26 No. 69 JUSTICE presumption of confiscation without proof by the possessor not the claimant. This new law understands the more nuanced reality of Nazi art theft practices. Explicitly acknowledging forced sales is a considerable improvement over the language of the Washington Principles or even the museum associations’ guidance. Additionally, the amendment’s inclusion of “other involuntary means” will address several scenarios like so-called “flight goods,” where the owners simply had to choose between fleeing without their art in order to stay alive or remaining, temporarily keeping their art, yet almost certainly facing deportation and death. The critical question is how the amendment will change the current dynamic within the museum community of New York. Here, some historical background is instructive for context. Since the resurgence of the issue in the 1990s, there was a renewed awareness of the breadth and complexity of the issue of Nazi-looted art. In response, various institutions promulgated principles regarding how to handle Nazi-looted art, and such principles have remained in play ever since. For example, America’s leading museum associations that affect the possible possession of Nazi-looted art are the Association of Art Museum Directors (AAMD), and the American Alliance of Museums (AAM). Neither have the force of law, nor do they pretend to. Rather, they provide ethical guidance either to member institutions or more broadly. (Nearly all American museums, whether of art or otherwise, belong to AAM, and while AAMD is a small group of art museums’ directors, its guidance is extremely influential.) The AAMD’s Task Force recommendations encourage member museums to “begin immediately to review the provenance of works in their collections to attempt to ascertain whether any were unlawfully confiscated during the Nazi/World War II era and never restituted”5 and “search their own records thoroughly and, in addition, should take all reasonable steps to contact established archives, databases, art dealers, auction houses, donors, art historians and other scholars and researchers who may be able to provide Nazi/World-War-II-era provenance information.”6 From 1998 onward, the recommendations included several aspects (including applying those principles to future gifts and acquisitions).7 Relevant to the New York law, the AAMD recommended that “If a member museum should determine that a work of art in its collection was illegally confiscated during the Nazi/ World War II era and not restituted, the museum should make such information public.”8 For its part, the AAM published guidelines on the “Unlawful Appropriation of Objects During the Nazi Era.”9 Those guidelines include the recommendation that museums: (1) identify all objects in their collections that were created before 1946 and acquired by the museum after 1932, that underwent a change of ownership between 1932 and 1946, and that were or might reasonably be thought to have been in continental Europe between those dates (hereafter, “covered objects”); (2) make currently available object and provenance (history of ownership) information on those objects accessible; and (3) give priority to continuing provenance research as resources allow. Further, AAM recommends that If credible evidence of unlawful appropriation without subsequent restitution is discovered through research, the museum should take prudent and necessary steps to resolve the status of the object, in consultation with qualified legal counsel. Such steps should include making such information public and, if possible, notifying potential claimants.10 The point of comparing existing guidelines to the new amendment is this: for more than two decades, seemingly analogous principles on how to handle Nazi-looted art have been in place as both an aspirational matter and a 5. AAMD Task Force, “Report of the AAMD Task Force on the Spoliation of Art during the Nazi/World War II Era (1933-1945) AAMD Task Force,” ASSOCIATION OF ART MUSEUM DIRECTORS, June 4, 1998, available at https://aamd.org/ sites/default/files/document/Report%20on%20the%20 Spoliation%20of%20Nazi%20Era%20Art.pdf 6. Id. 7. Id. 8. Id. 9. AAM Board of Directors, “Unlawful Appropriation of Objects During the Nazi Era,” AMERICAN ALLIANCE OF MUSEUMS (November 1999; amended April 2001), available at https://www.aam-us.org/programs/ethics-standardsand-professional-practices/unlawful-appropriation-ofobjects-during-the-nazi-era/ 10. Id.
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