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December 2020

The Role of the Doctrine of Laches in Undermining the Holocaust Expropriated Art Recovery Act

by Scott M. Caravello
106 Va. L. Rev. 1769 (2020)

From 1933 to 1945, the Nazi regime looted art on a scale with few historical competitors. The Nazis used this state-sanctioned theft to dehumanize the Jewish population and carry out the “Aryanization” of German society.

To provide redress for the victims of Nazi looting, the United States and the international community adopted the Washington Principles in 1998—a set of guidelines intended to promote a “just and fair” solution for claims over Nazi-looted art. Unfortunately, despite this commitment, lawsuits to recover stolen artwork are often barred by time-based defenses.

In 2016, Congress passed the Holocaust Expropriated Art Recovery Act (“HEAR Act”) to promote resolution on the merits by effectively removing the statute of limitations as an affirmative defense. Surprisingly, however, Congress left the doctrine of laches available, thereby frustrating the effectiveness and stated purpose of the HEAR Act. The doctrine of laches bars a claim upon a showing that the claimant unreasonably delayed in bringing suit, and that the delay caused the artwork’s possessor to suffer prejudice. Yet because lawsuits for restitution of Nazi-looted artwork have only recently become viable, delay and the resulting prejudice—taking the form of lost evidence—are inherent in these claims. The doctrine of laches thereby undermines resolution on the merits, which is antithetical to the HEAR Act’s putative goals. 

This Note argues that for the HEAR Act to provide the relief it ostensibly envisions, the doctrine of laches should be precluded as an available defense. Alternatively, the ability to assert the defense should be restricted to those parties who acquired contested artwork in true good faith. By revising the HEAR Act accordingly, a “just and fair” solution can be achieved.