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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.

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.”

Perhaps commercial art storage institutions need to be held to a higher standard. Daniel Grant has a provocative piece in the Gallerist, exploring the possibility that a good deal of stolen art may be found in storage facilities like bank vaults or art storage facilities:

The past decade has seen significant growth in the art storage industry, but those recent discoveries of missing artworks raise questions about what is being stored. “I don’t check on what people are storing, that’s not my business,” said Robert Crozier, president of Crozier Fine Art, a storage company with locations in Manhattan, Long Island, Newark, N.J., and Philadelphia. Although he said that his company does not consult lists maintained by the FBI, Interpol or Art Loss Register of missing and stolen objects, Crozier mentioned a few instances over the years when a court order required him to “turn over our records.” However, he added that “we do extensive due diligence on our clients. Somebody can’t walk off the street and open an account to store their property in our warehouses. We have rules and regulations as to what can and cannot be stored, which we rigorously police.”

Crozier’s approach is standard for the industry. “I sort of know, but not really,” said Chris Wise, director of UOVO Fine Art Storage, a storage facility in Queens, when asked about his knowledge of work he safeguards. “A lot of people don’t share with us what they are storing. They send over a box from Europe and tell us to put it with their other boxes. They don’t want us to open their boxes to see what’s there, and I’m not in the provenance-checking business. If we had to check if pieces were stolen or if they were taxed at the right rate, storage would be a lot more expensive for our clients. So, I don’t really know what we have, and I don’t really want to have that knowledge.”

Thomas Ryan, the president of WelPak Corporation, a moving and storage company in Queens, said that “the greatest percentage of objects here are known to us,” but that checking their status is “beyond our requirements.”

Perhaps these storage companies should be prompted to require background searches with stolen art databases before storing works of art.

We are off for a few weeks for some summer teaching in Istanbul, some art-viewing in Amsterdam, and some other events. There will be lots to share here when I’m back in front of a keyboard, but posting will be light for a few weeks. In the meantime check out my blogging colleagues in the blogroll on the right for updates and commentary.

Good luck to all the teams competing in Chicago at the National Cultural Heritage Law Moot Court competition this weekend! This competition is put together by DePaul College of Law with the help of the Lawyers’ Committee for Cultural Heritage Preservation. It’s a great showcase for these soon-to-be-lawyers and this field.

The problem this year:

The 2014 Competition will focus on the Convention on Cultural Property Implementation Act (CPIA), 19 U.S.C. §§ 2601-13, which establishes a framework for imposing import restrictions on undocumented archaeological and ethnological materials. The problem will address the questions of whether agency action taken pursuant to delegated presidential authority is subject to judicial review under the Administrative Procedure Act and whether an intentional violation of the CPIA can serve as the basis for a criminal prosecution under the customs statute.

The city of Detroit has declared itself bankrupt. It also has a world class collection of art at the Detroit Institute of Art (DIA). The first to consult about what should happen to Detroit’s art must surely be Detroiters themselves. Yet one remarkable arts blogger referred to the potential sale of art as a “rape of its collection”. This kind of angry criticism reveals much more about the sorry state of certain arts commentary than it does the difficult decisions confronting Detroit. Because the same critics who pile on the city leaders in Detroit are often the same who angrily criticize efforts by nations of origin like Italy for attempting to repatriate works of art that have left the country. You cannot have it both ways. There must be some organizing logic other than: “I want it here”.

Continue reading “Detroit and the difficult deaccession question”