Why Federal Criminal Penalties for Dealing in Illicit, 25 Cardozo Art & Entertainment Law Journal (Forthcoming November 2007).
There have been many articles on this subject in recent years, and I add to the discourse in two important ways. First, I attempt to unpack the values at work in US federal criminal penalties for buying and selling illicit cultural property. The illicit trade in cultural property may be the third largest behind narcotics and weapons. I look at the various stakeholders which formulate cultural property policy and look at why their fundamental differences of opinion are producing an ineffective regulatory framework. A number of recent articles have dealt with this subject, however the discussion about what the law should be doing has prevented a discussion of the practical effect of the status quo. I hope my analysis will further the debate by showing that the current criminal penalties are not producing satisfactory results.
Second, I show how a pragmatic approach to cultural property has worked well in the United Kingdom and how such an approach could be adopted in the US. This would give real effect to the federal criminal regulation of cultural property. The art and antiquities market lacks transparency at present. Until this trade begins to effectively distinguish between licit and illicit cultural objects, the theft, looting and destruction of historical sites
> will surely continue. I hope my discussion of the UK experience can bring attention to the illicit trade in cultural property and the criminal response in the US.
Rejecting Renvoi for Movable Cultural Property: The Islamic Republic of Iran v. Denyse Berend,14 International Journal of Cultural Property, 111-120 (February 2007).
In Iran
v.
Berend, the High Court in London had occasion to
revisit one of the most enduring problems of private international law and
cultural property. Effective regulation of the illicit market in cultural
property is extremely difficult, because many measures aimed at stemming
the illicit trade actually contribute to the black market. Courts in both
England and the United States have shown that they are prepared to use
criminal laws to convict persons involved in the illegal trade in
antiquities exported in violation of foreign patrimony laws. As a result,
much cultural property policy debate in recent years has focused on the
extent to which the criminal law can impact the illicit trade. The extent
to which national ownership declarations can be used in civil disputes
remains less clear.
(Co-Authored) Dressing Down Trade Dress: A Return to Basics for the Distinctiveness, 14 Wake Forest Intellectual
Property Law Journal, 147 (Co-Authored June 2005) .