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Thursday, September 24, 2009

Fincham on Museum Deaccession

Derek Fincham (Loyola New Orleans) has posted Navigating the Deaccessioning Crisis on SSRN.  Here's the abstract:

A deaccession crisis confronts the American Museum community. Deaccession of art occurs when a museum decides to sell or dispose of a work of art. The crisis stems not from the practice itself - though there are indications deaccession will occur with increasing regularity. Rather the curious mixture of trust and estates law, state law, tax policy, nonprofit governance, professional guidelines, and doctrines governing deaccession all combine to form a body of rules which lack clarity and often conflict. These general and ephemeral standards preclude reasoned appraisal of whether any given sale may benefit the public. More care should be taken when crafting the rules governing our collective cultural heritage.

This article attempts to define the public interest in works of art, and provide a framework to guide in the deaccession of works of art to ensure those sales do in fact serve the public interest. The decision to sell works of art should be taken with care; but the current rules lead to a number of pernicious consequences. They have caused the loss of works from the public trust, the closure of museums and unnecessary legal battles.

Current guidelines require that deaccession proceeds be used only to purchase more art; however this rule appears to be a product of one high-profile scandal involving New York's Metropolitan Museum of Art. To assist donors, museum directors and state Attorney Generals, this article proposes three changes. First, the unnecessary restriction on deaccession proceeds should be eliminated. Second, when an important work of art is deaccessioned, other museums should be given an opportunity to purchase a work - to keep it in the public trust or its region - in much the same way the United Kingdom and other nations regulate the export of works of art. Finally, when any museum is considering a deaccession, it must provide reasons for the sale and publicize the decision to allow for public comment.

Ben Barros

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http://lawprofessors.typepad.com/property/2009/09/fincham-on-museum-deaccession.html

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Comments

Gosh, I didn't know Fincham and I were working on such similar topics. Here is a working paper of mine, although with a different focus and quite different conclusions. http://www.utexas.edu/lbj/rgk/fellowship/2009papers/Coslor.pdf

Posted by: Erica Coslor | May 13, 2010 9:57:54 AM

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