I-8 Jewish travel — University of San Diego Law School

-Fifth in a Series-

Exit 2: Morena Boulevard: University of San Diego

By Donald H. Harrison

SAN DIEGO – In the news and in movie theaters that show such films as The Lady in Gold, perplexing questions continue to arise about who is the rightful owner of art works seized by the Nazis before and during World War II.

Atop the hill guarding the northwestern entrance to Mission Valley—and easily reached via Interstate 8’s Morena Boulevard exit – is the Catholic-run University of San Diego, where Herbert Lazerow, a Jew who holds the distinction of being USD’s longest-serving faculty member, teaches courses in international law and other legal subjects.

One of his areas of specialty is the law of art, and another is the art of the law. In the latter, employing the Socratic method of asking questions, rather than lecturing, Lazerow familiarizes his students with the kinds of questions to ask as they frame their approach to a law case; how to anticipate counter-arguments from legal adversaries; and what kinds of approaches may help them debunk those arguments.

In his office brightened with paintings by his wife Jane, Lazerow keeps on a shelf Mastering Art Law, a book he authored that, among other topics, explains the complicated law concerning the recovery of art objects once seized by the Nazis. In an interview, he was kind enough to walk me through five legal classifications for art that had been confiscated from its previous owners.

First, governments, however heinous they may be, have the right under their police power to decide what kinds of art are morally acceptable and what kinds are beyond the pale. These definitions will vary from country to country. For example, said the law professor, “In the United States, we draw a line between ‘obscene things’ that are basically contraband and ‘erotic art’ that is okay.” During the time of the Nazis, he added, “the German government confiscated what they considered to be ‘degenerate art,’ and they confiscated it from Jews,
other Germans, state-owned museums, and that was all perfectly legal.”

Courts are unlikely to return to their previous owners art found to meet this description.

Second, the Nazis needed money to finance their war machine, and accordingly it commissioned agents to sell some so-called ‘decadent art’ to collectors in other countries. As Germany owned the ‘decadent art’ under its police power, said Lazerow, it also had the right under international law to sell it. So museums, galleries, collectors, or any other party that purchased the ‘decadent art’ purchased it from a party that had the legal right to sell it.
Therefore, courts would not require those purchasers or their heirs to return the art, according to Lazerow.

Third, in some situations, the law professor said, dealers who were selling art in Nazi Germany’s behalf were unable to locate buyers, so ended up storing the art on premises under their control. Inasmuch as such a dealer was an agent of the government of Germany, Lazerow said, the art remains the property of that nation if the art was legally acquired.

Fourth, Hitler’s government not only seized art, it also purchased art at market prices for what the Nazi fuehrer intended to become the largest and greatest art museum in the world – to be located in Hitler’s hometown of Linz, Austria. That art also remains the property of Germany, because it was legally obtained, said Lazerow.

Fifth, many art pieces were confiscated from Jews for no other reason than that they were Jews—and such a discriminatory policy was clearly illegal under international law, according to Lazerow. But that doesn’t mean that to prevail in court all a Jewish family has to do is prove that the art was previously under its ownership—and that it was not so called ‘decadent art,’ Lazerow said.

“A major problem that you are going to run into over the next ten years is the question of whether a particular piece of art was stolen from a Jewish family or not. Obviously anybody who sells art, sells it because they would rather have the money than the art, but sometimes you sell it with a gun to your head. ‘I’m not sure we can issue this exit visa unless you sell this art to the state for $1.’ Those are the easy cases — those were sales that were not really sales but thefts.”

“But,” continued Lazerow, “consider a situation where a Jewish manufacturer of underwear is on vacation in Switzerland at his summer home, and gets a call from a friend in Germany who says, ‘the SS is in your house! Don’t come home!’ Unlike other people, he took the advice, and didn’t come home. There he is in Switzerland, his factory in Germany seized, and he had relatively little to support himself. He had a few paintings in his Swiss summer home, which he sends to an auction house in The Netherlands, which was not then under German control. Now, were those paintings stolen? They were sold under duress, but is it enough duress that we in the United States would consider it stolen art — especially when the people who purchased at the auction were not the people who applied duress?”

The professor explained that there is a conflict between common law systems, such as are practiced in the United States and Britain, and the civil legal systems derived from Roman law that prevail through much of the European continent.

“In the common law system, art that is stolen remains stolen; there is nothing that anyone can do to wash the title clean,” Lazerow said. “In legal systems that follow Roman law, they favor the ‘security of commerce’ over the ‘security of ownership,’ so that if an item is stolen and then sold to a purchaser who doesn’t know anything about the theft, either immediately or within a very short period of time, that art becomes the property of the purchaser. So, it depends on whether you are going to apply, for example, American law or French law.”

I asked the professor whether that meant that a museum owning a piece of art stolen from a Jewish family may or may not have to return it depending on the country where the museum is located?

Lazerow responded: “You tend to find this problem less with museums than with individual purchasers although it certainly can occur with museums. I think the problem tends to arise less with museums because museums are so dependent on public good will; they are disposed to do the right thing, although in the past they haven’t always. Whereas a private individual may have a collection of 30-40 pieces of art and to give one back is significant. But a
museum which has 20,000-30,000 pieces — most of which are in storage — it is not such a big deal to give one back, and you get a lot of good will out of that.

“That is one of the reasons why museums have fared relatively well in the litigation,” Lazerow added. “They have given back a lot of the meritorious claims. But there again, there is general agreement in international circles that a country can restrict the export of art in order to maintain national treasures. In Austria, for instance, after the war, a lot of art was restored to Jewish owners but they were not allowed to take the art out of the country. And
one of the questions the courts have dodged is under the European Convention of Human Rights, you have the right to travel, the right to leave any country including your own, and you have the right to enjoy your personal property. But the courts have refused to put those rights together and say if you move out of the country, you have the right to take your art with you!”

Having served on the USD faculty for 47 years at the time of our interview in 2015, Lazerow was the “dean” of the faculty in the usage of the word meaning “longest serving.” Because of his tenure, which he said is one year greater than that of History Prof. Iris Engstrand, at any graduation ceremony that he attends, he carries the ceremonial mace and precedes the President in the academic procession. There are ceremonies for undergraduates, law school students, and graduate students in other fields of studies. Lazerow said for him it is sufficient to carry the mace in the law school ceremony. He yields that honor to other faculty members at the other ceremonies.

The origins of the ceremonial mace go back to the days when it was used as a weapon by a knight to bludgeon any enemies who might attack the king. “Since I have carried the mace no one has even attempted to harm the president at graduation,” Lazerow deadpanned.

While Lazerow has taught at the law school, there have been seven academic deans–three of them Catholic, two of them Protestant, and two Jewish..

The first Jewish dean, now deceased, was Don Weckstein, who was followed by the second Jewish dean, Sheldon Krantz. Weckstein served in the 1970. His particular specialties were labor law and professional responsibility, meaning the rules of ethics and conduct for lawyers . “He was very successful in building a law school. He believed in planting a thousand flowers,” Lazerow said. “You would go to him with an idea and he would say ‘let’s run with it.’ He wasn’t always as generous with funding!”

Weckstein enjoyed repartee—particularly in the form of the mock insults that one associates with the comedian Don Rickles. “He was an equal opportunity insulter. Nobody around escaped some sort of insult, but nobody took it too seriously.”

Krantz, who was dean during the 1980s, was considered an authority in criminal law, particularly the ins and outs of sentencing. Additioally, “Sheldon was very good at the outside aspects of being a dean. He established a rapport with the practicing bar, he established a community mediation service in conjunction with the city to try to get minor disputes like landlord tenant disputes, or disputes between neighbors out of the courts and into a mediation setting,” Lazerow reminisced.

“He developed relatively close ties with the Hebrew University in Jerusalem and we have profited by that enormously. We have had a number of faculty members from Hebrew University come here; I hired a number of them to teach in the summer and they were so successful that they were brought back as visitors during the academic year.” Currently, he added, “we have someone on our faculty who is tenured for one semester, the spring semester, and the fall semester he is on the faculty at Bar-Ilan University.”

Lazerow said that Israeli law professors often have law degrees both from Israel and the United States, and are therefore conversant and able to compare the law of both countries. He added that as a country that became independent only in 1948, Israel developed a unique legal system which looked not only at precedents from Great Britain—which administered Israel under a League of Nations mandate—but also precedents from other countries,
including the United States.

As for Lazerow’s own academic background, he graduated from Harvard Law School in 1963, and worked subsequently in the international division of the Internal Revenue Service, before accepting a professorship at the University of Louisville’s Law School, which today is named for Supreme Court Justice Louis D. Brandeis. The Justice had grown up in Louisville, and today his body is buried under the portico of the law school. Lazerow joined the USD faculty in 1967.

Was it strange being a Jew on a Catholic campus? I asked Lazerow, who is a member of Congregation Beth Israel, which is part of the Reform movement.

“You never had any sense that there was a problem,” he answered. “I don’t know whether that was because I was clearly what Catholics would regard as an observant Jew. That is one of the strange things, I probably know more about our religion than 99 percent of Jews, and yet what I know is so small compared to what there is to know. Several thousand years of very smart people thinking about a religion produces a wonderful literature, full of interesting ideas.”

Next in the 1-8 Jewish Travel series: A ceremony at the Immaculata

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Harrison is editor of San Diego Jewish World. You may comment to him at donald.harrison@sdjewishworld.com, or post your comment on this website provided that the rules below are observed.

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