"The Choice between Civil and Criminal Remedies in Stolen Art Litigation", in Vanderbilt Journal of Transnational Law, Vol. 38

This article analyzes the patchwork of civil, criminal and civil forfeiture remedies potentially available to claimants of secure stolen art. It demonstrates that the use of the National Stolen Property Act via criminal prosecutions or civil forfeiture proceedings provides a claimant with great advantages over the present-day possessors of the art. The article concludes that criminal prosecutions or civil forfeiture proceedings premised on violations of the NSPA should be brought in limited circumstances of clear theft, most often, but not exclusively, in the recent past. The NSPA is a criminal statute and should be applied - even indirectly through civil forfeiture proceedings - only to truly criminal conduct. For many claims to purportedly stolen art, traditional civil litigation is a viable option preferable to government-backed forfeiture proceedings, which preempt statute of limitations principles upon which the viability of the art market greatly depends. Although since the adoption in 2000 of the Civil Asset Forfeiture Reform Act ("CAFRA"), the advantages to the government in a civil forfeiture proceeding are no longer quite as extreme as they once were, they still are weighty. Moreover, the risk of erroneous deprivation is extremely high when ownership turns on complex legal and factual issues that span many years. The government should initiate criminal or civil forfeiture proceedings only when there is probable cause to believe that notice of criminal conduct at the time of acquisition is attributable to the current possessor of the art and the current claimant was unable to locate the art after the theft. Otherwise, the government should limit its involvement to assisting in negotiating a settlement or it should leave the claimants to pursue traditional civil remedies.