New Issue of the International Journal of Cultural Property

The new issue of the International Journal of Cultural Property is available now, with contributions discussing deaccession, the status of fauna as cultural property, the role Sotheby’s has played in the collection of Maya antiquities, the fascinating case of the Buddhist Mummy, and other contributions. Here is the table of contents with abstracts:

Mann, D. (2017). To Have and To Hold … Or Not? Deaccessioning Policies, Practices, and the Question of the Public’s Interest. International Journal of Cultural Property,24(2), 113-159. doi:10.1017/S0940739117000091

Shockwaves echoed through the media and the arts community when the Delaware Art Museum chose to deaccession pieces from its collection and when the public learned that the Detroit Institute of Arts might be forced to do the same. Further concern arose when financial troubles compelled the Corcoran Gallery of Art to merge with the National Gallery of Art and George Washington University. An examination of the climate and legal battles surrounding these events shows how these institutions chose to cope with the financial adversity that put their collections at risk and illustrates the precarious position of works in a museum’s collection when that museum experiences financial distress. This article explores the ethical, judicial, and legislative frameworks currently governing deaccessioning and ultimately advocates for new legislative solutions to guide the deaccession process in order to provide the opportunity to maintain these works in the public sphere.

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The Cultural Heritage Moot Court Competition Registration

Alexander Calder's 'Flamingo' in front of the Dirkson Federal building
Alexander Calder’s ‘Flamingo’ in front of the Dirkson Federal building

I’ve received notice that the terrific Cultural Heritage Moot Court competition is gearing up again. Here are the details from DePaul and the LCCHP:

DePaul University College of Law and the Lawyers’ Committee for Cultural Heritage Preservation are pleased to announce that registration for the Eighth Annual Cultural Heritage Law Moot Court Competition is open! The Oral Arguments for the 2017 Competition will be held on February 24th and 25th, 2017 at the Everett M. Dirksen United States Courthouse, home of the United States Court of Appeals for the Seventh Circuit, in Chicago, Illinois.

The 2017 Competition will focus on the Bald and Golden Eagle Protection Act (BGEPA), which prohibits the taking of bald and golden eagles and eagle parts, including feathers. The competition problem will address a challenge to BGEPA brought by a Native American tribe member, including a challenge under the Religious Freedom Restoration Act.

The competition is open to 26 two- and three-member student teams from ABA-accredited or provisionally accredited law schools. Schools may register up to two teams at a rate of $450.00 per team. The registration deadline is November 17, 2016. The problem will be released on November 18, 2016. Visit the competition website at go.depaul.edu/chmoot for additional details or to register a team. Contact the Competition Board at chmoot@gmail.com with any questions.

Attorneys interested in serving as judges or brief graders should contact chmootjudges@gmail.com. CLE credit is available for attorneys who participate as judges.

Some thoughts on Remote Houston

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Downtown Houston, part of our Remote “Tour”

What would happen if some thoughtful people added some real art to the idea of the audio guide. What if you ditch the whole name. What if you took the best parts of Radiohead’s OK Computer, flashmobs, our fears of mortality, our reliance of technology, confronted 50 people with the idea of a city, and took them through the parts of a city we often ignore?

You’d end up I think with something like “Remote Houston”. An experience put together by the arts collective Rimini Protokoll based in Berlin. The idea is adaptable to different cities, and each tour is modified to account for the quirks of different cities. “Remote Houston” begins in Evergreen Cemetery, and ends in the heart of Houston’s downtown.

What you get out of each tour will be personal and different. I was struck by how the tour was tied so closely to the idea of life and death and the passage of time. All concepts that we teach in law school, with are given arcane names with course titles like “Trusts and Estates” and cover concepts like “dead hand control” and the like. These doctrines are integral to our courses and doctrine, but never really made tangible. At least not in this way.

As Molly Glentzer, an art critic for the Houston Chronicle discussed during our recent tour together pointed out in her review:

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The Timbuktu Destruction Prosecution Begins

A traditional mud structure stands in the Malian city of Timbuktu May 15, 2012. Picture taken May 15, 2012. REUTERS/Adama Diarra
A traditional mud structure stands in the Malian city of Timbuktu May 15, 2012. Picture taken May 15, 2012. REUTERS/Adama Diarra

This week at the ICC the trial of Ahmad al-Faqi al-Mahdi began. He stands accused of directing the destruction of medieval tombs and a mosque, all world heritage sites, and all a part of Timbuktu’s 15th century heritage. Owen Bowcott reports for the Gaurdian that:

 

No Taliban or al-Qaida leader was charged with the destruction of Afghanistan’s sixth-century Bamiyan Buddhas, which were dynamited in 2001. Khmer Rouge genocide trials did not deal with the looting of Cambodia’s Hindu temples. Nor have Islamic State leaders been indicted for destroying Assyrian statues from Nineveh or razing Roman ruins in Palmyra.

The damage inflicted on Timbuktu, known as “the city of 333 saints”, followed the rebellion of al-Qaida-inspired Tuareg militias, armed with weapons from Libya, in the central African state in 2012.

Faqi, a local ethnic Tuareg, is said to have been a member of Ansar Dine and the head of Hesbah, known as the Manners’ Brigade, which considered the mausoleums – built to pay homage to deceased saints – to be blasphemous.

He is accused of directing attacks on 10 ancient mud-brick buildings in June 2012 and July 2012. One of the desecrated sites was the Sidi Yahya mosque, built in 1440 when Timbuktu was a regional centre for learning. It contained Prof Sidi Yahya’s mausoleum.

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Bonneau on nonrepresentational art

Most agree that Jackson Pollock's "Number 5" should be afforded First Amendment protection, but why?
Most probably agree that Jackson Pollock’s “Number 5” should be afforded First Amendment protection, but why?

Sonya G. Bonneau, a Professor of Legal Research and Writing at Georgetown, has posted a working paper: “Ex Post Modernism: How the First Amendment Framed Nonrepresentational Art” to SSRN. Here’s the abstract:

Nonrepresentational art repeatedly surfaces in legal discourse as an example of highly valued First Amendment speech. It is also systematically described in constitutionally valueless terms: nonlinguistic, noncognitive, and apolitical. Why does law talk about nonrepresentational art at all, much less treat it as a constitutional precept? What are the implications for conceptualizing artistic expression as free speech?

This article contends that the source of nonrepresentational art’s presumptive First Amendment value is the same source of its utter lack thereof: modernism. Specifically, a symbolic alliance between abstraction and freedom of expression was forged in the mid-twentieth century, informed by social and political influences that have now disappeared. What remains in its wake is a vague artifactual referent, historically untethered and conceptually reduced. This article reveals modernism’s invisible yet surprisingly tenacious hold on the relevant legal discourse, demonstrating how an embrace that appears both expansive and central to artistic expression is actually narrow and anachronistic. It obscures the big picture. To realign First Amendment theory and jurisprudence with artistic expression, the law should acknowledge the changes wrought by postmodernism.

 

John Henry Merryman and Art Law

I’m sad to relay the news that John Henry Merryman passed away on August 3. He was 95. No single individual did more to establish the field of art law, and I’m not sure any work on art or cultural heritage law can be written without accounting for his groundbreaking scholarship. He will certainly be missed, but he left behind a wonderful body of scholarship.

From Stanford Law School’s Remembrance:

Merryman introduced the idea for the new course “Law, Ethics and the Visual Arts,” in 1970 to a somewhat skeptical law faculty. Merryman taught the course in 1971, the first of its kind. Elsen collaborated and co-taught with Merryman — the two delving into questions of tax, copyright, contracts, regulation, cultural property, ethics and more — creating a syllabus for the nascent field of study and publishing the groundbreaking book Law, Ethics and the Visual Arts, now in its fourth edition.

Before that, Merryman was a comparative law scholar of international standing.

“His great book on The Civil Law Tradition caused a fundamental rethinking of comparative law and subsequent scholarship — and courses based on that scholarship — were powerfully strengthened as a result,” said Thomas Ehrlich, dean of Stanford Law School from 1971 until 1976.  “John’s many works relating to art and cultural property, as well as his multiple courses in that arena, were no less groundbreaking. He deployed his strengths in comparative law to produce penetrating analyses on the ownership of antiquities, as well as on art and the law more generally. Students from across the Stanford campus and beyond flocked to John’s classes. John was one-of-a-kind, as colleague and as dear friend.”