48 No. 76 JUSTICE equivalent value and deposited it in a separate account. The Court concluded that these circumstances were “not enough on their own because they do not allow for plausible tracing of specific funds.”24 “To conclude otherwise,” the Court asserted, requires accepting an attenuated fiction that commingling funds in an account, even if done decades earlier, means the account today still contains funds attributable to the sale of expropriated property.25 But there is no fiction. The Court’s conclusion defies reality, since the treasury account is only an intangible value, not a physical pile of bills and notes. The latter may be in a specific place and could presumably be traced,26 but the value of the treasury account is not tangible pieces of paper like bills and notes. Rather, it is, like money itself, merely a value agreed to and accepted by common convention. Because from 1944-1945 (when liquidation proceeds were deposited into the treasury) until 2010 (when treasury money was in the U.S. to make interest payments on bonds and to buy military equipment) Hungary had not made restitution for the Jews’ expropriated property, or transferred the value of it to a separate designated account, the intangible value of the treasury was continuously greater by the value of the property liquidations than it otherwise would have been if those proceeds had not been deposited into the account. This becomes clear if we substitute the singular word “value” for the tangible-sounding plural word “funds” in the previously quoted passage.27 It would then read: commingling value in an account, even if done decades earlier, means the account today still contains the value attributable to the sale of expropriated property. That is a fact, not fiction. A simple hypothetical illustrates the point. Suppose the value of the national treasury was $50 million in 1944, just before the proceeds of the Jews’ confiscated property were deposited into the treasury, and those proceeds amounted to $10 million, yielding a new value of $60 million. No matter what money was later deposited into the treasury or withdrawn from it in the ensuing years, the treasury value in 2010 would still be $10 million greater than it would have been had those proceeds not been deposited into the treasury 66 years before. The Supreme Court denied this reality by saying “it will typically be indeterminate whether an expenditure of commingled funds includes any of the proceeds connected to the expropriated property.”28 Similarly, the Court reasoned that “it is no more likely that the funds related to the expropriated property ended up in the United States than that they ended up anywhere else in the world or remained in Hungary.”29 Here the Court itself resorted to fiction. Hungary had exchanged “the funds related to the expropriated property” for a commensurate increase in the unitary value of its treasury. The so-called “funds” ceased to exist as such when that happened, and the treasury thereupon became “property exchanged for such property” within the meaning of the expropriation exception. Since Hungary had not in the interim made restitution from the treasury or withdrawn the equivalent value into a segregated account, the treasury continued, when the litigation was brought, to include the value received in exchange for the plaintiffs’ property. The required tracing was established. Congress intended for the expropriation exception to provide a U.S. forum in cases where foreign states had taken property in violation of international law. In the most likely scenario, an expropriating state will deposit the liquidation proceeds into the national treasury. Nevertheless, citing a few arcane and manifestly atypical 24. Id., at 129-130. 25. Id., at 130. 26. While ears of corn stored in a silo are generally considered to be fungible when commingled, they are tangible — that is, physical — property. Arguably, one could mark each ear of corn with a unique identifier, so perhaps requiring tracing in that context is not totally absurd, only burdensome. But the money value in a treasury account is a single non-physical item agglomerating the various so-called “funds” (plural) that had been deposited into, and hence commingled in, the singular treasury account. 27. Fundamentally, “money is a measure of value — it expresses value in terms which most people understand.” James E. Brown, Harold A. Wolf, ECONOMICS: PRINCIPLES AND PRACTICES 11 (C. E. Merrill Pub. Co., 1981) (italics original); see also Paul A. Samuelson, ECONOMICS, AN INTRODUCTORY ANALYSIS 52 (4th ed. 1958) (“Money is an artificial, social convention.”). 28 604 U.S. at 129. 29. Id., at 130.
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