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EDITORIAL ADVISORS

Erwin Chemerinsky
Dean and Distinguished Professor of Law
Raymond Pryke Professor of First Amendment Law
University of California, Irvine, School of Law

Richard A. Epstein
Laurence A. Tisch Professor of Law
New York University School of Law
Peter and Kirsten Bedford Senior Fellow
The Hoover Institution
Senior Lecturer in Law
The University of Chicago

Ronald J. Gilson
Charles J. Meyers Professor of Law and Business
Stanford University
Marc and Eva Stern Professor of Law and Business
Columbia Law School

James E. Krier
Earl Warren DeLano Professor of Law
The University of Michigan Law School

Richard K. Neumann, Jr.

Professor of Law
Maurice A. Deane School of Law at Hofstra University

Robert H. Sitkoff
John L. Gray Professor of Law
Harvard Law School

David Alan Sklansky

Stanley Morrison Professor of Law, Stanford Law School
Faculty Co-Director, Stanford Criminal Justice Center
Copyright © 2016 CCH Incorporated.

Published by Wolters Kluwer in New York.

Wolters Kluwer Legal & Regulatory Solutions U.S. serves customers worldwide with CCH,
Aspen Publishers, and Kluwer Law International products. (www.WKLegaledu.com)

No part of this publication may be reproduced or transmitted in any form or by any means,
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To contact Customer Service, e-mail customer.service@wolterskluwer.com, call 1-800-234-1660,

fax 1-800-901-9075, or mail correspondence to:

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eISBN: 978-1-4548-7616-8

Library of Congress Cataloging-in-Publication Data

Names: Humbach, John A., author.

Title: Whose Monet? : an introduction to the American legal system / John A. Humbach, Pace
University Law School.
Description: Second edition. | New York : Wolters Kluwer, 2016.
Identifiers: LCCN 2015049822 | ISBN 9781454873150
Subjects: LCSH: Actions and defenses—United States. | Civil procedure—United States.
Classification: LCC KF8863 .H86 2016 | DDC 347.73/5—dc23
LC record available at http://lccn.loc.gov/2015049822
About Wolters Kluwer Legal &
Regulatory Solutions U.S.
Wolters Kluwer Legal & Regulatory Solutions U.S. delivers expert
content and solutions in the areas of law, corporate compliance, health
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These materials were inspired by, and portions of them adapted from,
Introduction to the Study of Law by Professor Robert J. Nordstrom of the
Ohio State University College of Law. That book stands out in my
recollection as the best I read in law school, and he as my finest teacher.
*****
I wish to express my gratitude to my colleagues, Professors Donald
L. Doernberg and Steven H. Goldberg, for their immensely helpful
comments and constant encouragement, and to John R. Horan, Esq., who
generously made available to me the litigation papers from the original
case on which this book is based.
The cover photograph is reprinted with the generous permission of
the law firm of Shearman & Sterling. Jeremy G. Epstein, Esq., a member
of that firm, and a recognized expert and published scholar in the field of
art law, led the representation of Wildenstein & Co., Inc., and he played
an important role in the ultimately successful defense of Mrs. Baldinger
in the case.
In preparing this new edition, I was guided and greatly assisted by
the sharp eyes and many thoughtful suggestions that were generously
provided by Professor Doernberg and by Professor Kevin Clermont of
Cornell Law School.
The lawsuit that is described in this book is an actual case. In that case,
the trial judge determined the facts after a “bench” trial (i.e., without a
jury). In the present description, however, several procedural wrinkles
have been added and the trial process is presented in terms of a jury trial,
so that students will begin to become familiar with that most important of
the common law institutions: the jury. In editing the courts’ opinions,
some minor textual modifications have been made in order to make the
procedural posture of the substantive discussion consistent with the
described pre-trial motions and a trial by jury. For the sake of easier
readability, however, these textual modifications (which occur mainly in
the opinions’ introductory and conclusory paragraphs) have generally not
been indicated.
Other than introducing the jury trial and related trial-level motions,
the procedural course and substantive outcomes in the case follow the
original.
CHAPTER I Introduction

CHAPTER II The Lawyer’s Task: Facts and Law

The Facts
Facts of DeWeerth v. Baldinger as Summarized
by the Trial Court
The Law

CHAPTER III Deciding Whether to Sue

CHAPTER IV Deciding Where to Sue: The Court System

Federal Court System

A Note on “Civil” and “Criminal” Cases
1. District Courts
2. United States Courts of Appeals
3. Supreme Court of the United States
4. Other Federal Courts
State Court Systems
1. Trial Courts
2. State Courts of Appeals
3. State Supreme Courts
The Best Court for Mrs. DeWeerth?

CHAPTER V Commencing a Civil Action

CHAPTER VI The Complaint

The Content of Pleadings

The Complaint’s Legal Sufficiency— A Motion to
Dismiss
Decision on Motion to Dismiss
DeWeerth v. Baldinger I
A Note on “Briefing” Cases

CHAPTER VII The Common Law

CHAPTER VIII How the Common Law Became American

Law

Kerwhacker v. Cleveland, Columbus & Cincinnati

R.R.

CHAPTER IX How Lawyers and Courts Use Precedents

The Stability of the Common Law—Stare Decisis

How Do Prior Judicial Decisions “Bind” the
Courts?
So How Do Precedents Exert Binding Force?
The Flexibility of the Common Law
Hart v. Massanari

CHAPTER X The Answer

CHAPTER XI The Process of “Discovery”

CHAPTER XII A Motion for Summary Judgment

O’Keeffe v. Snyder
DeWeerth v. Baldinger II

CHAPTER XIII Statutory Law and Administrative

Regulations

What Statutes Are Supposed to Do

How Statutes Get Enacted
Administrative Regulations
Interpreting Statutes
Interpreting the Statute in DeWeerth

CHAPTER XIV The Trial

Selecting the Jury (Voir Dire)

Opening Statements
Presenting the Testimony and Other Evidence
Plaintiff’s Case-in-Chief
Defendant’s Case-in-Chief
Plaintiff’s Rebuttal and Defendant’s Surrebuttal
Motions for Judgment as a Matter of Law (or
Directed Verdicts)
Closing Arguments
Charge to the Jury

CHAPTER XV The Judgment (and a Motion for a

“Judgment N.O.V.”)
CHAPTER XVI The Appeal

DeWeerth v. Baldinger III

CHAPTER XVII The Aftermath

Solomon R. Guggenheim Foundation v. Lubell

DeWeerth v. Baldinger IV
DeWeerth v. Baldinger V

POSTSCRIPT

Appendix A Extracts from Testimony of Gerda

Dorothea DeWeerth
d uring your next three years as a law student, you will read many
books designed to teach you law. The purpose of this book is,
however, more fundamental. It is intended to help make your
adjustment to law school a little easier.
Sometimes new law students find this adjustment to be a little
confusing. For instance, you will probably notice fairly quickly that your
assigned readings and classroom discussions are generally for a very
different purpose from those in most undergraduate courses. Also, the rate
at which new material is presented may seem, compared with college, to
be pretty intensive. You are likely to wonder, early on, “What is really
important here? What do I really have to know?”
One of the most important things you will be learning in law school
is how to approach legal problems the way a lawyer does, to think like a
lawyer. This means, among other things, looking closely at each new set
of facts to see how they might be analogous to the facts of legal cases
decided in the past and, at the same time, keeping a sharp eye out for
ways they might be distinguished from prior cases. The ability to
recognize analogies and detect distinctions is a basic legal skill. You will
soon find out that much of what you read (for example, the facts of your
assigned cases) is not meant so much for permanent retention as for
immediate use. You will learn to spot analogies, distinctions, and legal
issues by practicing these skills on actual and hypothetical sets of facts,
and you have to know the facts of the assigned cases so you can “learn by
doing” when you get to class. Long experience has shown that learning
by doing is one of the most effective ways to develop your proficiency at
approaching legal problems in a lawyer-like way. It is the method we use
in law school.
Many students come to law school with some “peculiar”
preconceptions of how they will learn law. During the first few weeks,
especially, these preconceptions can be a stumbling block to the learning
process. One erroneous notion is that law school mostly involves
memorization—cramming your mind full of rules, facts from historical
cases, and statutes and agency regulations. In fact, however, learning the
law’s conceptual structure is much more important. Another erroneous
preconception is that the key thing is to get down in your notes essentially
everything your professor says. In reality, the key thing is that you
comprehend what is said, and classroom stenography can, if overdone, be
an impediment instead of an aid. Perhaps these and similar
misconceptions are reflected most strikingly in a common wrong idea
many new students have about law school examinations. (It may seem
early to be already discussing examinations, but it is not too early to
discuss success in law school, and final exams are inevitably a part of
that.) The wrong idea runs something like this:
The examination day has arrived. You and your classmates are seated in a large room,
each of you with a blank sheet of paper and a pen. You are allowed a certain number of
hours and, in that time, you are supposed to write down as many “laws” in the subject as
you can remember. At the end, the papers are collected and graded. The students writing
the most correct “laws” receive grades of “A”; the next ______% receive a “B”; and so
on.

This description could hardly be less true. There are of course some
things you will need to remember, but what really counts is your ability to
use what you remember—to pick out relevant facts, to recognize the
applicable legal rules and standards, and to state in a lawyer-like way how
courts would, or should, apply the law to the sets of facts presented. You
will be graded on your ability to apply your legal knowledge in
advocating for particular positions or outcomes. What you will be
expected to do, in short, is to engage in the same kind of legal analysis
and writing that actual lawyers engage in when handling cases for clients.
And this will often mean wrestling with uncertainty. For even though
lawyers often encounter factual situations in which the law’s application
is fairly predictable (the “rule of law” could never work otherwise), you
will find there is little demand for lawyers to spend their valuable time
analyzing these “easy” cases. The situations that particularly call for the
legal-analysis skills of lawyers (and of law students) are precisely those
in which the law and its application are not so cut and dried. Thus, your
main task in the next several years will be to absorb the law’s core
vocabulary and conceptual structure, and to evolve your skills and
abilities to put together law and fact to solve legal problems, particularly
in situations of uncertainty as to what the courts may do. In short, you
will be developing a specialized professional capacity—the capacity “to
think like a lawyer”—and to act accordingly. It is toward developing this
capacity that your classroom preparation and instruction will be aimed. In
these materials we will be taking a first look at the kinds of things that are
to come.
To present a picture of the law’s typical operation and the lawyer’s
role in it, we will follow the progress, from beginning to end, of an actual
case. We will trace the various legal problems that this case raised as it
was litigated through the court system. Let’s start with the following news
story:

Painting by Claude Monet is ordered returned to original owner,

notwithstanding good faith purchase

New York, N.Y., Sept. 1987—Edith Marks Baldinger must return

a painting by Claude Monet entitled “Champs de Ble a Vetheuil” to
Gerda Dorothea DeWeerth, a Federal District Court in New York has
ruled.
Mrs. DeWeerth’s father purchased the painting in 1908, and kept
it in his house in West Germany. DeWeerth inherited the painting in
1922. In 1943, DeWeerth sent the Monet to her sister in Southern
Germany for safekeeping. In 1945, some American soldiers were
quartered in the sister’s house; soon after the soldiers departed, the
disappearance of the painting was noted. DeWeerth’s efforts to locate
the painting were unsuccessful.
By 1956, the Monet had made its way to the United States.
Wildenstein & Co., Inc., an art gallery in New York City, acquired the
work on consignment from an art dealer from Switzerland. Baldinger
purchased the Monet from Wildenstein in June 1957.
Eventually, DeWeerth learned of the gallery’s connection with the
painting and, in 1982, obtained a state court order directing
 Wildenstein to reveal the identity of the possessor. The instant action
followed.
Judge Vincent L. Broderick first determined that New York law
governed all issues in the case. Under New York law, DeWeerth’s
action was timely since it was instituted within three years of the
accrual of the cause of action, i.e., when DeWeerth demanded the
return of the property and the demand was refused. Furthermore,
DeWeerth had undertaken a “diligent, although fruitless effort” to find
the Monet, and did not unreasonably delay her demand for the return
of the work.
Judge Broderick then found that DeWeerth had an immediate and
superior right to the possession of the painting. Baldinger could trace
her title back to the art dealer, but there was no evidence as to how the
dealer came into possession of the Monet.

There is nothing in this news account that would cause any great
amount of excitement among most readers of the local daily newspaper.
Yet for the people behind this story, the odyssey of Claude Monet’s
impressionist painting of a wheat field was a matter of enormous
importance. The resulting lawsuit went on for a number of years and,
very likely during its slow progress, it often dominated the thoughts of
the people whose lives were caught up in it, probably making for many
restless nights. Law is a serious business.
As you read the unfolding legal story behind this news account, and
discuss it in class, keep in mind that law school orientation has several
goals. The immediate goal is to help you understand what it is that your
professors will be trying to do for you during the coming semesters—and,
also very important, what they will expect from you.
Law school orientation is not, however, merely your introduction to
law school. It is your beginning in your new profession—the profession
of law. Over the next several years you will prepare for your new
professional role not merely by “learning law,” but, just as importantly,
by acquiring a deep professional sense of what it means to be a lawyer,
and of the vital role of law and legal process in our democracy. While
most lawyers’ time is spent not in lawsuits but in activities such as
transactions and counseling, where the goals are precisely to avoid
litigation, these materials will follow the tasks of lawyers who are
engaged in a lawsuit. The reason for this choice is that, during your first
months of law school, your primary task will be to read and understand
the decisions that courts have rendered in lawsuits, specifically in
appeals. (Law students and even some of their professors sometimes ask
why so much of law school is devoted to reading, analyzing, and learning
to deal with appellate cases when a relatively small part of actual law
practice is spent on appeals. The answer of course is because, in our legal
system, appellate decisions are where the law is.)
In any event, the main focus of the discussion in these materials will
be on those aspects of litigation that are essentially similar to lawyers’
core activities in virtually all areas of practice: gathering facts,
ascertaining the law, preparing documents, counseling the clients, and
strategically applying legal materials to the solution of practical
problems. As you follow the steps that the lawyers took in the course of
one particular lawsuit, you will begin to form a more definite idea of what
it is that lawyers do (and should do), the ways we serve our clients, and
the benefits we can provide to the people of the society in which we live
and from whom we earn our livings.
Finally, the case discussed in these materials presents opportunities
for you to consider the ethical or moral dimension of the lawyer’s job—
and the tension that sometimes exists between a lawyer’s duty to the
client, on one hand, and the lawyer’s professional and individual duty to
promote justice, on the other hand. In our lawsuit over Monet's Champs
de Blé à Vétheuil, for instance, you will see that the appellate court’s
ultimate decision was, bluntly, to cancel a woman’s property rights in a
painting, which had been in her family for decades, and to declare
somebody else to be the owner. The appeals court did this even though,
by that point, there was no longer any serious legal question that the
woman who lost the case was the rightful owner of the painting under the
applicable state law. She ended up with nothing.
The appellate court had legal reasons, of course. As you will see, it
based its decision on a legal principle known as finality: Courts generally
refuse to correct their mistakes after a judgment becomes final. There is,
of course, much to be said for a rule of finality—lawsuits cannot go on
forever. Still, you might wonder how it can be “justice” for a court to take
away an innocent person’s property rights when the applicable law makes
her ownership clear. Even though the appellate court appears to have
“stayed within all the rules,” did it do the right thing?
The reason for bringing this to your attention now is this: You are
preparing to become a lawyer. Like many law students, you are very
likely drawn to law (at least in part) because you place a high value on
“justice.” If so, good. But here is the question: Do you think you will be
able to do a better job of achieving justice than the legal professionals
who litigated and decided the case of the stolen Monet? Undoubtedly, it is
too early for you to say, but it is not too early to ask. On the contrary, the
earlier the better, and you are urged to ask yourself this question
repeatedly as you read the materials that follow, and as you continue your
progress through law school. You may not always be able to give a great
answer, but you will surely become a better lawyer for trying.

Excerpted with permission from Entertainment Law Reporter © 1987 Entertainment Law Reporter
Publishing Company, September 1987.
o ne day, out of a clear blue, Edith Baldinger received a demand
from somebody in Germany directing that she give up one of her
most prized possessions, a painting by Claude Monet. The person
making the demand, Gerda DeWeerth, claimed to be the true
owner. The Monet painting was very valuable, worth more than half a
million dollars, so this startling claim by a perfect stranger was no trifling
matter. Because a woman from thousands of miles away had gotten into
her head that she owned the Monet, Mrs. Baldinger suddenly found she
was on the verge of being sued—and would be forced to defend herself at
law. She was about to be sued by a person she had never even heard of
and certainly had never knowingly harmed. To top it all off, Mrs.
Baldinger had bought the painting in complete honesty, had paid a fair
amount of money for it, and had possessed it for many, many years
without even a hint that somebody else might own it.
Mrs. Baldinger needed a lawyer. She needed to find out what her
legal rights were, and she needed advice as to what to do next. And, of
course, she needed somebody to take the proper steps to assert her rights
and protect her legal interests in court once a lawsuit was commenced.
To provide legal consultation and advice, she chose Edward M. Sills,
Esq.,1 a member of the New York bar then associated with the large and
highly regarded law firm of Paul, Weiss, Rifkind, Wharton, and Garrison,
in New York City. Once Mrs. Baldinger had retained Mr. Sills and his
firm as her legal counsel, Mr. Sills had at least two important jobs:

(1) to ascertain the facts relevant to Mrs. Baldinger’s legal rights;

and
(2) to ascertain the legal principles, the law, applicable to those
facts

Let’s look at these jobs one at a time.

THE FACTS

[A]fter a case has been tried and the evidence has been sifted…, a particular fact may be
as clear and certain as a piece of crystal or a small diamond. A trial lawyer, however,
must often deal with mixtures of sand and clay.
—Justice John Paul Stevens2

When a new client comes into a lawyer’s office, the lawyer usually
knows nothing about the facts of the client’s situation. The lawyer needs
to know the legally relevant facts, and it is up to the client to give the
lawyer the basic picture. Do not, however, assume that this means it is the
client’s job to make sure the lawyer is adequately informed. On the
contrary, as every good lawyer is well aware, clients are very apt to
provide only a mass (or mess) of facts, and to make little distinction
between the legally relevant, the totally irrelevant, the crucial, the
inconsequential, and so on. Clients are not noted for their ability to recall
and communicate the legally important facts. Memories must be dredged
up, often from the fairly distant past, about events whose legal aspects the
client probably never noticed in the first place. The farther back the
events go, the more tricks the clients’ memories are likely to play—either
innocently or intentionally. Like all human beings, clients tend to recall
the more favorable facts with great vividness while the unfavorable bits
and pieces seem to slip away.
In most cases, even the client does not have direct knowledge of
many relevant parts of the transactions or events that are the basis of a
dispute. For instance, when Mrs. Baldinger first consulted Mr. Sills, she
probably did not have the faintest idea what basis Mrs. DeWeerth might
have for claiming to own the painting. She probably had no idea there
were some dark dealings in the painting’s past and, indeed, was most
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