Unveiling the Executive Branch's Extralegal Cultural Property Policy

46 Pages Posted: 15 Aug 2010

Date Written: August 13, 2010

Abstract

In this Article we reveal that the executive branch of the United States has consistently - and astonishingly - exceeded constraining legal authority with respect to the movement of cultural property into the United States. To illustrate this assertion, we identify three distinct categories of extralegal cultural property practices. First, we describe how the Department of Justice, misapplying the National Stolen Property Act, has obtained the return of cultural objects to their countries of origin by filing legally-deficient civil forfeiture complaints. Second, we describe how the Justice Department has pursued this same objective by proceeding under a legally-erroneous interpretation of the Archaeological Resources Protection Act. Third, we describe how the Department of State has repeatedly undermined the statutory structure and mandatory criteria of the Convention on Cultural Property Implementation Act, resulting in significant import restrictions on cultural property. All of these practices exceed constraining legal authority and lead to a similar result. Accordingly, we describe this pattern of practices as forming an extralegal cultural property policy. We express no opinion about the wisdom of this policy. Rather, our purposes in unveiling this policy are to promote a rigorous and transparent review of the executive’s practices and to restore the rule of law. In our conclusion we speculate as to why the executive has undertaken these practices and, among other observations, suggest with some sympathy that the current legal framework is outdated.

Suggested Citation

Urice, Stephen and Adler, Andrew, Unveiling the Executive Branch's Extralegal Cultural Property Policy (August 13, 2010). University of Miami Legal Studies Research Paper No. 2010-20. Available at SSRN: https://ssrn.com/abstract=1658519 or http://dx.doi.org/10.2139/ssrn.1658519

Stephen Urice (Contact Author)

University of Miami - School of Law ( email )

P.O. Box 248087
Coral Gables, FL 33146
United States

No contact information is available for Andrew Adler

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