Cultural Losses and Cultural Gains: Ethical Dilemmas in WWII-Looted Art Repatriation Claims Against Public Institutions

Alongside their campaign of physically exterminating the Jewish population of Europe, the Nazis carried out a highly organized plan of cultural genocide which involved the confiscation or forced sale of hundreds of thousands of pieces of art. Although a sizable number of these works were returned to their owners or their heirs by the Allied forces after the war, many disappeared into the hands of private possessors. Many remain hidden in private collections, but a number of these artworks were given to or purchased by museums or other public institutions. In recent decades, the heirs of Holocaust victims have been using the American court system to make claims for the return of these artworks. This article examines one little examined, but ethically problematic aspect of these claims: the fact that the vast majority of them are made against public institutions rather than private collectors. The article begins with a short survey of the history of art looting during World War II and explains the proliferation of legal claims for restitution of looted art in the late 1980s, with the majority of these claims made against public institutions. Part II of the article then discusses the public interest in keeping art in museums. Part III lays out the current state of relevant statutory and case law, leading to an analysis of the reasons why claims are easier to make against museums and other public institutions than against private collectors. Part IV continues with a exploration of the goals and attitudes of both claimants and their attorneys, and the ethical dilemmas inherent in making claims against public institutions. Finally, Part V proposes a better means for heirs, their attorneys, and museums to work together to preserve both the private and the public good