Insurance Law

Crusading Knight vs. Crusading Lawyer

By George Wallace

Los Angeles Times art critic Christopher Knight has a bone to pick with New York arts lawyer (and proprietor of The Art Law Blog) Donn Zaretsky.  In a post to the LAT's Culture Monster blog, "How not to deregulate art museums," Knight writes:

I once asked a donor of major art to an important museum what would happen if that institution proceeded with a tentative plan to sell one of the donor's art gifts to raise money to cover the museum's mounting bills.  That option has long been an art museum no-no.  Professional museum standards forbid using income from art sold from the collection ? the term is deaccessioning ? to pay for anything except future art acquisitions.  The answer I got from the donor was swift, brief and blunt.  'I'll sue.' 

Ever since then, any controversial deaccessioning story that turns up in the news makes me think of lawyers first.  It's not pretty, I know.  (Insert lawyer joke here.)  But whatever public benefits may or may not accrue from such a sale, the one sure winner will be lawyers.

Deaccessioning is a hot topic in the museum world these days as institutions feel the squeeze of the difficult economy, or of their own mismanagement in happier times, or both.  As the pressure mounts, a museum may be tempted to sell off parts of the collection simply to generate funds for day to day operations. Those who disapprove of that approach -- the establishment majority in museum circles, exemplified by the Association of Art Museum Directors (AAMD) -- view deaccession to cover operating costs as the equivalent of turning your car to ready cash by torching it and collecting the insurance money.  While the AAMD's policies permit the sale of current holdings in order to fund acquisitions -- eliminating parts of the collection in order to expand or improve it, or to fine tune its focus, by the purchase of new and different works -- if appropriate thought and soul-searching is brought to bear on the process, most any other deaccession is viewed with horror and met with howls of opprobrium.

. . . I suspect that, if the AAMD rule didn?t exist, deaccessioning practices wouldn?t change very much from what they are today: they?d still happen relatively infrequently, after much deliberation and careful consideration by museum curators, directors and trustees.

So where does that leave us?  Supporters of the AAMD position say that works can never be sold?except when they can be sold, in which case they?re somehow no longer held in trust.  And they say that if we allowed an exception for even the most mutually beneficial transaction (for example, a sale by a struggling institution like the National Academy to a healthy one like the Met), there would be no end to such sales?even though experience under their own rule shows that there are strong institutional constraints in place that act as a check on any abuse of such freedom.

Clearly, these internally inconsistent rules need to be re-examined, if not thrown out altogether.

Knight is having none of it, and accuses Zaretsky of doing no more than setting up and knocking down "a giant straw man" before condemning him as a wild-eyed cultural freebooter:

Minus the office on Capitol Hill, Zaretsky is to established deaccessioning policy what former Sen. Phil Gramm was to established banking regulation ? an eager enthusiast for destructive reform, either unaware of or, worse, indifferent to the general chaos that would follow. Gramm went on to become a super-rich executive with a Swiss bank, but how's that banking deregulation thing been working out for you lately?

Christopher Knight's art writing belongs on the very short list of things that the much-abused Los Angeles Times still has left to be proud of these days.  That said, it is a disappointment to see that he has himself largely succumbed to argumentum ad strawmanum when he isn't stooping to outright argumentum ad hominem, dismissing both Zaretsky ("Such is the nature of routine blogging") and Art in America ("The magazine had a shakeup in its editorial ranks last year, but if this is the best they can do . . . , it was apparently a wasted effort") with little more than an imperious wave rather than really engaging his opponent on substance.  

The core notion that there is some quasi-fiduciary relationship between museums and the public, that if art is not literally held "in trust" it should nevertheless be managed in a manner that will provide the greatest possible benefit (and access) to the broadest possible swath of that public, is not really in dispute.  The question is more what sorts of decisions that notion should permit.

Donn Zaretsky -- who can take some satisfaction, I suppose, from Knight's suggestion that there is a faction of "Zaretskians" among the managers of the nation's museums -- objects less to the concept of "the public trust" than to that concept being used as a great "Thou Shalt Not" to shackle all but a very limited class of deaccessions and dispositions.  Where Zaretsky sees imprisonment and an unreasonable restriction of curatorial freedom of choice, Knight and AAMD see a sort of protective custody, a binding of administrators' hands for their own good, to save them from their own worst instincts, or to serve a perceived Greater Good. Zaretsky would trust museum managers to exercise sound judgment, Knight and company would prefer that judgment to be exercised only within strictly proscribed limits.  The "correct" answer lies somewhere between them or perhaps exists only in theory or not at all.  I suggest we all go to our local museum of choice and think it through some more.

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UPDATE [1724 PDT]:  Donn Zaretsky responds to Christopher Knight's post.

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Photo: "NYC - Metropolitan Museum of Art Armors for Man and Horse" by Flickr user wallyg, used under Creative Commons license.

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Full post as published by Declarations and Exclusions on April 07, 2009 (boomark / email).