The author sets out an assumption—that the law in the area of cultural heritage is unsettled. He uses this faulty assumption as a basis for criticizing the use of and reference to legal rules within the cultural heritage field. In his introduction Audi states that he will apply a “theoretical apparatus” derived from “legal reasoning as it relates to gaps, ambiguities, or conflicts in laws” but admits that this methodology is less appropriate for settled areas of the law. At this point he unwittingly undermines the premise of his article. He goes even further in attributing “more than a little bad faith behind lawyers and judges” who claim to be applying the law. He seems to confuse policy arguments, where admittedly commentators can offer conflicting views that seem to carry equal validity, with legal arguments. He also believes that the legal arguments cancel each other out as if a decision from a court or a statute that congress passes is on a par with arguments offered by those who favor or disapprove of the result.

How the author can make these assertions is a mystery; but I note that he cites without discussing the major cases in the field, and he cites none of the U.S. statutes, statutes of other countries, or international conventions that now form the basis of a well-settled law in the field of cultural heritage. He ignores the significance of the decisions in both the Schultz and the Antique Platter cases.¹

He also ignores the growing number of agreements that the United States has with other countries under the Convention on Cultural Property Implementation Act and the growing body of law based on forfeitures of antiquities that are stolen property or whose import violates U.S. law. It is unfortunate that Audi uses such a faulty premise, because if he had presented a more accurate view of the law, some of the points he makes later in the article might hold validity and insight for the cultural heritage field.

One example of the author's strange detachment from legal reality is his discussion of the question of whether the possessor who must relinquish an antiquity is entitled to an innocent owner defense. The author reenacts the argument as if there were no binding U.S. Supreme Court precedent on the question of how to determine whether an innocent owner defense is available. He caricatures the process by which a judge would apply the settled legal rule and the analysis used in distinguishing between questions of law (whether a defense is available) and questions of fact (whether the defendant qualifies as an innocent owner). In the former analysis, the judge looks to U.S. v. Bennis and the language of the applicable statute; in the latter analysis, the judge looks to factual issues of the defendant's conduct.

It is precisely this misguided notion—that cultural heritage law is unsettled and, therefore, both unknowable and an inaccurate guide by which to conform one's conduct—that has encouraged those involved in the international trade in antiquities to continue to violate the law. But one wonders, at what point does an assertion that the law is unsettled morph into an excuse for criminal conduct or, even worse, the setting up of a potential defense based on lack of knowledge or intent to violate the law? These factors are at play in the prosecution and conviction of the well-known art dealer, Frederick Schultz, for conspiring to handle antiquities stolen from Egypt.

Until his indictment in the summer of 2001, Schultz was the president of the National Association of Dealers in Ancient, Oriental and Primitive Art (NADAOPA).²

This association was involved in the contentious development of U.S. law regarding the international trade in antiquities since at least the 1970s—disapproving of the nascent 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property and its implementation by the United States. Leaders of NADAOPA, including Schultz himself, appeared before the Cultural Property Advisory Committee to oppose the requests of other nations for agreements with the United States to restrict the import of undocumented archaeological and ethnological materials. NADAOPA also submitted amicus curiae briefs in several major international cultural property cases that came before U.S. courts. In the 25 years from the McClain decision to Schultz's conviction, NADAOPA, its attorneys, and others involved in the international antiquities market attempted to create an aura that the law was unsettled, unknown, and unknowable. This may not only have contributed to Schultz's violation of the law but became part of his attempted defense, albeit an argument rejected by the courts.³ Audi seems to have bought into this fiction of unsettled law. He may thereby contribute to misunderstandings on the part of others engaged in the international market, and he undermines other points in the article that could make a contribution to the development of this field of law.

The final segment of the paper raises some interesting questions—why should the perennial disputes over historical claims to restitution (symbolized by the Elgin or Parthenon Marbles in the British Museum) form the conscious or subconscious backdrop for the resolution of contemporary claims and the problem of ongoing looting of archaeological sites? Audi seems to posit that these historical claims are what give rise to the ignored issues of restitutionary justice. This theme is one well worth exploring; but why was it necessary to try to delegitimize the law in this field to consider the role that these historical claims, rightly or wrongly, continue to play?