Alan Dershowitz, Animal Law, Law Professors

Museum Law: It’s Law That All Relic Hunters Need To Know

Like you wouldn't go to court over the ownership of this toy!

If Harvard Law Professor Alan Dershowitz is involved, you know we’re talking about an exciting aspect of jurisprudence.

We’ve been following the case of the Mongolian dinosaur bones, but really that’s just a small window into the world of antiquities law. It’s a field of law that should fire the imagination of any lawyer who was a liberal arts major in college but ended up in law. We’re talking about a field of law which will reward the art history majors of the world. The romance language majors. The random anthropology majors who didn’t have the stones to take Orgo, but spiked a 170 on the LSAT. This is a field of law for you.

The New York Times ran a long and fascinating article last week about the emerging law surrounding the provenance of antique goods sold at auction. After centuries of private collectors being able to simply steal and resell the history of poor countries, it seems like reputable auction houses and museums are finally refusing to legitimize the black market through their purchase of questionably-obtained artifacts.

But the new rules mean that some antique collectors now can’t unload treasures they believed they acquired legitimately. Even Professor Dershowitz is having some difficulty establishing the proper documentation of an item he wanted to auction….

Here is an area of law where lawyers aren’t merely passing through history, they are making history!

The issues arise as museums and others try to curtail the black market in looted artifacts. Rules adopted by most reputable institutions require sellers to establish provenance — that’s the chain of ownership — going back to 1970. Many sellers simply can’t do that:

But the sweeping shift in attitudes has left collectors stuck with items they say they purchased in good faith many years ago from reputable dealers. One study found that as many as 100,000 privately owned ancient Greek, Roman and related Classical objects in the United States would be unable to pass muster with most museums.

“Objects are guilty until proven innocent,” said James J. Lally, a Manhattan dealer in Chinese art and antiquities.

Well, it’s not the objects that are guilty until proven innocent, it’s the people who dug up the object or put it on the market who need to prove that the object was obtained legitimately.

But, you know how lawyers talk. Here’s a hysterical one who claims that the new rules will do nothing less than kill art in America:

Collectors and their advocates predict that museums, cultural scholarship and the items themselves will suffer as important gifts are disallowed. Kate Fitz Gibbon, a lawyer with the Cultural Policy Research Institute, warned at a March forum that museums, long reliant on the generosity of collectors, may come to regard the guidelines as a “self-administered slow poison.” “This may sound like an exaggeration,” she said. “But if we continue on this path, there may not be a next generation of collectors, donors and patrons of ancient art, not in the United States of America anyway.”

It “may” sound like an exaggeration? Excuse me if I don’t think having tougher provenance restrictions will lead to a dark age that results in Radio Shack being America’s only functional museum.

Which isn’t to say that new rules make some legitimate activity more difficult:

Alan M. Dershowitz, the Harvard law professor, is in a similar bind. An antiquities collector, he is eager to sell an Egyptian sarcophagus he bought from Sotheby’s in the early 1990s. But he is stymied, he said, because auction houses are applying tighter policies to the items they accept for consignment.

“I can’t get proof of when it came out of Egypt,” Mr. Dershowitz said.

It seems to me that since the reason why we’re here is money — you wouldn’t have looters destroying historical treasures if there wasn’t money to be made in the process. There must be some way money can make it right.

What if countries or museums or consortiums of museums get together and redistributed some of the money to aggrieved countries who have had their history stolen and sold on the black market? So professor Dershowitz has this sarcophagus that he wants to sell, but he can’t get the right papers. We care about the papers because we want to discourage people from looting Egyptian sarcophaguses from Egypt and potentially ruining the site while profiting on what should be a national treasure that accrues to the benefit of all Egyptian people.

So what if there was some kind of wealth redistribution? If he’s not able to establish provenance, after making a reasonable effort to do so, Dershowitz could still sell his treasure — but a part of the purchase price would have to go to the Museum of Egyptian Antiquities or some other duly appointed institution. You would essentially be buying the legitimacy of the artifact, and the home country would get needed funds to carry on the fight against looters or for the preservation of their historical sites.

I’m sure there are other market-based solutions that people can brainstorm. The point is that since the lawyers are involved anyway, they might as well make themselves useful.

Lawyers in this area can seek justice for both sellers and the countries of original ownership — and by “justice,” I mean “money,” of course.

The Curse of the Outcast Artifact [New York Times]

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