Hostname: page-component-6b989bf9dc-cvxtj Total loading time: 0 Render date: 2024-04-13T03:50:27.523Z Has data issue: false hasContentIssue false

For Better and For Worse: Evolving United States Policy on Cultural Property Litigation and Restitution

Published online by Cambridge University Press:  01 October 2015

Patty Gerstenblith*
Affiliation:
DePaul University College of Law, Email: pgersten@depaul.edu.

Abstract:

This article reviews the shift in cultural property litigation in the United States over the past twenty-five years from private replevin actions, in which the original owner sues the current possessor and must bear the costs as well as overcome procedural and logistical obstacles, in particular the statutes of limitation, to civil forfeiture actions instituted by the U.S. government to obtain restitution. The article then analyzes recent cases that arguably illustrate over-enforcement of the law through the use of unclear legal standards in civil forfeiture. It then turns to shortcomings in the effectiveness of U.S. law, in particular the difficulty in imposing emergency import restrictions in the cases of Iraq and Syria, and an over-emphasis on the use of civil forfeiture, which has largely replaced criminal prosecutions in the cultural property arena—but without which there is no true deterrent to trafficking in illegal cultural objects.

Type
Research Article
Copyright
Copyright © International Cultural Property Society 2015 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

BIBLIOGRAPHY

Brennan, Kyle. 2015. “Civil Forfeiture, Customs Law, and the Recovery of Cultural Property.” Journal of Art, Technology and Intellectual Property 25, no. 2: 335–78.Google Scholar
Casella, Stefan D. 2004. “Using the Forfeiture Laws to Protect Archaeological Resources.” Idaho Law Review 41, no. 1: 130–45.Google Scholar
Coggins, Clemency C. 1969. “Illicit Traffic of Pre-Columbian Antiquities.” Art Journal 29, no. 1: 94114.CrossRefGoogle Scholar
Fincham, Derek. 2015. “The Rescue, Stewardship, and Return of the Lysi Frescoes by the Menil Foundation.” International Journal of Cultural Property 22, no. 23: 299312.Google Scholar
Gerstenblith, Patty. 2007. “Controlling the International Market in Antiquities: Reducing the Harm, Preserving the Past.” Chicago Journal of International Law 8, no. 1: 169–95.Google Scholar
Gerstenblith, Patty. 2009. Schultz and Barakat: Universal Recognition of National Ownership of Antiquities.” Art, Antiquity and the Law 14, no. 1: 2957.Google Scholar
Gerstenblith, Patty. 2012. “Models of Implementation of the 1970 UNESCO Convention: Can their Effectiveness Be Determined?” In Realising Cultural Heritage Law: Festschrift in Honour of Patrick O'Keefe , edited by Prott, Lyndel V., Redmond-Cooper, Ruth and Urice, Stephen, 925. Leicester: Institute of Art and Law.Google Scholar
Gerstenblith, Patty. 2013. “Enforcement by Domestic Courts: Criminal Law and Forfeiture in the Recovery of Cultural Objects.” In Enforcing International Cultural Heritage Law, edited by Francioni, Francesco and Gordley, James, 150–74. Oxford: Oxford University Press.CrossRefGoogle Scholar
Gordley, James. 2013. “The Enforcement of Foreign Law: Reclaiming One Nation’s Cultural Heritage in Another Nation’s Courts.” In Enforcing International Cultural Heritage Law, edited by Francioni, Francesco and Gordley, James, 110–24. Oxford: Oxford University Press.CrossRefGoogle Scholar
Hoving, Thomas. 1993. Making the Mummies Dance: Inside the Metropolitan Museum of Art. New York: Touchstone.Google Scholar
Kaye, Lawrence M. and Main, Carla T.. 1995. “The Saga of the Lydian Hoard: from Uşak to New York and Back Again.” In Antiquities: Trade or Betrayed—Legal, Ethical and Conservation Issues, edited by Tubb, Kathryn W., 150–61. London: Archetype.Google Scholar
Mackenzie, Simon R. M. 2005. Going, Going Gone: Regulating the Market in Illicit Antiquities. Leicester: Institute of Art and Law.Google Scholar
Mastrapa, Tania C. 2014. “Court to Rule on Turkish Dealer’s Collection of Looted Artifacts,” Journal Property Rights in Transition, 12 December, http://propertyrightsintransition.com/court-to-rule-on-turkish-dealers-collection-of-looted-artifacts (accessed 18 July 2015).Google Scholar
Megaw, A. H. S. and Hawkins, E. J. W.. 1977. The Church of the Panagia Kanakariá at Lythrankomi in Cyprus: Its Mosaics and Frescoes. Dumbarton Oaks Studies 14. Washington, DC: Dumbarton Oaks.Google Scholar
Meyer, Karl E. 1973. The Plundered Past. New York: Atheneum.Google Scholar
O’Connell, Mary Ellen. 2008. “Beyond Wealth: Stories of Art, War and Greed.” Alabama Law Review 59: 1075–105.Google Scholar
O’Keefe, Patrick J. 2007. Commentary on the UNESCO Convention. Leicester: Institute of Art and Law.Google Scholar
Rose, Mark. 1998. Special Report: Church Treasures of Cyprus. Archaeology 51, no. 4, http://archive.archaeology.org/9807/etc/special.html (accessed 18 July 2015).Google Scholar
Sease, Catherine and Thimme, Danaë. 1995. “The Kanakariá Mosaics: The Conservators’ View.” In Antiquities: Trade or Betrayed — Legal, Ethical and Conservation Issues, edited by Tubb, Kathryn W., 122–30. London: Archetype.Google Scholar
Stone, Elizabeth C. 2008. “Patterns of Looting in Southern Iraq.” Antiquity 82, no. 315: 125–38.CrossRefGoogle Scholar
Symeonides, Symeon C. 2005. “A Choice-of-Law Rule for Conflicts Involving Stolen Cultural Property.” Vanderbilt Journal of Transnational Law 38: 1177–98.Google Scholar
Wolfinbarger, Susan, Drake, Jonathan, Ashcroft, Eric, Hanson, Katharyn. 2014. “Ancient History, Modern Destruction: Assessing the Current Status of Syria’s World Heritage Sites Using High-Resolution Satellite Imagery.” Geospatial Technologies Project Report. New York: American Association for the Advancement of Science (AAAS), http://www.aaas.org/page/ancient-history-modern-destruction-assessing-current-status-syria-s-world-heritage-sites-using (accessed 18 July 2015).Google Scholar
Zagaris, Bruce. 2008. “U.S. Tax Investigation Turns Up Apparently Stolen Cultural Artifacts.” International Enforcement Law Reporter 24, no. 4: 149–51.Google Scholar