Professor Stephen Clowney of the University of Arkansas School of Law has written an interesting article examining the role of markets in certain special categories: things like organs, human lives, sex, and works of art. He has an interesting summary of the scholarship critical of markets; and he suggests I think that markets are not inherently corrupt. He ably points out flaws in the scholarship which criticizes commodification, yet he makes his own grave errors in relation to the role of the market on the art trade and its allied fields and disciplines. His approach is a kind of ethnographic study of art appraisers and prostitutes. The article is well-written and entertaining, but I just don’t think you get a complete picture of the art market by only talking with appraisers. He also ignores large areas of helpful scholarship from criminologists, totally ignores the Knoedler forgery scandal, and does not acknowledge the problems presented by the antiquities trade. But if you want an entertaining read, I can recommend it.
Alix Rogers (Stanford Law School fellow, and PhD candidate at the University of Cambridge) has posted an article titled “Owning Geronimo but Not Elmer McCurdy: The Unique Property Status of Native American Remains” on SSRN.
This article unifies two areas of property scholarship that have not historically intersected. In the field of biotechnology and the law, it is generally understood that human remains and many body parts are not objects of legal property. This general rule has a startling exception, which heretofore has gone unnoticed in the literature and relevant case law. The bodily remains of Native Americans were, and I argue, continue to be, objects of legal property.
With the passage of the Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) Native American remains are classified as familial and tribal property. The distinction and significance of property status under NAGPRA has been overlooked in the Native American legal scholarship. The perpetuation of property status is surprising given that NAGPRA was passed to address the systematic disrespect for Native American burial grounds and commercialization of Native American remains. Property status is all the more striking and important because some federal circuits have also interpreted NAGPRA to apply to contemporary individuals with Native American ancestry. With the rise of genetic testing technologies, application of this property rule takes on some surprising implications.
At first glance, we might condemn the property status of Native American remains as continued evidence of dehumanization. Property is traditionally associated with rights of alienability, exclusion, commensurability, and commodification. The understanding of property in Native American human remains advocated for in this paper challenges classic property constructs of wealth-maximization and an individually centered right of exclusion. Instead, after re-considering the paradigm of property, I argue that the communal property approach embodied by the Act enables Native Americans to more effectively protect their dead compared to any other American group. NAGPRA, therefore, represents an intriguing pathway for human biological materials regulation reform more broadly.
In 2017 the Council of Europe opened the Nicosia or ‘Blood Antiquities’ Convention up for signature. The new initiative is the first of its kind devoted to the criminal and penal aspects of policing cultural property. I wrote a discussion of the Treaty, examining its provisions in detail and thinking about what this initiative may mean for the future of cultural heritage law.
In 2017 the Council of Europe opened for signature the first ever international treaty aimed at policing cultural property. As more attention has been paid to the damage done by the theft, looting, and illicit trafficking of cultural objects, the Council of Europe has met this challenge with an ambitious convention which aims to fill gaps in the current criminal laws. These gaps have too often been exploited by individuals in the illicit antiquities trade. The author had an opportunity to present his analysis of a draft version of the Council of Europe’s Convention at a meeting held in Lucca, Italy in 2017. The meeting of that group of experts revealed a document that had the benefit of grand ambitions and tough talk on the policing of illicit antiquities. Yet there was pessimism expressed by many experts that the Convention would accomplish the goals which it set out to achieve. The essay which follows is an expansion of the remarks given at that meeting. It argues that the cultural property trade badly needs to be properly regulated. This includes not simply seizure and forfeiture of objects, but also the prosecution of persistent bad actors. The Nicosia Convention opens up new possibilities for prosecution at all levels of the illicit trade. Although the Convention is the first of its kind, it has been met with surprisingly little attention in the cultural heritage law academy. This essay introduces the main reforms offered by the Convention and argues that it points the way forward for future policing of the illicit trade in cultural property.
Professor Janet Ulph of Leicester Law School has written a handy and concise discussion of how fossils fit into the overall picture of cultural heritage crime.
This article explains why museums should avoid acquiring fossils which lack sufficient provenance and where the circumstances are suspicious. It argues that, regardless of whether one considers fossils to be cultural property or not, the Museums Association’s Code of Ethics should be followed not only in order to maintain public trust in museums but also to ensure compliance with current laws
The exact nature of the illicit antiquities trade from ground to market in Southeast Asia remains poorly known outside of Thailand and Cambodia, where most research has been focused. This paper helps to address this imbalance by documenting and contextualizing looting activities at the Bronze and Iron Age site of Vườn Chuối, located within urban Hanoi. A brief excavation history is provided so as to place recent looting into archaeological context. The methods used to document the recent and on-going looting observed are then discussed, followed by the nature of the current threat to Vườn Chuôi and a summation of what little is known about the Vietnamese antiquities trade in general and its relationship to regional antiquities trafficking. Finally, we discuss the current regulatory landscape in terms of constitutional, ownership, penal and international law, difficulties with enforcement and prosecution, and what course of action is needed not only to protect Vườn Chuôi and similar sites in and around Hanoi, but also to continue to raise public awareness of the archaeological repercussions of the trade itself.
I’ve posted a draft of a forthcoming work on art authentication on SSRN. The piece is scheduled for publication in the Mississippi Law Journal in the fall. I probably enjoyed writing this piece more than I should have. Our appetite for stories about art forgery and art authentication are indeed boundless, and in researching the piece, they’ve been boundless for a long time. Criminologists were studying art forgery as early as the 1960s. From the abstract:
The determination of a work of art as authentic (or not) makes a tremendous difference in the value of a work of art. Owing to the millions of dollars which can be added, or subtracted, to a work of art when an authentication opinion is made, lawsuits will often be the last resort of those unhappy with an authentication. Determining with absolute certainty, the authenticity of a work of art takes the combined expertise of art historians, scientists, and art connoisseurs. Previous examinations of the problem of art fraud and counterfeit art have focused on criminal offenses, pointed to market failures, and even argued that we should not care too much about fake art at all if nobody notices. These examinations all fail to give sufficient weight to the sheer difficulty of the task. It takes tremendous expertise required to correctly determine the artist who created a work of art, and the period in which the object was fashioned. The pages which follow argue art authentication and the experts who make them have gotten a bad reputation. Instead, their analysis should be properly valued as expert testimony in court in art authentication disputes, and should be protected from vexatious litigation.