“Customs took one look at the statue, decided that it was not art, but rather it was metal cutlery or utensils or something like that, and slapped a tariff on the statue. … Essentially the question for the court was, “What is art?” … Customs needed a definition for “art” for the very practical purpose of applying tariffs to goods. From that point on, I couldn’t shake the fun merger of theory and practice that is trade and customs law.”
This is the second installment of a new series from the ABA Art and Cultural Heritage Law Committee, in which we interview professionals practicing in art law about their careers.
Can you provide an overview of your legal background and experience?
I earned my BA in English Literature. A course in “Immigration Literature” was the class that put me on the path to law school. I acquired a real interest in the laws and policies that informed our immigration system and the impact such laws could have on an individual’s cultural expression and sense of identity. I came to DePaul University College of Law for a scholarship weekend, thinking I would be pursuing immigration law (as I was currently working in migrant services at the time). I saw an advertisement for the Certificate in Art, Museum, and Cultural Heritage Law. I thought, “I don’t know what that is but it sounds like all of my interests merged together, so I must find out!” In retrospect, it sounds like I did a 180 before my law school classes even began, but at the time it just seemed like a more refined articulation of what my interests actually were, and I can confidently say the themes at play in Cultural Heritage Law are what inspired me to pursue a career in law to begin with.
During law school, I interned with UNIDROIT, an international intergovernmental organization that works to harmonize private law across countries. At UNIDROIT, I dug deeper into my interests in Cultural Heritage Law, researching the application and effectiveness of the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. During the spring semester of my 2L year, I externed in the Office of Associate Chief Counsel for U.S. Customs and Border Protection (CBP). I was drawn to CBP and trade because oftentimes cultural property cases take the form of civil forfeiture actions under Title 19 (the Customs laws!). My externship with CBP was supposed to wrap up at the end of my 2L year, but I was really enjoying the work and was learning a lot. I asked if I could stick around for the summer and ended up externing there until late fall. I eventually did complete my externship with CBP, and while I was sad to go, I had an opportunity to clerk at a reputable trade firm, Barnes, Richardson & Colburn, LLP (Barnes). I was “lucky” in that I was coming into the trade environment in late 2018 and early 2019 when the U.S.-China trade wars were really heating up and U.S. protectionism and retaliatory measures were on another level.
It was an exciting time to make my debut in trade and customs law because suddenly it was like the whole world was paying attention to tariffs, plus there was plenty of work to be done. While at Barnes, I transitioned from Law Clerk to Attorney after graduating and passing the bar exam, and I practiced there for two years before I returned to CBP, Office of Associate Chief Counsel, where I practice now!
Where does your interest in art and art law come from?
I was an amateur archaeologist when I was young. I was always digging in the creek in my backyard and excavating all sorts of things, and then curating my own collection of objects I would find, so maybe that's where my interest began, but it is probably more conceptual than that. I grew up traveling a lot, with my family and then through school, and then solo traveling and my curiosity for a place’s history and a people’s culture was kind of boundless. I mean, that is just traveling, right, but often on those trips, I would find myself in museums less interested in the objects themselves but more intrigued by how people thought about the objects, and what they represented or what stories they held. Then while I was studying for my BA in English Literature, in various multicultural literature courses I was thinking a lot about how culture manifests, how culture is protected and preserved, as well as transmuted. I was thinking a lot about cultural identity and ownership - and probably because I was a wide-eyed 18- 19- 20-year-old, all these thoughts and ideas were groundbreaking to me.
I did take one art history course - I had completely forgot about it until this interview. It was a really tough course. I really enjoyed that class, who doesn’t love to stare at a Jan van Eyck work for an hour on end. But I don't think that I could have articulated at the time I took that course that I had an interest in art law, despite these classes I was taking in multicultural literature or this art history course, because I can honestly say I didn't know that “art law” was a thing.
It was not until my 1L property course that it all started coming together for me (I loved my first year property course). And it's funny, because you definitely can't boil down Cultural Heritage Law into your conventional property course, but the concepts of ownership and how the law works to discern between different interests are fundamental, right? While my property professor, Dr. Patty Gerstenblith, did not explore cultural property law within the curriculum of the doctrinal course, I think the course still provided a very cursory introduction into the fundamentals of Cultural Heritage law because we are talking about objects or “property” for which there are multiple interests and potentially multiple claimants and the law has to weigh those interests and accommodate them according to priority - how we set those priorities is a whole other conversation! That conversation gets elevated when we are talking about culturally significant objects, where value is not limited to a dollar amount and impact goes beyond physical dispossession. So yeah, all that to say, my first year property course got my wheels spinning. Like I said, at the beginning, much of my interest was extremely conceptual and daydreamy. I would walk out of class in a daze thinking about this stuff. Needless to say, getting out of my head and into the practice of cultural heritage law has been a fun challenge, and has certainly evolved my position or “take” on things.
What type of courses did you take in law school to learn more about art and cultural property law?
Following the 1L doctrinal courses, I attended the Siena program sponsored by DePaul University and Tulane University’s respective law schools. We attended one month of courses that took very deep dives into the specifics of international cultural heritage law. When that wrapped up, I finished my summer with an internship with UNIDROIT in Rome. It was such an amazing opportunity for so many reasons. Most importantly, it was an opportunity for me to explore my budding interest in cultural property, because this was before I had taken the official art law course at DePaul. So I had so many questions - I had so much to learn! UNIDROIT was a really special place to be because it's the author and repository of one of the few legal instruments for cultural property protection (the 1995 UNIDROIT Convention) (I’ll note the Convention just got a shout out in the recent decision out of the European Court of Human Rights on the Getty Bronze case). Being within the institution where something so formative was authored was an unparalleled experience. In my second and third years of law school, I took the art law courses required for completion of the Certificate in Art, Museum, and Cultural Heritage Law.
How did you end up practicing trade law?
The very first assignment we had to read for my first art law class was the Brancusi case (Brancusi v. United States, 54 Treas. Dec. 428 (Cust. Ct. 1928)), regarding Brancusi and his series of sculptures on the theme of birds in flight, and his attempt to import one piece, Bird in Space, into the United States. At the time, and to this day, most art enters the country free of general duty. Customs took one look at the statue, decided that it was not art, but rather it was metal cutlery or utensils or something like that, and slapped a tariff on the statue. Brancusi decided to fight the decision at the U.S. Customs Court, which was the predecessor of the now U.S. Court of International Trade. Essentially the question for the court was, “What is art?” This question is famously theoretical, right, but in this case, it was as practical a matter as you could get: Customs needed a definition for “art” for the very practical purpose of applying tariffs to goods. From that point on, I couldn’t shake the fun merger of theory and practice that is trade and customs law. I was like whoa, it turns out Customs might actually be more interesting than me having to wait in line when I come back into the country, which by the way, now, I think is super interesting.
So, that is one example but in short, I came to the realization that Customs and the customs laws are integral to art/cultural property law early on. That reality became even more obvious to me as I continued my education because, whether it is obvious or not or even if it is offensive to certain notions we have of cultural heritage, when we are talking about the regulation of movable objects, we're talking about trade. Art and other cultural objects are within the flow of international goods. It follows that if you are then regulating the flow of art and cultural objects, you are doing it against the backdrop of trade and customs law. For example, the United States implemented the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property under Title 19, which is the Customs statute. To a large extent, we (U.S. and the international community writ large) are choosing trade as the way to regulate cultural goods which does make some sense, but then again our trading system requires definitions and classification in order for it to work. And, of course, there are other necessary questions when it comes to trade regulation and enforcement that complicate matters: questions of origin, questions of value. While I’ll never describe an origin question in any context as simple, these questions that Customs routinely asks of merchandise coming across the border take on another dimension when we are thinking about culturally significant objects. Oftentimes answering those questions is complex and contentious.
There is a quote from the Art Law casebook, “art eludes definitions and law needs to impose them” - that quote struck me the first time I read it and its accuracy is amplified every day in the field; there is something about that tension that just tickles me and keeps me so interested in this work.
What types of cases do you handle?
As I’ve said, the heavy-hitter tools that we have in terms of the protection and regulation of cultural goods are under Title 19. I work in a field office within the Office of Associate Chief Counsel dealing with the day-to-day operations of ports of entry all across the Midwest and the Great Lakes Region. This means work with the officers and the agents who are actually processing shipments coming in and out of the country. A good number of those shipments do happen to be suspected protected cultural goods. We have to look at the facts of the import or export and whether there is a potential violation of law there. We work with appraisers and subject matter experts to get authenticity determinations and more details as to the various objects. Eventually, a determination must be made of whether this is a situation warranting forfeiture or whether the importer/exporter is in compliance or maybe there is a question as to whether the object is subject to protection to begin with. The investigatory work is done by Homeland Security Investigations (HSI) and the case processing is principally carried out by our Paralegal Specialists within CBP’s Fines, Penalties, and Forfeitures branch. I’m working alongside those dedicated Agents and Specialists to ensure the legality of every agency action. It's very fun and worthwhile work, but rarely straightforward. So, that's a part of my trade portfolio, but as an Attorney for CBP, I also have some immigration cases (funny given what I thought I wanted to practice when I started law school). We also have a healthy labor and employment practice. So anytime there's a discipline case, a dispute with the Union, or an employment discrimination case, then we're defending the government's interests. I would say the majority of my caseload does come under our trade portfolio. I have a good number of seizure and forfeiture cases - whether it's cultural property, commercial merchandise, money, drugs, or something else. De-pending on the facts, those cases can be processed a few different ways. Where judicial forfeiture is requested or mandated (depending on the nature and value of the property), our office will present CBP’s case to the Department of Justice and provide litigation support should they pursue the action.
What was your first art law case?
When I was an extern at CBP, I got to work on a civil forfeiture case against a Mongolian bataar fossil. It was a fossil that was within the same group of fossils for which Karin Orenstein had successfully secured a criminal conviction against two of the smugglers. There was another one of these skulls, and the government brought a civil forfeiture case, alleging it was stolen from Mongolia under the National Stolen Property Act and forfeitable under 19 U.S.C. § 1595a(c). It was really a classic civil forfeiture under the Customs statute. There was an astronomical amount of certainty that this fossil came from the Gobi Desert in a specific area of Mongolia. When you looked at the Mongolian national ownership law, it was clearly interpret-ed as an ownership law and enforced as such. It was so thrilling to get to do research and the government had a strong case. But unfortunately, the merits never got decided, because the judge ruled that the government was untimely in bringing the case. With the civil forfeiture action, you have five years from the offense being discovered to bring the case. And the government was just short of making it within those five years. So we have a situation where the case is so strong for a return, but procedurally it gets foiled. We see that in this area of law kind of a lot, right? If you look at the Cassirer case, with the Pissarro painting, no one, not even the government of Spain, contests that it was sold under duress to the Nazis. Yet, it has been back and forth between the District Court and the Court of Appeals for over 20 years on procedural issues. And, it would be, I think, easy to say that that's an injustice. But the procedural issues are the law too, and serve a lawful purpose (for better or worse). It is important to pay attention to how the law does sometimes undercut its own policy or purpose or the spirit of the law. I really enjoy thinking about the way that the law wrestles with competing interests; whether you're the dispossessed owner or the current possessor, the law has to con-sider both positions in a contest to decide who prevails. I'm not saying that the current system that we have is perfect. But it's the one we are working under, so I try to make sure I understand its limitations.
What distinguished you from your colleagues to be chosen for art law cases?
I began working as a Law Clerk, and then as an attorney at Barnes, because of my interest in trade law, not because of my cultural property interests. But I was always vocal about my interests and did have the hope that they would be open to me focusing on cultural property matters. Luckily, they were, and they were very supportive of me exploring my interests. I got to do some work that related to different archaeological and ethnographic objects, such as how they were classified under the harmonized tariff schedule. I also had clients who were importing cultural objects, and I would be advising them on how to be in compliance under the applicable law and regulations. And so while my work was in trade law generally, I was able to work on those occasional cultural property cases, because I had made my interest in it so clear. Even now at CBP, I do other work in the same proportion that I deal with cultural property. In terms of what distinguishes me, I think that is a part of it; I have always embraced the opportunities presented to me, even if it was not the most “on point” cultural property niche career, and yet I’ve found myself getting to do very important work in this field.
What do you find most motivating about your current work in government?
I felt very pulled to try my hand out doing this stuff within the government because it's still such a developing area of the law. I think that there still exists a healthy amount of confusion from all stakeholders, government included, on how exactly the regulations are supposed to be enforced and how certain laws are applied in this context. Beyond even just my work, I am motivated to push for progress within the field writ large and I think that goes beyond individual cases. While each instance of “return” or “repatriation” or in some cases, retention, often times can be its own success, I do think it is so important that Cultural Heritage law gets a chance to fully develop, that these cases get fully played out with clear application of law and transparency as to what exactly is unlawful and when and why. Comprehensive development of this area of law is another kind of success. I’d like to work towards that over any individual Indiana-Jones like crusader moment of glory, though that may be a part of it.
Do you have any advice for law students interested in practicing art law?
Don't convince yourself that your career has to look a certain way or that there are only these really specific paths to practicing cultural property law. Be flexible but true to your passions. Stay committed to your interests and be proactive about cultivating them. Find a way to put your interests on display, whether being vocal or participating in associations, groups, attending lectures, conferences, writing a blog, etc., And always work hard. With all these ingredients, ideally, the work will come to you. Ultimately though, there is not a formula and I think keeping an open mind is huge; commit yourself to work that you believe in, and it is hard to err.
