Is Bakalar v. Vavra Heading to the Supreme Court?

This year, the Supreme Court of the United States may (or may not) grant a writ to hear a case involving Nazi-era looted art for the first time in almost a decade. See Seven Year Saga of Bakalar v. Vavra Ends. On March 28, Counsel for Petitioners Milos Vavra and Leon Fisher submitted three questions to be answered by the Supreme Court. They are:

1. Choice of Law question: Does the Due Process Clause of the 14th Amendment require the US federal court apply the forum’s issues preclusion rules when hearing a foreign judicial act?

2.  Due Process question: Does the application of a local law applied to rights vested under a foreign law and the disregard for the local choice of law and state’s interest which result in a forfeiture of … constitute arbitrary and unfair violation of the Due Process Clause of the 14th Amendment?

3. Federalism question: May a federal court use Declaratory Judgment Act (28 U.S.C. 2201) to interpret state law in a manner forbidden by the National Stolen Property Act (28 U.S.C. 2314)?

Petitioners argue that the Second Circuit’s Decision conflicts with the US foreign policy and decisions in on the circuits. Given that the write raises questions regarding federalism, foreign policy and private property rights, one cannot wish but hope the writ is granted for the Supreme Court to grapple with and answer the presented choice of law questions.

Sources:  Vavra and Fisher v. Bakalar, Petition for a Write of Certiorari, No. 12-1160 (March 2012); J. A. Kreder “Guarding the Historical Record from the Nazi-era Litigation Tumbling Toward the Supreme Court,” 159 U. Pa. L. Rev. Penn 253 (2011); Copyright Litigation Blog.

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