Forthcoming Article on Federal Criminal Penalties for Dealing in Illicit Cultural Property


I have posted my new manuscript on SSRN: Why Federal Criminal Penalties for Dealing in Illicit Cultural Property are Ineffective, and a Pragmatic Alternative. It will be published in the Cardozo Arts & Entertainment Law Journal this fall. Pictured at right is Egon Schiele’s Portrait of Wally which has been locked away in storage for 8 years due to a protracted forfeiture dispute. Here is the abstract:

There have been many articles on this subject in recent years, and I add to the discourse in two important ways. First, I attempt to unpack the values at work in US federal criminal penalties for buying and selling illicit cultural property. The illicit trade in cultural property may be the third largest behind narcotics and weapons. I look at the various stakeholders which formulate cultural property policy and look at why their fundamental differences of opinion are producing an ineffective regulatory framework. A number of recent articles have dealt with this subject, however the discussion about what the law should be doing has prevented a discussion of the practical effect of the status quo. I hope my analysis will further the debate by showing that the current criminal penalties are not producing satisfactory results. Second, I show how a pragmatic approach to cultural property has worked well in the United Kingdom and how such an approach could be adopted in the US. This would give real effect to the federal criminal regulation of cultural property. The art and antiquities market lacks transparency at present. Until this trade begins to effectively distinguish between licit and illicit cultural objects, the theft, looting and destruction of historical sites will surely continue. I hope my discussion of the UK experience can bring attention to the illicit trade in cultural property and the criminal response in the US.

I would be delighted to hear any comments or reactions to the piece.

Questions or Comments? Email me at derek.fincham@gmail.com

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