The court's decision in the Herzog Collection case reminded us of watching the Nixon/Kennedy debates (in a documentary long after that election). It was so much fun to watch Nixon make a really good argument -- you kept thinking, "He's got the guy now!" Then Kennedy would come back with another really good argument that made you think, "He's got the guy now!" The Herzog memorandum summarizes both sides' arguments, looking at the heirs' story, then the defendants'. It's great reading.

The memorandum isn't the final disposition of the case. It is the court's response to the defendants' motion to dismiss. The defendants claimed first that the court didn't have subject matter jurisdiction -- that is, this court does not have the authority to decide disputes about Holocaust-era artwork.

Jurisdiction. The court's decision is limited to whether it's the appropriate body to hear the claim. The court does not have to give an up or down vote on the claim; it merely has to decide if the plaintiff's claim is "substantial and non-frivolous."

It's not easy to sue a country. In the U.S., the Foreign Sovereign Immunities Act governs when or if a U.S. court can hear a case against a foreign government. The FSIA lists several exceptions to the "you can't sue a foreign state" rule, and if your case doesn't fall within those exceptions, you are out of luck.

The plaintiffs said the "expropriation" exception applied to the Herzog Collection. The heirs said that the Republic of Hungary is not immune, because 1) the claim involves property rights; 2) the property was "taken in violation of international law"; and 3) the property is owned or operated by an agency of the Republic of Hungary that has engaged in commercial activity with the U.S.

Well, the court said, the claim is not frivolous. The Herzog Collection was taken; neither the government of Hungary nor the Nazis paid for the artworks. The confiscation was part of a plan to dispossess Hungarian Jews and a step toward the genocide of the Jews.

But where is the violation of international law, the defendants asked? The Hungarians took from Hungarian citizens.

Plaintiffs had a response to that.

Continued in our next post.

Source: DAVID L. de CSEPEL, et al. v. REPUBLIC OF HUNGARY, et al., Memorandum, United States District Court for the District of Columbia, Civil Action No. 10-1261 (ESH), filed Sept. 1, 2011