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).

How Art Enters the Public Trust

One of the difficulties plaguing the current state of deaccession deaccession is the idea that works of art enter the public trust, which often leads to a variety inconsistent restrictions on their disposal. But one under-appreciated aspect is the haphazard way in which many of those works actually enter the public trust. One example is the difficulty plaguing Donald Fisher—founder of the gap and San Francisco Resident—and his impressive collection of contemporary art. Fisher had considered opening a new museum in San Francisco, but his first choice, the Presidio in San Francisco was criticized by preservationists and appears to have been abandoned.

Julie Anne Strack for the L.A. Times has more details:

Now the fate of his collection, which includes about a thousand works by such artists as Andy Warhol, Roy Lichtenstein and Alexander Calder and is conservatively valued in the tens of millions of dollars, has San Francisco’s art community fearful that the city could lose an irreplaceable cultural treasure.

“It would be an absolute crime if it left San Francisco,” said Dede Wilsey, president of the board that oversees the De Young and Legion of Honor, two of the city’s major art museums. “No one could amass that collection now. They couldn’t afford it, even in a recession.”

The collection, housed in a warehouse and at Gap headquarters in San Francisco, is open to scholars, and Fisher routinely loans pieces to museums. But until an agreement is reached, most of it will stay behind closed doors.

“You could very easily teach the history of art over the past 50 years with this collection,” said Hilarie Faberman, a curator at the Cantor Arts Center at Stanford University. Faberman said nearly every piece deserves to be displayed.

The collection, curators say, will probably be pursued by museums around the country.

Fisher would prefer to keep the art in San Francisco, said spokesman Alex Tourk, who added that Fisher and his family have received hundreds of e-mails from residents who don’t want the collection to leave.

Given the jockeying for the collection which appears to be taking place, how much consideration will be given to how or when the collection may be sold? None I’d imagine, as any institution which may conider such a move would surely fall far down Fisher’s list. What about how the institution hopes to fulfill its obligations to the public? That likely receives little attention as well, as most museums operate under the assumption (which has been proved wrong) that they will exist in perpituity. But plans go awry, and communities change. A city which once supported a vibrant arts community may no longer be able to; or may shift focus to the next wave of contemporary art. This kind of brazen optimism and shortsightedness is one of the primary contributing factors to the current state of deaccession decisions currently plaguing arts institutions. Instead the primary concern now is how to “retain” these works in San Francisco.

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