The underlying purpose of the Holocaust Expropriated Art Recovery Act of 2016 (the HEAR Act), which is to return Nazi-looted artwork to victims or their families, is undeniably laudable. Restituting Nazi-looted artwork is and has been a moral objective of this country since the conclusion of World War II. It is equally clear that victims and their families can often face obstacles to gathering evidence from the war that would demonstrate Nazi theft in court. The HEAR Act strives to address these concerns by imposing a federal statute of limitations over all state law causes of action that would enable restitution of Nazi-stolen art. Notwithstanding the important purposes that the HEAR Act aims to serve, courts should hold that the HEAR act violates the Tenth Amendment and principles of federalism because it purports to preempt state causes of action on a purely procedural basis. The HEAR Act does not itself provide a federal cause of action or remedy and does not present a basis for federal question jurisdiction. Rather, the HEAR Act purports merely to engraft a federal statute of limitations on all the various state law civil claims of general applicability that enable the restitution of alleged Nazi-stolen art (e.g., for replevin, declaratory judgment, or conversion). The purely procedural preemption imposed by the HEAR Act would appear to be an unprecedented–and unconstitutional–interference with state rights.
William L. Charron
The Problem of Purely Procedural Preemption Presented by the Federal HEAR Act,
2018 Pepp. L. Rev.
Available at: https://digitalcommons.pepperdine.edu/plr/vol2018/iss1/2