The "Booming" Business of Restitution Claims

Howard Spiegler and Lawrence Kaye are receiving a great deal of attention (and free advertising) these days. Kelly Crow of the Wall Street Journal had a nice article on Lawrence Kaye 2 weeks ago titled “the Bounty Hunters” which appeared in the Mar. 23 edition ($). It’s an interesting article, and a number of the points she discusses have been covered in this blog in recent months.

In particular, she paints the art restitution practice as a booming business. As she says,

In a dynamic that echoes past law-industry booms — asbestos and tobacco litigation, securities class -action suits — a confluence of factors has tipped art restitution from a boutique practice of a decade ago to a mini-industry. Museums are putting their archives online, and the number of online art databases is growing, making it easier to locate potentially looted works. As art prices reach further uncharted territory, lawyers are accepting jobs that wouldn’t have paid off in the past. Top cases yield nine-figure payouts.

I think it’s true that restitution litigation is increasing, and the sums of money which can be recovered are staggering. However, I think it would be laboring the point to make out the restitution litigation as the next big legal trend. These claims are interesting and dynamic, but they don’t yet rise to the level of the asbestos or tobacco suits I don’t think. Spiegler and Kaye are the only attorneys I’m aware of which have a devoted restitution practice (at Herrick, Feinstein), though there may be others. I do think “cultural property law” or “art law” is a fascinating field because it touches on a number of interesting and novel points of law ranging from limitations periods to intellectual property and commercial law. It’s an interesting and diverse mix of law, and one that is much different from the transactional work a lot of lawyers have to do. Art law just sounds more fun and interesting than drawing up a contract or commercial sales agreement.

Carol King of the New York Times also has a great article on these guys as well in last week’s museum section. It’s available here (as an aside, the NYT has made a terrific decision to allow everyone with an academic-affiliated email address free access to it’s Times Select service, including .edu and .ac.uk email addresses).

The NYT piece talks about some of the landmark art law cases including Turkey’s dispute with the Met, the Schultz prosecution, and the Elicofon case. If you are a nation or claimant and you want the return of a cultural object, Spiegler and Kaye are the attorneys you want to speak with.
I think it would be too easy to simply paint these guys as champions of dispossessed art. They are attorneys and their job is to zealously advocate on behalf of their clients. They aren’t charged with creating good cultural policy. Some of their efforts have been successful and worthy of praise. However, other disputes have been more controversial, most notably the Portrait of Wally dispute that is going at 8 years without a trial on the merits.

In general, the work of these lawyers is worthy of praise admiration; they are cleaning up a market which has shown itself unable or unwilling to police itself; they also have had the good fortune of operating in a lucrative and interesting niche practice area.

Questions or Comments? Email me at derek.fincham@gmail.com

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