application of the

federal act dependent on state law.”34 (Citations omitted). This principle is grounded upon the objective that

Restitution commissions in Britain, Germany, Austria and

Holland all apply this presumption. See, e.g., www.Restitutie

commissie.nl/en/4_ forced_sale.html (Holland).

34

Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S.

30, 43 (1989).

33

25

federal statutes have uniform meaning.35 Moreover,

only when Congress specifically does not intend that a

federal statute have a uniform meaning do state law

interpretations of federal statutes control.36 Another

reason for interpreting federal statutes uniformly is to

ensure that provincial state laws not undermine federal goals.37

Only by defining “Nazi-confiscated art” concretely and specifically can the federal judiciary effectuate the prescribed goal of HEAR Act “[t]o ensure

that laws governing claims to Nazi-confiscated art and

other property further United States policy as set forth

in the Washington Conference Principles on NaziConfiscated Art, the Holocaust Victims Redress Act,

and the Terezin Declaration.” For without a uniform

“bright line” definition of the term “Nazi-confiscated

art,” how can courts implement this objective?

Moreover, federal common law frequently is essential in order to fill “the interstices within a pervasive

federal framework.”38 Congress did not contemplate

every situation or context in which a particular statute

might apply, and some statutory terms may lack a concrete and defined meaning. In such instance “there

is the simple necessity of interpreting the text and filing in the interstices in a reasonably detailed federal

35

Id.

490 U.S. at 43-44.

37

Id.

38

19 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 4516 (3d ed. 2019).

36

26

statutory scheme – for example, by construing and applying vague statutory terms, an activity so basic to

the judicial process that it really should not be thought

of as the creation of federal common law.”39

The several federal statutes and international

agreements that collectively comprise the U.S. foreign

policy scheme for restituting Nazi-confiscated artworks

represent just such a “pervasive federal framework” –

as the subject matter pertains exclusively to U.S. foreign policy. That Congress has not defined the pivotal

term “Nazi-confiscated art,” however, mandates that

the federal judiciary do so to implement the overarching intention of both Congress and the President to

restitute these materials.

3. Through the Terezin Declaration and the HEAR Act Congress Has Authorized – and

Indeed Intends – that the U.S.

Judiciary and the Court Proactively Employ the U.S. Legal

System and Develop Federal

Common Law to Facilitate the

Foreign Policy Goal to Restitute Nazi-Confiscated Artworks

Federal common law also is appropriate when

Congress envisions that federal courts will proactively

develop federal law in a particular area. See, e.g., Texas

39

Id.

27

Industries v. Radcliff Materials, Inc., 451 U.S. 630, 642

(1981), “[f ]ederal common law also may come into play

when Congress has vested jurisdiction in the federal

courts and empowered them to create governing rules

of law”; National Society of Professional Engineers v.

United States, 435 U.S. 679, 688 (1978); Textile Workers

Union of America v. Lincoln Mills of Alabama, 359 U.S.

448, 451 (1957).

The HEAR Act – which expressly acknowledges

that the Terezin Declaration embodies U.S. policy on

restituting artworks lost “because of ” Nazi persecution

– similarly envisions that federal courts will promote

the prescribed policy.

B. SECTION 14 OF THE RESTATEMENT

(THIRD) OF RESTITUTION AND UNJUST ENRICHMENT (DURESS) (2011)

PROVIDES A SOUND LEGAL TEMPLATE FOR APPROPRIATELY DEFINING THOSE ARTWORKS THAT

U.S. FOREIGN POLICY SEEKS TO

RESTITUTE (“NAZI-CONFISCATED ARTWORKS”) THAT WILL ELIMINATE THE

CONFUSION, DISORDER, AND CONCOMITANT WASTE OF RESOURCES

THAT CURRENTLY AFFLICT RECOVERY CLAIMS

By invoking § 14 of the Restatement (Third) of

Restitution and Unjust Enrichment (“Duress”) (2011)

(Third Restatement) the Court would implement

consistent U.S. policy to restitute Nazi-confiscated

28

artworks whenever paradigmatically wrongful Nazi

duress induced the transfer of a particular artwork

and its current possessor is not a bona fide purchaser,

that is, either acquired the disputed artwork as a gratuitous donee (as did the MET), or had either actual or

constructive notice of the wrongful Nazi duress that

induced the initial coercive transfer (as did the MET

also).

Section 14 of the Third Restatement provides as

follows:

§ 14 Duress

(1) Duress is coercion that is wrongful as a

matter of law.

(2) A transfer induced by duress is subject to

rescission as necessary to avoid unjust

enrichment.

(3) If the effect of duress is tantamount to

physical compulsion, a transfer induced

by duress is void. If not, a transfer induced by duress conveys voidable title.

(Italics supplied).

Accordingly, the pivotal question in assessing

duress as a basis for restitution – and determining

whether economic or other duress results in an unjust

enrichment – is whether such duress was wrongful.

As commentary to § 14 explains, “[i]f wrongful pressure induces a transfer, the transfer is subject to avoidance. The whole task of the law is therefore to decide

what forms of coercion are impermissible, but – on the

29

realistic view – this is inevitably the case anyway.”40

(Italics added). In the final analysis, a conclusion that

duress is legally impermissible hinges upon not only

“an appreciation of the particular circumstances of the

transaction – including the considerations motivating

one party to make the threat and the other to yield to it

– but upon an underlying social judgment about the

forms and extent of pressure that one person may legitimately bring to bear in seeking to influence the actions of another.” (Italics added).41 For example, any

“threat or refusal that is independently illegal or tortious constitutes duress.”42 Moreover, “[w]here coercion

is independently tortious or illegal, the party seeking

rescission need only establish that the coercion induced the transfer.”43

There can be no doubt, of course, but that the systematic Nazi policies to exclude Jews from the economy of Germany based upon their race which

compelled the Leffmanns to relinquish the Painting

were “wrongful” within the meaning of these principles.

Duress exerted by third parties also expressly may

void a transfer of personal property. Comment i to § 14

illustrates this principle with an example that provides a precise legal paradigm for Zuckerman’s claim

to recover The Actor: a buyer who knows that a third

§ 14 Duress, Reporter’s Note b.

§ 14 Duress, Reporter’s Note g. Impermissible coercion.

42

§ 14 Duress, Comment b.

43

Id.

40

41

30

party is employing wrongful duress to compel the

owner to sell certain real estate takes the property subject to recission.

IV. CONCLUSION

For the foregoing reasons the Court properly

should grant the Writ of Certiorari on the questions

presented, and also on the question whether a uniform

federal common law standard properly should govern

judicial claims for recovery of Nazi-confiscated artworks.

Respectfully submitted,

THOMAS J. HAMILTON

Counsel of Record

JOHN J. BYRNE, JR.

BYRNE GOLDENBERG & HAMILTON, PLLC

1025 Connecticut Avenue, N.W.

Suite 1012

Washington, DC 20036

Telephone: (202) 857-9775

tj.ham@cox.net

jjb@bghpllc.com