DeMott on "Artful Good Faith"

Deborah A. DeMott, a Professor at Duke Law, has an interesting essay titled "Artful Good Faith: An Essay On Law, Custom, AndIntermediaries In Art Markets" appearing in 62 Duke Law Journal 607 (2012). From the introduction:

This Essay explores relationships between custom and law in the United States in the context of markets for art objects. The Essay argues that these relationships are dynamic, not static, and that law can prompt evolution in customary practice well beyond the law’s formal requirements. Understanding these relationships in the context of art markets requires due attention to two components distinctive to art markets: the role of dealers and auction houses as transactional intermediaries as well as the role of museums as end-collectors. In the last decade, the business practices of major transactional intermediaries reflected a significant shift in customary practice, with attention newly focused on the provenance (ownership history) of objects consigned for sale and on long-standing concerns with an object’s condition and authorship. During the same time major museums developed new policies and practices applicable to new acquisitions and objects already in held in collections, focused in particular on archaeological objects and ancient art, as well as paintings present in European countries subject to the Nazi regime between 1932 and 1945. The Essay argues that, in both cases, law furnished the backdrop to significant shifts in customary practice, augmented by heightened public knowledge and concern. Custom evolved in response to salient episodes of enforcement of the law, which furnished further rallying points for newly broadened or awakened public interest and concern. The relationships explored in this Essay are relevant to ongoing debate about the merits of the underlying law. In the United States, it has long been true that nemo dat quod non habet—no one can give what one does not have—with the consequence that a thief cannot convey good title. The subsequent transferees lack good title and are not insulated against claims by the rightful owner even when the transferees acted in good faith. To be sure, an elapsed statute of limitations may furnish a defense, as may the equitable doctrine of laches. Prior scholarship notes that the United States is unusual, but not unique, because it does not recognize any good-faith purchaser defense in this context and because it does not require that the rightful owner of a stolen object compensate the good-faith purchaser as a condition of obtaining the return of the object. However, this scholarship does not acknowledge (or does not emphasize) the significance of transactional intermediaries within art markets or the operation of customary practices of museums and transactional intermediaries. This Essay thus adds the context requisite to evaluating the merits of the relevant law.

 An interesting approach which examines the successes generated with increased attention on Nazi-era taking of art and the antiquities acquisition policies of North American museums. Connecting legal shifts and the shadow they cast on auction houses and museums is an important consideration as we attempt to make informed recommendations about how the law should change.

Silbey on Images in/of Law

Jessica Silbey, of Suffolk school of Law, has an interesting piece which appears in a symposium issue, Images in/of Law, in 57 N.Y.L. Sch. L. Rev. 171 (2012–2013). From the introduction:

The proliferation of images in and of law lends itself to surprisingly complex problems of epistemology and power. Understanding through images is innate; most of us easily understand images without thinking. But arriving at mutually agreeable understandings of images is also difficult. Translating images into shared words leads to multiple problems inherent in translation and that pose problems for justice. Because images are inherently “what we know” (because they are “what we see”), insofar as most of us process our experiences first through sight, images do not naturally lend themselves to linguistic translation. We don’t believe they require translation because we are so sure of what we see, and yet comparing and sharing understandings of images requires communication through words. Despite our saturated imagistic culture, we have not established methods to pursue that translation process with confidence.

Other articles from the symposium are available here.

My New Work on the Parthenon/Elgin Marbles Dispute

The New Acropolis Museum and the Parthenon

Apologies for the lack of posting in recent weeks. I've been furiously finishing up some writing before the new semester really gets into full swing. If you, gentle reader, will forgive the shameless self-promotion, I'll post a link to the work-in-progress titled "The Parthenon Sculptures and Cultural Justice". Here's the abstract:

From government and philosophy to art drama and culture, the ancient Athenians, as most everyone knows, gave future generations so much. Yet the pinnacle of their artistic achievement, the Parthenon, remains a damaged and incomplete work of art. 2012 marks the two-hundredth anniversary of the last removal of works of art from the Parthenon. That taking was ordered by an English diplomat known to history as Lord Elgin, and it reminds us that cultures create lasting monuments. But not equally. Cultures which remove the artistic achievements of other nations have increasingly been confronted with uncomfortable questions about how these objects were acquired. Nations of origin are increasingly deciding to press claims for repatriation of works taken long ago. They proceed through history mindful of the irresistible genius of their forebears have created and are unwilling to cease their calls for return. The majority of the surviving sculptures from the Parthenon in Greece now are currently on display in the British Museum in London. The Greek government and cultural heritage advocates, have been asking for reunification of these sculptures in the New Acropolis Museum in Athens. Greece has offered a number of concessions, but the British Museum and the British Government have repeatedly refused to seriously discuss reunification. Mounting pressure on the British Museum, and the inescapable fact that the Parthenon was an ancient unified work of art both mean that the Parthenon marbles will either eventually be returned to Greece or subject to an endless repatriation debate. Here I offer a series of principles which the Greeks and the British Museum can take to jointly create a just return. Because the way the British Museum and Greece resolve this argument will have much to say for the future of the management of our collective cultural heritage.

I hope to find a good placement for the piece this fall submission cycle. As always, I'd be very grateful for any comments, criticisms or suggestions (derek.fincham@gmail.com).

 

Dr. Laurie Rush on "Cultural Property Protection as a Force Multiplier"

Laurie Rush, and Army archaeologist who has directed the In Theater Heritage Training Program for Deploying Personnel has a very interesting piece tin the March-April edition of Military Review, Cultural Property Protection as a Force Multiplier in Stability Operations The piece focuses on the work of the Monuments officers during WWII, but has much to say about the continued importance of heritage protection today. An excerpt:

Few contest the long-term value of cultural property protection during fullspectrum operations. However, one might reasonably question its immediate benefits to Western military personnel facing hostile engagements in today’s complex conflict situations. One immediate response refers to the media battle that is an inevitable part of all modern conflict. Just as the Italians and Germans used propaganda effectively to advance their causes during the African and Italian campaigns, the terrorists and insurgents of today are often on the scene with video cameras. The British monuments program in 1943 began in part as a response to an Italian propaganda effort centering on the ancient Roman city of Cyrenica in Libya. After the ancient site changed hands from the Italians to the British and back to the Italians, the Italian government put together a propaganda campaign with the message that the British had shown no respect for the glory of ancient Rome. The Italians faked damage to the museum, photographed statues under reconstruction and added captions accusing the British of deliberately breaking them, and offered examples of graffiti written in English. The power of these materials was manifest. They helped convince the Italian people that the British had no respect for any element of Italian or Roman history and culture.

The whole piece merits a good read, highly recommended. I wonder if the protection of these sites and objects can be considered an economic, cultural or other 'multiplier' as well, extending the arguments and resources we might dedicate to their protection outside of conflict zones as well.

Byrne on the role of preservation in urban development

Prof. Peter Byrne has posted Historic Preservation and its Cultured Despisers: Reflections on the Contemporary Role of Preservation Law in Urban Development on SSRN. The piece has a thoughtful discussion of historic preservation. He argues convincingly that the "cultural heritage conveyed by a community's historic buildings is a public good, the value of which is not fully internalized in property rights . . . [r]egulation may be done well or poorly, but regulation must exist." He puts Edward Glaeser's breathless appreciation for Houston's development policies in context, well worth a read.

Cultural Justice

Houston's Fourth Ward/Freedmen's Town

I have posted on SSRN a working paper "Justice and the Cultural Heritage Movement: Using Environmental Justice to Appraise Art and Antiquities Disputes" which attempts to make connections between the environment and culture.

The piece introduces the concept of cultural justice. It uses the recent scholarship examining environmental justice to apply critical scrutiny to the calls for repatriation of cultural heritage (including art and antiquities). The paper applies Rawls’s theory of justice to cultural heritage and presents a taxonomy of cultural justice examining in detail the distributive, procedural, corrective and social aspects.

The environmental justice movement has been an important grassroots effort which allows minority and underpriviliged communities to challenge environmental harms. It has its roots in Houston. I use as a starting point the cultural harm which has taken place here in Houston to a neighborhood called the Fourth Ward, at one time referred to as the "Harlem of the South", which has fallen victim to cultural loss and over-development. In the piece I work to make broader observations about culture, the environment, and justice, focusing specifically on antiquities law and policy. It is my hope that by using justice we can begin to move beyond the source/market entrenchment and craft real solutions. I would of course welcome any comments or criticisms (derek.fincham 'at' gmail.com).

Moral Rights in the Texas Law Review

Two interesting recent discussions of Moral Rights have appeared in the Texas Law Review.

First, in a student note, Lindsey Mills (Moral Rights: Well-Intentioned Protection and Its Unintended Consequences) argues that "by taking away ownership rights that purchasers of artwork would otherwise have, [moral rights legislation] diminishes the economic value of the artwork in question and further, to the extent that artistic expression is deemed desirable, harms society as a whole. After weighing these interests against each other, she concludes that moral rights protection has no place in the United States, let alone as part of the Copyright Act."

In a follow up, Prof. Robert Bird responds (Of Geese, Ribbons, and Creative Destruction: Moral Rights and Its Consequences) with his own "misgivings based on her discussions of a Canadian moral rights case and artistic destruction. Professor Bird concludes with an appeal to pragmatism in light of "artistic doomsday rhetoric" against moral rights protections in American law."

Madison on "Knowledge Curation"

Michael Madison (Univ. of Pittsburgh School of Law) has posted his recent article titled "Knowledge Curation", published in the Notre Dame Law Review, on SSRN:

This Article addresses conservation, preservation, and stewardship of knowledge, and laws and institutions in the cultural environment that support those things. Legal and policy questions concerning creativity and innovation usually focus on producing new knowledge and offering access to it. Equivalent attention rarely is paid to questions of old knowledge. To what extent should the law, and particularly intellectual property law, focus on the durability of information and knowledge? To what extent does the law do so already, and to what effect? This article begins to explore those questions. Along the way, the article takes up distinctions among different types of creativity and knowledge, from scholarship and research to commercial entertainment and so-called “User Generated Content”; distinctions among objects, works of authorship, and legal rights accompanying both; distinctions among creations built to last (sometimes called “sustained” works), creations built for speed (including “ephemeral” works), and creations barely built at all (works closely tied to the authorial “self”); and distinctions between analog and digital contexts.

Prof. Madison has a number of interesting things to say about culture, creativity and technology. He I think pays too little attention to the rule role cultural heritage laws play in the stewardship of knowledge and heritage, but he acknowledges the piece asks more questions than it answers. In examining how we decide what to save and "curate" from our past, it perhaps offers yet another implicit reason for increased attention to heritage awareness and protection, highly recommended.

My Piece on Property and Heritage

When writers discuss stolen art, repatriation or looting one of the threshold problems is how to classify these objects: either as property or as heritage. It seems to me both concepts are distinct, and in a piece which is now available from the Penn. State Law Review, I've argued both should be separated. Here's the abstract:

This piece takes up the competing concepts of property and heritage. Recent scholarship views property as a series of connections and obligations - rather than the traditional power to control, transfer or exclude. This new view of property may be safeguarding resources for future generations, but also imposes onerous obligations based on concerns over environmental protection, the protection of cultural resources, group rights, and even rights to digital property. Yet these obligations can also be imposed on subsequent generations, and certain obligations are imposed now based on the actions of past generations.

This article examines the multigenerational aspects of property via a body of law which should be called heritage law. Heritage law now governs a wide range of activities some of which include: preventing destruction of works of art, preventing the theft of art and antiquities, preventing the illegal excavation of antiquities, preventing the mutilation and destruction of ancient structures and sites, creating a means for preserving sites and monuments, and even righting past wrongs. This piece justifies the new conceptualization in two ways. First, by showing that properly distinguishing property and heritage will allow us to better protect heritage with a richer, fuller understanding of the concept. And second by demonstrating how current definitions lead to imprecise analysis, which may produce troubling legal conclusions. 

A growing body of heritage law has extended the limitations periods for certain cultural disputes. This has shifted the calculus for the long-term control of real, movable, and even digital property. This can be acutely seen with respect to cultural repatriation claims - specifically the claims of claimants to works of art forcibly taken during World War II; or the claims by Peru to certain anthropological objects now in the possession of Yale University which were removed by Hiram Bingham in the early part of the 20th Century.

You can download the whole article here. I'd be most interested to hear any comments at derek.fincham "at" gmail.com

Bitterman on Settling Cultural Property Disputes

Amy Bitterman has posted on SSRN an article discussing the role of settlement in cultural property disptutes:


In the past, collectors and museums often stonewalled claimant countries seeking repatriation of looted artwork, relying on lengthy and costly litigation to discourage developing countries from pursuing cultural repatriation claims. Although some laws were in place concerning the import and export of such pieces, for the most part the market in antiquities was unregulated. However, recent events have led to a number of important changes in this area of law. While in the past, most claimants of stolen antiquities were developing countries with limited resources, recent decisions by the governments of Greece and Italy to pursue criminal prosecutions of dealers and curators have changed the legal landscape. In addition, the mass looting of archaeological sites and museums in Iraq resulted in the US adoption of the 1954 Hague Convention, and reforms in British law governing replevin cases. Other recent changes in this area that have significant legal ramifications include the adoption in 2008 of new acquisition guidelines by the Association of Art Museum Directors and a 2009 accord between the United States and China.

Using a hypothetical drawn from a number of cases and typical scenarios involving stolen art, the article discusses the pros and cons of a variety of potential resolutions in light of these developments and the unique considerations of art recovery cases. The author argues that the settlement process is particularly useful in cultural heritage disputes given that the parties often have mutual interests in preservation and excavation; thus, the winner take all approach of litigation may not be the best approach to resolving ownership claims.

Urice on Holocaust Art Restitution

Van Gogh, View of Asylum and Church at St. Remy

Stephen Urice, Associate Prof. of Law at the University of Miami has posted Elizabeth Taylor's Van Gogh: An Alternative Route to Restitution of Holocaust Art?

The Third Reich confiscated, looted, or otherwise wrongly took vast numbers of works of art from public and private collections in Germany and in occupied countries. Holocaust victims were particular targets of this cultural property theft. For complex reasons, in most instances nearly fifty years elapsed between the end of World War II and the assertion of claims in U.S. courts for restitution of this stolen, “Holocaust art.” That time lapse creates an insurmountable burden for some plaintiffs’ efforts to recover their property: the current possessor’s assertion of a statute-of-limitations defense. This article describes an alternative route to restitution in those situations. Under federal law, stolen property is forfeitable if the government demonstrates an indictable offense under the National Stolen Property Act (NSPA). This kind of in rem civil forfeiture action is independent of, and does not require the government to undertake, a criminal prosecution under the NSPA. To prevail in a civil forfeiture action predicated on an NSPA violation, the government must prove, by a preponderance of the evidence, the elements of an NSPA violation. In 1986, Congress amended the NSPA in ways that create an opportunity for the government to accomplish restitution in situations where a civil plaintiff would be time-barred under state law. First, Congress replaced the NSPA’s former requirement that the stolen goods be in interstate commerce with the requirement that the stolen goods have crossed a U.S. or state border. That change eliminated a defense predicated on goods having left interstate commerce by, for example, coming to rest. Second, Congress added “possession” of stolen goods as an enumerated offense. The effect of these amendments is to eliminate a defense based on the passage of time: The statute of limitations for possession of stolen goods commences to run only when the possessor divests herself of possession. Under federal forfeiture statutes the government has authority to return forfeited property to its original owners. Thus, federal law may permit the government to achieve for Holocaust victims what they, as civil plaintiffs, cannot accomplish themselves. The United States has adopted clearly articulated policies favoring restitution of Holocaust art. This paper argues that the United States could support those policies by pursuing this novel application of the NSPA. However, it also questions whether such cases are appropriate, given the rationales supporting statutes of limitations.

Nemeth on Antiquities (UPDATE w/ image)

Erik Nemeth has recently posted a number of interesting articles on SSRN examining 'cultural security' and the task of quantifying antiquities looting.

Cultural Security: From Concept to Engagement:

Recent armed conflict in Iraq and Afghanistan and political violence in Egypt have revealed the strategic significance of cultural property. This paper assesses the role of historic sites and antiquities in foreign engagement. Over the past century, U.S. foreign policy has had successes and shortcomings in leveraging protection of cultural patrimony to strategic advantage. The contrast of successful policy on the protection of immovable cultural property, such as religious monuments, in armed conflict and missed opportunities for tactical intelligence on the trade in movable cultural property, such as antiquities trafficking, identifies potential for development of foreign policy.

Market Value of Culture: Quantifying the Risk of Antiquities Looting:

The traditionally clandestine nature of the art market poses challenges to assessing looting and trafficking in developing nations. In the absence of direct information on transactions in source nations, sales at auction provide a sense of the market value and trade volume of antiquities and primitive art. Auction houses openly publish results of auctions and enable access to sales archives through web sites. On-line access to sales archives creates a substantive pool of data on hammer prices from auctions around the world. Sales archives also contain detailed descriptions of the artworks. The description that accompanies an auction lot can identify the geographic origin of the artwork. Data mining of sales archives for hammer price and origin enables analysis of market value by source nation. The analysis assesses relative market value and, thereby, contributes to an assessment of relative risks of looting across developing nations.

Both short essays are highly recommended.

Did Marion True Ever Catch a Looter or Dealer?

One of the stolen Mosaics at issue in the case

Some folks on the internet are not too pleased about the letter I collaborated on with Noah Charney re-examining Hugh Eakin's review of Chasing Aphrodite. A pointed response by David Gill here, and another critic wonders "whether anything done by Marion True herself actually led to the capture and conviction of a single looter of archaeological sites, or advanced any "Research into Crimes against Art"?

Yes, she certainly did, according to the Seventh Circuit Court of Appeals. As anyone should know who claims to study looting of archaeology and heritage, Marion True was the hero of one of the most prominent antiquities cases of the last thirty years, AUTOCEPHALOUS GREEK-ORTHODOX CHURCH OF CYPRUS vs.GOLDBERG, 917 F. 2d 278 (7th Cir., 1990) (available here). The case involved an antiquities dealer, Peg Goldberg, as well as Michel van Rijn. A helpful summary of the case is available here from IFAR.  I discuss the case at some length in  an article where I argue the nation of origin's law should be applied more often in cross-border trafficking in pieces of cultural heritage.

But with respect to Marion True, she is the unabashed hero of the case. From the opinion by Chief Judge Alex Bauer:

Peg Goldberg’s efforts soon turned to just that: the resale of these valuable mosaics. She worked up sales brochures about them, and contacted several other dealers to help her find a buyer. Two of these dealers’ searches led them both to Dr. Marion True of the Getty Museum in California. When told of these mosaics and their likely origin, the aptly-named Dr. True explained to the dealers that she had a working relationship with the Republic of Cyprus and that she was duty-bound to contact Cypriot officials about them. Dr. True called Dr. Vassos Karageorghis, the Director of the Republic’s Department of Antiquities and one of the primary Cypriot officials involved in the worldwide search for the mosaics. Dr. Karageorghis verified that the Republic was in fact hunting for the mosaics that had been described to Dr. True, and he set in motion the investigative and legal machinery that ultimately resulted in the Republic learning that they were in Goldberg’s possession in Indianapolis.

(emphasis added)

The opinion is also widely cited because of a concurring opinion by Judge Cudahy embedding the 1954 Hague Convention and the 1970 UNESCO Convention into cultural heritage law, a precedent which has had a number of important effects.

Marion True is no saint, nobody would argue she is, but her story is more complicated than merely painting her as the endpoint for looted antiquities. She did so much more, as Jason Felch and Ralph Frammolino explain in their book. Italian officials will tell you if asked that the case was brought against her because they had the evidence, not necessarily because she was the worst offender. And yes, she was instrumental in returning at least one looted object.  group of looted objects.

Kreder on Holocaust-Era Art Claims and Federal Executive Power

Prof. Jennifer Anglim Kreder has a new essay in the Northwestern Law Colloquy which examines some timely issues in Holocaust-Era art claims. From the Introduction:

Doctrines of judicial restraint in international cases take many forms, but they all have at their heart a concern about the proper role of courts, be they federal or state. This Article explores the proper role of courts in deciding state law conversion claims for art stolen or subject to forced or duress sale during the Nazi era. Many presume, incorrectly, that such claims must be precluded by separation of powers and federalism doctrines. This Article demonstrates the inaccuracy of such presumptions.

Who Benefits From the Stieglitz Collection at Fitz University?

So asks Boston University Law Prof. Alan Field in a piece on SSRN: Who Are the Beneficiaries of Fisk University's Stieglitz Collection? Here is the abstract:

Most fiduciary relationships determine with specificity the beneficiaries of the fiduciary's activities. Not-for-profit entities, however, serve a class of unspecified beneficiaries and can exercise discretion in determining who to serve and how to serve them. This paper explores the limits of discretion that recent litigation established for Fisk University in balancing its educational mission and its administration of a valuable art collection donated decades earlier. The paper analyzes the case as it addresses respect for donor conditions, changes in circumstance, standing issues, the doctrine of cy pres and the designation of the appropriate class of public beneficiaries. Race and geography also play contributing roles.

Well worth a read. Donn Zaretsky finds it "much more interesting" than the Attorney General's brief in the very long legal battle over the present disposition of the collection.

Urice and Adler on the "Disjunction between Cultural Property Policy and Law"

Stephen Urice and Andrew Adler have posted a working paper titled "Resolving the Disjunction between Cultural Property Policy and Law: A Call for Reform". In the piece they continue to point out what they call the "increasingly lawless" cultural property policy in the United States.

Here is the abstract:

Cultural property policy in the United States has become increasingly lawless, for lack of a better term. In recent years, the Executive Branch has aggressively restricted the movement of cultural property into the United States, but it has repeatedly done so without regard for constraining legal authority. The result is a troubling disjunction between the Executive Branch’s current cultural property policies and the existing legal framework established by Congress and the Judiciary. We document that disjunction in this Article.

We explain, for example, how the Executive Branch has recently repatriated an Egyptian sarcophagus and an antique French automobile to their respective countries of origin, but disregarded well-established judicial authority in the process. We explain how the Executive Branch has similarly sought to repatriate cultural objects to Italy, Peru, and Southeast Asia by relying on statutory authority that Congress plainly never designed for such a purpose. And we explain how the Executive Branch has imposed comprehensive import restrictions on cultural property from around the world without satisfying all of the statutory requirements mandated by Congress.

In addition to documenting this disjunction between policy and law, we situate it in its broader context. We submit that the disjunction reflects that the legal framework is outdated. That framework is the product of the 1970s, when the cultural property field was still forming, and it has not incorporated the dramatic political and normative developments of the last three decades. We further explain how the Executive’s willingness to disregard statutory constraints raises serious and unresolved separation of powers concerns. This precarious constitutional dynamic undermines the democratic process and invites arbitrary policymaking. We therefore argue that statutory reform is necessary to resolve the disjunction, modernize the legal framework, and restore the rule of law. We conclude by offering suggestions for reform.

The Cultural Heritage & the Arts Review

The American Society of International Law Cultural Heritage and the Arts Interest Group has published its second issue. Topics include the Machu Picchu artifacts which appear to be returning to Yale; the Met's repatriation of objects from King Tut's tomb, California's new Art Law, and more. You can find subscription information here.

Alternative Dispute Resolution and Art-Law

Anne Laure Bandle and Sarah Theurich have an article in Vol 6, No 1 of the Journal of International Commercial Law and Technology titled "Alternative Dispute Resolution and Art-Law - A New Research Project of the Geneva Art-Law Centre".

This article introduces the new research project of the Geneva Art-Law Centre, which aims to study alternative dispute resolution (ADR) methods for art-related disputes. It gives a brief introduction on the topic of the research the project - the significant potential of ADR mechanisms in art law - and provides an overview of the growing international consideration for ADR in art-law matters. While types of art-related disputes vary considerably from case to case, certain common features may be identified to explain the need for adapted dispute resolution in this area. The Art-Law Centre’s research project will involve the creation of an Art-Law ADR Database recording art-related disputes worldwide that were resolved by means of ADR methods, as well as a thorough case analysis. To illustrate the nature of the research project, this paper specifies the different project stages and gives examples of collected art-law cases.

An interesting approach and a project with a great deal of potential. Well worth a read.

Urice on "Unprovenanced Antiquities and the National Stolen Property Act"

Stephen K. Urice, an Associate Law Professor at the University of Miami has an interesting piece (nicely titled) called Between Rocks and Hard Places:  Unprovenanced Antiquities and the National Stolen Property Act, 40 N. Mex. L. Rev. 123 (2010). He examines the implications of a conviction or acquittal in the investigation stemming from the search of four California museums in early 2008.

From the introduction:

This  article  argues  that  continued  application  of  the  NSPA  in  cases  involving unprovenanced antiquities risks outcomes that undermine one or both of two U.S. policy goals: (1) protecting the global archaeological record and (2) promoting museums’ charitable and educational missions. Accordingly, this article suggests that the current uncertainty in how courts apply the NSPA in the unique circumstances of determining title to undocumented antiquities might best be resolved by pursuing alternatives to continued reliance on the NSPA in these circumstances. 

Part II introduces necessary background information on the concept of provenance;  the  distinction  between  foreign  nations’  export  and  vesting  statutes  (referred  to  collectively  as  “patrimony  statutes”);  and  the  relationship  between foreign patrimony statutes and the NSPA. Part III explores, in detail, the application of the NSPA in criminal cases involving unprovenanced antiquities, emphasizing  the  distinction  between  the  Fifth  and  the  Second  Circuit  Courts  of  Appeals’ approaches.  Part  III  also  describes  Congress’s  1986  amendments  to  the  NSPA, which (without apparent legislative intent to do so) have made application of the NSPA in cases involving unprovenanced antiquities especially problematic. Part IV addresses, in the context of existing U.S. policies, allegations in the search warrants that two California museums possess stolen Thai antiquities. Part V describes potential outcomes of any criminal prosecution under the facts alleged in the search warrants. Part VI concludes with simple sketches of three possible alternatives to the United States’ existing framework for combating trafficking in unprovenanced antiquities.

My New Piece on Property and Heritage

I have posted on SSRN a working draft titled "The Distinctiveness of Property and Heritage".  I argue we need to be careful to observe and honor the differences between the competing ideas of property and heritage by discussing how the law may be shifting to meet new challenges.  The end result I think will be a renewed appreciation for cultural claims via a body of law which can be called "heritage law".  As always any comments or criticisms would be most appreciated.  Also, if any readers have any works in progress they would like me to publicize, or if you have a recent piece you would like me to share, please do pass them along.

Here is the abstract to my work in progress:

This piece takes up the competing concepts of property and heritage. Recent scholarship views property as a series of connections and obligations - rather than the traditional power to control, transfer or exclude. This new view of property may be safeguarding resources for future generations, but also imposes onerous obligations based on concerns over environmental protection, the protection of cultural resources, group rights, and even rights to digital property. Yet these obligations can also be imposed on subsequent generations, and certain obligations are imposed now based on the actions of past generations.

This article examines the multigenerational aspects of property via a body of law which should be called heritage law. Heritage law now governs a wide range of activities some of which include: preventing destruction of works of art, preventing the theft of art and antiquities, preventing the illegal excavation of antiquities, preventing the mutilation and destruction of ancient structures and sites, creating a means for preserving sites and monuments, and even righting past wrongs. This piece justifies the new conceptualization in two ways. First, by showing that properly distinguishing property and heritage will allow us to better protect heritage with a richer, fuller understanding of the concept. And second by demonstrating how current definitions lead to imprecise analysis, which may produce troubling legal conclusions.

A growing body of heritage law has extended the limitations periods for certain cultural disputes. This has shifted the calculus for the long-term control of real, movable, and even digital property. This can be acutely seen with respect to cultural repatriation claims - specifically the claims of claimants to works of art forcibly taken during World War II; or the claims by Peru to certain anthropological objects now in the possession of Yale University which were removed by Hiram Bingham in the early part of the 20th Century.