Court addresses choice-of-law doctrine in lawsuit seeking to recover Nazi-snatched painting

Analysis of arguments

Thaddeus Stauber debated on behalf of the Thyssen-Bornemisza series. (Art Lien)

Supreme Court on Tuesday Cassirer v. Thyssen-Bornemisza Collection FoundationThe case was brought by a family seeking to recover a painting of Camille Pissarro confiscated by the Nazis, now owned by a Spanish museum. The question before the justices is whether a federal court hearing a state law claim under the Foreign Sovereign Immunities Act must apply the state’s choice of law rules to determine the substantive law governing the disputed claim, or must instead use the federal common law to Select the source of substantive law.

Impressionist oil painting showing busy street flanked by large French buildings on a rainy day

The case centers on Pissarro’s Rue Saint-Honoré, afternoon, rain effect. (Thyssen-Bornemisza National Museum)

as Case preview explain, Article 1606 The FSIA stipulates that when a foreign sovereign or one of its institutions (such as the Spanish Museum in this case) is not immune from litigation, “foreign countries shall be liable in the same manner and to the same extent as private persons in similar circumstances.” If the case is against a victim For private museums with diverse jurisdictions (allowing federal courts to hear state law disputes between parties residing in different states or between U.S. and foreign citizens), the court will apply state choice-of-law principles. But according to the Ninth U.S. Circuit Appellate court jurisprudence varies in cases brought under the FSIA: In these cases, the choice of law is governed by federal common law rather than state law.

Most justices did not express strong opinions when questioned. Indeed, they didn’t ask too many questions at all, especially compared to the extremely heated questioning in the previously contested case. Cassirer, Shurtleff v. City of Boston – Transcript run of the latter 90 pages arrive Cassirer64However, they do seem to have a harder time advising the museum than advising the Cassirer family or the federal government, which have argued in favor of the family. The tone of the questions may indicate that they have a harder time accepting the museum’s arguments.

Unsurprisingly, several justices, concerned with the wording of Section 1606 and the consequences of adopting the 9th Circuit’s position, appeared to be skeptical of the museum’s argument. Justices Elena Kagan and Clarence Thomas both asked how sovereigns could be treated “in the same way” as private parties if different laws were applied. As Kagan concluded:

[W]I think 1606 is basically saying that once you decide not to apply the FSIA’s principle of sovereign immunity, foreign countries are really not very special. Your answer to Justice Thomas basically said: Yes, even if sovereign immunity does not apply, foreign countries are extremely special and must be treated differently.

Judge Stephen Breyer was concerned that the museum’s approach to choosing the law under the FSIA “sounds a little complicated”. Justice Samuel Alito wanted to know who decides the content of the federal common law, and how they would decide; when Thaddeus Stauber, representing the museum, responded that the Court of Appeals would go first to the Supreme Court and eventually to the Supreme Court, Doing so “involves serious policy issues,” Alito said. Chief Justice John Roberts suggested that taking the Ninth Circuit’s approach creates “an unusual situation where you’re asking the court to make its own legal system.”

On the other hand, Thomas, Alito and Breyer expressed concern about how a ruling in favor of the Cassirers could affect U.S. foreign policy interests in other circumstances. Assistants to David Boyce, who represents the family, and Deputy Attorney General Martha Hansford, who represents the federal government, suggested that foreign policy issues could be considered at the accountability stage rather than at the choice of law stage. (The boys were arguing over the phone on Tuesday because he Tested positive for COVID-19.) Chief Justice Sonia Sotomayor echoed the response in their own question.

Two people sitting on benches at an empty podium in front of three judges

David Boyce argues remotely for the Cassirers family. (Art Lien)

In some ways, the most interesting part of the argument may have nothing to do with the decision. If this is a diversity case, Clarkson v. Megaphone California choice of law principles will need to be applied. Boies argues that the same results should apply here, based primarily on the text of the FSIA, but also on the contextual principles embodied in the FSIA. decision rule method (implemented by Erie doctrine) the state law applies to the state cause of action.What Kagan and Justice Amy Coney Barrett want to know Clarkson Based on itself, Alito suggests that perhaps the Decision Rules Act is more directly relevant than Section 1606 — all of which are very interesting questions. But none of them showed how the answers to those questions would affect the results. Kagan even said, “I’m not sure if my question matters.”

Some judges’ questions may be viewed as preliminary opinions on issues not raised in this case but which may be contested in some future cases.Roberts pointed out Clarkson Has been criticized, and as mentioned, Kagan and Barrett want to know Clarkson; Might the court reconsider the 80-year-old case? Alito also asked how the U.S. argument would change if the court narrowed the priority doctrine, which could be a signal of his desire to achieve such narrowing in the future.

There seems to be at least a little consensus. Breyer asked the museum’s consultants: “Can everyone agree that this is a beautiful painting?” Stauber readily agreed. None of the other judges expressed any dissent, and we can assume the Cassirers and their lawyers agreed.

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