Law360 Canada (September 3, 2026, 11:09 AM EDT) --

James Palmer

In the early years of art restitution, after the signing of the Washington Conference Principles on Nazi-Confiscated Art in 1998, several museums in the United States launched pre-emptive strikes against claimants of looted artworks who expressed an interest in discussing or resolving their claim. Examples include the Toledo Museum of Art v. Ullin, 477 F. Supp. 2d 802 (N.D. Ohio 2006); the Museum of Fine Arts, Boston v. Seger-Thomschitz, 623 F.3d 1 (1st Cir. 2010) and The Museum of Modern Art v. Schoeps, 549 F. Supp. 2d 543 (S.D.N.Y. 2008). The first two cases were dismissed in favour of the museums and in the latter case an out-of-court settlement was reached.

Regardless, the public controversy that erupted as a result of these deplorable legal tactics was palpable and gained momentum from 2009 through to about 2016, at which time President Barack Obama introduced the Holocaust Expropriated Art Recovery Act (HEAR Act) just before he left office in December of that year. While the HEAR Act was instrumental in providing a federal framework to address many of the problems related to earlier restitution claims, such as state-level statutes of limitations, which were unreasonably brief, other problems continued to exist such as laches and jurisdictional obstacles. The result was that almost all claims were defeated before the merits of these claims were ever even considered.

Perhaps because U.S. museums became aware of the harm to their reputations that their prior actions precipitated, they seemed to take a more reconciliatory position. Nonetheless, almost all claimants were still compelled to file a lawsuit in order to have a reasonable chance to resolve their claim, and most museums were content to continue to be somewhat aggressive with their tactics of resistance.

Given the continued need for development in this important area, in April of this year the U.S. Congress passed the near new HEAR Act of 2025, which for the first time dispensed with all technical, procedural and time-based legal loopholes used by museums and collectors before the relevant claims could be heard on their merits. Interestingly, the Metropolitan Museum of Art (The Met) hired independent lobbyists specifically to meet with lawmakers and push back against the amendments, while the Association of Art Museum Directors (AAMD) also financed an active lobbying campaign to “protect” its members.

Now, in an interesting twist, a lawyer for the defendant, in the case of Judith Anne Silver v. Basil & Elise Goulandris Foundation et al. Case No. 1:25-cv-08914 (S.D.N.Y.), which also names the Met as a defendant, is now claiming that the new HEAR Act is unconstitutional. He argues that it constitutes an unconstitutional interference with state rights and violates Article III separation of powers by attempting to strip courts of their core authority. He also takes the view that by abolishing defences like laches undue evidentiary prejudice results, due to the frequent absence of critical evidence. Needless to say, this lawyer’s position contradicts what has been clearly established as U.S. federal policy, namely that cases should be judged on their merits and that possessors of stolen artworks should not be able to hide behind technical defences.

As someone who is experienced in facing the demands of finding compelling historical evidence to support a legal claim, I completely agree with the importance of court decisions being made on the merits of a case, and it appears that the U.S. federal government agrees too, as on Aug. 7 lawyers from the U.S. Attorney’s Office for the Southern District of New York filed an Acknowledgment of Constitutional Challenge and Notice of Potential Participation in the Silver case, referred to above. Perhaps the Silver case will eventually be another turning point in the development of U.S. law and may help U.S. museums further evolve to the point where they see the value in returning stolen property to the families from whom this property was so violently taken.

James Palmer established Mondex Corporation in 1993. Driven to do work of meaning, in 1998, encouraged by the Washington Principles, James worked to develop Mondex’s expertise to include the restitution of looted art and other cultural property. Since then, Mondex has cooperated with ministries of culture in the Netherlands, France, Germany and Poland to help shape their restitution policies. James completed his studies at the Canadian universities of York, Laurentian and Western, as well as the University of Nice in France and Heriot-Watt University in Scotland. He holds an honours BA and an MBA, and currently acts as a consultant for Mondex.

The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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