April 28, 2020

Rendering Authenticity of Artworks Nonjusticiable through Science and Technology

By Lawrence M. Shindell

The modern concept of nonjusticiability is found in the case or controversy clause of Article III of the United States Constitution.1 This clause and similar state constitutional provisions or judicial doctrines require that a plaintiff have actually suffered injury or harm “in fact” to be entitled to bring a claim. Although the purpose of this article is not to build a roadmap for how one might litigate the nonjusticiability of putative, future claims of inauthenticity in the global art industry—today a $60+ billion annual sales industry in which new stakeholders ranging from financial and trade regulators to the capital markets are adding to the push for greater asset integrity—this article will discuss how advances in science and technology now enable us to remove the autographic nature of artworks from debate and to render authenticity questions nonjusticiable. Nonjusticiability in the context of this discussion means:

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