Kreder on the Public Trust

“The Gross Clinic”, Thomas Eakins, 1875. This work was sold by Thomas Jefferson University to the Philadelphia Museum of Art and the Pennsylvania Academy of Fine Arts in 2006, prompting discussion of whether this work had entered the “public trust”.

Prof. Jennifer Anglim Kreder has published an article examining the concept of the “Public Trust” in the Pennsylvania Journal of Constitutional Law. The doctrine has been used in environmental and museum law, but has a richer history:

It seems as if no one really knows the meaning of the term “public Trust” used in the Religious Test Clause of Article VI of the U.S. Constitution. This Article is the first scholarly attempt to define the term by exploring historical evidence pre-dating the nation’s founding through the Constitution’s adoption, including British and colonial trust law that influenced the Founders’ conception of the term. Today, one can find the term used only in the cases and scholarship concerning environmental law, tax law and museum law. After a thorough analysis of the old and new sources, this Article proposes the following original definition of term “public Trust”: “Any entity given special privilege by the government, beyond the simple grant of a state corporate charter often coupled with state or federal tax waivers, so long as that entity is legally obligated to engage in conduct that could traditionally have been performed by the government itself for the public’s benefit.”

 

Kreder, Jennifer Anglim, The ‘Public Trust’ (January 21, 2016). 18 University of Pennsylvania Journal of Constitutional Law 1425 (2016).

Admission Fees at Universal Museums

I’ve been interested to note in the last few weeks a couple of ideas which may appear to be more closely related than we might think.

First is the general trend of museums increasing their cost of admission. Tyler Green discussed this back in march, when the Philadalphia Museum of Art and the Art Institute of Chicago both indicated admission hikes were on the way. In his Op-Ed in April for the Philadelphia Inquirer Green argued that the special exhibition of “Cezanne and Beyond” at the Philadelphia Museum of Art” results in two museums. Specifically, “[t]he area of the museum that features “Cezanne and Beyond” is available only to those affluent enough to afford the exhibition charge, while the rest of the museum is more accessible to the lower and middle classes.” This is a problem because the museum “is a nonprofit housed in city-owned buildings. It gets about $2.4 million a year from the city and has received millions more in capital funding, with more on the way. So its willingness to effectively redline certain residents out of its programming is improper.”

I think that is an interesting argument, and an important point to make as funding for a lot of projects is tight right now, but particulary art and cultural projects. Without government funding, or other revenue sources, these institutions may be pricing out younger and lower-income visitors. Now, they may have access to culture at some other location, a concert, via the web, or in another way, but long-term this would seem to harm the museums standing among these groups.

Secondly, I wonder how this trend of admissions increases might impact arguments for universal museums. David Gill has been poking holes in many of the ideas in the collection of essays edited by James Cuno “Whose Culture?”. Cuno of course is one of the more outspoken proponents of the acquisition of objects even where they may have been looted or illegally removed from their context. And scholars on both sides go around and around on that argument, and tend to devolve into their entrenched positions with no real progress being made for cultural policy generally. But one argument I don’t see made is whether these Universal Museums may not even be Universal for the inhabitants of the city they are in. Are these rate hikes espousing Cosmopolitan values? If so, don’t we need to apply them equally, whether that applies to the acquisition of a piece lacking history, or to how many and what types of people can come and view these objects? I think it does.

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

More on Civic Cultural Heritage, the Ozarks, and Eakins

Daniel Brook of the Boston Globe has a can’t miss article on the “Gross Clinic” fund raising efforts in today’s edition, available here. He neatly summarizes all of the salient issues in the dispute, and rightly points out the hypocrisy in an American city, which owes much of its artistic resources to the power of its Gilded Age benefactors, crying foul when an important work is purchased by wealthy outsiders. Were Philadelphians perhaps upset at the idea of Bentonville Arkansas, home to Wal-Mart, upstaging its own perceived cultural importance? I think so. The article echoes a lot of the arguments I’ve been making here, namely that the civic export restrictions are quite similar to the policies implemented by source nations to protect their own archaeological heritage.

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

The "Gross Clinic" Will Stay in Philadelphia


Philadelphia Mayor John Street announced yesterday that the $68 million needed to keep the Gross Clinic in the city has been raised. The Philadelphia Museum of Art and the Pennsylvania Academy of the Fine Arts will share ownership of Thomas Eakins’ 1875 depiction of a surgical procedure. Exactly how much money was raised, and how much the 2 art institutions have had to borrow to match the purchase price remains to be seen. It’s been estimated that about $30 million has been donated in the six weeks since Thomas Jefferson University announced it would sell the work to the new Crystal Bridges Museum, and the National Gallery if the purchase price was not matched locally.

The decision to sell the painting was met by a great deal of local protest, but it seems all the parties involved, with the exception the original purchasers, have come out looking good. The University gets its funds, the work has received a great deal of publicity and should be visited a great deal in the coming months, and Philadelphia has kept one of its prized local works. However, some have pointed out that the fund-raising push may limit the amount donors are willing to give to other good, non-charitable, causes.

At the heart of the decision to sell the work, lies a question which often plagues cultural property. Do very beautiful works have a single home, or can they be enjoyed and appreciated anywhere? That’s a question without an easy answer. Those who donated to this effort felt strongly that this work belongs in Philadelphia. Though it would have been enjoyed and appreciated in Arkansas, Philadelphia would have lost a measure of civic pride. In any event, for the foreseeable future, the Gross Clinic will remain in Philadelphia.

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

Mayor Street Drops Historic Status


Philadelphia Mayor John Street has withdrawn the nomination of The Gross Clinic for designation as a historic object. It seems the only way the work can remain in Philadelphia is for the matching process to take over. It’s not clear where the fund raising efforts are at now, but Lee Rosenbaum reports that they are more than halfway there based on her interview with the major gifts officer of the Philadelphia Museum.

The work, recognized as one of the greatest American paintings, has been sold for $68 million to the new Crystal Bridges museum in Bentonville Arkansas (a scale model is pictured here), which will share the work with the National Gallery. Trustees of Thomas Jefferson University voluntarily agreed to delay the sale so Philadelphians could come up with funds to keep the work in Philadelphia.

I am not terribly surprised that Mayor Street has declined to continue the Historic Designation procedure, as it amounts to a municipal export restriction. Many nations have export restrictions which prevent the export of works, but the US is the main exception. With the lone exception of some Native American artifacts covered under NAGPRA, generally, any work of art can be freely exported from the US. This is not the first time Philadelphia has acted to prevent the removal of a work of art. Donn Zaretsky pointed out to me that Philadelphia used the historic designation process to keep The Dream Garden in the city in 1998.

Efforts to prevent or delay the sale provide an interesting new way to think about export restrictions. Export restrictions are a reality for the art and antiquities market, but they are quite controversial. They generally involve underdeveloped source nations (such as Peru, Guatemala, or Nigeria) and wealthy market nations (like Japan, the US, or the UK). At issue in the source nation debate are inherent concerns about the less developed world, cultural appropriation, and the continued exploitation of the underdeveloped world. If Philadelphia had continued to prevent the sale, it would have sharply cut against the prevailing position of the US, which generally frowns on export restrictions.

From an intellectual standpoint, I’m disappointed the historic designation process has been abruptly halted. The Eakins debate strips away those concerns, as Philadelphia is on roughly the same footing as Bentonville. This allows us to focus in on the core issue, which asks, do certain works belong in a certain context? Might context be secondary to the interests of the University, which plans to use the funds to expand its campus. Also, might there be a greater value in allowing more of the public to view the work?

It’s not clear why exactly the mayor chose this moment to halt the process. Perhaps he did not want the process to get dragged through a lengthy court battle, or perhaps he wants the civic fund raising efforts to receive priority. One potential solution which has not been explored is for Philadelphia to buy a share of the work, which would let it display the work periodically. This would allow people to see the work in Philadelphia from time to time, while allowing a greater audience for the work. Some have estimated that as few as 500 people saw the work last year. The main disadvantage would be the risks inherent in transporting valuable works of art, however, the work will already be traveling anyway, between Arkansas and the National Gallery.

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

The "Gross Clinic" featured on NPR

Morning edition today features a story on Thomas Eakins’ “The Gross Clinic” and attempts by Philadelphia to prevent it from leaving the city. Trustees of Thomas Jefferson University have given the city and benefactors until December 26th to raise enough funds to keep the work in the city. The City has also chosen to invoke its Historic Preservation law to prevent the work from leaving the City. This is a fascinating example of a city choosing to exercise an export restriction, which normally only takes place at the national level.

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

More Thoughts on the Sale of the Gross Clinic


I have written a number of posts on the proposed sale of Thomas Eakins’ “The Gross Clinic” in recent weeks, but the dispute is a fascinating one, because it cuts to the heart of the importance of the connection between art and its location. Do works of art or antiquities inherently belong in a given location?

Eakins, pictured here, is recognized as one of America’s greatest artists. He was known for bringing a stark realism to his work, which could often be unflattering to his subjects. The work has been sold for $68 million to heirs to the Wal-Mart fortune for the new Crystal Bridges museum in Bentonville, Arkansas. Trustees of Thomas Jefferson University voluntarily agreed to delay the sale so community leaders in Philadelphia could come up with the funds to keep the work in the city. This is a voluntary version of the UK’s export restriction, which allow the UK government time to raise funds to keep a work at home before it is exported. Some have argued that as few as 500 visitors saw the work in Philadelphia last year. I wonder if debate surrounding the sale would be quite so adamant if the work was being sold to the Met, or the MFA in Boston, rather than what some may see as a new “Wal-Mart Museum”.

Efforts to prevent or delay the sale provides an interesting new way to think about export restrictions. Many nations use export restrictions to prevent the loss of important cultural works. The US is one of the few nations without such restrictions. Philadelphia’s mayor has nominated the work for historic status, which would effectively act as an export restriction at the municipal level. Export restrictions are a reality for the art and antiquities market, but they are quite controversial. They generally involve underdeveloped source nations (such as Peru, Guatemala, or Nigeria) and wealthy market nations (like Japan, the US, or the UK). At issue in the source nation debate are inherent concerns about the less developed world, cultural appropriation, and the continued exploitation of the underdeveloped world. If Philadelphia continues to prevent the sale, it would countervene the prevailing position of the US, which generally frowns on export restrictions.

The Eakins debate strips away those concerns, as Philadelphia is on roughly the same footing as Bentonville. This allows us to focus in on the core issue, which asks, do certain works belong in a certain context? Might context be secondary to the interests of the University, which plans to use the funds to expand its campus. Also, might there be a greater value in allowing more of the public to view the work? I think so, but one thing remains clear, I’m sure the painting has earned far more visitors in recent weeks because of the controversy.

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