Update on Cassirer
August 16, 2023
Last year, the Supreme Court decided Cassirer v. Thyssen-Bornemisza Collection Foundation, a case about choice of law under the Foreign Sovereign Immunities Act (FSIA). This post gives a quick update on what has happened since, and where things are going next.
Cassirer is a lawsuit about the ownership of a Camille Pissarro painting, surrendered by Lilly Cassirer to the Nazis and now held by a foundation created and controlled by the Government of Spain. Lilly’s grandson Claude found the painting in a museum catalogue and sued the foundation in federal court in California seeking its return. Because the foundation is an instrumentality of Spain, the FSIA applies.
A key issue in this case is whether Spanish or California property law governs, which in turn depends on what choice-of-law regime is used to select the applicable law. Reversing the Ninth Circuit, the Supreme Court held that the answer to this question was a matter of California state choice of law.
But what law would California choose? The case was remanded to the Ninth Circuit to figure it out. The Ninth Circuit, in turn, certified a question to the California Supreme Court, asking that court to opine on California choice of law. [Disclosure: along with other TLB editors, I filed a letter with the California Supreme Court urging it to answer the certified question.]
On August 9, the California Supreme Court denied the request without explanation. That decision ping-pongs the issue back to the Ninth Circuit, and it means that the federal courts will have to figure out what law California would choose, making a so-called Erie guess.
Declining to answer a certified question is not unheard of. A recent study found that, in the Ninth Circuit, state courts answered roughly 80% of certified questions, meaning that about 20% of certified questions go unanswered.
Thus, the result in Cassirer, as in many cases, is that a federal court cannot defer to a state court on the interpretation of state law, even when it wants to. This result is important to the outcome of Cassirer, which will now turn entirely on the federal courts’ interpretation of California choice-of-law regime.
This result is also important for the teaching of civil procedure. I find that when I teach the “Erie guess,” students often find the certified question to be an appealing alternative. Why not do it every time? Part of the reason might be that, even in an environment when certification is rare, state supreme courts still may decline to answer. As in Cassirer, certification in these cases brings no answer, only delay.