Pearlstein on Due Dilligence and the Wisdom of Repatriation to Failed States and War Zones

Art lawyer William Pearlstein speaks common sense that is all too often lacking from most media discussions about the subject of how best to address the looting problem in the Middle East.   Due diligence is necessary, but let's be realistic about it.  And, of course, there is the larger policy question -- if cultural heritage preservation truly is the goal -- whether repatriation to failed states in war zones is really the right thing to do.

Save the Date- Pearlstein White Paper to Be Subject of Symposium at Cardozo School of Law

The Committee for Cultural Policy and the Cardozo Arts and Entertainment Law Journal (AELJ) will be hosting a symposium at the Benjamin N. Cardozo School of Law in New York City on April 10, 2014 at 2 pm. Tentatively titled, Reform of U.S. Cultural Property Policy: Accountability, Transparency, and Legal Certainty, the event is a response to the  forthcoming publication by William Pearlstein, A Proposal to Reform U.S. Law and Policy Relating to the International Exchange of Cultural Property, being published in AELJ’s Volume 32, Issue 2.

To continue to receive updates on the event and the final publication or have further questions, please email info@cardozoaelj.com.

More on Repatriation of Egyptian Sarcophagus

I've now seen the forfeiture complaint that led to the recent repatriation of an Egyptian sarcophagus that had been imported into the U.S. from Spain. Here is the reaction of Bill Pearlstein, a well known practitioner in the area of cultural property law, on his own review of the document:

This forfeiture doesn't seem to be justified on either the law or the facts.

Under the applicable McClain and Schultz cases, property is considered stolen under US criminal law if an exporter knows (or consciously avoids knowing) that the property was exported from a foreign nation at a time when that nation had enacted a clear and unambiguous national ownership law embracing that property.

In this case, there was no showing of when the piece was exported from Egypt, what the law was at the time of export or what the exporter knew at the time of export. The Government's conclusions at Para 50-51 of the complaint (i.e., that the piece was exported in violation of Egyptian law and stolen from Egypt) are simply unsupported assertions. In the absence of any proof of the facts or circumstances surrounding export, how could the sarcophagus be considered stolen under McClain? Moreover, it is hornbook law that violation of a foreign export control (as opposed to an ownership law) is not enforceable in US courts. Reliance on a criminal doctrine stripped of need to show scienter is bad law. This case demonstrates the intellectual bankruptcy of civil forfeiture.

The last time I defeated a complaint for civil forfeiture of an antiquity, the US Attorney admitted to me that the US Government does not take the position that anything without a firm provenance is stolen. But that is apparently so only when the forfeiture is contested. If not, the Government will try to get away with seizing whatever it can, however improbable the cause. Unfortunately, it usually does, given that the legal fees in defending the seizure often outweigh the value of the property.

Two tips for importers fighting a forfeiture: First, convert the action into a civil litigation, so that the government is forced to articulate in a complaint the facts and legal theories upon which the forfeiture is based. These are often vulnerable or, as in this case, merely speculative. But you can't win if you don't fight. Second, if you win, consider suing the Government for damages for wrongful forfeiture. It takes guts and costs legal fees, but if your business is harmed you may have a claim for money damages. Nothing will ruin the day of your average prosecutor or customs agent more than fighting, losing and then getting sued for damages. But again, you can't win if you don't fight.

In the words of the Beastie Boys: "You gotta fight. For your right. To paaartay."

Gotcha Italian Style

During his testimony during the interim review of the Italian MOU, antiquities dealer representative Bill Pearlstein made a good point about the US Customs' recent seizure of two ancient vases. See http://culturalpropertyobserver.blogspot.com/2009/10/us-customs-announces-recovery-of.html The vases that were consigned to an auction were apparently identified as coming from the Medici stash of illicit artifacts, but Italy has apparently never listed the artifacts -- known from pictures- on the Art Loss Register. Italy has thus not allowed U.S. auction houses the opportunity to research these pieces before they are listed for auction. Instead of providing U.S. auction houses the means to identify such artifacts. Italian and U.S. authorities would rather lay in wait for such pieces to be listed for auction-- and then sweep in with maximum publicity to seize the artifacts.

Are the Italians and US Customs more interested in playing "gotcha" than anything else? Some might conclude, "you betcha!"

Pearlstein on Cultural Property

Cultural property expert Bill Pearlstein wrote a letter to the editor of Commentary Magazine about a review of Jim Cuno's new book. The letter was published in the December issue. Pearlstein rightly suggests that judgments about "who owns the past" should be made on a principled, analytical basis, rather than on one based on the ideology of nationalism or an "archaeology over all" perspective. Here is an excerpt:

[T]he ownership of the objects is what is currently at stake as American museums and collectors defend their collections against legal claims to return "looted" objects and fuzzier claims that ancient objects are best appreciated in their country of origin. The former are understandable and sometimes meritorious; the latter are not. Cuno has rightly disputed the received wisdom that source-nation "patrimony laws" discourage looting and help disseminate archaeological data. Such laws are merely nationalist in intent and effect, and any overlap between cultural nationalism and archeological preservation is coincidental.

Which is not to say that looting is acceptable or that ownership of looted objects should be encouraged in the name of building "universal museums" or spreading culture. Instead, an international legal framework should be created that gives due weight to persuasive national-heritage claims, protecting archeological sites, and promoting the international exchange of cultural objects by way of museum loans and private trade. (The role of private collectors here is as important as that of museum curators and the museum-going public.)

As a lawyer for private clients, I argued at a 2005 hearing of the President's Cultural Property Advisory committee against China's request for U.S. import restrictions on all Chinese cultural objects dating from pre-historic times to 1911. Cuno was one of three museum curators who also spoke against the restrictions, which a journalist rightly characterized as a "gross overreach" motivated by Beijing's desire to corner the booming market for Chinese artifacts.

One of the major auction houses suggested to the committee that the question of restriction should be evaluated in light of the following factors related to a given object: the quality and state of the existing archeological and art-historical record; site specificity, portability, and documentary importance; mass production and lack of rarity; frequent and long-term market incidence. This is a more thoughtful approach than simply banning everything old, and seems to be the best analytical model for deciding who should own the past.