The Last Mile: Handcomputers Post-iPad

As anyone who has been reading my blawg for a while knows, I have been keen on the idea of a workable tablet which could be carried to court instead of files. This is particularly of interest because both the Clerk of our Circuit Court and my boss are trying to get us to the point that paper isn't needed in the courthouse. This works wonderfully for the storage of closed files, but is more difficult for ongoing case files. Laptops can somewhat fill the gap, but to use the laptops you get stuck at the desk and have to type notes. You really need a tablet which you can carry with you so that you can pop up .pdf's and documents in a case file, take written notes when you are standing at the bench or podium, and use it to read your notes for openings and closings while you are standing in front of the jury.

So, I am really looking forward to a real working tablet. To this point, I have been most impressed with the enTourage eDGe which has a goofy name and is still too heavy and bulky at 3+ pounds (seems light until you carry it in replacement for a paper tablet), but has much more functionality than anything else I've seen.

Now Apple joins the race. I've been looking forward to this for a while because Apple usually tries to be innovative when it develops a new product. Of course, I also carry prejudices with me which caused me to expect the Apple tablet to be too expensive and too locked in to Apple programs (i.e. iTunes). Comes now the Apple "iPad."

It's an unfortunate name, which has led to a lot of jokes, most in the vein of the one which Mad TV did years before Apple ever thought of this tablet.

There was an initial flush of Apple fanboys talking about how wonderful this device is. Here's the uber-maven of tech Leo Laporte gushing about the device (bracketed by Tekzilla).

Then came the almost immediate and large backlash pointing out all the flaws of the device. This one by Molly Wood, via the Buzz Report, has a number of them (and is funner to listen to than most).

The Good: At a price of $499 with 16GB of memory, it sets the price point for everybody else. With it at this price, it becomes very hard for ereaders to justify their current pricing. In particular, I hope it drives down the price of items like the Sony Reader Daily Edition ($399) and the QUE proReader ($799). The proReader in particular seems badly overpriced at 8GB, even though it is impressive if all you want is a reader.

The Bad: All they did was make a big iPod touch. It will probably be a good way to read the internet and could be a good way to watch video if it supported flash (supposedly to be fixed sometime in the future by support for h264 in new HTML). It could at least have been a new type of communication device if it had a camera and microphone and did vid-phone between devices. No stylus either so that a person can write down a quick note and save it (or, continuing the new type of communication device theme, it could have allowed writing notes and sending them to another person with a tablet).

AAAaarrrrggggg!!!! I'm not sure what Apple thought it was doing when it put this product together. It doesn't look like it will work well for much of anything. Primarily, it seems to be interested in pushing against ereaders instead of actually becoming a working hand computer. It's sad, but the last company to do that really well is probably still Palm. I'm still waiting for the somebody to get it right.

[ADDITION] The coolness offensive has begun:

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A comeback for guarantees?

This Bloomberg piece on the state of the art market includes the following:

"Christie’s, along with Sotheby’s and Phillips de Pury & Co., abandoned guaranteeing minimum prices to sellers at the end of 2008. Many owners of high-value pieces, particularly contemporary works, turned to private transactions rather than risk high-value works at auction in a falling market. 'You will see guarantees coming back,' said [Christie's CEO Edward] Dolman. 'But it won’t be like the height of the market in 2007. We’ll be looking to share the risk much more. ...' Christie’s is currently discussing guarantees with certain sellers, Dolman said."

Tell me again about the "public trust" (a continuing series)

Carol Vogel's "Inside Art" column today reports that LACMA sold 16 works at Sotheby’s yesterday for $3.8 million (more than double the $1.7 million high estimate).

Remember: "once an object falls under the aegis of a museum, it is held in the public trust, to be accessible to present and future generations."

Obama Calls Out The Supreme Court to Their Face

The following video has been spreading around the internet because, if you watch closely, you can see Justice Alito muttering "Not True" as the President calls the Supreme Court out in the State of the Union Address. However, watch it closely and you'll also see Justice Ginsberg's head snap up into a death stare as the President begins his call out. The only Justice that seemed totally unaffected by the political rabble rousing was the Chief Justice, who almost looks like he's smirking.

Reversed

At the close of his September 2007 oral ruling granting Mass MoCA summary judgment in its lawsuit against artist Christoph Büchel, District Court Judge Michael Ponsor said: "I would just say, as an admonition, not to be overly comforted by my [decision], because I would imagine if this matter goes before the First Circuit, it will be scrutinized afresh, and only a reckless person would predict what the Court of Appeals is likely to do with the very complicated issues that this cases raises."

Well, he was right about that. Today the First Circuit reversed his decision, holding that "the record permits the inference that … Museum staff members were disregarding [Büchel's] instructions and intentionally modifying 'Training Ground' in a manner that he did not approve." (Longtime readers will recall that I was one of Büchel's lawyers at the District Court level. Volunteer Lawyers for the Arts kindly stepped in to handle the appeal, along with George Conway and his team at Wachtell, Rosen, Lipton & Katz, on a pro bono basis. As is obvious from the result, they did a terrific job on the appeal.) The Court forcefully held that VARA applies to unfinished works, and clearly rejected Mass MoCA's "contention … that the unfinished installation might constitute a joint work of Büchel and the Museum." A good day for artists' rights.

Bad to Worse

The LA Times reports: "Artist Shepard Fairey is facing a criminal investigation in connection with his admitted misconduct in the ongoing legal case with the Associated Press."

Not good.

Sergio Muñoz Sarmiento says: "To what extent will this affect the merits of the 'fair use' argument is unknown." But, as Ben Shefner points out, "the civil copyright case may now be the least of his worries."

Hazardous (UPDATED)

I've been meaning to flag Michael Rushton's characteristically thoughtful response to my post last week on the moral hazard argument against deaccessioning. He helpfully marshals a lot of the academic commentary on agency problems generally, though concedes "the literature on nonprofits is not as deep." His bottom line:

"In the end ... I appreciate DZ's point that we just are not yet in a position to say with accuracy whether the costs of the moral hazard I worry about exceed the benefits from flexible access to funds through deaccessioning in times of crisis. But I will maintain the cost is there, even if, under new, relaxed norms governing deaccessions, the costs would not immediately be apparent."

One quick thought in response. We already have real-world experience we can draw on to assess the effects of a permissive deaccessioning regime on museum management. U.S. museums routinely deaccession to raise money to buy more art. Is there any evidence that that leads to poor management (in the area of acquisitions or otherwise)? Does it seem to encourage "pet projects and perquisites and risky schemes that are contrary to the interests of the organization"? My understanding is that most (or at least many) European museums do not deaccession at all (not even to buy more art). Do they seem better managed than their U.S. counterparts? It would make for a fascinating research project. In any case, it's interesting that you never hear about the moral hazards of acquisition-related deaccessioning.

UPDATE: Rushton responds.

Linkage

• A Tracey Emin forgery ring?
• London's ICA could close by May.
• "A woman taking an adult education class at the Metropolitan Museum of Art accidentally lost her balance and fell into 'The Actor,' a rare Rose Period Picasso, tearing the canvas about six inches along its lower right-hand corner." Good teaser headline from the NY Daily News here. The Art Market Monitor is surprised this sort of thing doesn't happen more often.
• Revisiting the uncollectable artwork.

New Street Law

Netflix has gotten it into it's computer algorithm that I'm a fan of BBC shows. After having it pop up in suggestions several times, I finally decided to try "New Street Law", a show about barristers in Manchester, England.

It's fascinating. The ongoing story is that of two law chambers (roughly analogous to US law firms). One chambers is dominated by a barrister determined to be a champion of the little guys; it struggles just to keep its doors open from day to day. The other chambers is well established and dominated by a respected barrister who is in the twilight of his career. The twist is that the barrister in the first chambers used to be in the elder barrister's chambers; he left and the elder barrister has never forgiven him. Since these two chambers share the same building, appear to be the only ones in Manchester and constantly face each other in court, this provides the background for every single case.

However, the truly interesting part is watching how the system operates. I'd realized that the British system had solicitors and barristers, but I hadn't realized that the barristers are totally dependent upon the grace of the solicitors to receive cases. It appears that if no solicitor will give a barrister a case (apparently called a brief in British parlance), the barrister is going to starve. There also doesn't appear to be permanently employed set of prosecutors so that cases are sent out to private chambers. It's also strange to see the differences in procedure. I can't imagine trying a case for the defense with the client sitting off to the back behind a glass wall. It's really interesting to watch the trial ongoing and see things go by as a matter of course which would have lawyers here in the States screaming at the top of their lungs (usually because of the lack of our constitutional amendments). Hearing a judge say that she will weigh the defendant's refusal to speak against him is really different. AND, I really want American courts to provide locker rooms in the courthouse for attorneys like British ones do (at least on this show).

Prior to watching this, I had thought that TNT's Raising the Bar was the best representation of defendants. Now I think that New Street Law is. Some clients are innocent, some are unrepentant (and still expect to win), some refuse to cooperate, some women try to use there sexuality to get out of things, and some clients are manipulative as a snake charmer.

Of course, part of the reason that I like this show is that I'm not able to pick it apart as I sit through it like I do American lawyer dramas. Perhaps an actual British barrister sits through this show pointing out errors every 3 minutes. Still, I thought it was great.

I checked and this show only ran for two seasons. If you've got Netflix and a device which will stream to your TV (I use a Roku), you can stream the first season (8 episodes), but you'll have to get the second season mailed to you. If you haven't figured it out yet, I heartily recommend you find some time and watch New Street Law.

"The burden of concealing something really rips you open inside"

The LAT's Mike Boehm talks to Shepard Fairey, "who last fall admitted that he'd lied initially about which AP photo the 'Hope' poster was based on."

"Itself an exercise in spin"

More reviews of The Art of the Steal, the Barnes documentary which opens theatrically soon. Film Journal International says "claims of objectivity, made by the filmmakers at [the NY Film Festival], are an artful dodge: The title says it all. The filmmakers side with those who argue that the Barnes Collection has been stolen. ... If the filmmakers had simply explained why the audience should care, beyond the fact that an imperious, dead millionaire’s trust had been broken, The Art of the Steal would have served the interests it ostensibly represents—the people who care about art."

One who doesn't side with those who argue that the Barnes Collection has been stolen is Lee Rosenbaum. In a post today with more on her visit to the recent Art Commission hearing on the project, she says the following:

"I don't agree with characterizing the transfer to Philadelphia as a 'theft.' I think that the Pennsylvania and Philadelphia powers-that-be understandably wanted to lure that valuable cultural resource to the big city. The Barnes board, to my mind, wrongly capitulated to that pressure."

More anti-theftists here and here and a related post of mine here.

This one REALLY sells itself (UPDATED)

Felix Salmon on an artwork, by Caleb Larsen, that "is so commercial that it can’t be collected." The purchase contract apparently includes the following:

"Artist has created a work of art titled 'A Tool to Deceive and Slaughter (2009)' ('the Artwork') which consists of a black box that places itself for sale on the auction website 'eBay' (the 'Auction Venue') every seven (7) days. The Artwork consists of the combination of the black box or cube, the electronics contained therein, and the concept that such a physical object 'sells itself' every week."

At his own website, Larsen explains: "Every ten minutes the black box pings a server on the internet via the ethernet connection to check if it is for sale on the eBay. If its auction has ended or it has sold, it automatically creates a new auction of itself. If a person buys it on eBay, the current owner is required to send it to the new owner. The new owner must then plug it into ethernet, and the cycle repeats itself."

UPDATE: More from Regina Hackett.

"As jobs and exhibitions continue to plunge off museum cliffs due to the recession, is the AAMD deaf and blind to the obvious?"

The Deaccessioning Blog on the "breaking news" I mentioned yesterday.

New Additions to Virginia Criminal Cases & Law

December's appellate cases have been entered into Virginia Criminal Cases & Law.
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"One of the most elaborate and difficult acquisitions we have ever made"

In this Sunday's NYT Magazine, Arthur Lubow had an interesting article on artist Tino Sehgal, who makes "ephemeral' "live-action" works, a show of which opens at the Guggenheim later this month. The whole thing is fascinating, but, from an art law perspective, this bit caught my eye:

"Since there can be no written contract, the sale of a Sehgal piece must be conducted orally, with a lawyer or a notary public on hand to witness it. The work is described; the right to install it for an unspecified number of times under the supervision of Sehgal or one of his representatives is stipulated; and the price is stated. The buyer agrees to certain restrictions, perhaps the most important being the ban on future documentation, which extends to any subsequent transfers of ownership. 'If the work gets resold, it has to be done in the same way it was acquired originally,' says Jan Mot, who is Sehgal’s dealer in Brussels. 'If it is not done according to the conditions of the first sale, one could debate whether it was an authentic sale. It’s like making a false Tino Sehgal, if you start making documentation and a certificate.'"

Breaking News

The AAMD agrees with itself.

Well, that settles it.

Around the World & Near to Home

1) Wonderful, a brand new way to make meth.

2) The much vaunted "can't arrest a naked person defense."

3) The Board of Governors of the Kentucky Bar Association has voted to disbar Melbourne Mills Jr. I know this doesn't mean much to those of you who didn't grow up in Kentucky, but it's the only lawyer's name that stuck with me from my youth. I think the reason was that he did a bunch of commercials (was he the guy that shot a raybeam from his hand at a dinosaur?).

4) On his way out the door, Governor Kaine agrees to let a murderer go back to Germany causing a ruckus over whether the murderer could get the parole there that he can't get here.
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More on the Fresno Museum Closing

I've been meaning to mention this interesting story in the LA Times on the closing of the Fresno Metropolitan Museum.

First, the story confirms that the museum's entire art collection will now "be sold at auction."

So we've got a real-life reminder that if we're unwilling to let a financially-troubled museum sell one or two works, the result may well be that it ends up having to sell all its works.

Now, it's interesting to read that the whole collection here "has been appraised at a value of around $2.1 million." Given that the museum has debts of "between $4.4 million and $4.8 million," this probably wasn't a case where deaccessioning could have been of much help.

But in theory, it could have been, and it still seems silly to me to say that, no matter the circumstances, a museum may never sell work to keep from having to shut its doors. Suppose that, instead of $2 million, the museum's collection was worth $200 million, or more. Would we still rather it close (and thus have to sell its entire collection at auction) than sell one or two works and stay afloat?

Michael Rushton says the answer is yes, because, in the long run, that will lead to better museum management overall. Actually, that's not quite right. What he says is that, if we relax the norms against deaccessioning, "we could see an unwelcome shift in museum management" (my emphasis). Well, sure, we could see that. But maybe we wouldn't. Maybe if we removed the deaccessioning taboo, we'd find that it isn't doing very much work at all towards improving museum management. Maybe we'd find that museums continue to be managed about as well as they are now. Consider in this context the "good" kind of deaccessioning: deaccessioning to raise money to buy more art. (For example.) Do we think that leads to lax asset management by museums? Do they spend their acquisitions budgets unwisely because they know they can always just sell some more work (rip it right out of the "public trust") any time they'd like to acquire something? Does it make them less diligent about fundraising etc.? I don't know, but no one seems to worry about that in the area of acquisitions.

The larger point, though, is: even assuming the deaccessioning taboo leads to somewhat better museum management in general, how do we know how much that better management is worth and when do its costs get large enough that they outweigh those benefits? It's not so much a time inconsistency problem as one of balancing certain costs (today and in the future) against extremely hard to measure benefits (today and in the future). So, according to the LA Times story, Fresno is part of "a growing list of about 20 U.S. museums of various types and sizes that have folded in the last year." In addition to that, "dozens of other museums have been forced to trim budgets, cancel or postpone exhibitions and/or layoff staff." At what point do we decide that the (certain) costs of the no-deaccessioning rule outweigh the (possible) benefits? When the National Academy closes its doors? When we lose the Detroit Institute?

I think, before signing on to accept these very real costs, I'd like to see a lot more evidence that relaxing the norm against deaccessioning -- even very slightly, as in the Dobrzynski Proposal -- would have such grave consequences for museum management generally.

Perhaps they should try a bake sale instead

According to The St. Petersburg Times, the Salvador Dali Museum needs $6 million to complete construction on a new building. The president of the museum's board says they "will be forced to take out loans using art from the Dali collection as collateral if the tax dollars or new contributions don't come through soon."

I don't believe that would be permitted under the AAMD/AAM "ethics" rules.

Linkage

• Two-year federal prison sentence for attempting to sell stolen artworks.
• Duveen was right! (Related post here.)
• Lindsay Pollock on the rise of third-party guarantees.
• Leibovitz-Lavazza suit settled.
• How the Brooklyn Museum is putting its collection online.

Kentucky's Constitutionally Mandated Oath of Office: Attorney General

Okay, it starts out with the normal boring oath that is given everywhere, but listen until the end, because apparently Kentucky has a serious ongoing problem with duels?!?

Update on the Brodsky Bill (UPDATED)

The NYT's Robin Pogrebin reports on "a round-table meeting [this morning] billed as the first discussion of deaccessioning among state policymakers and museum professionals in a public setting." Brodsky's aim seems to be to "to make sure that we do not, in a crisis, see a massive privatization of art" -- so let me again just point out that the Ellis Rule would accomplish the same thing.

Some additional thoughts on the session from Judith Dobrzynski: "The Brodsky bill is in no way a done deal."

UPDATE: More from Lee Rosenbaum (with video): "Most of this, for me, was 'heard this, done that.'"

Linkage

• Update on the Hotel Drouot investigation.
• "A 19th-century Impressionist artwork stolen off the wall of a French museum nearly three decades ago is going back to the scene of the crime."
• "A Claude Monet painting stolen in 2000 from a museum in western Poland has been recovered."
  

"They didn't fit the theme of the current installation"

ARTINFO.com: "The New York Post reports that the Metropolitan Museum of Art has pulled images of the Prophet Mohammed from its galleries devoted to Islamic art and suggests that the move is the latest chapter in the museum’s 'history of dodging criticism.' Some Muslims believe that Islam forbids the delay of such images and have led protests in recent years objecting to their display in cartoons, most infamously in Denmark."

More on the Dobrzynski Proposal

Speaking of sensible reform proposals, there've been a number of interesting follow-ups to Judith Dobrzynski's deaccessioning op-ed in the NYT.

First, there were several letters to the editor in response, including one from the president and CEO of the J. Paul Getty Trust, but I liked the one from the Brandeis student best:

"Here’s a simpler, sounder system to guide deaccession: The bought can be sold. This system reserves the sanctity of donor intent, as well as that of artwork acquired under special circumstances. And it ignores the largely unjustified slippery-slope paranoia that if allowed to sell one piece of artwork in a time of need, then institutions would more easily part with others in the future. If the struggling institution purchased a piece of artwork free of restrictions preventing resale, then that institution should be permitted to sell it at will."

Dobrzynski responds to some of the responses here, including the following:

"Donors will not give art if they know it may some day sold. This is a canard: they already know (or should know) that their gifts may be sold to raise money for future acquisitions. Those who fear this put restrictions on their gifts."

I think that's quite right. Remember (and I know I've made this point a thousand times): we're not talking about moving from a world where works are never deaccessioned to one where suddenly it's okay to deaccession. We're talking about moving from a world where deaccessioning for one purpose (the purchase of more art) happens all the time to one where deaccessioning for other valuable purposes (e.g., preventing a museum from having to close its doors or, worse, move 4.6 miles away to Philadelphia to a brand-spanking new facility designed by Tod Williams and Billie Tsien) is, in the right circumstances, occasionally permitted.

Finally, Felix Salmon weighs in on Dobrzynski's proposal:

"Essentially, Dobrzynski here is taking the Kimmelman rule — that museums should get first dibs on any deaccessioning sale — and beefing it up with two extra layers: first arbitration, and second the option to buy in the wake of a public auction. Personally, I think that the Ellis rule is still the best option, since it puts the focus where it belongs — on the art, rather than on the museum. Both Dobrzynski and Kimmelman would let art disappear from a museum into private hands, never to be seen again; Ellis wouldn’t."

"Does it make sense to keep a large percentage of a museum’s art assets in storage, never to be seen, when the same museum is laying off curators?"

Andras Szanto has a long, interesting piece in The Art Newspaper on the situation facing US museums. The whole thing is worth reading, but, for obvious reasons, I found the following particularly interesting:

"According to current guidelines, museums can only sell art to buy other art, not to cover operations. Those rules exist for a good reason. But when finances are pushed to the brink, museums’ largest asset category—its art—is more likely to get a second look. 'Does it make sense to keep a large percentage of a museum’s art assets in storage, never to be seen, when the same museum is laying off curators?' asks a donor to several major American museums. 'How does one responsibly go to benefactors for more support?' Sensible reform proposals—for example, to allow sales when objects stay in the public domain—are already being floated."

"The Capital of Art Theft, Part 2"

The Art Market Monitor: "France’s density of museums, churches and private homes filled with art make it a cornucopia for crimes of opportunity, elaborate thefts and more nefarious activities."

Derek Fincham adds some thoughts: "What happens to these stolen works? The mundane objects are stored until they can be sold later. The rare and valuable works are exported abroad illegally. Yet the rate of recovery for many of these works is very low."

Linkage

• The Andrew Lloyd Webber Picasso lawsuit has settled. Terms not disclosed. Background posts here and here.
• "A former public-relations consultant for the African American Museum in Philadelphia is suing its president for slander."
• "Kahlo 'fakes' flood into Mexico." Related post here.
  
• "L.A. art dealer accused of selling a phony Picasso."
• Yale moves to dismiss Peru's Machu Picchu lawsuit.

Probation: Uses, Failures & Effects

The theory behind probation (and parole, although that's rare in Virginia anymore) is that it is agreement between the government and the defendant. The government forgoes a certain amount of punishment and the defendant agrees to forswear all his evil ways. Of course, the carrot comes with an explicit stick: "Screw this up and we'll throw you back in." Typically, a defendant will receive a sentence of something like "5 years with 4 years 10 months suspended, the suspended time to remain suspended for a period of 5 years with 2 years of supervised probation." At any time within the 5 years that the time is suspended the court could impose some or all of it for failing to abide by conditions the court has imposed (new convictions, failing to remain on good behavior, etc.). Realistically, while the suspended time could be imposed at any time, it is unlikely to be imposed unless the defendant is still on probation to have someone to report him to the court.

Defendants almost never concern themselves with the amount of time or conditions which attach to probation. They have myopic vision which zeros in on how much time they are actually getting for their conviction, ignoring all else. Despite their attorneys' advice to the contrary, I'm fairly certain that the vast majority of felony defendants would agree to 10 years of probation rather than spend a month in jail and a year of probation.

The purpose of probation is fairly straight forward. Of the four purported reasons for a judicial criminal sentence - rehabilitation, quarantine (keeping the defendant from further harming the community), deterring others from offending, and simple punishment - probation falls almost exclusively in the rehabilitation. It's society's attempt to put someone back on the street and keep them on the straight and narrow.

The reality is somewhat different. Pretty much everyone in the courtroom, except perhaps the defendant himself, expects to see many (probably most) of the defendants back in the courtroom during their probation. This is based upon common experience repeated over and over and over again. Certainly, not all people put on probation violate it (and God bless those who don't), but the experiential bias which comes from being in the courtroom every day wouldn't lead judges, defense attorneys, or prosecutors to bet on it.

In some courthouses this can lead to a "we'll get him later" attitude which leads to sentences that are low because prosecutors and judges think they'll have another go at this guy a year or so down the line when the offender is back before the court in a probation violation hearing. In that hearing the level of proof is lower and the rules of evidence are far easier (basically, the hearing proceeds with all sorts of hearsay reported by the probation officer). It is extremely rare that a defendant is found not to have violated his probation and most probation hearings are primarily about what the punishment for the violation will be. You'll even hear defense attorneys trying to take advantage of this attitude in plea negotiations: "C'mon Mary, this is John Smith. You can give him a short sentence. You know you'll get it on the backside."

The flaw in probation is that offenders and society at large don't associate punishment meted out under the probation system with the original offense. They see it as punishment for the probation violation. Thus, incarceration which proceeds from a probation violation only serves the purpose of quarantining of the defendant. The fact that punishment is occurring means that rehabilitation has failed. Community deterrence doesn't occur because the punishment is divorced from the crime (although, assuming the offender hangs around with others on probation it will at least serve as a lesson to them). Simple punishment for the initial crime went by the wayside in the initial sentencing; the punishment in a probation violation hearing is for the failure of the offender to reform himself. Still, the offender ends up incarcerated.

Herein lies the philosophical fork in the road. If someone believes that there is a class of persons who are going to break the law no matter what is done, then the goal is to get these individuals off the streets for the longest period of time possible and the "We'll get him later" method make the most sense. It allows offenders to be removed from society in a far easier manner than a full blown felony trial with its constitutional protections and high level of proof. It also provides a safety valve because those very few who have the fortitude to fly straight and actually make it through probation without violating don't get an unnecessary period of incarceration (a benefit to both them and the taxpayer). On the other hand, if someone believes that individuals, and through them society as a whole, can be taught and learn through their errors then delaying punishment for the initial crime and putting people in prison later for probation violations which they don't associate with their original offense is counter productive. If the first felony larceny offense only gets someone a 3 year suspended sentence and a year of probation (a fairly typical sentence), no one learns not to commit larceny. At best, they learn to live by the rules of probation. This does not shape society away from those acts which we have deemed serious enough to make criminal.

Works for me

The other day, I wondered about Richard Feigen's reference to "unrestricted paintings" at the Barnes. In response, Lee Rosenbaum emails a link to her 2004 NYT Barnes op-ed, which includes the following:

"[T]here are a number of steps the Barnes can take to make it possible to survive financially in Merion. .. The foundation could begin by selling unused or little-used assets. Chief among these: the foundation's 137-acre property in Chester County .... Auctioning off some of the foundation's ancillary collections -- some 5,200 objects and documents -- could also generate cash. ... While art museums are supposed to use sale proceeds solely for acquisitions, not operations, the Barnes considers itself an educational institution (and it doesn't acquire new works). In addition, legal strictures against selling the Barnes Foundation's holdings apply only to works on view in the galleries."

That's helpful, thanks. But is it me, or is Lee suggesting here (and Richard Feigen suggesting in his Art Newspaper piece) deaccessioning (if only just a smidgen) as a way to keep the Barnes from having to move?

CES: Tools, eReaders, & Dual Screens

Anybody who follows any tech news knows that this last week was the Consumer Electronics Show. It's a yearly get together of almost all of the electronics companies where they show off all that's new and interesting. The big things this year have been 3D TV's, eReaders, and tablet computers. I could care less about 3D TV's, which I hope die a quick death (unless someone figures out holographics). However, eReaders and tablet computers are heading somewhere that I see as being extremely useful.

The best of the eReaders seems to be the QUE proReader. Here's a video in which engadget examines the proReader:

The proReader appears to be the thinest, lightest most capable new eReader out there. At 8.5 X 11", it is larger than the Sony Reader Daily Edition at 7" and maybe smaller than the Amazon Kindle DX at 9.7" (measured diagonally). Effectively, I think the sizes will probably all be adequate for viewing .pdf's or .doc's stored as part of a case file. The proReader seems to have the same flaw as the DX, in that the reported capabilities does not include the ability to add SD memory cards. As well, both the proReader and the Sony RDE do not have the Kindle's ability to access the web pages via the internet (limiting the access to downloading books and magazines). The proReader, at 8gb, has more memory than the DX, at 4gb, and far more than the Sony RDE, at 1.6gb. There does not seem to be the ability for freehand note taking in either the proReader or the DX that the Sony RDE claims to have (a vital need if this is going to become business useful). It's becoming more and more foreseeable that in the near future the cutting edge attorney won't be going to court with the four files for that day's cases, but with an ereader that has the files for all his cases in it.

However, the tech's not there yet. One innovation which I think would be a boon would be the folding dual screen. MSI was showing off a very early version of this sort of device. Here's engadget's video:

Obviously, that device is still flawed and I suspect that it would be too heavy to carry and have too little battery power for long use because it's still trying to be a full on computer. Still, imagine having a document displayed on one side and taking written notes on the other side which could be saved to the same case file. It'd be a great way to work on another case while waiting a couple hours for the case you are in court for to be called. As well, it would allow you to take notes straight into your file in the courtroom and easily store them forever.

Personally, I'm looking for a very light, very thin, fold-open device which used e-ink on both sides, both to save on eye strain and extend the battery to a couple days. Wifi and/or telephonic internet connection would be good, so that files and messages could be sent back and forth between the office and so legal web resources could be accessed. We're not there yet. If I had to buy a device at this moment, I'd get the Sony RDE because it allows SD cards to be exchanged and freehand notes.

Of course, now we all wait to see what the Apple most wonderfulest superslate tablet computer which every tech site on the web is already drooling over, even though it shan't be even possibly announced until the end of this month. Newton 2?

ADDENDUM - I was just watching TWIT and they pointed out the enTourage eDGe, which is pretty close to what I want. Here's Cnet's first look video:

They say that the ereader is on the slow side and the computer isn't exactly the fastest in the world. I could live with that, but I still need it to be very thin, very light, and have 2 days worth of battery power once charged. I doubt they'll be able to do this unless both sides use e-ink. Still, this is the closest to what I've been looking for.

BTW: Apparently, the proReader does allow freehand. You just have to provide your own stylus (or write with your finger like you did in kindergarten).

"The move is not a 'theft' in any sense of the word but, instead, the legitimate result of a legal process"

The General Counsel of the Barnes responds to Richard Feigen's piece in the Art Newspaper, which I discussed a couple days ago here.

Tell me again about the "public trust" (a continuing series)

Carol Vogel's "Inside Art" column in today's New York Times is headlined: In Los Angeles, an Urge to Purge. It begins:

"For two years the Los Angeles County Museum of Art has been quietly buying paintings and publicly selling them. Readers of Sotheby’s latest auction catalog may have noticed a group of old master paintings coming up for sale on Jan. 28. It isn’t the first time the museum has sold works from its permanent collection. Last year, in January and June, Sotheby’s auctioned paintings by Joshua Reynolds, Lucas Cranach the Elder, Pieter de Hooch and others, raising more than $6 million for the museum."

Hmmm. I could have sworn that "once an object falls under the aegis of a museum, it is held in the public trust, to be accessible to present and future generations."

It's almost as if the anti-deaccessionists don't really believe the works are held in the public trust at all, but merely say so when it serves their purposes.

More case of the decade nominees

I linked the other day to Sergio Muñoz Sarmiento's post on the art law case of the decade. Daniel Grant, author of The Business of Being an Artist, emails his choices:

"My votes would be for the [Phillips] case in Boston, which goes to the heart of what is site-specific and whether or not the law covers that art world term, and the Daniel Moore case in Alabama, which may turn back a growing effort on the part of numerous colleges to claim anything associated with them as trademarked."

Estate Tax Changes

In my holiday weekend roundup earlier this week, I mentioned the "temporarily disappearing estate tax." On that topic, below is an advisory we are sending out to clients this week:

As you may have seen in the popular press, Congress adjourned last month without definitively addressing the transfer tax provisions of the Economic Growth and Tax Relief Reconciliation Act of 2001 applicable to years 2010 and beyond.

As we enter the new year, the result of this inaction is that Federal estate and generation-skipping transfer ("GST") taxes are repealed for the year 2010. In 2011, these taxes will be restored as they were in 2001; namely, with a top rate of 55%, an estate tax exemption of $1 million and an indexed GST exemption of $1.1 million. (By contrast, in 2009 each tax was levied at a flat 45% rate on transfers in excess of a $3.5 million exemption.)

The Federal gift tax will remain in effect in 2010 but at a maximum rate of 35% (as opposed to the 2009 top rate of 45%) and with a continued $1 million exemption. In 2011, the top gift tax rate will also revert to 55%, with a continued $1 million exemption.

Concomitant with the temporary repeal of the Federal estate tax, the automatic "step-up" in income tax basis for inherited property will no longer be available with respect to property received from decedents dying in 2010. Instead, heirs will receive a modified "carry-over" income tax basis in such property. In 2011, we will revert to the automatic "step-up" in basis regime.

The legislative debate over Federal transfer taxes is expected to continue after Congress returns from recess this month. We may also see debate in Albany as the New York legislature is asked to address important New York State estate tax issues raised by the temporary repeal of the Federal estate tax. It has been suggested that any state or Federal legislation passed this year may take effect retroactively, perhaps as of January 1, 2010.

While we hazard no guesses on the contours of any new law, be assured that we will be closely monitoring all developments.

"Yesterday's hearing, widely seen as a formality, was attended by perhaps two dozen quiet members of the public"

The Philadelphia Inquirer's Stephan Salisbury reports that "the Philadelphia Art Commission gave final approval yesterday to plans for the new Barnes Foundation gallery, clearing the way for the renowned collection of early modernist art to move from Merion to the Parkway in 2012 after years of impassioned controversy." Lee Rosenbaum has more, including a link to the design plans.

Kate Taylor has a story on the Barnes progress in the January Art Newspaper. In the same issue, art dealer Richard Feigen has a piece in the Barnes-was-stolen genre. He calls it "the biggest heist in history," a "kidnapping," an "abduction." I think the "theft" narrative is a little melodramatic -- Salisbury offers a persuasive counter-narrative here; see also here -- but, for the moment, I want to focus on two points in Feigen's essay:

1. As part of his argument why the Barnes could have stayed in Merion, he says that "shuttle-buses could run continuously from the Philadelphia Museum, a short 4.6 miles away." This point -- the closeness of the new location to the old -- is also emphasized in the Barnes documentary that's about to open, but doesn't it actually cut the other way? The new location is only 4.6 miles away. What's the big deal? Buses could continuously shuttle all the art lovers in Merion to the new museum!

As has been noted many times before, the works will be hung exactly as they were in the old space. The argument that the move -- a short 4.6 mile shuttle-bus ride away -- is a tragedy depends on the notion that, despite all of Tod Williams and Billie Tsien's good work, despite the fact that the galleries will be reproduced exactly as they were and the works will be hung exactly as they were, and despite the additional fact that many more people will get to see the works in the new location, something so valuable is lost in the move up the road that it justifies all the gnashing of teeth and rending of garments.

I just don't see it. A mistake? Perhaps. But I just don't see the tragedy. (And I suppose I should add here the usual caveat that I thought the museum should have stayed where it is.)

2. The other thing I wanted to mention was the following statement by Feigen: "Insufficient effort has been made to sell the redundant real estate of Barnes’s valuable farm, its 19th-century American pottery collection or unrestricted paintings in the offices, which have been appraised at more than $30m."

That's the first I've heard of any "unrestricted paintings." (Is the pottery collection also "unrestricted"?) Does anyone know what he's referring to?

And more importantly: would that be okay with the Deaccession Police?

Latest in the Park West Saga

From the Art Newspaper here. Some background here.

"We’re not saying President Obama endorses Weatherproof apparel"

Rebecca Tushnet flags a NYT piece on a garment company that has "installed a billboard in Times Square ... showing President Obama wearing one of its coats" and notes: "Obama might be the only prominent celebrity so unlikely to act against this type of use of his image that the publicity isn't accompanied by substantial risk."

What do you do if someone steals your idea?

Sergio Muñoz Sarmiento is thinking about the question. As a very modest contribution to the conversation, I'll just point out that copyright does not protect ideas.

Blackstone: Should criminal law be revised every hundred years?

The Legislature's Duty:
----------

In proportion to the importance of the criminal law, ought also to be the care and attention of the legislature in properly forming and enforcing it. It should be founded upon principles that are permanent, uniform, and universal ; and always conformable to the dictates of truth and justice, the feelings of humanity, and the indelible rights of mankind : though it sometimes (provided there be no transgression of these eternal boundaries) may modified, narrowed, or enlarged, according to the local or occasional necessities of the state which it is meant to govern. And yet, either from a want of attention to these principles in the first concoction of the laws, and adopting in their stead the impetuous dictates of avarice, ambition, and revenge ; from retaining the discordant political regulations, which successive conquerors or factions have established, in the various revolutions of government ; from giving a lasting efficacy to sanctions that were intended to be temporary, and made (as lord Bacon expresses it) merely upon the spur of the occasion ; or from, lastly, too hastily employing such means as are greatly disproportionate to their end, in order to check the progress of some very prevalent offence ; from, or from all, of these causes it hath happened, that the criminal law is in every country of Europe more rude and imperfect than the civil.

. . .

[E]ven here [in Great Britain] we shall occasionally find room to remark some particulars, that seem to want revision and amendment. These have chiefly arisen from too scrupulous an adherence to some rules of the ancient common law, when the reasons have ceased upon which those rules were founded ; from not repealing such of the old penal laws as are either obsolete or absurd ; and from too little care attention in framing and passing new ones. The enacting of penalties, to which a whole nation shall be subject, ought not to be left as matter of indifference to the passions or interests of a few, who upon temporary motives may prefer or support such a bill; but be calmly and maturely considered by persons, who know what proditions the law has already made to remedy the mischief complained of, who can from experience foresee the probable consequences of those which are now proofed, and who will judge without passion or prejudice how adequate they are to the evil. It never usual in the house of peers even to read a private bill, which may affect the property of an individual, without first referring it to some of the learned judges, and hearing their report thereon. And surely equal precaution is necessary, when laws are to be established, which may affect the property, liberty, and perhaps even lives, of thousands. Had such a reference taken place, it is impossible that in the eighteenth century it could ever have been made a capital crime, to break down (however maliciously) the mound of a fishpond, whereby any fish shall escape ; or cut down a cherry tree in an orchard. Were even a committee appointed but once in an hundred years to revise the criminal law, it could not have continued to this hour a felony without benefit of clergy, to be seen for one month in the company of persons who call themselves, or are called, Egyptians.

It is true, that these outrageous penalties, being seldom or never inflicted, are hardly known to be law by the public : but that rather aggravates the mischief, by laying a snare for the unwary. Yet they cannot but occur to the observation of any one, who hath undertaken the task of examining the great outlines of the English law, and tracing them up to their principles : and it is the duty of such a one to hint them with decency to those, whose abilities and stations enable them to apply the remedy.
.

"The Fresno Metropolitan Museum closed its doors for good Tuesday, its ambitious dreams crushed by unsustainable financial losses"

The Fresno Bee has the story here.

The Deaccessioning Blog: Am I Right? Or Am I Right?

I'll just add one quick point regarding the "moral hazard" argument against deaccessioning (which I alluded to Monday). I don't know to what extent, if any, sales of art could have solved the Fresno Museum's problems, but the logic of the "moral hazard" position is that we have to accept the loss of this museum (and, if The Deaccessioning Blog is right, perhaps as many as nine others in the near future) for the greater good of improving museum management generally (the argument being that, by taking the sale option off the table, the people who run our museums will be better motivated to properly manage them and, in the process, save their jobs; they can't just squander their resources and then look to sales of art to bail them out). That strikes me as a high cost to pay for the speculative benefits the no-deaccessioning regime is supposed to provide. We're losing something very real here. Are we confident that it's a price worth paying?

"Zabrin admitted conducting 280 sales of fraudulent art on eBay "

The AP: "A suburban Chicago man pleaded guilty Tuesday to swindling at least 250 people out of more than $1 million through the sale of counterfeit prints advertised as the work of Pablo Picasso and other major contemporary artists."

Top Art Theft Stories 2009

Plus what to watch for in 2010, from Art Theft Central's Mark Durney.

Mark also has some thoughts on Southern France's "rich history of art crime."

Linkage

Still catching up on all the art law that happened over the long New Year's weekend:

• Degas work stolen.
• Art thefts rock France for second time in a week ("reminding the world of both the country's deep store of artistic treasures and lax security").
• What's the top art law case of the decade?
• An uncomfortable year for the museum world.
• The temporarily disappearing estate tax.
• Will your iPhone be able to authenticate paintings?
• French painting sparks international brouhaha.
• Property Outlaws.
• CAA panel on authentication on Jan. 20.

The Northern Virginia Federal Congressional Penitentiary

Norm & Scott have suggested that for legislators to serve they should have to spend 6 months in prison so that they know what's happening to people subject to the laws they pass. Somehow, I just don't see it working out that way . . .
------------- -------------- ---------------



Warden: Nancy Pelosi
76 Lyndon Baines Johnson Road
Alexandria, Virginia 22306

Security Level: Ultra-Low

Assignment Criteria: Election to Congress or conviction of graft while a sitting federal legislator.

Special Programs: Golf rehabilitation program. Cute Aide withdrawal therapy.

Incarceration Program: Inmates are housed two to a room and are locked down from midnight until 6 a.m. There is only one phone per room and calls are limited to 3 hours per day and may not be received except between the hours of 9 a.m. and 10 p.m. Inmates must supervise cleanup of the tennis courts, gym, and golf course between 9-11 a.m. daily.

Punishment of misbehavior: Institutional sanctions are punished by solitary confinement in a room with no honor bar, no premium cable, and no turn-down service. In order to avoid issues the 8th Amendment no institutional sanction shall last longer than 3 days.

.

The Multistate Bar Examination is coming up at the end of February, so that means its time to start thinking about studying for fun six-hour, 200-question multiple-choice exam! (I'd hope if you are February bar taker, you would have started studying by now, but better late then never). Kaplan PMBR: MBE Review is a good set of flashcards if you like to study with flashcards for the multiple-choice section. Check out this 2010 MBE Information booklet. I loved the Strategies & Tactic series in law school and they also have one for the MBE, called Strategies & Tactics for the MBE (Multistate Bar Exam). They are great because they have the explanation for every answer, which is helpful! Okay so why are you reading blogs! Start studying! You are fresh and relaxed from Christmas break, so no excuses!

Around Virginia

1) Judge Warren, the longest sitting judge in Virginia, is retiring. Judge Warren sat mainly in rural counties. Unlike a lot of "circuit" court judges in the modern world, Judge Warren actually rode his circuit and I used to appear before him in both Powhattan and Amelia counties.

2) Speculation that there will be more death eligible crimes under the new governor.

3) In some places the bad economy has led to more financial crimes.

4) Is it constitutional for a State agency to force an owner to lease his mineral rights, then allow the company to take its expenses out of the payments, and then have that same State agency hold the money in escrow rather than paying the owner?

Where were we (again)? (UPDATED)

We begin 2010 where we started in 2009 -- with the deaccessioning debate in the pages of the New York Times. Over the holiday weekend, Judith Dobrzynski had an op-ed piece arguing that "de-accessioning shouldn’t be impossible — just nearly so." She begins by pointing out that "already some respected figures — David Gordon, former head of the Milwaukee Art Museum, and Richard Armstrong, director of the Solomon R. Guggenheim Museum, for example — are saying that the rule against selling art for any purpose other than buying more art is wrong," and then moves on to neatly summarize the case against the anti-deaccessioning hysterics:

"Many people don’t understand the problem. If the choice is between allowing a museum to fail (or make crippling cutbacks) and selling some art, what’s the big deal? Sell art! Most museums, after all, hold many works they have no room to display and stuff them into back rooms and off-site storage facilities. If museums are allowed to cull their collections to raise money to buy more art, why can’t they sell those very same pieces to solve their financial problems?"

The answer, according to the "strict constructionists," is that "once selling art to cover operating costs is allowed, it will become the first resort in bad times, not the last," and Dobrzynski says "on that score, they may be right. It’s human nature to test the line and, having gotten away with something, to do it again." This is the slippery slope argument we've seen many times before, so I won't rehash the same old arguments against it, but I do want to just emphasize that this view concedes that there is nothing inherently wrong with, say, the National Academy selling off a couple of works to keep its doors open -- it's not Stalinesque, it's not repulsive. It's just an empirical claim -- which Dobrzynski has the honesty to admit "may" (and therefore may not) be true -- that if we allow Museum X to sell work as a last resort that will lead Museums Y and Z to sell work as a first resort. It's the-folks-in-charge-of-our-museums-are-naughty-schoolchildren argument. The only thing standing in the way of a wholesale liquidation of our cultural heritage is the heroic members of the AAMD.

Anyway, all of this is just prelude to Dobrzynski's real point, which is a proposal to "amend the unwritten sales ban, but not end it":

"What if a museum had to argue its case for de-accessioning art before an impartial arbitrator? This neutral party would need to be schooled in art, art law and nonprofit regulations. Moreover, the museum would need to open its financial books completely, so that the arbitrator could see that all other reasonable avenues of fund-raising, as well as cutbacks, had already been exhausted. And it would need to open its cataloguing records and storerooms, to show that the departure of the works in question would not irreparably damage the collection and that no donor agreements would be violated. Most important, as part of any deal permitting the sale of art, the de-accessioning museum would have to offer the works to other museums first. If it received no offers, it could sell the pieces via a public auction — and any American museum would then have the opportunity to match a winning bid if it promised to keep the work in a public collection."

I think this is obviously a step in the right direction -- among other things, it incorporates elements of the Ellis Rule and the Kimmelman Rule, which are good things -- but, having conceded, as Dobrzynski does, that our museums hold more works than they can display and that they "are allowed to cull their collections" for purpose x ("to raise money to buy more art'), I would permit the same culling for purposes y and z, without making them jump through the hoop of appearing before an arbitrator. In other words, I would trust the people who run our museums to responsibly exercise their fiduciary duties and do the right thing. (Though I promise to give some more thought to Michael Rushton's well-stated moral hazard arguments in the near future.)

Dobrzynski has an interesting follow-up at her blog, where she notes that she "expected to be flooded with complaints about violating sacred principles. Instead, all of the feedback I've received has been positive." "Maybe we are maturing," she says.

The Deaccessioning Blog thinks "this is actually the best solution put on the table so far, and to my delight (and self-serving position) something not too far from what I have argued here."

Lee Rosenbaum speaks up on behalf of (as Dobrzynski puts it) the "purists" who turn "purple with apoplexy" at the "mere mention of art sales for operating money": "Actually, we strict constructionists don't believe that such sales should be allowed at all, even as a last resort. The 'slippery slope' argument is just the kicker. In truth, there's no such thing as a single 'last resort.' Smarter management, intensified fundraising, improved marketing, innovative earned-income strategies, and (truly the last resort) temporary cuts of expenses and staff are the right ways to meet financial crises. Selling the art is a seductively easy way to raise cash for operations and debt reduction. But it's the wrong way: Art is the raison d'être of museums and the 'deaccession or die' argument is specious." As I've noted before, Lee, alone among the purple-faced apoplectics, believes that museums should not be selling work for any purpose, including buying more art. [CORRECTION: See "Update" below.] Curious, then, that she closes her response to Dobrzynski's piece with a prayer for the Brodsky Bill, which, in its most recent version, allows sales for "refinement of collections" -- essentially enshrining the (to my mind hypocritical) AAMD position into law.

UPDATE: Lee Rosenbaum emails that it’s inaccurate to say that she "believes that museums should not be selling work for any purpose, including buying more art." Her view is that works that are "inferior in condition, quality, etc." – "in other words, … works that don't belong at the museum in the first place, because they are not useful for exhibition or scholarship" – may be sold, and the sales proceeds used to buy more art. That’s fair enough, and I regret the error, but I would just note that that view strikes me as much tougher than either (1) current museum practice (under which deaccessioning is decidedly not limited to works "that don’t belong in the museum in the first place") and (2) what would be permitted under the Brodsky Bill (with its massive exception for "refinement of collections"). I'm also not sure why, if all we're talking about are works that "don't belong at the museum in the first place," use of the sales proceeds should be limited to the purchase of more art. Are we worried that museums would be tempted to get rid of . . . stuff that doesn't belong there in the first place?

A New Year, A New Project: Virginia Criminal Cases & Law

This was my project over the Christmas / New Year breaks. It's an outline of the cases which come out each month from the Virginia appellate courts and those cases out of the 4th Circuit and US Supreme Court which I think are relevant to Virginia criminal law. I hope it will be useful to those of you from Virginia.

I built this with Squarespace instead of writing this one myself. In fact, I don't know if the webpage would have been created if Squarespace hadn't been offering a free 14 day trial. Squarespace works pretty well and I doubt I would have gotten the page up as quickly as I did if I had written it myself instead.

Anyway here's the link: Lammers' Virginia Criminal Cases & Law