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U.S. Court Refuses to Recognize a “Spoils of War” Doctrine to Allow Title to be Transferred in World War II Trophy Art Theft


Thomas R. Kline

In its November 14, 2013 decision in Matter of Flamenbaum, Deceased, the New York State Court of Appeals removed all doubt concerning United States law governing wartime trophy taking by declaring: “we decline to adopt any doctrine that would establish good title based upon the looting and removal of cultural objects during wartime by a conquering military force […] Allowing the Estate [of Riven Flamenbaum] to retain the [disputed] tablet based on a spoils of war doctrine would be fundamentally unjust.” Matter of Riven Flamenbaum, Deceased, 22 NY.3d 962, 966; 978 N.Y.S.2d 708; 2013 N.Y. LEXIS 3127; 2013 NY Slip Op 7510 at 7 (November 14, 2013) (“Flamenbaum III”). Because property matters are governed by state – not federal – law in the United States, and the N.Y. Court of Appeals is the highest court in the state that has the largest and most vital art market in the country (and also the jurisdiction with the highest volume of World War II-related restitution claims), the importance of the legal certainty delivered by the recent Flamenbaum decision can scarcely be overstated.

Thomas R. Kline 1

1 * Thomas R. Kline ist Rechtsanwalt bei Andrews Kurth LLP und Professorial Lecturer an der George Washington University, Museum Studies Program in Washington D.C.


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