Student Note Examining Bakalar v. Vavra and choice of law in New York

Egon Schiele, Seated Woman With Bent Left Leg (Torso)

The June issue of the Columbia Law Review has an interesting student note by Laurie Frey, Bakalar v. Vavra and the Art of Conflicts Analysis in New York: Framing a Choice of Law Approach for Moveable Property, 112 Colum. L. Rev. 1055 (2012). The case involves this 1917 gouache and crayon work which passed through an Austirian shipping company during the holocaust era.

From the introduction:

The facts of Bakalar v. Vavra presented a familiar scenario in Holocaust-era art cases. A good faith purchaser, who thought he had bought clear title to a drawing, went to sell the drawing at auction in New York and found himself confronted by the claims of alleged heirs, who asserted that the painting was taken from their ancestor by the Nazis. Typical of art cases, the drawing had passed through a number of jurisdictions before arriving in New York, and the court in Bakalar faced the difficult question of what jurisdiction's laws to apply to determine which of the parties had title to the drawing. This Note examines the particular importance of choosing the law to apply in disputes between good faith purchasers of artworks and the artworks' original owners, or their heirs—disputes in which the law chosen may lead to dramatically different results. The Note then reviews the evolution of the analysis for choice of law generally and in New York particularly. Prior to Bakalar, the law in New York appeared to be a combination of an interest analysis and the more traditional lex situs approach, which focused on the location where a particular transaction took place. This Note argues that the Second Circuit misconstrued prior New York case law in its application of the interest analysis without regard to the lex situs. The Second Circuit's analysis created uncertainty and unpredictability in New York choice of law rules, and New York needs a revised choice of law rule for property conflicts that gives both predictability and nuance to the law post-Bakalar. This Note proposes a return to an interest analysis that places particular emphasis on the location of the property transfer at issue in the case. Such a rule would lead to more predictable results, since the law of the transaction location would typically apply, but it would also give judges discretion to weigh other relevant factors.

Did Marion True Ever Catch a Looter or Dealer?

One of the stolen Mosaics at issue in the case

Some folks on the internet are not too pleased about the letter I collaborated on with Noah Charney re-examining Hugh Eakin's review of Chasing Aphrodite. A pointed response by David Gill here, and another critic wonders "whether anything done by Marion True herself actually led to the capture and conviction of a single looter of archaeological sites, or advanced any "Research into Crimes against Art"?

Yes, she certainly did, according to the Seventh Circuit Court of Appeals. As anyone should know who claims to study looting of archaeology and heritage, Marion True was the hero of one of the most prominent antiquities cases of the last thirty years, AUTOCEPHALOUS GREEK-ORTHODOX CHURCH OF CYPRUS vs.GOLDBERG, 917 F. 2d 278 (7th Cir., 1990) (available here). The case involved an antiquities dealer, Peg Goldberg, as well as Michel van Rijn. A helpful summary of the case is available here from IFAR.  I discuss the case at some length in  an article where I argue the nation of origin's law should be applied more often in cross-border trafficking in pieces of cultural heritage.

But with respect to Marion True, she is the unabashed hero of the case. From the opinion by Chief Judge Alex Bauer:

Peg Goldberg’s efforts soon turned to just that: the resale of these valuable mosaics. She worked up sales brochures about them, and contacted several other dealers to help her find a buyer. Two of these dealers’ searches led them both to Dr. Marion True of the Getty Museum in California. When told of these mosaics and their likely origin, the aptly-named Dr. True explained to the dealers that she had a working relationship with the Republic of Cyprus and that she was duty-bound to contact Cypriot officials about them. Dr. True called Dr. Vassos Karageorghis, the Director of the Republic’s Department of Antiquities and one of the primary Cypriot officials involved in the worldwide search for the mosaics. Dr. Karageorghis verified that the Republic was in fact hunting for the mosaics that had been described to Dr. True, and he set in motion the investigative and legal machinery that ultimately resulted in the Republic learning that they were in Goldberg’s possession in Indianapolis.

(emphasis added)

The opinion is also widely cited because of a concurring opinion by Judge Cudahy embedding the 1954 Hague Convention and the 1970 UNESCO Convention into cultural heritage law, a precedent which has had a number of important effects.

Marion True is no saint, nobody would argue she is, but her story is more complicated than merely painting her as the endpoint for looted antiquities. She did so much more, as Jason Felch and Ralph Frammolino explain in their book. Italian officials will tell you if asked that the case was brought against her because they had the evidence, not necessarily because she was the worst offender. And yes, she was instrumental in returning at least one looted object.  group of looted objects.