consequence of nazi persecution during the late one nine hundred thirty s her heirs have no legal remedy under either federal or state law to reclaim the court ruled that as a matter of law there is no federal remedy and the remedy of the heirs to reclaim the painting confiscated artworks and allocates to the president of the united states five million dollars for the express explicit purpose of helping to secure the restitution of property looted an extraordinary from victims  seller well all will subsidize a conditional sales contract or some owner of property will clothes voluntarily another person in dish of title an agency and in the former case then ask the court says the policy of directed toward the case in which the fraud has been concealed or the theft has been concealed and that respect is not so unusual and i'm sure it applies necessarily as a as a unique rule that a would apply in th the cruel which we did a constructive discovery wrong and basically said the barrel gives the owner a relatively greater protection and puts the burden of investigation upon the buyer  pure dicta we make that a point think very emphatically in every it's the baker decision had nothing to do with requiring a decision about the content of the pre nine hundred eighty three statute it's simply observe that had the statue of limitations not been acted this claim would not have been saved but it was so we don't have to get to that but it is that we don't agree with with the nasty court's ruling there's a second false conflict which is even perhaps probably more acute and it's a lot more subtle uniform commercial code was an acted in california in one thousand sixty five each one of those cases however is very much responsive to the distinction asked for made between property that is taken forcefully or involution we initially and property that is volunteered in a commercial transaction each of those cases three of those cases were conditional sales contracts the call case in one thousand fifty six was conditional sales contract for the sale of jukeboxes  contractor got the property just faulted immediately on the installment contract the nec let him keep it and of course they want to realize the benefit of the contract with the contract to keep the shovel and it breaks down the bank then can monitor it please the collateral is again very important distinction it's of a regional transaction so when you go into a commercial context voluntarily the law does not compute you some caution and care you need to take steps when you can sign or interest something you stake a watch to a jeweler to repay or he sells so you can convey the boy that will title to the good faith purchaser as between you and the good faith purchaser you were the one that volunteered physical conveyance of possession of that property to the you go into a market voluntarily and want to buy something watch out why because you may be buying stolen property you may be buying property that was taken in voluntarily from someone and we're not going to dilute the common and property invoked article nine and the world's on constructive notice and if you can then then then the bar is on notice too that you know you don't you can't buy something if there's a violation of an article and when you didn't know that there are article nine liens out there that's too bad you punctuate that related to the rationale for nascar about not allowing someone in possession of this category of stolen property a forcefully taken to raise the statue of limitations and the  taylor please be advised that two recent historical events the holocaust in world war two a great deal of art was wrongfully taken as a result of both these events and it circulated in the art market we had nonissue to be careful because you cannot get good title to this evidence of what happens with the painting how can we presume title in your client i certainly agree with you it's sort of outside the formal scope of the appeal but there is a superabundance of evidence provenance from any suggestion of nazi take if we're talking off the record here we contacted ernesto and i don't know he was elderly and six twelve years ago i don't know if he's still alive he told a third inconsistent story about this that if you try our hand on this case that you can prove title we believe in monica and the other point is this we don't have a document that says you know a bill sale but most of these cases don't have bills of sale and look at the historical circumstances why would this is not maybe they have brings you to a federal and i have considerable trouble with with an act that says it's a sense of congress that government should do something those are words that we usually don't commission that they would create a website and put information about provenance on enormous resources were devoted internationally to a conference held in washington were forty four nations with initiatives of the state department to open up new archives and the point is this at the end of the day the strongest argument for an implied remedy are the consequences that would ensue without one what is congress doing here is it just whistling dixie with all these requirements it's not you out of a sense of congress that's not the restitution but here's my point clearly a lot of documents have been made available as a result of this legislation both nationally and internationally at great expense and great effort a great time serious amounts of money have been spent for the expressed purpose of restitution spend money on restitution clearly what happens if the holocaust victim especially invitation spends their own time money energy and resources opportunity cost to put together a claim and this is told sorry you have no remedy here equitable doctrine of latches as as the as the as the counterbalance to just open ended liability and then he latches of course is the is exactly in equity the statue of limitations it's informed and animated by public policy considerations it's informed and animated by the purpose of the legislation and the specific facts and circumstances for each client i wouldn't want to be analogized to california state law and applying that to federal doctrine to a state ve been conferred a holocaust victims here that never existed and now allow claims to be found out and brought but are you really saying that there is no statute if there is a federal right there's no statute of limitations and we only are guided by the equitable considerations and i believe that's a very adequate resolution that protects the protects the legitimate interest of persons in possession of these materials that is the remedial scheme that the court of appeals of new york has found to be the most appropriate to regulate the new york art market we're having signals why congress started implicitly wanted the federal judiciary to get involved this involves some real judicial expertise to consider some questions of a cruel timeliness countervailing equities and how this should be done but clearly the including the looting of a considerable amount of art this painting was not among them and just i think it's it is obviously not before the court in terms of what happened to this painting this  not a summary judgment case we're hearing a motion to dismiss but the case is obviously is from public interest and i think it important for the record to be absolutely categorically clear after i don't know how many years it is now but forty some odd years after the auction and after repeated requests by counsel for mr taylor to point to a single fact any single fact that indicates that this painting was told in voluntarily if there is no allegation that this painting was taken by the nazis we said point to a single fact that shows this painting was sold under duress and as we stand here your honor today there is no such fact because as best we can determine and we did an extraordinary we did the most thorough investigation and that the sixty some years that have passed since miss now third learned left germany allowed to the best sixty three in london it was publicised to the point of being front page news in both new york and london there's no question that the sale of the painting to the list of the taylor was open in the tourist and there's no question that she has held the painting publicly painting second that she left germany without it and third that miss taylor now owns the painting those facts were readily ascertainable with absolutely no investigation in one thousand nine hundred sixty three years we entire argument is that the court should infer that pride in one thousand nine hundred three the statute of limitations in fact had a discovery rule there are two basic problems with that maybe three one california law the second reason why the legislative evidence is compelling that there was no discovery rule pride in one thousand nine hundred three is a california law and we've heard a lot of arguments about policy and about what congress should do and about what legislatures to do the  california legislature considered this they considered all these arguments and you know what they did they passed the statute and they passed a statute that suspended the statute of limitations for people trying to claim nazi holocaust or and you know what they did in that statute they said we're going to suspend the special occasions with respect to art held by museums archaeal as they expressly did not suspend the statue imitations with respect to paintings held by private people so this  all been dealt with it is all things considered fairly and legislatively by california and they have made the decision that with respect to archelaus in museums we're going to suspend the statue of limitations until two thousand and ten but they discovery rule and frankly i'll read it because it comes right out of their complaint paragraph one hundred the discovery will provide that a cause of action will not accrue until the injured party discovers or by the exercise of reasonable diligence and intelligence under the particular facts and circumstances should have discovered the facts that form the basis of the cause of action that's in their complaint under any bas s any set of reading of the facts in this case there is no way on earth that they can meet that standard and they did nothing underline nothing from nineteen sixty three until two thousand for they say well we didn't really think we had any claims until nine hundred ninety eight when the holocaust legislation was passed well look this can be as you point out that legislation does nothing zero to create a private right of actually it doesn't even create a cause of action in the government it creates no cause of action for anybody there is not a shred not a shred of that and it's that congress intended to create a private right of action to enforce rights will be enforced the statute gives no rights plaintiffs say well you can make it up you guys figured out well last i looked the separation of powers is a problem for that iran or the none of those three statutes and i argument that a private rock right about action was created would it be preemptive us to state actions state cause of action not without an expressed declaration by congress to that effect judge thomas i think you're exactly right on this federalism the statutes of limitations in fifty states and create what we've just heard no statute of limitation that congress would simply say you know we're going to override the statutes of limitations in fifty states so there's absolutely no s and you know how we're going to do it we're not going to say anything actually i was thinking something somewhat different than the question of viability of their state cause of action if in fact there is a federal right of action well it well it's certainly  is if there is a federal right about action then you don't think it's preemptive anything well i do not think you could be preemptive state laws of conversion which are fairly and would have been throughout the states i think that would be a tough implied preemption argument i think if there were a federal right of action frankly your honor and i don't know what it would be that have to sit on top of state rights for conversion we don't dispute there's a potentially state law of conversion here and i don't think that their argument is that that's preempted i think their argument is that the federal i'm not sure what their argument is i think it's that somehow there's a federal overlay on those state rights and that's federal overlay abrogates all state statutes of limitations subsequence you know i think that that's th and beyond that under british law it's not not not just that no claims can be brought under british law when the statute expires title actually that's it affirmatively vests and the owner of the painting class or didn't find it necessary and there was no realize that it is a rather important issue your honor i think because it did this trick or didn't rule on it and i guess you could say if in fact the the british statute should have been applied a situation where we have to go back and you know get a judgment to that effect i think at this point some some closure is necessary and it's necessary for your honor with the very procedural history of this case shows why there was no doubt written the name and made for this painting until two thousand and three i believe and that is by the way the plaintiffs also claim that they didn't really they couldn't really do anything after until after ninety eight because it took them three years to get counsel until two thousand and one and then filed this complaint until i think it was two thousand october two thousand and four so and by the way i took two thousand and four is six years more than six that's because mr taylor having said to them show me anything anything something some shred of evidence that this painting was for sale and they're not having done that there was a cloud on the title of this painting we filed lawsuit your honor we filed a declaratory judgment in may two thousand and four saying enough is enough there's no evidence that this painting was taking stolen or sold under any improper circumstances we cannot go on with these allegations clouding the title we wanted declaration we sued first that was need two thousand and four it was only then five months later th filed their lawsuit claiming the painting in november of two thousand and four we moved to dismiss that lawsuit and this is quite important in the twenty november two thousand and four where we made all of these arguments and we said as i said to you today there is not a shred of evidence that this painting was subject to a for sale and certainly no evidence they don't even allege that it was taken by the nazi regime between that was our argument in a i'm sorry november two thousand and four they filed a response to our motion an amended complaint in january two thousand and five there is not a single allegation in that amended complaint where they knew every argument we were making and make here today there is not a single pages thirty five to thirty seven they list the facts they claim they could not discover until they got the assistance of counsel i urged the court to look at every one of those facts every one of those facts was been some hope to actually talk to people who might have some personal knowledge about this painting but there was twenty one years between the time this was mouth never left germany in one thousand nine hundred and the sale at which mr taylor bought this painting in enough all of the reasons why statutes of limitations exist are implicated in this case they're all here in spades in fact one can hardly imagine a more dramatic reason why the principles of opposing  are in effect how are we supposed to go back in two thousand and seven to nineteen thirty nineteen twenty nine nineteen twenty eight and explore the specifics of the transfer of this painting they blithely stand up here and say well she had it she left germany without it something bad must have happened or we did a lot more work than that and as best we can determine with a few witnesses who  still alive from that period the best we can determine is the painting was sold in the late twenty's to a jewish r t l who then sold to another jewish art dealer in the painting left germany before the nazis came to power do should we have a trial about  hundred twenty eight twenty nine thirty with the witnesses dead how are we to do that and that's why statute of limitations exist that's why california when they looked at this hard and they passed a statute suspending statute limitations didn't suspended with respect to paintings held by private parties only with respect to paintings held by museums and art dealers and what ever anyone in this courtroom thinks about the wisdom of those policy choices they were states has spoken they were subject to all of the emotional appeals they were subject to intimate details about the atrocities of the holocaust if they wanted to create a cause of action and there was certainly eno political will to do it this is hardly a case in which there was not a lot of sympathy for holocaust victims congress wanted to do it they would have done it and they would have just judge can be said they would have done it express made use of the documents that were available in europe as a result of this washington principles initiative to put together we construct historical events of this period which is exactly what that initiative was intended to do this  notion that california has somehow restricted this is the judge judge's opinion about restricted rights of action it has not that's an iranian interpretation of the legislation what that legislation does is based upon a moral responsibility to make sure that any artwork in the possession of a california tax exempt and any that is supported by the public will not be barred under any circumstances whatsoever until two thousand and ten it says whatever the fact you're going hell doesn't imply a negative in other words we're doing a special thing against these particular defendants i think if i'm not trying to sell it if i understand your opponent he's saying look they mozambique would be discarded sir but that all i asked of those vanity is that but my point is it's a special protection for some entities means we were going to let everybody else deal with the judicial principles of the california courts there's a reasonable miss element to all this is it reasonable for someone to have done more and if it's not reason to then more there's no requirement it has a frame of reference to a particular group of people that are affected that is part of the wisdom  the greater the rule the federal gives the true owner a property that is forcibly taken relatively greater protection and switches the burden of proof to someone who volunteers a decision to buy something to take cultural property section looked at this issue a number of years ago and said scope of doogue elegance and attaining title to works of art and all the equities favor reasonal investigative precautions by somebody who goes into this market saturated with nazi our art works case we didn't plead a lot of facts because we didn't think the law entitles to if the court decides or some legal principle here that we haven't properly played at the appropriate disposition is to give us an opportunity to plead facts under rule eleven responsible accountable for