In February the U.S. Supreme Court in Federal Republic of Germany v. Philipp held the 1935 sale of various cultural artifacts by their Jewish owners to the Nazi regime was insufficient to overcome Germany’s presumptive immunity against suit under the Foreign Sovereign Immunities Act (FSIA). A central flaw in the court’s analysis implicates the decision’s soundness. 141 S.Ct. 703 (2021); 28 U.S.C. §§1602-1611.

Respondents’ complaint alleged a consortium of three Jewish-owned art firms was compelled to sell pieces of medieval relics and devotional objects (the Welfenschatz) to the Nazi-controlled Prussian state government for approximately one-third value. After World War II, American troops seized the items, which were eventually turned over to West Germany. 894 F.3d 406 (D.C. Cir. 2018), vacated 141 S.Ct. 703 (because the trial court ruled on a motion to dismiss, the complaint’s allegations were deemed true).