Ethics can be expensive. Consider the case of the Seattle Art Museum, which in 1997 became the first American museum to face a claim of ownership over Holocaust-era art.1 The heirs of the prominent Jewish art dealer Paul Rosenberg alleged that the two million dollar Henri Matisse painting entitled L'Odalisque, which had been hanging in the museum's gallery since its donation in 1991, had been stolen from Roscnberg by Nazi forces fifty years earlier.2 After months of researching the provenance, the museum eventually confirmed the truth of the allegations and returned the painting to the Rosenberg heirs.3 The Seattle Art Museum's director spoke of the return in moral terms, describing the resolution as "drawing a clear ethical line" and as "doing the right thing."4
That is easy enough, at least from an ethical perspective. Aside from the debate over the proper temporal boundaries that should be drawn regarding title to Nazi-looted art,5 it is well established in common law that the true owner of property is entitled to possession.6However, a museum's return of stolen art implicates considerations beyond simple ethics. Not only did the loss of the Matisse cost the Seattle Art Museum two million dollars in art inventory, but the Museum also spent hundreds of thousands of dollars in subsequent litigation against the original sellers in addition to researching the validity of the heirs' claim.7 Attenuated costs arose as well, such as the cost of replacing the piece and the increased pressure for further provenance research on other pieces in the collection. Not surprisingly then, museums have recently become resistant to subjecting pieces in their collection to Holocaust claim contention.8
The reticence is not surprising. Attempts to provide museums with guidance for resolving Holocaust claims have overlooked what the fundamental nature of the return of art is to the museum: namely, an act of deaccession. "Deaccessioning" is the "permanent removal or disposal of an object from the collection of the museum by virtue of its sale, exchange, donation or transfer by any means to any person."9 Inherently, deaccession is about financial and administrative flexibility. However, it is also a practice besieged by legal constraints.
Directors in the United States and Great Britain wishing to deaccession a work frequently find themselves caught between a rock and a hard place. Deaccessioning has become an increasingly necessary tool for maintaining solvency in the face of escalating administrative costs and decreasing governmental support. In the United States, fiduciary duties arising out of trust law, however, frequently place legal constraints on a director's ability to deaccession a work.10 Directors of Great Britain's national museums may be statutorily barred from any deaccessioning at all." Furthermore, increased public scrutiny of deaccessions in both countries has resulted in the creation of published guidelines restricting museum practices and policies. No longer are deaccession decisions an internal matter; with the advent of deaccession into the public consciousness,12 museums must now gauge the public reception that will result from the deaccessioning of a piece.
This comment argues that a successful framework for Holocaust claim resolution requires an acknowledgment of the current exigencies museums face when deaccessioning a work of art. While Holocaust claims exist in many countries,13 the United States and Great Britain have been leaders in implementing mechanisms for the resolution of Holocaust disputes. The two nations provide a basis of comparison for approaches to deaccession and Holocaust claim remedies within a common law system. The comment will thus be divided into five main parts. Parts II and III will examine the nature of deaccession as it exists in the United States and Great Britain, respectively. Part IV will demonstrate how the same considerations involved in a traditional deaccession case are present as a museum contemplates the return of Nazi-looted art, and how Holocaust claims have inverted the traditional deaccession framework. …