USA – CALIFORNIA Trends and Developments Contributed by: Steve Coopersmith, Ashley Rastegarpour and Philippa Grumbley, The Coopersmith Law Firm, LLP
The controversy surrounding the Bührle Collection has also prompted a broader institutional response in Switzerland. In 2023, the City of Zurich and the Kun - sthaus commissioned an independent expert report, led by historian Raphael Gross, to assess the col - lection’s provenance and restitution framework. The resulting report recommended the establishment of an interdisciplinary commission to evaluate disputed works not solely on formal legal ownership, but also in light of historical persecution, coercive sales, and the moral imperatives articulated in the Washington Prin - ciples’ call for “just and fair solutions.” This approach reflects an emerging European model in which res - titution determinations incorporate ethical and his - torical judgment alongside traditional legal analysis. (Catherine Hickley, Bührle Foundation’s Provenance Research is Inadequate, Report Finds ) The Bührle controversy demonstrates that even where courts clarify governing law, institutions must still con - front the ethical and historical elements of wartime acquisitions. AB 2867 thus reshapes the legal frame - work for ownership disputes, but it does not eliminate the practical and moral complexities that continue to define Holocaust-era restitution. Although AB 2867 applies equally to private collec - tors and museums, its impact is likely to be felt most acutely by institutional holders, which more frequently invoke foreign law, prescription, or good-faith acquisi - tion defences to justify long-held collections, whereas private collectors are less often positioned to rely on those doctrines in restitution litigation. Conclusion AB 2867 should be understood as more than a state- level policy statement or a narrow corrective to a single litigation outcome. It is a litigation-shaping interven - tion aimed at a recurring structural problem that has repeatedly decided Holocaust-era restitution claims without reaching the merits: once plaintiffs clear tim - ing hurdles, conventional choice-of-law analysis can still route the dispute into foreign property doctrines that validate coercive transfers through prescription or comparable mechanisms. In that sense, AB 2867 is best viewed as California’s attempt to move Holocaust-era cases out of the pro -
cedural cul-de-sac that Cassirer made vivid, and into a forum where the governing rule of decision is Cali - fornia’s substantive ownership law. From a litigator’s perspective, the statute’s practical significance is amplified by the federal landscape that surrounds it. The HEAR Act meaningfully improved access to courts by standardising the accrual of limi - tations, but it did so largely in the procedural context. It did not alter substantive property rules, and it did not prevent courts from applying foreign ownership doctrines once the case was timely. It also sunsets at the end of 2026, after which claim viability will again depend heavily on state-by-state limitation rules and accrual doctrines. At the same time, sovereign-immu - nity doctrine has narrowed federal avenues in certain categories of cases. Against that backdrop, AB 2867 functions as a strate - gic re-centring device: it does not merely extend time to sue, but seeks to control the substantive owner - ship analysis – thereby reshaping pleading decisions, forum selection, and the leverage points that drive settlement posture. By requiring courts to apply Cali - fornia substantive law and rejecting defences based on foreign property systems, AB 2867 provides an alternative pathway for restitution. The statute, therefore, represents more than a change to court procedures. It reflects a broader shift in Holo - caust restitution policy, from reliance on federal uni - formity toward state-level action. The statute’s influence will likely be felt most immedi - ately in litigation behaviour. By mandating California law in a defined class of persecution-based takings, AB 2867 creates incentives to file in California when - ever jurisdictional hooks can plausibly be established, and it may concentrate restitution litigation in a single forum. That shift will sharpen threshold disputes – personal jurisdiction, forum non conveniens, and choice-of-law framing – because the governing-law determination now carries even more weight. At the same time, AB 2867’s durability is not guaranteed: its design invites constitutional challenge on extraterritoriality and nex -
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