Abstract

This Essay explores relationships between custom and law in the United States in the context of markets for art objects. The Essay argues that these relationships are dynamic, not static, and that law can prompt evolution in customary practice well beyond the law's formal requirements. Understanding these relationships in the context of art markets requires due attention to two components distinctive to art markets: the role of dealers and auction houses as transactional intermediaries as well as the role of museums as end-collectors. In the last decade, the business practices of major transactional intermediaries reflected a significant shift in customary practice, with attention newly focused on the provenance (ownership history) of objects consigned for sale and on long-standing concerns with an object's condition and authorship. During the same time major museums developed new policies and practices applicable to new acquisitions and objects already in held in collections, focused in particular on archaeological objects and ancient art, as well as paintings present in European countries subject to the Nazi regime between 1932 and 1945. The Essay argues that, in both cases, law furnished the backdrop to significant shifts in customary practice, augmented by heightened public knowledge and concern. Custom evolved in response to salient episodes of enforcement of the law, which furnished further rallying points for newly broadened or awakened public interest and concern.

The relationships explored in this Essay are relevant to ongoing debate about the merits of the underlying law. In the United States, it has long been true that nemo dat quod non habet—no one can give what one does not have—with the consequence that a thief cannot convey good title. The subsequent transferees lack good title and are not insulated against claims by the rightful owner even when the transferees acted in good faith. To be sure, an elapsed statute of limitations may furnish a defense, as may the equitable doctrine of laches. Prior scholarship notes that the United States is unusual, but not unique, because it does not recognize any good-faith purchaser defense in this context and because it does not require that the rightful owner of a stolen object compensate the good-faith purchaser as a condition of obtaining the return of the object. However, this scholarship does not acknowledge (or does not emphasize) the significance of transactional intermediaries within art markets or the operation of customary practices of museums and transactional intermediaries. This Essay thus adds the context requisite to evaluating the merits of the relevant law.

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