Constitutional Rights as Bribes

Constitutions worldwide protect an increasingly long list of rights. Constitutional scholars point to a variety of top-down and bottom-up explanations for this pattern of rights expansion. This Article, however, identifies an additional, underexplored dynamic underpinning this pattern in certain countries: the pairing of constitutional rights with various forms of structural constitutional change as part of a trade between civil society and dominant political actors in their aspirations, or support, for constitutional change. This form of trade, the Article further suggests, has potential troubling consequences for democracy: it can pave the way for the consolidation of dominant-party or presidential rule in ways that limit the effectiveness of rights-based constitutional changes themselves and pose a major threat to the institutional “minimum core” necessary for a true democracy. This, the Article argues, suggests a greater need for caution on the part of civil society before accepting rights as a form of “bribe,” or inducement, to support certain forms of structural constitutional change. For democratic constitutional designers, it also points to the advantages of “unbundling” different forms of constitutional change. The Article explores these arguments by reference to two recent examples of constitutional change, in Ecuador and Fiji, involving the combination of rights-based change with increasingly noncompetitive forms of democratic rule.


INTRODUCTION
Legal change usually lags behind social and cultural change, and our laws have a lot of catching up to do with respect to art. 1 This Article explores the case against private hoarding of art that is of such value to a country's self-identity that one might properly call it public art, even though the art is privately owned. Private hoarding deprives ordinary people of access to works of art of national importance and thus undermines republican values like education, community, and citizenship. Therefore, it should be discouraged. The Article's focus on privately owned public art starkly poses "the conflict between private property rights in that art and the public's interest in preserving its heritage," 2 a riff on a familiar conflict in the field of natural resources.
The late Professor Joseph L. Sax's book, Playing Darts with a Rembrandt: Public and Private Rights in Cultural Treasures, 3 explores this conflict. While Professor Sax acknowledges that the state has tools, like condemnation, to acquire important art and dedicate it to the public's use, enjoyment, and education, he focuses on the questions that arise before that moment: "What powers and responsibilities should be recognized in the owners of such objects in the first place." 4 Although Professor Sax mentions the problem of art being withheld by its owners from public viewing, 5 his attention is more devoted to preventing these individuals from destroying * Professor Babcock teaches environmental and natural resources law at Georgetown University Law Center whose generosity has contributed to the writing of this and other articles. She is also grateful for the careful editing by her research assistant, Carly Dooley. In this piece, as in her other work on the public trust doctrine, Professor Babcock owes a deep debt of gratitude to Professor Joseph Sax whose work on the public trust doctrine continues to guide and inspire her own work on the doctrine.  (1999). In this book, Professor Sax examines the conflict between the rights of private owners of public art, the creators of that art, and the public's interest in protecting that art. 4 Id. at 9. 5 See id. at 8 ("Inaccessibility is an even more pervasive problem than destruction or mutilation . . . . During the booming 1980s some of the great impressionist paintings in the world were purchased by corporations and haven't been seen since."). availability of financial incentives, like those offered by the tax code, might make the use of that doctrine more viable.
In proposing the use of the public trust doctrine to remedy a problem far removed from the doctrine's traditional base, the author is fully aware that she may be taking the doctrine beyond where Professor Sax thought it ought to go and doing what she warned against in another article she wrote. 9 But believing that much can be learned about a doctrine from testing its application in surprising settings, and satisfied that she has weighed the risks of stretching the doctrine too far, she sets out on that task here. 10 I. WHAT IS "PUBLIC" ART AND WHY DO WE CARE ABOUT IT?
A society cannot be great without a strong and pluralistic commitment to the arts. The arts help to bring order to our lives. They provide us with a sense of perspective. They enhance our perception of the relations of men and women to each other and to their society. The arts help our people to communicate with each other; they help to provide a record of our society. What are really at stake are new and stronger ways of enchancing [sic] our humanity, our sense of the grand and the good, our reaching for harmony and order and hope. 11 This Part attempts to define what makes art "public" art and to understand the relationship between its owners and the art itself. It posits that public art has unique value for the culture that created it, and that community value creates a special relationship between the art and its possessor.

A. What Makes Art "Public" Art
Before determining whether the public should be able to view "public" art under any legal theory, one needs to understand what public art is. To Professor Sax, public art carries the "'essence' of the nation." 12 Some examples in this country of what might fit Professor Sax's definition are Emanuel Gottlieb Leutze's "Washington Crossing the Delaware," Gilbert Stuart's "George Washington," Andrew Wyeth's "Christina's World," support a sense of participation in a "shared enterprise." 23 Thus, public art "nourish[es] a sense of community, of participation in a common human enterprise." 24 Public art can also exemplify and express a community's "moral attitudes." 25 The communal value of public art makes it more in the nature of "'communal property' or public patrimony, which is essential to the sentiment of belonging to a collective social body and to the transmission of this sentiment to future generations." 26 What makes a preservation regime that protects a society's heritage novel is that that heritage is being protected not as a thing with its own "intrinsic value"-be that value "aesthetic, historical, archaeological"-but "rather because of its association with a social structure of a cultural community which sees the safeguarding of its living culture as part of its human rights claim to maintain and develop its identity as a social body beyond the biological life of its members." 27 Thus, most people feel a "racial, ethnic or even national affinity" toward property of cultural value 28 and "care in special ways about objects that evoke or embody or express their own and other people's cultures." 29 Professor Smith explained that: [w]hen a piece of public art comes to embody a community's identity and culture, when it becomes a landmark or identifying symbol of a community, when it comes to define a community's social relationships, sustain the community's social rules, or strengthen the community's social values, it transcends being just a piece of art and becomes part of a community's heritage. 30 23 Sax, supra note 17, at 1142. 24 Merryman, supra note 19, at 349; see also Smith, supra note 2, at 381 ("[W]orks of art are elaborate mechanisms for defining social relationships, sustaining social rules, and strengthening social values."). 25 Merryman, supra note 19, at 346; see also id. at 347 ("The maker [of art] chooses whether to settle for something that is 'good enough' or strive for something better. Every such choice embodies a moral decision, and that morality is communicated, more or less perfectly, to the viewer who confronts or the scholar who studies the object. '[T]he morality of art consists in the perfect use of an imperfect medium.'"). 26 Francioni, supra note 18, at 722. Francioni goes on to say "[i]n this sense, cultural heritage becomes an important dimension of human rights, in as much as it reflects the spiritual, religious, and cultural specificity of minorities and groups." Id. 27 Id. at 726. 28 Gechman, supra note 21, at 601-02; see also Merryman, supra note 19, at 341 (providing a broader definition of "cultural property," and saying "[b]y 'cultural property' I mean objects that embody the culture-principally archaeological, ethnographical and historical objects, works of art, and architecture; but the category can be expanded to include almost anything made or changed by man"). 29 Merryman, supra note 19, at 343. 30 Smith, supra note 2, at 383.
In these ways, public art, which embraces a community's identity and culture, transcends the artist's time. 31 Its cultural importance gives this form of art public significance beyond its creation for individual enjoyment. 32 Great works of art often are "an ageless testimony to beauty" in that culture, 33 a supposition supported by substantial empirical evidence in the form of the "thousands of museums, tens of thousands of dealers, hundreds of thousands of collectors, millions of museum visitors; [and] brisk markets in art and antiquities . . . ." 34 Moral rights laws 35 in some countries and the art preservation laws of states like California and Massachusetts also show the public's interest in great works of cultural art. 36 Additionally, "[a] great deal of public, corporate, and individual time, effort, and money are spent in making, finding, acquiring, preserving, studying, exhibiting, interpreting, and enjoying cultural objects." 37

B. The Relationship Between the Owners of Public Art and Public Art
Given the national importance of public art, it seems oxymoronic to consider it to be a fungible good that someone owns. 38 Rather, public art is better seen as "patrimonial property that in some respects 'belongs' to the nation and to posterity." 39 Owners of public art act more like transitory 31 Elsen, supra note 1, at 952 ("A work of art can also exist out of time for an artist and connoisseur."). 32 Sax, supra note 12, at 1566 ("[T]he standard is national importance." (quoting Ancient Monuments and Archaeological Areas Act, ch. 46, § 1(3), 32 HALSBURY STATUTES OF ENGLAND AND WALES 308 (4th ed. 1987))). 33 Elsen, supra note 1, at 952; see also id. ("On a more mystical level, in the past a great work of art was thought at times to contain the mana of its royal owner. From Nero to Napoleon, rulers would plunder art to capture the soul or mystical identity of its royal or urban owner. That magical mana or life spirit contained in art is now seen as belonging to a nation."). 34 Merryman, supra note 19, at 343. 35 See infra Part IV.A (discussing moral rights laws). 36 Merryman, supra note 19, at 343; see also infra Part IV.A (discussing moral-rights laws in California and Massachusetts). 37 Merryman, supra note 19, at 344; see also id. at 345 (stating that "[i]t is abundantly clear that people care a great deal about cultural property" (internal citation omitted)); Gechman, supra note 21, at 597 ("The 1954 Hague Convention forcefully addressed the importance of cultural preservation in these words: 'Damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind since each person makes a contribution to the culture of the world.' There is, thus, national and international public policy favoring the preservation of cultural treasures." (internal citation omitted)). 38  trustees because public art does "not fully belong to them" 40 any more than an owner of historic property or an ancient monument owns that property. 41 This attitude is reflected in the original British legislation to preserve the country's heritage property, the Ancient Monuments Act, which, in effect, redefined individual property rights to include the concept of the "responsible owner." 42 Implicit in the legislation was the idea that the owner of nationally valued property possessed the property's "economic value or use value" and could be compensated if those values were taken away. However, this property also had historic and scientific value, which the country owned, and, therefore, no compensation was owed should its economic or use value be lessened or lost. 43 The fact that the history of England might be "embedded in a physical structure," 44 like a piece of art, meant that the object did not belong to an individual, and in preventing the destruction of that artwork, the nation was "preventing the destruction of its history." 45 In other words, the nation was "not taking something away from the owner, but was safeguarding something of its own." 46 The Ancient Monuments Act thus reflected a "dual conception" of property in which conventional ownership is "overlaid with a responsibility of care and preservation for the benefit of the nation in the ages to come." 47 Professor Sax finds the idea of the "responsible owner," whose use of property is limited "by public sentiment," an "intriguing" concept that implies "a dimension of proprietary entitlement (and its limits) that hardly ever appears in contemporary discourse about property." 48 This view of responsible ownership in British preservation law, according to Professor 40 Id.; see also Smith, supra note 2, at 383 ("It becomes 'the property of mankind and ownership carries with it the obligation to preserve [it].' Even though the art may be privately owned, such ownership is in the nature of a trust for the community's benefit, and its de jure owner should not be able to destroy it without legal scrutiny."); Joseph L. Sax, Imaginatively Public: The English Experience of Art as Heritage Property, 38 VAND. J. TRANSNAT'L. L. 1097, 1105 n.35 (2005) (noting that the idea of an owner acting "as a guardian for posterity" existed in ancient Rome "where collecting avidity was rampant, in Cicero's condemnation of Verres"). 41 Sax, supra note 12, at 1553. 42 Id. 43 Id. at 1554. 44 Id. 45 Id. 46 Id. 47 Id. at 1557. 48 Sax, supra note 40, at 1101; see also Smith, supra note 2, at 379 ("[E]ven though an individual may be the de jure owner of a piece of cultural heritage, her ownership is qualified. She takes on the role of steward, retaining the property for the benefit of the public; she can use her property for personal enjoyment, but she should not be able to deprive the public, a community, or future generations of their cultural heritage."); Nicole B. Wilkes, Public Responsibilities of Private Owners of Cultural Property: Toward a National Art Preservation Statute, 24 COLUM.-VLA J.L. & ARTS 177, 183 (2001) ("We are thus left with the idea of 'preservation as a state responsibility; cultural property as 'belonging' to the nation regardless of formal; and creative achievement as a national asset."); Merryman, supra note 19, at 341 (discussing cultural property and how it includes objects that embody the culture). Sax, reflects a shift "away from the individual who unqualifiedly owns a space on the Earth and whatever things happen to sit in that space, to a community existing in time, nourished by those achievements of centuries of art and science that are often embodied in physical artifacts." 49 The result of this evolution in thinking about cultural properties is "the idea of 'preservation' as a state responsibility; cultural property as 'belonging' to the nation regardless of formal ownership; and creative achievement as a 'national asset. '" 50 Resonating with the tenets of the public trust doctrine, 51 Professor Sax recognized that "[w]hether the claim [against the cultural property owner] was put in proprietary terms, as something 'belonging' to the nation, or in some less legalistic form, the concept was the same: The nation as a collectivity had a preexisting interest in many objects that had always been considered entirely private," 52 if only to assure their preservation and appreciation. 53 This idea of a "collective obligation to identify and protect cultural artifacts" is relatively recent, 54 as is the thought that individual owners of cultural art could not be assumed to fulfill that duty. 55 Despite these ideas, British law and other preservation laws leave unanswered the question of whether the state could forcibly obtain important works of public art from private collections for display in a public institution. 56 49 Sax, supra note 12, at 1545; see also id. at 1549 (viewing the late 19th Century Antiquities Monuments Act as an embodiment of the principle that "the protection of cultural property was a governmental duty, and that public ownership and control should be brought to bear on unwilling proprietors," commenting that that bill "shifted the line between public and private authority a considerable distance for that time"). 50 Wilkes, supra note 48, at 183 (citing Sax, supra note 17, at 1168-69); see also id. at 201 (comparing an art preservation regime to the preservation of endangered species because like them, vulnerable art is subject to extinction if not properly protected). 51 See infra pp. 35-41 (discussing the public-trust doctrine). 52 Sax, supra note 12, at 1554. 53 See id. at 1556 (quoting 14 April 1875, Parl Deb HC (3d ser.) (1875) col. 911 (UK)) ("No person . . . certainly would propose any undue interference with the rights of private property; but their ancient monuments, while in a certain sense private property, were at the same time subjects of public interest . . . [and thus could not simply be left to] the possession of persons who were totally incapable of appreciating their value, and totally regardless of their preservation."). 54 Sax, supra note 17, at 1143. Professor Sax traces those thoughts to the French Revolution, which began the process of "recasting . . . a wide range of artistic, scientific, and historical artifacts as secular icons with both instrumental and symbolic content for the new republican nation." Id. at 1151. 55 See Sax, supra note 12, at 1549-50 (responding to resistance to the Ancient Monuments bill by stating: "It was not necessary to take such a harsh view to recognize that Lubbock's bill raised a profound and novel question. What was this communal imperative that could not safely be left to individual owners acting independently and autonomously, and that promised a much enlarged role for government?"). 56 See id. at 1552 n.28 (finding no instances in which a country condemned art in private collections to enrich a national museum); see also Gechman, supra note 21, at 602-03 (advocating recognition of the importance of preserving objects of "unique cultural value" through incentivizing people to take risks to protect them); Wilkes, supra note 48, at 202 ("In the same way that the state can intervene to protect children, the government could potentially regulate to safeguard objects of national (or international) significance.").
While property owners can destroy their own property with impunity, some property is so vested with communal rights, be it the rights of a culture or nation, that it is conceivable to think that "the community's right to preserve its heritage may trump a property owner's right to destroy [it]." 57 The same thinking should apply to public art that has been withdrawn from public view. The preservation of culturally important pieces of art is an essential part of any cultural-property policy, as if such a piece of art disappears or is destroyed, it cannot be studied or appreciated. 58 Merryman describes the consequences of such loss as follows: "[E]very loss of cultural property through erosion, destruction, careless removal, or improper conservation measures impairs the quest for cultural truth. Every lost opportunity for further discovery and study of cultural objects retards the growth of knowledge about ourselves." 59 Inferentially then, these objects must be available for scholars to study and for the public to enjoy. 60 Accordingly, as Merryman urges, it should follow that "when a piece of public art transforms from being merely a piece of property to become a community's cultural heritage, community rights may trump those of the individual property owner . . . ." 61 This concept is applicable whether resources are natural or manmade; where a community sought to enjoin destruction of a house, one court held: "A well-ordered society cannot tolerate the waste and destruction of resources when such acts directly affect 57 Smith, supra note 2, at 370. Given the importance of preservation, Professor Joseph Sax finds it "curious" that despite the existence of policies protecting historic, natural, and cultural objects, there is nothing that "resembles a theory of public preservation policy." Sax, supra note 12, at 1544. 58 See Merryman, supra note 19, at 355 ("The essential ingredient of any cultural property policy is that the object itself be physically preserved. The point is too obvious to need elaboration; if it is lost or destroyed, the Etruscan sarcophagus or the Peruvian textile or the Chinese pot cannot be studied, enjoyed, or used."); see also Elsen, supra note 1, at 952 ("The inspirational power of art of the past and present is crucial in newer countries, such as Poland, that call for the development of a national culture and give to their citizens a constitutionally guaranteed right to culture."). But see Francioni, supra note 18, at 727 (describing the European Court of Human Rights' refusal to create such a policy as leaving "the public interest in the conservation of a collective cultural patrimony or of the public value of a cultural landscape . . . in the shadow of the law"). Preservation of objects of cultural importance institutionalizes what Sax calls "the long view," and uses preservation not as a glorification of the past but as a promise to the future that the present will not impoverish it. In selecting the artifacts it wishes to pass on, preservation policy goes beyond simply saving certain objects and becomes a symbolic shaping of the national agenda. It serves as a banner announcing what the nation represents, or at least what it aspires to represent. Sax, supra note 12, at 1544. 59 Merryman, supra note 19, at 359. 60 Id. at 360; see also id. at 349 ("The painting was made to be seen, the lamp and the pot to be used, by others."). 61 Smith, supra note 2, at 383. important interests of other members of that society." 62 In other words, while traditional property law doctrines empower property owners to do whatever they want with their property-within the limits of nuisance law-"some values are so important to society that the law develops new doctrines to protect them." 63 This Article argues that the public trust doctrine is one of those doctrines; although the doctrine is not new, its application to privately held works of public art is new. 64 Before the Article shifts to a discussion of the public trust doctrine, there is more ground to cover. Accordingly, the next Part describes the current art world and the practice of hoarding public art.

II. THE ART WORLD
Works of art are among the least fungible forms of moveable property. Artworks' uniqueness generates greater emotional bonds between them and their individual or collective owners than those that exist between owners and fungible assets like cash or insurance policies. 65 The art world today is substantially different from what it was during the eighteenth century when the first impulse to open art to public view arose. 66 It is a world inhabited by "[v]isual artists, dealers, galleries, collectors, museums, auction houses, art critics, art historians, and the art press [who] cohere in a dense pattern of complex relationships that gives the visual art world a distinct identity." 67 At the same time that that world has become more democratic by opening up the display of art to the broader public 68 and by allowing the public to influence the valuation of art through auction houses and private sales, it has become more exclusive by concentrating ownership of art in the hands of a few. 62  68 Elsen, supra note 1, at 952 ("The secularization and democratization of art itself in recent times has been accompanied by growing sophistication on the part of the public about its own interest in culture.").
Museums occupy a place in this new world and both affect it and are affected by it 69 -often as competitors for public art, 70 but more recently selling off parts of their collections to get money to make capital improvements to their facilities or to acquire new works of art. 71 This process is called deaccession: the permanent removal or disposal of an object from the collection of the museum by virtue of its sale, exchange, donation, or transfer by any means to any person. 72 The recent downturn in financial markets and a general decrease in funding of the arts have increasingly propelled museums to deaccession their collections. 73  curators, directors, and boards of trustees typically decide to deaccession an artwork because the artwork no longer fits the museum's mission, the artwork is of poor or deteriorating quality, or for legal reasons. A museum then disposes of a work by sale, auction, exchange, or grant to an individual or another institution."). 73 Fincham, supra note 72, at 3; see also id. at 17 ("In 2009, the Getty Museum, one of the wealthiest museums in the world, was forced to cut its annual budget by 24% and make 97 members of staff redundant. The Art Institute of Chicago lost nearly 24% of its endowment in 2009.").
74 See Cronin, supra note 38, at 28 ("When an artwork enters the collection of a public museum, its prestige and financial worth increase because the public values not only the work itself, but also the museum's imprimatur of connoisseurship. Because the public generates value, it also, over time, develops an affinity with the work and thereby acquires interest akin to ownership of it. This is why museums' attempts to de-accession works to generate funds, even to survive, are typically met with vociferous opposition."). Indeed, some consider that the process has created a "crisis" for American museums. Fincham, supra note 72, at 1 (citing as examples of the problems deaccession creates "the loss of works from the public trust, the closure of museums and unnecessary legal disputes"). But see Gechman, supra note 21, at 600 n.164 ("The fact that cultural items can be sold has given them the chance to survive. Museums can then acquire them by purchase. It is a means, therefore, of preserving, not destroying, cultural treasures. . . . The private sale of important cultural items has saved many of these items."). An example of a recent controversy generated by the Berkshire Museum's auction of forty works of art, including two Norman Rockwell paintings that the artist had given to the museum. A group that included three of Rockwell's children unsuccessfully sued in a Massachusetts state court to stop the sale arguing that the sale breached the museum's fiduciary duties. Matt Stevens, Rockwell Family Files Suit, N.Y. TIMES, Oct. 23, 2017, at C4. Deaccession is not only a United States phenomenon. France recently declared a Marquis de Sade manuscript a "national treasure" and blocked its sale at a public auction for thirty months with a goal of raising sufficient funds to keep it in the country. Kimiko de Freytas-Tamura, Salacious, Shocking and Sordid, And Now a National Treasure, N.Y. TIMES, Dec. 20, 2017, at A9. concerns itself only with what happens to deaccessioned art after it is sold and disappears from public view.
A recent example of deaccession was the scheduled sale at auction of the entire permanent collection of the Fresno Metropolitan Museum of Art and Science-some 3,000 objects of art. 75 Should the Fresno Art Museum close as well, the sale would mean that there would be "no contemporary art between Los Angeles and San Francisco." 76 To get an idea of the scope of the process, "[n]early a third of the art sold at Christie's May 2009 sale . . . were works of art deaccessioned from US museums." 77 "Many of these sales take place behind closed doors." 78 Deaccession can benefit wealthy private collectors who buy that art. For example, in 2009 the Orange County Museum of Art sold eighteen California Impressionist paintings to a private collector-"a move which another museum director called an erosion of 'civic behavior and collegiality.'" 79 Museums enabled art collections, which had previously been housed in private homes of the very rich, to move into a space that was both fixed and publicly accessible. 80 Because great works of art are now available for viewing at museums, museums exercise an important public educational role 81 through public exhibitions, in which they produce and share cultural knowledge. 82 Modern museums help form "a community's identity" by promoting "civic pride, cultural understanding, and scholarship" 83 and act as 75 See Fincham, supra note 72, at 3; see also id. at 17 ("In 2009, the Getty Museum, one of the wealthiest museums in the world, was forced to cut its annual budget by 24% and make 97 members of staff redundant. The Art Institute of Chicago lost nearly 24% of its endowment in 2009."). 76 Id. at 2. 77 Id. at 2-3. Fincham reports that in 2009, the Orange County Museum of Art sold eighteen California impressionist paintings to a private collector. Id. at 3. 78 Id. at 3 79 Id. 80 See Sax, supra note 40, at 1136 ("Whereas the venue for seeing art had previously, and necessarily, been on the collector's own premises or episodically in a temporary exhibition, it had now moved into a permanent, publicly-accessible art museum."). 81 Tam, supra note 72, at 854-55; see also id., at 857 ("Through exhibitions, museums offer their visitors an opportunity to exercise critical faculties and develop new perspectives; this is the lifelong learning that museums provide."); G. HAMILTON, Education and Scholarship in the American Museum, in ON UNDERSTANDING ART MUSEUMS (1975), reprinted in 2 J. MERRYMAN & A. ELSEN, LAW, ETHICS, AND THE VISUAL ARTS 7-2, 7-3 (1979) ("Since 1870, no museum has been founded in the United States 'without formally recognizing its obligation toward public education'" (quoting Note, Protecting the Public Interest in Art, 91 YALE L.J. 121, 132 n.60 (1981)). 82 Tam, supra note 72, at 856 ("[W]hat museums have in common is the desire to provide educational experiences by offering public access to curated and intellectually stimulating exhibitions."). 83 Id. at 857-58.
"creative and expressive cultural institutions." 84 One definition of public art is art housed in a public institution like a museum. 85 However, the educational role of a museum as a repository of public art is diminishing as museums are increasingly priced out of the art market should they want to add to or diversify their collections. 86 Because the wealthy can acquire art at higher prices than museums, 87 museums cannot add new works to their collections, and their collections become static. 88 This depreciates the educational value of museums and lessens their attraction to the public, decreasing attendance and revenues. 89 There are also private museums, 90 which wealthy individuals with large collections of important art establish as tax-exempt organizations to which 84 Id.; see also Fincham, supra note 72, at 19 ("They preserve and display works of art for scholars, the public and future generations."). But see id. at 20 ("The overwhelming majority of works of art held by most museums will never be displayed publicly" in part due to space constraints and costs). 85 The artist González-Torres has another view that "what makes a work public is not its location, but its relationship with the audience. This is a more profound sense of public art, for it injects a dimension that is not commonly associated with art, even public art, as commonly defined-democracy, in a participatory sense. The artist is removed from the pedestal as the sole creative genius behind the work. Instead, the audience participates in the work's ongoing process of creative destruction and reproduction. Although the SFMOMA offered to purchase Picasso's 1932 "Nu au fauteuil noir" for $44 million, the painting was sold at Christie's for a hammer price of $41 million to a private collector."); see also Sax, supra note 40, at 1137 ("A great deal of superlative art nevertheless resides in private collections and museums avidly seek many of these works. Indeed, when important works come up for sale, the richest collectors can and commonly do outbid museums, whose acquisitions budgets are quite limited."). 87 An example of art going to private collectors at astronomical prices is the recent sale of a painting of "disputed quality" attributed to Leonardo da Vinci, Salvator Mundi, at Christie's for $450.3 million dollars, a price that "no museum could possibly afford." Robin Pogrebin, After Leonardo Sale, Art World Wonders: Is the Sky the Limit? N.Y. TIMES, Nov. 17, 2017, at A24. 88 But see Gechman, supra note 21, at 598 ("The other argument against burdening private collecting is that doing so may work against the goal of preservation. We want people to have an incentive to preserve items with cultural significance. The high monetary value of good title in the market place is an encouragement to preservation."). 89 The current financial condition of museums is already tenuous. See Fincham, supra note 72, at 17 ("The current financial outlook for museums is likely to be one of the most difficult in decades. In 2009, the Getty Museum, one of the wealthiest museums in the world, was forced to cut its annual budget by 24% and make 97 members of staff redundant."). The Art Institute of Chicago lost nearly 24 percent of its endowment in 2009. Museums are raising admissions fees, laying off staff, dropping exhibitions and even imposing furloughs. One hundred universities from all over the country have been forced to cut arts budgets. Id. 90 93 Often the art found in private museums is acquired through a public museum's deaccession of its collection. Private museums also offer collectors power and control over their art, 94 and having a private museum can give a collector the prestige and visibility to get access to the hottest artists' work, which may enable them to acquire art at a lower price. 95 In this way, private museums help inflate the price of art well beyond the purchase capacity of most public museums. 96 Public museums are mostly funded by the government and are managed by trustees with the public interest in mind. 97 Private collectors, however, do not operate under a public-interest mandate and are under no obligation to make their art available to the public, even art that they acquired from a public museum. 98 There are no norms or laws regulating the deaccession process to ensure that works of art remain available to the public. 99 Sometimes, the purchased art is taken out of the public museum's immediate jurisdiction, making its removal from public viewing more complete. 100 Some scholars contend that private ownership is not necessarily bad because the art "still exists"-it has not been destroyed and thus can be 91 See id. But see Sullivan, supra note 69, at B5 (noting that founders of private museums are "under extreme scrutiny by the I.R.S. and the public," the tax break can be offset by the costs of building and maintaining a museum, and some business entrepreneurs have "trouble making the mental leap involved in giving their collections to the public"). 92 Shnayerson, supra note 90 ("Of the 236 private contemporary art museums totted up globally in the BMW Art Guide by Independent Collectors, more than 80 percent have arisen since 2000. The United States has 43 of them, second only to South Korea."); see also Sullivan, supra note 69, at B5 ("Private museums aren't new, but they've grown significantly in terms of the numbers in the last 10 years or so." (internal quotation marks omitted)). 93 Shnayerson, supra note 90 ("'If you lend art on a rotating basis to other institutions as one of your [private foundation's] purposes then you don't have to open your private museum to the public.'" (quoting Ralph Lerner, co-author of Art Law, a "classic" textbook)). But see Gechman, supra note 21, at 598 (stating that "[a]llowing private collections will diversify the kinds of things that are preserved," and "[p]art of the reason we would lose something is that private collections often become public eventually, and many private collections are currently open to the public"). 94 Shnayerson, supra note 90 ("If he gives a painting to the Museum of Modern Art . . . he'll never have control over it again. He'll never be able to say what type of light bulb to shine on it. Or when it should be pulled up from the basement and displayed."). 95 Id. 96 Id. 97 See id. ("By definition a public museum is funded mostly by the public-which is to say government at one level or another-and is steered by trustees who do what's best for the public not what's best for a wealthy donor.").
98 See Tam, supra note 72, at 882 ("The uproar in reaction to the Metropolitan Museum's decision to deaccession in 1973 highlights a fear of art returning to private hands where it would be, presumably, forever inaccessible to the public."). 99 Fincham, supra note 72, at 19. 100 See Tam, supra note 72, at 878 ("The State Attorney General is frequently concerned with retaining the collection within the city or state in which the museum is located."). resold to other collectors or loaned to museums. 101 Indeed, "[m]any American collectors describe themselves as 'merely the temporary custodian[s]' of their collections and are dedicated to donating, lending, and otherwise sharing their collections with museums and the public." 102 But the evidence shows that this is not the behavioral norm among private collectors, and even if it were, the worry remains that there are no rules or norms preventing privately held art from disappearing from public view permanently or for a very long time into private homes, offshore bank vaults, and other inaccessible places. 103 Indeed, this worry prompted the Irish arts minister to give $763,000 to the National Museum of Ireland and the National Library of Ireland to buy back "significant elements" of W. B. Yeats's collection of culturally significant items, which Sotheby's in London had auctioned off for approximately $2.7 million. 104 The government only intervened "after high-profile Irish literary, artistic and academic figures decried the sale as a great loss to the country's cultural heritage." 105 While destruction of public art in private hands is always a worry, like what Professor Sax wrote about in Playing Darts with a Rembrandt, the concern that animates this Article is the loss of that art to public view. 106 But, 101 See Wilkes, supra note 48, at 210 n.249 (stating that "private collections will diversify the type of cultural property that is preserved . . . . Private collecting injects private tastes and preferences into the public realm, thereby avoiding the specter of government censorship and 'idea regulation,'" and citing as an example of this "the controversy surrounding the collection of Dr. Albert C. Barnes, who acquired an extensive collection of French Impressionist and post-Impressionist paintings at a time when the art community was highly critical of such work").
102 Tam, supra note 72, at 898; see also Sax, supra note 40, at 1136 ("[T]he collector community worldwide today evinces an admirable willingness to provide benefactions in the form of gifts of art to museums.").
103 Cronin, supra note 38, at 22 ("However, many, if not most, of the works that have been turned over by museums and governments to these claimants have been subsequently sold to the highest bidder, and the works disappear from museum collections into the hands of private collectors. Most likely some then migrate to storage vaults in Switzerland or the Cayman Islands where they are seen by no one, like precious metals stored in darkness by owners anticipating appreciation over time."); see also id. at 22 n.151 ("Discussing how claimants who successfully obtained Matisse's Odalisque from the Seattle Art Museum immediately sold it to casino mogul Steve Wynn who then sold it to a company in the Grand Cayman Islands, whence it was ultimately shipped to Switzerland for an unknown buyer." (citing MICHAEL BAZYLER, HOLOCAUST JUSTICE: THE BATTLE FOR RESTITUTION IN AMERICA'S COURTS 224-25 (2003))); Sax, supra note 17, at 1142 ("Though it is customary to say that no one has a right to destroy those things comprising our heritage, many such items, especially works of art, are held and enjoyed as ordinary private goods without public access or regulation of any kind.").
105 Codrea-Rado, supra note 104. 106 Wilkes, supra note 48, at 187 ("In the case of art collectors, the problems associated with ownership of historically significant works most often involve (lack of) access, rather than destruction."); see also id. ("The problem of the 'pharoic owner' was highlighted recently when Van Gogh's "Portrait why should someone who pays a substantial amount of money for a piece of art be unable to enjoy it in privacy? 107 After all, the traditional view of property is that "'ownership of physical things' is 'private and unqualified.'" 108 Should it matter that the exercise of this prerogative causes a "loss to scholarship or art history?" 109 This Article argues that it does matter, and that owners of public art have some "obligation to the community or the public at large" that cabins their unfettered right to enjoy public art privately and requires that they make their collections open to the public. 110 This Article finds the source of that obligation in the republican values of citizenship and education. Accordingly, the next Part turns to a discussion of those values and how hoarding public art undermines them.

III. REPUBLICAN VALUES AND HOW PRIVATELY HOARDING PUBLIC ART UNDERMINES THEM
Culture exists to be shared and to inhabit a culture is to contribute to it. 111 Making public art available for viewing by the public is consistent with republican values. 112 High among these values are the importance of community and education, both of which are essential to creating good citizens. Public art performs a communal educative function to the extent it of Dr. Gachet" was unable to be located for display in a traveling exhibition. In the spring of 1990, Ryoei Saito, owner of the Daishowa Paper Manufacturing Company in Japan, paid $82.5 million at auction for Van Gogh's "Portrait of Dr. Gachet," the highest price ever paid for a painting. Saito indicated that he would consider cremating the painting with his body to avoid taxes. After Saito died in 1996, both the Philadelphia Art Museum and the Metropolitan Museum of Art attempted to secure the painting for exhibitions they were organizing. In June of 1999, it was reported that the painting had dropped out of sight. The painting was last known to be stored in a warehouse in Tokyo.").
107 Cronin, supra note 38, at 24 ("Works of art are among the least fungible forms of moveable property. Artworks' uniqueness generates greater emotional bonds between them and their individual or collective owners than those that exist between owners and fungible assets like cash or insurance policies.").
108 Wilkes, supra note 48, at 178-79 (quoting SAX, supra note 4, at 3). 109 Id. at 178. 110 Id. 111 See Lea Shaver, The Right to Science and Culture, 2010 WIS. L. REV. 121, 171 (2010) ("Participation, as well as consumption, is the essence of the right to science and culture. 'Access' therefore should be understood in terms of access to scientific and cultural materials, tools, and information; access to opportunities to create as well as to consume; and to share in the senses of both taking and giving."). 112 The republican concept of citizens acting out of and in furtherance of the public good is remarkably like a social norm despite the fact that republicanism requires government intervention in developing good citizens and norm development is independent from government intervention. Each depends on idea as an obligation of citizenship (pursuit of and conformance to the common good) and each is aspirational to the extent that they reflect a desired "community standard" and show people how "they should behave. imparts important civic values and pride in local heritage and thus contributes to the formation of good citizens.
Citizens imbued with civic virtue who are motivated by a concern for the community and who have an inclination to promote the common good reflect republican values. 113 Communities nourish good citizens and allow them to practice the art of good citizenship. 114 Communities offer the "shared historical, cultural, political, and, ultimately, normative context," in which political discussions can take place and decisions can be made affecting the community's common good. 115 In republican thought, the acquisition of information is critical to helping citizens act responsibly in their community. 116 To the extent that public art creates and nourishes a sense of community, withholding it from public view diminishes the chance that people will acquire the information about their own communities and culture they need to become good citizens. 117 "[E]ducation is vital to citizenship in a democratic republic." 118 Key elements of a republican education are the creation of moral character 119 and what Suzanna Sherry calls "cultural literacy"-"knowledge of and attachment to" one's own culture. 120 Cultivating such an attachment to one's nation depends on both knowledge and assimilation: to feel that she is an American, a child must learn about America's cultural and political heritage and accept it as her own. In other words, to produce American citizens we must cultivate an American 117 See id. at 156-62 (discussing the role of public education in the formation of citizenship). 118 Id. at 131. 119 See id. at 177 ("[T]hat moral character includes the inclination to act in accordance with cultural norms is, of course, intimately related to my discussion of cultural literacy"); see also id. at 176 ("[T]he inclination to act responsibly and in accord with basic cultural norms is part of the moral character conducive to republican citizenship."). 120 Id. at 157.
"civic identity." A shared cultural identity makes possible "a shared future" and "forge[s] a nation." 121 Common cultural identity is "crucial to republican citizenship." 122 Public art contributes to cultural identity and can be a source of cultural norms. It offers citizens a form of literacy in their own culture. The antithesis of republicanism is individualism, by which people subordinate the good of the community to their own individual goals 123 and live lives isolated from each other. To the extent that people feed their own appetites, they ignore the needs of the greater community. 124 To Professor Anthony Kronman, many Americans are individuals who, through "narcotized consumerism," have drawn "the boundaries of the world to coincide with those of our bodily needs," leaving "each of us wrapped in a separate cocoon, rocking back and forth between appetite and satisfaction, uninterested in connecting to anything beyond the magic circle of the self." 125 Professor Holly Doremus worries that "[l]egitimizing actions based entirely on self-interest is not likely ever to encourage the development of an ethic of self-restraint." 126 Individuals who hoard public art are driven by their personal ambition and interests, and have isolated themselves and their art from the greater community. They are clearly not acting in the interest of achieving the republican goal of a broader-based public good. Given the monetary lengths these individuals are willing to go to acquire art, they are equally clearly not practicing self-restraint. By depriving the public of an opportunity to educate itself through exposure to public art, these individuals are also impeding the creation of civic-minded citizens who will contribute to their 121 Id. at 162-63. 122 Id. at 163; see also id. at 168 ("In the specific context of education, the National Commission on Excellence in Education concluded that '[a] high level of shared education is essential to a free, democratic society and to the fostering of a common culture, especially in a country that prides itself on pluralism and individual freedom.'" (citation omitted)).
124 See Sherry, supra note 113, at 161-62 ("[John] Adams suggested that '[m]en must be ready, they must pride themselves, and be happy to sacrifice their private pleasures, passions, and interests, nay, their private friendships and dearest connections, when they stand in competition with the rights of society.'"). 125 Kronman, supra note 123, at 749. 126 Holly Doremus, Biodiversity and the Challenge of Saving the Ordinary, 38 IDAHO L. REV. 325, 351 (2002); see also Sherry, supra note 113, at 177 ("'[T]o have a good character means at least two things: empathy and self-control. Empathy refers to a willingness to take importantly into account the rights, needs, and feelings of others. Self-control refers to a willingness to take importantly into account the more distant consequences of present actions; to be in short somewhat more future oriented rather than wholly present oriented.'" (quoting James Q. Wilson)).
communities. 127 Uninformed and uneducated individuals cannot actively engage in the life of their communities and are thus denied an opportunity to develop good moral character. "[M]oral character includes the inclination to act in accordance with cultural norms" 128 -norms, which this Article contends, can be found in public art. According to Suzanna Sherry, the best way to teach moral character is by example, 129 which is what public art can do.
This Article has argued that there is "an identifiable public or community-centered interest in certain objects," 130 particularly art of cultural importance. Professor Price echoes that sentiment and explains that the constraint on ownership of a masterpiece, which prevents it from being defaced, is not inherent in the art itself, but "might be found in the relationship of the work to the community. The object is part of the body of society's cultural wealth." 131 He contends further that "it might . . . be possible to say that there is a public right to share reasonably in the aesthetic value of a work of art," and "that the public should possess 'a carefully controlled power to ensure that works are not totally or arbitrarily withheld from public view.'" 132 Owners of public art who refuse to share it with the public, therefore, are inappropriately claiming an exclusive right in art that often is of importance to the greater community. 133 He even infers that there could be a state requirement that art produced under a state subsidy should 127 Kronman, supra note 123 ("Judgments of the second sort imply a willingness to subordinate or sacrifice our private welfare to that of the community as a whole, and only when we form our judgments on this basis are we practicing the art of civil government, as classical republicanism conceived it.").
128 Sherry, supra note 113, at 177. 129 Id. at 178. 130 Wilkes, supra note 48, at 179; see also John Moustakas, Note, Group Rights in Cultural Property: Justifying Strict Inalienability, 74 CORNELL L. REV. 1179, 1203-04 (1989) (arguing that cultural objects qualifying as 'property for grouphood' should be recognized as a new classification of property rights enforced through a regime of strict inalienability that is "an absolute ban on transferability"); Sax, supra note 40, at 1140 ("[S]ome things imaginatively belong to the public as part of a national or cultural heritage, even though they legally belong to a private individual.").
131 See Price, supra note 11, at 1188; see also id. ("[I]t might in turn be possible to say that there is a public right to share reasonably in the aesthetic value of a work of art.").
132 Wilkes, supra note 48, at 181. 133 See Price, supra note 11, at 1188 (arguing that public art's communal importance deprives its owner, who is only a temporary custodian of it, of any right to harm or destroy it or withhold it from public view). In support of his comments about public access, Professor Price explains that it makes no sense to constrain the export of publicly important art, as some propose, but then withhold it from public view, because the restriction on exporting public works of art is related to the right to exhibit it. Both constraining the view of public art and its exportation to another country relate to protecting a country's cultural patrimony. To Professor Price "[a] right to access for exhibition seems much more responsive to the people's needs" than a ban on exporting public art, as exists in Great Britain. See Sax, supra note 12, at 1551 ("The government of England does provide for the preservation of medieval structures, restrict the exportation of famous paintings, and preserve forests."). be available to the public." 134 Much of what Professor Price argues finds support in this Article and in republican thinking.
Others who advocate for public access to important works of art articulate reasons that also sound in republican thought. Professor Judy Gechman notes that "[i]mplicit in the high value that society places on preservation of art and culture is the notion that the public should have access to its heritage." 135 Professor Nicole Wilkes says that there is a distinct public interest in supporting both the preservation of cultural property and access to it because it is not only "an aspect of our present culture and our history; it helps tell us who we are and where we came from." 136 She calls the withholding of public art a "crime of omission." 137 Despite these arguments in favor of opening important works of art to public view because of their importance to making "good citizens," wealthy owners still keep these works to themselves. Professor Sax bemoans that there is "no one in America today who . . . would be credible and effective in saying to reluctant owners that it is their 'duty, at certain risk and inconvenience, to send their choicest treasures' to be seen by the public." 138 He laments that "[a] sense of responsibility to the public has been replaced by a sort of philanthropic hauteur" 139 or selfishness-not civic pride-which is the antithesis of republican behavior.
This Part of the Article has identified two of the key tenets of republican thought-(1) a love of community, and (2) the importance of education-and how they combine to make a good citizen with good moral character. It has shown how hoarding art, which is a highly individualistic venture, undermines those values. Part IV of this Article explores various doctrines and statutory tools that might open privately held important works of art to public view and fulfill the republican values of community and education. For, as Professor Sax writes, "to withhold for several generations 134 Price, supra note 11, at 1187. Professor Price adds that mandating that privately held art be regularly exhibited at museums would free museum staff from focusing on acquiring new works and would lessen financial pressures on museums to do that. Id. at 1189-90. But see Wilkes, supra note 48, at 210 ("Before mandating public access and preservation, the government should therefore establish an incentive structure to encourage collectors to act in a manner that comports with (and even advances) the public interest in cultural property.").
135 Gechman, supra note 21, at 596. 136 Wilkes, supra note 48, at 188. 137 See id. at 178 ("A related problem exists with respect to 'crimes of omission' committed by owners of historically significant objects who choose to withhold their treasures from the general public.").
138 See Sax, supra note 40, at 1138; see also id. ("It is not simply the absence of a royal personage and the social hierarchy a monarchy embodies that prevents such a statement. Rather, in modern times, it is rare to hear respected writers or connoisseurs charge those who keep their treasures secreted away with being churlish or to hear such critics assert that hoarders should, and will, be 'denounced by opinion.'"). 139  Before turning to the common-law doctrines of public dedication and public trust, there are two other possible lines of attack for securing public rights in public art. The first of these is the concept of moral rights, droit moral, which protects the integrity of a piece of art and with it the artist's reputation. The doctrine is more common in Europe than the United States, even though the concept has been adopted in some state legislation. The second is an enforcement action under the Visual Artists Rights Act, a federal law that protects the integrity of an artist's work product. However, because each approach focuses on the artist and the artist's rights in his or her creation, the public only benefits indirectly. Nonetheless, this Part of the Article examines these two approaches because, although flawed, each restricts the ownership rights of those who possess art.

A. An Artist's Moral Rights
Professor Merryman explains that the moral right of an artist is essentially a "composite right," one component of which is "the right of integrity (of the work of art), also sometimes called the right to respect of the work." 142 The idea behind the concept is that a work of art expresses an 140 Id. at 1140. 141 Tipton, supra note 70, at 302. 142 Merryman, supra note 67, at 1027; see also Tipton, supra note 70, at 285 ("[M]oral rights emerged in European law to recognize and shield art, as it represented the 'embodi[ment of] the creative personality of the author,' and the 'extension of the author's personhood.' Moral rights are broadly grouped into several categories. The right of attribution protects the artist's right to have her name correctly associated with a work, to correct misattribution, or conversely, to have her work left anonymous. The right of integrity protects the work itself, allowing the artist to control any subsequent modification or mutilation. The right of disclosure allows the artist alone to deem a work finished. Finally, the right of withdrawal allows an artist to withdraw a work from public display at his choosing.").
artist's personality. 143 Any unauthorized change to that work, including damaging or misrepresenting it, affects the artist's "identity, personality, and honor, and thus impairs a legally protected personality interest." 144 Perversely, the complete destruction or mutilation of a piece of art that obscures the artist's identity completely does not violate the artist's moral rights, as "there is no danger that such destruction will misrepresent the artist or invade his privacy by subjecting him to excessive criticism or ridicule." 145 Moral rights prevent the owner of a piece of art from claiming a right to modify it to make the art more to his or her liking. They thus restrict that owner's rights in that piece of art, since the rights in the art belong to the artist. 146 However, moral rights do little to advance the interests of the public in that art, including seeing that art. 147 And while an artist's moral rights are "perpetual," 148 they protect only the artist's personality and have nothing to do with "patrimonial or property rights." 149 Yet, the fact that moral rights restrict what an owner can do with his or her "private" property lest it 143 Elsen, supra note 1, at 955 ("[T]he modern artist's work, grounded in the self, becomes a tangible manifestation of his personality.").
144 Merryman, supra note 67, at 1027; see also id. at 1041 ("Art is an aspect of our present culture and our history; it helps tell us who we are and where we came from. To revise, censor, or improve the work of art is to falsify a piece of the culture. We are interested in protecting the work of art for public reasons, and the moral right of the artist is in part a method of providing for private enforcement of this public interest.").
145 Note, Protecting the Public Interest in Art, 91 YALE L. J. 121, 126 (1981). The other moral rights in a piece of art-the "right of paternity" that the work be associated with the artist's name, the right to withhold the work if the artist does not think that its finished, which "gives the artist an absolute right to decide when (and whether) a work of art is complete and when (and whether) to show it to the public," and the "right to repent or retake" a work of art from its owner-are less relevant for purposes of this article. Merryman, supra note 67, at 1027-28. 146 Id. at 1047. 147 See Smith, supra note 2, at 407 ("Moral rights are rights that belong to the artist, so they do not protect the public's interest in the art. They act more as an antidefamation law to help to protect the artist's reputation."); see also Protecting the Public Interest in Art, supra note 145, at 125 ("They [moral rights] focus primarily on protecting the artist's rights in his work, rather than on protecting the much broader public interest in the artwork itself.").
148 Merryman, supra note 67, at 1042. Merryman calls this statement a "truisim." Id.; see also Tipton, supra note 70, at 286 ("Like other moral rights, the original concept of the right of attribution did not evaporate with the transfer of the physical work to a buyer of a piece but remained with the artist to enforce against any subsequent owners. As such, the rights are considered 'perpetual . . . lasting . . . [and] theoretically forever.'"). 149 Merryman, supra note 67, at 1025 (contrasting copyright, which protects an artist's economic interest in their work, with "[t]he moral right, [which] is one of a small group of rights intended to recognize and protect the individual's personality. Rights of personality include the rights to one's identity, to a name, to one's reputation, one's occupation or profession, to the integrity of one's person, and to privacy"); see also Elsen, supra note 1, at 955 ("[T]he moral right of the artist, which in civil law doctrine is classified as a right of personality, as distinguished from patrimonial or property rights.").
interferes with the artist's rights 150 indicates some weakness of private property rights in important works of art. 151 Although generally considered a common-law right, several European civil law countries, like France, have incorporated the concept of an artist's moral rights into their codes, and the concept is consistently included in international conventions dealing with copyright of the rights of artists. 152 European countries, which have codified the moral rights of artists, have extended those rights from the artist to his or her heirs and, if there be no heirs, to the community. In this way, codified moral rights become powerful cultural-preservation laws by expanding on who can invoke an artist's moral rights-essentially providing for private enforcement of the public interest in those rights. 153 In the United States, there is no doctrine that protects the moral rights of an artist, and our laws, primarily copyright, do not distinguish "rights of personality from patrimonial rights." 154 Federal law provides no remedy for the artists whose work has been destroyed or misrepresented in some way, and accordingly, there is no protection of the public interest in art preservation. 155 While a community might try to enforce an artist's moral rights under the common law because of the public interest in art preservation, there is 150 See Tipton, supra note 70, at 295 ("Thus, enforcing moral rights may implicate the property rights of the owner of such a work, but only to disallow any enjoyment of that property that would harm another's rights.").
151 See id. ("The archetypal 'orthodoxy' of droits moraux provides that moral rights are 'perpetual, inalienable, non-seizable, and universal.' When the author dies his rights pass to his heirs and to the community, and what once was an intensely personal right becomes one of the community vis-à-vis art preservation. It is this fundamentally 'ephemeral' nature of moral rights that brings them into conflict with concepts of property law, which rely on the owners' ability to do what they wish with the property they validly own.").
152 See Merryman, supra note 67, at 1026 (explaining that the moral right was judicially created and is now supported by statute); see also Tipton, supra note 70, at 288 (discussing the Berne Convention for the Protection of Literary and Artistic Works, art.6bis(1), July 14, 1967, 25 U.S.T. 1341, 828 U.N.T.S.221, which codifies the moral rights of attribution and integrity, and provides that: "Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation." (citations omitted)).
153 Tipton, supra note 70, at 296. 154 See Merryman, supra note 67, at 1042 (explaining why the laws in the United States are considered undeveloped); see also id. at 1039 ("At the bottom of it all is the significant fact that where the artist claims a violation of a personality interest, rather than a patrimonial interest, the civil law responds and our law does not. That is the real difference."); Protecting the Public Interest in Art, supra note 145, at 122-23 ("In America, however, attempts by artists to prevent the destruction or mutilation of their creations through the droit moral have failed. In some cases, the foreign terminology and the absence of domestic precedent have led courts to reject the doctrine; in others, courts have disapproved of the basic concept of allowing the artist perpetual control over his artwork."). 155 Merryman, supra note 67, at 1042. no statutory basis for such an action, 156 except in California. California has a law protecting the artist's moral rights, which explicitly protects the "public interest in preserving the integrity of cultural and artistic creations." 157 California's recognition of the public's interest in and benefit from the accurate attribution of art to its creator and in the prevention of damage to a work of art after the death of its creator provides a basis for the law giving the public a right to enforce an artist's rights. 158 California recognizes that it is the public's interest in preserving the integrity of "cultural and artistic creations" that empowers the public to act. 159 California law allows an organization that learns of a potential violation of an artist's moral rights, even of a deceased artist's moral rights, to sue to enjoin the defendant's behavior. 160 The United States' "moral rights regime" is inferior to its European counterparts. "Only the moral right of civil law countries guarantees to the artist that the work will remain as she last saw it and not be altered or transformed by others." 161 Except for California, there is no publicly enforceable moral-rights regime in the United States, as those rights, to the extent they exist, can only be enforced by the artist. 162 In the United States, invaluable works of art are left without adequate protection from destruction, alteration, and faulty attribution-often done by the private owners of that art. 163 Even in California, which recognizes the public's strong interest in important works of art, these rights do not include a public right of access to see what may have been preserved. If the public has no right to see the 156 But see Tipton, supra note 70, at 297 ("Creating perpetual moral rights for artists implicitly requires granting standing to others to enforce those rights."); id. ("Indeed, community standing is almost implicit in the preservationist goal of moral rights: e.g., when an author dies, the personal right turns into the public's interest of art preservation."). 157 Id. at 298. 158 Id. 159 See id. ("The public's interest is, much like the artist's interest, one of moral value, not economic value."). But see Francioni, supra note 18, at 721-22 ("Cultural property may be seen as moveable artifacts susceptible to economic evaluation, and for this reason subject to exchange in domestic and international commerce; but it may also be seen as objects endowed with intrinsic value as expressions of human creativity and as part of a unique or very special tradition of human skills and craftwork, which today we call 'intangible cultural heritage.' Masterpieces of painting, sculpture, mosaics, inlaid wood, musical instruments, and oral heritage displayed today in museums, exhibitions, and shops owe their existence to social structures and traditions that have nurtured and maintained the human knowledge and skills necessary to produce them."). 160 Tipton, supra note 70, at 298. 161 Elsen, supra note 1, at 954. 162 See Tipton, supra note 70, at 294 ("Despite the stated goals of many 'preservation statutes,' which claim that the recognition of moral rights benefits the entire community, only the artist is allowed to vindicate those moral rights. Consequently, although the public shares and benefits from the recognition of moral rights, they are completely powerless when the rights of dead artists are infringed. Indeed, this standing limitation has the de facto result of limiting moral rights to the life of the person with standing to enforce them."). 163 Id. at 302. protected art, the public benefit under any moral-rights regime, including California's, is only an abstract one.

B. Visual Artists Rights Act
Congress attempted to codify artists' moral rights in their visual creations in the Visual Artists Rights Act ("VARA"). The presumption behind the legislation was that "an author injects her spirit into art she creates and, therefore, her personality, integrity, and reputation in the art should be protected." 164 However, not only is VARA limited in its scope and effectiveness, but, like the moral-rights-of-artists doctrine, VARA also does nothing to advance the cause of opening privately held important art to public view.
The intent of VARA is to protect "the right of authorship and the right of integrity" of certain visual artists and their creations. 165 VARA specifically protects two moral rights: (1) "the right of attribution" and (2) "the right of integrity." 166 VARA additionally provides a private right of action against anyone who violates its terms, 167 and thus is an improvement over the common-law doctrine, which does not allow this.
However, VARA's scope is limited to art of "recognized stature," 168 and only protects works of visual art like paintings, drawings, or sculptures. 169 VARA has no retroactive effect, so it does not protect any visual work of art by an artist who predeceased VARA. 170 A dead artist is seen as having no moral rights, leaving the owner of that art free to do with it as he or she may like, even destroying or mutilating it. 171 Additionally, VARA does not protect the artist from anything short of the complete destruction of their work or from other harms, like wrongful attribution or premature public display, or authorize the artist to take his or her work back from an owner, which the common-law doctrine does. Like the common-law doctrine, VARA does not address the problem of owners of visual art withholding it from public view. 172 164 Smith, supra note 2, at 405; see also Wilkes, supra note 48, at 187-88 ("The current statutory regime dealing with moral rights in the United States protects the artist's interest as an individual. Moral rights are only protected for the life of the artist . . . . The public is thereby cut out of the rights calculation inherent in the American conception of the droit moral."). 165 Tipton, supra note 70, at 292. 166 Id. 167 Id. 168 See Wilkes, supra note 48, at 192 n.125 ("VARA § 106A (a)(3)(B) seeks to 'prevent any destruction of a work of recognized stature.'"). 169 Tipton, supra note 70, at 293. 170 Id. 171 Id. at 293-94. 172 A recent trial in Long Island City, Queens, New York promises to test the protective effect of VARA with respect to street art. The case involves a lawsuit filed by several graffiti artists against a real estate developer who destroyed a building, which had been the site of graffiti art for over twenty years.
Although the moral-rights concept and specific laws like VARA or California's law restrict the rights of the owner of public art in some way, neither addresses the problem of public access to important works of art. Part V of the Article looks at two common-law property doctrines: (1) the doctrine of public dedication and (2) the doctrine of public trust, to see if they might do better. But before it does, Part V discusses the nature of property and why real-property concepts might be relevant to personal property like art.

V. HOW PROPERTY DOCTRINES, ESPECIALLY THE PUBLIC TRUST DOCTRINE, MIGHT SECURE PUBLIC ACCESS TO PUBLIC ART
Mandler offers the provocative notion of a conception in the public mind of these places [heritage places like monuments] as "imaginatively public," though not public property in any legal sense. 173 Before launching into a discussion of how property-law doctrines might be applied to affirm the public's right to view great works of art, a case must be made that art is a form of property, like land, to which these doctrines might apply. Accordingly, this Part opens by identifying key features of what is commonly considered property and showing their relevance to public art before it advances to a discussion of two common-law property doctrines.

A. The Nature of Property and the Relevance of Property Doctrines to Public Art
For something to be classified as property, it must be "tangible, stable, and durable." 174 Art has all these characteristics, 175 and, like land, art can be At issue in the case is whether the "ephemeral" work the artists did on the building constitutes "art of recognized stature," within the meaning of VARA, entitling them to financial damages for its destruction. The lawyer for the developer planned to argue, among other things, that VARA protects art, not buildings, and that the artists themselves over the years had destroyed more graffiti than the developer did by whitewashing over their work and then destroying the building. Commenting on the novelty of the matter, the judge noted that he and the jury would be "working with a clean slate" while they explored the "broad questions of aesthetics, property rights, and the relationship between the arts and gentrification" raised in the case and decide whose property had greater value-the artists' or the developer's. Alan Feuer, At Graffiti Trial, Real Estate Does Battle with Street Art, N.Y. TIMES, Oct. 18, 2017, at A22. 173 Sax, supra note 40, at 1124-25. 174 See Alexander, supra note 84, at 461 ("Notably, property law's interaction with art depends upon art's assumption of its own thing-ness, for property law itself traditionally has depended upon certain assumptions regarding the nature of property-what can be property. It has assumed that art is a tangible, stable, and durable object.").
175 But see id. at 463 (quoting the artist, Felix González-Torres answering the question whether a particular work of art of his is a "thing" by him saying: "This piece requires the participation of the public in order to exist. It's a non-static sculpture, it's always changing, it can disappear, yet at the same time, damaged, even destroyed. Possession is a key concept in property law 176 -"[t]he common law gives preference to those who convince the world that they have caught the fish and hold it fast." 177 Professor Rose calls this a "quintessentially individualistic act: the claim that one has, by 'possession,' separated for oneself property from the great commons of unowned things." 178 Although property owners are generally free to do with their property as they wish, 179 "property is not solely a matter of unrestricted rights." 180 Possessing property "is also a matter of responsibilities or obligations that the owner owes to other members of the various communities to which he or she belongs." 181 A myriad of federal, state, and even local requirements restrict property rights, including the property owner's right to prevent the public from entering or using his or her property. 182 The extent to which the rights of an owner of public art include the unrestricted right to exclude the public from viewing that art is central to this Article. Moreover, there are affinities between cultural objects, such as public art, and natural resources, such as landscapes. Conservation is important to each, and much of their appeal lies in their "expressive values." 183 Additionally, when a public good, like public art or public land, is privatized, individuals no longer receive a benefit from that public good, and overall it's indestructible because it can always be reprinted. It's an attempt at creating a more democratic artwork. A public piece."). 177 Rose, supra note 176, at 88. 178 Id.; but see Sax, supra note 17, at 1157 n.76 ("The legal notion of things belonging to no one, or belonging to everyone, or sacred and unavailable for purchase and sale, appears in Roman law.").
179 See Humbach, supra note 176, at 211 ("There are many similarities between the law of property and the social practice. In both, for example, owners are viewed as having a variety of special advantages or benefits, including, most prominently, the right to have or possess the things they own; the right to exclude others from them; and, generally, the right to deal with them more or less as they please.").
180 See Alexander, supra note 84, at 462 ("'Legal Realists' attacked the then-prevailing conception of property as thing. They set out to show that property is nothing more than a bundle of rights and other legal relations existing between persons with respect to interests. This bundle of rights conception of property quickly caught on and is now the prevailing view in the United States (although not elsewhere in the world). Lately, a group of legal scholars has launched a revanchist critique of this conception, arguing that property is the stuff of things."). 181 Id. at 466. But see id.
("The sense that property exists to create propriety, or the common good, is simply lacking."). 182 Id. at 467. 183 Merryman, supra note 19, at 341-42. But see id. at 342 ("The differences, however, are substantial . . . the cultural object is an approach to the study of humanity, of ourselves; the environment is a separate part of reality, something outside of ourselves."). social welfare is reduced. 184 Art, like beaches or parks, must be physically available to be enjoyed. 185 And while art can be copied, unlike land or other natural resources, it cannot be copied without its commercial value decreasing. 186 Although not necessarily tangible, stable, or durable, information and knowledge are forms of property, as exemplified by the existence of copyright law. 187 Modern legal and economic literature recognizes information as a public good. 188 Unlike housing or food, which can only be enjoyed by a finite number of people, information is also nonrivalrous, because its value is not decreased by increasing the number of people who have access to it. 189 Indeed, its value may be enhanced by increased access. 190 Information is also "non-excludable"; no one should be excluded from sharing something that is a public good, like information or knowledge. 191 Excluding the public from knowledge reduces overall public welfare, among other harms. 192 Hence, privatization of information "comes at a cost." 193 Since public art conveys information or knowledge to the general public, it conveys a public good that no one should be excluded from enjoying, especially considering that the more people have access to it, the more the art's value will increase.
184 See Shaver, supra note 111, at 158 ("This privatization, however, comes at a cost. At least three new inefficiencies are introduced. First, some individuals who could have benefited from the resource will be priced out of access, reducing overall social welfare.").
185 See id. at 170-71 ("The requisite access is only satisfied when the good is physically accessible to all (geographic availability and accommodations of disability), affordable, of acceptable quality, culturally appropriate, and adaptable to the particular needs of the community and individual.").
186 See, e.g., Tipton, supra note 70, at 300 (demonstrating that art markets generally assign lower value to art known to be copied). This is one reason that the disparities between the rich and the poor with respect to physical goods, like land and art, can be great. 187 Copyright law codifies those property rights. Merryman, supra note 68, at 1025 ("Copyright, for example, which is available to artists in civil law countries as well as in the United States and other common law countries, is a patrimonial or property right which protects the artist's pecuniary interest in the work of art.").
188 Shaver, supra note 111, at 154-55 ("[T]he right to science and culture should be understood as a call for knowledge to be treated as a shared public resource, with international collaboration and universal access as touchstone commitments."); see also id. at 156 ("Article 27 [of the Universal Declaration] of Human Rights] conceives of science, culture, and the arts-in short, the myriad expressions of human knowledge-as global public goods.").
189 See id. at 157-58 ("The economic term 'nonrivalrous consumption' eventually emerged to describe these goods. Rival goods, such as housing or food, can be enjoyed only by a limited number of persons without being used up. In contrast, the availability of nonrivalous public goods is not diminished as greater numbers of people enjoy access to them.").
190 See Carol Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U. CHI. L. REV. 711, 776 (1986) ("[L]ike the dancers on the green, the more members of the community that are engaged in commerce, the better-not only for the sake of greater productivity, but also for the sake of socialization and the inculcation of habits of considering others."). 191 Shaver, supra note 111, at 158. 192 Id. 193 Id.
Many of the themes in art, such as "question[ing] the public/private distinction, the democratizing of the personal, and the importance of community," are found in property law and its related legal scholarship. 194 The "blurring of lines between public and private and what public means" is something that property law and art have in common. 195 This is not to say that the distinctions between real and personal property should be abolished-they should not. 196 This Article merely proposes that there are sufficient similarities between public art and land to warrant the application of property-law doctrines to both, and suggests that "the law of property must be appropriately modified in order to deal properly with the special considerations that are raised by works of art." 197 The Part now turns to two common-law property doctrines, public dedication and public trust, to examine the extent to which they might be applied to address the problem of excluding the public from viewing important works of art. Part VI discusses what modifications might be made to the latter doctrine to make its application more likely.

B. Public Dedication
"The common law doctrine of public dedication enables the public to acquire rights in property" that promotes the public's welfare, even though the public has no other legal interest in that property. 198 The doctrine is based on combined principles of "gift and contract law"; 199 its basic components are offer and acceptance. 200 An invitation by a landowner to the public to use her property qualifies as an offer; even acquiescence in public use of private property over a sufficient period of time can constitute an offer for purposes of applying the public-dedication doctrine. 201 194 Alexander, supra note 84, at 462. 195 Id. at 467. 196 See Protecting the Public Interest in Art, supra note 145, at 131 ("Real property doctrines may be applied to personalty in order to further public policy as long as disorder or injustice does not result. Applying the law of public dedication to certain types of personal property would not result in disorder or injustice and would be in accord with the modern trend to diminish the impact of arbitrary legal distinctions between real and personal property.").
197 See Merryman, supra note 67, at 1037 ("The basic position in the United States can be summarized in this form: A work of art is like any other object of property for legal purposes, except as modified by the copyright law, and the copyright law protects only property rights. The position in France and other civil law countries is, on the contrary, that a work of art is different for some legal purposes from other objects of property, so that the law of property must be appropriately modified in order to deal properly with the special considerations that are raised by works of art.").
198 Wilkes, supra note 48, at 196. 199 Id. at 196. 200 Id. 201 See Protecting the Public Interest in Art, supra note 145, at 127 ("For example, an express invitation to the public to use property constitutes an offer; so can a grant of property to a public body. Even mere acquiescence by the owner in public use of property for a period of time can constitute an "If an owner offers a use of her property to the public, and if the public accepts that offer, the property will be considered dedicated" to that use, 202 even though no payment or any other form of consideration has been made. 203 Once property has been dedicated to a public use, its owner, and even a future owner, cannot overcome or obstruct the public's use of that property for its dedicated purposes. 204 The owner of dedicated property holds that property in trust for the public, even though there are no formal trust instruments. 205 This makes the owner of dedicated property comparable to a fiduciary of the public with respect to any dedicated use of the property. 206 The owner of dedicated property cannot convert his or her property to any use that is inconsistent with the public's use of that property. 207 These principles apply regardless of whether the owner is a private person or a public entity, like a municipality or a state agency. 208 Public dedication might be a useful concept to apply to public art as a way of declaring a continuing protected public interest in that art. The doctrine offers a "well-established method of asserting public rights in private property" and, when applied to art, would add public-welfare considerations to any dispute between the rights of an individual artist and the rights of the owner of that artist's work. 209 Although the doctrine is commonly applied to land to protect the public's recreational interest in that property, it might be expanded to account for the public's cultural interest in art objects. 210 Courts have been generous with their interpretation of the offer offer. In short, when a particular piece of property serves an important public use, courts are eager to construe circumstances to infer the existence of the required offer and acceptance."). 202 Id. at 126; see also Wilkes, supra note 48, at 196 ("The dedication process operates in the following manner: 'If an owner offers a use of his property to the public, and if the public accepts that offer, the property will be considered dedicated. A public interest in it will be established although no consideration has passed.'"). 203 Wilkes, supra note 48, at 196. 204 Protecting the Public Interest in Art, supra note 145, at 127; see also Wilkes, supra note 48, at 196-97 (2012) ("If public dedication can be found, 'no owner of the property-present or future-will be permitted to defeat or interfere with the public right to use it for its dedicated purposes.'"). 205 Protecting the Public Interest in Art, supra note 145, at 127-28; see also Wilkes, supra note 48, at 197 ("The property is deemed to be held in trust for the public even though an actual trust instrument was never filed. The owner is considered a fiduciary of the public as regards the dedicated use of the property, and therefore, she may not divert the property to a use that is inconsistent with that of the public."). 206 Wilkes, supra note 48, at 197 207 Protecting the Public Interest in Art, supra note 145, at 128. 208 Id. 209 Id. at 126. 210 Wilkes, supra note 48 at 197; see also Smith, supra note 2, at 398 ("Furthermore, even though public dedication has never been applied to works of art or personal property, 'American courts and legislatures are not constrained to obey historically based distinctions between real and personal property when such distinctions are not useful or relevant,' and '[t]he extension of public dedication doctrine to certain important works of art would continue trends in both public dedication and real property law.' A and acceptance elements of public dedication "to accommodate situations where a particular piece of property serves an important public use." 211 Therefore, it is not beyond the realm of possibility that the willingness of courts to expand public-dedication law in the real property context, in response to "modern public interests," might encourage them to develop "a theory of public rights in important works of art." 212 For example, public dedication could easily be applied to public museum-curated collections. "Art museums collect and display artwork for purposes of scholarship and cultural education." 213 An individual who "donates, sells, or loans" a piece of art he or she owns to a museum "impliedly offers his property to the public for educational uses." 214 In the terminology of public-dedication law, the donor is "'throwing open' his property to the public for its evident public use," creating an "inference . . . that [he or she] intends to dedicate the property for those cultural and educational purposes." 215 As public museums are considered cultural representatives of the public, a museum's acquisition of art, in effect accepting the offer to dedicate that art permanently to the public, establishes a permanent public interest in that art. 216 However, for the doctrine to attach to a piece of art, the art must be of sufficient public importance. 217 This requirement could be met by the fact that a museum acquired it, 218 but this means "that the public interest will attach only to a limited amount of art of recognized quality"; 219 by definition, those pieces housed in a museum and not necessarily in a private collection. 220 A museum's acquisition of a donated piece of art indicates that the public acting through a public institution has accepted "an owner's implied offer to dedicate a work of art." 221 This formulation does not apply in the case of privately owned art, even if of great public value, because no public institution is involved. Even if art is loaned to a museum, "a public right" in that art "could be created through the same offer and acceptance mechanisms community should explore the viability of a common law public dedication claim if it is faced with the potential destruction of its heritage."). 211 Wilkes, supra note 48, at 196. 212 Protecting the Public Interest in Art, supra note 145, at 129. 213 Id. at 132. 214 Id; see also id. at 133 ("Even a loan arrangement represents recognition by the offeree and the offeror of the permanent educational characteristics of the work. The existence of that implied mutual understanding constitutes an irrevocable dedication of the work to the public for educational uses."). 215  that operate in the context of real property dedication." 222 This implied mutual understanding between the museum and the owner of donated, loaned, or sold art "constitutes an irrevocable dedication of the work to the public for educational uses." 223 This dedication arguably continues in effect even if the art is temporarily or permanently removed from the museum's collection; 224 for example, if the lender of an important piece of art seeks the art's return.
For art, the doctrine permanently protects the use of dedicated property, which would be the public viewing. Consequently, the doctrine could even compel the showing of deaccessioned art, even though it is now in a private collection. At minimum, "[s]ince the purpose of public dedication of art is to educate the public through exposure to the visual characteristics of the work, a reservation that in effect allowed the dedicator or his successors to impair those characteristics," for example by withdrawing loaned art from a museum for her own use or for sale or export, would conflict with the initial public dedication and be voidable. 225 If the loan of art to a museum creates an irrevocable dedication, then the doctrine's use in this context would create a serious problem because it would discourage private owners of important works of art from ever loaning that art to a museum, as they would lose all future control over it.
While using the public-dedication doctrine to protect the public's interest in art could be "a step in the right direction," the concept ignores privately held art that has never been in a public institution, as it requires the complete removal of objects from the private realm before the art can embody the necessary public interest to qualify for the doctrine's use. 226 Additionally, while public dedication preserves the public's interest in culturally important works of art, it is hard to see how its application could compel private owners to relinquish their hold on important public art that has always been in private hands. The doctrine's restrictive scope also contradicts the otherwise-useful view that "certain objects are imbued with an 'inherently public' quality such that public obligations attach even when these objects are in the possession of a private entity." 227 222 Id. at 131. 223 Id. at 133. 224 Protecting the Public Interest in Art, supra note 145, at 135; see also id. at 134 n.69 ("The sales price of the work will not be adversely affected. Future owners will be largely indifferent to the imposition of the trust because they generally intend to treat the work with care whether or not the trust is imposed."). 225 Id. at 133. 226 Wilkes, supra note 48, at 197. 227 Id. at 197-98; see also Rose, supra note 190, at 774 ("For this public to claim property, two elements were essential: first, the property had to be physically capable of monopolization by private persons-or would have been without doctrines securing public access against such threats. Second, the public's claim had to be superior to that of the private owner, because the properties themselves were most valuable when used by indefinite and unlimited numbers of persons-by the public at large.").
The common-law property doctrine of public dedication's focus on public access, particularly to property that has been dedicated to a public use, raises some interesting possibilities depending on the willingness of a court to be persuaded of the fit. One might argue that access to the art is important to assure that the public experience the art's educational properties, like the ability to recreate on land that has been dedicated to the public for that purpose. In this way, public dedication might assure that the public has a right to view art in a museum collection.
However, this formulation does not apply in the case of privately owned art, even if it is of great public value, because no public institution is involved. The fact that the doctrine only applies to property that is publicly owned makes it difficult to see how it might be applied to gain public access to art in a private collection that has not yet been given to a museum or ever been part of a museum collection. 228 On the other hand, public art given to and housed in a public institution like a museum should be covered by the doctrine, as in all likelihood the art has been offered to the museum for the purpose of exhibiting the art and educating the museum's patrons. The doctrine's application might inhibit the museum from selling that art to a private individual or exporting it out of state. But the art requires a nexus with a public institution to be covered by the doctrine, making it difficult to see how the doctrine could be extended to privately held art with no connection to a public institution like a museum. Therefore, the major weakness of the doctrine in all likelihood remainsthat it does not apply to private owners of important art who hold that art behind closed doors and who are the target of this Article.
The next Section looks at whether the public trust doctrine might have the useful features of public dedication, without its problems.

C. The Public Trust Doctrine
"The public trust doctrine is rooted in the precept that some resources are so central to the well-being of the community that they must be protected by distinctive, judge-made principles." 229 To the extent the doctrine is created by judges, not by legislatures, it reflects "the deeply held convictions of our society." 230 The basis of the doctrine is "that the sovereign holds 228 Protecting the Public Interest in Art, supra note 145, at 136 ("As a prerequisite to enforcement of the public's interest in the integrity of artwork, the owner of the work must have adequate notice that his property is subject to a public trust. Although some owners of dedicated artwork-such as the museum that acquires the work, the owner of a work on loan, or the first purchaser of a deaccessioned work of art-would have actual notice of the public use and therefore of the public interest in the artwork, subsequent owners might not have such notice.").
certain common properties in trust in perpetuity for the free and unimpeded use of the general public." 231 As a trustee of these resources, the government must protect resources covered by the doctrine from damage, and assure that those resources are used for a public purpose and are available for public use. 232 Importantly, for purposes of this Article, the public trust doctrine protects public access to trust resources; preventing access to those resources violates the doctrine. 233 The government's duty to protect these resources for the benefit and enjoyment of the general public is affirmative and ongoing. 234 Whoever holds property protected by the doctrine must maintain it for trust-protected uses, which include public education. 235 Public rights of enjoyment in trust-protected property are protected in perpetuity 236 as they are in lands covered by the public-dedication doctrine. Thus, the public trust doctrine, like the public-dedication doctrine, is intended to benefit not only present members of the public but also future generations. 237 Since the management of public trust resources should be for the public's benefit and not for private gain, 238 neither the government nor private individuals can alienate or adversely affect those rights unless it is for an equivalent public purpose. 239 While public trust property can be alienated by the legislature, it can only be for a commensurable public purpose. 240 Indeed, according to Professor Sax, "a court will look with considerable skepticism upon any governmental conduct which is calculated either to relocate that resource to more restricted uses or to subject public uses to the self-interest of private parties." 241 The extent to which the doctrine restrains the use of private property makes it very controversial. 242 Legal scholars and litigants have proposed the doctrine's use "to preserve cultural heritage, including heritage owned by private individuals." 243 For example, the Detroit Institute of Art used the public trust doctrine to block the demand by the city's financial creditors that the museum sell its collection. 244 Although a case of first impression with respect to the application of the doctrine to the city's "cultural heritage," the museum argued it was indisputable that the doctrine could and should be expanded "to encompass public resources such as art." 245 Under the public trust doctrine, the museum argued, its art collection "is subject 'to the paramount right of the public to enjoy the benefit of the trust,'" even though Detroit retained legal title to the collection. 246 Although the bankruptcy court agreed that the state held the art in trust for the benefit of the citizens of REV. 631, 633 (1986) ("By continuing to resist a legal system that is otherwise being abandoned, the public trust doctrine obscures analysis and renders more difficult the important process of reworking natural resources law."); see also generally Rose, supra note 190, at 722 ("Despite its popularity, the modern public trust doctrine is notoriously vague as to its own subject matter; cases and academic commentaries normally fall back on the generality that the content of the public trust is 'flexible' in response to 'changing public needs.'"). But see Fincham, supra note 72, at 23-24 (saying that the public trust doctrine "has even reinvigorated the environmental movement by promoting 'guardianship, responsibility and community' in public spaces" (citing 244 Smith, supra note 2, at 403. 245 Id.; see also Fincham, supra note 72, at 24 (finding parallels between the evolution of the public trust doctrine from its common law origins to statutes and saying "[s]uch is also the case in many other nations with respect to cultural heritage, art and antiquities; which are often the subject of national ownership declarations and other restrictions"). 246 Smith, supra note 2, at 403.
Michigan and denied the financial creditors' request, it did not directly decide the issue as to whether the public trust doctrine applied to the collection. 247 This use of the doctrine in the context of public art is not that surprising given that the doctrine has at its core the concept that some property, even if owned by an individual, is vested with such communal interest and importance to the community that the community becomes a dominant stakeholder in it 248 -its owner, a permanent trustee of it. The fact that the public trust doctrine is used to protect "inalienable rights inhering in the community as a collectivity," that the doctrine imports the notion of an owner who functions as trustee of that property, and that rights under the doctrine are "vindicated by ordinary claims of physical access and use," 249 makes the doctrine's use to require access to important art that has been withdrawn from public view promising.
The public trust doctrine is more "nimble" than the doctrine of public dedication and has a greater capacity to evolve to keep pace with changing societal needs. 250 This plasticity is reflected in the expansion over time in the doctrine's geographic scope as well as in the range of activities that are considered protectable uses of trust resources. 251 But applying the doctrine to privately held art presents new challenges. Although one might "imagine the environmental public trust doctrine expanding over many years beyond its environmental roots to other legal fields encompassing delegated public benefits administration," 252 it has not yet done so, and certainly not yet to a privately administered public-benefits system like a museum. 253 No state has applied the public trust doctrine to chattel property, let alone to works of art. 254 Indeed, Professor Brian Frye maintains that the application of the public trust doctrine to prevent a museum from selling off portions of its collection is "ridiculous." 255 Professor Frye argues that museums can and do frequently sell works of art from their collections to private parties. 256 But, that does not mean that those actions are consistent with the public trust doctrine, should it apply. Nor does Professor Wilkes explain or support his position that the doctrine could not apply to cultural works of art "that are completely private in their ordinary use," 257 which seems to contradict the doctrine's use to open up private resources, like beaches, to public use. 258 Additionally, like private land that becomes impressed with the public trust doctrine and thus gains some public features, art which enters a museum as private property becomes part of a public collection held by the museum for the benefit of the viewing public, and thus gains some degree of publicness. 259 "[O]nce an object enters a museum collection, it becomes part of the public trust, and a museum's directors and trustees have a duty to protect and maintain the object for the benefit of the public." 260 living doctrine and is 'not . . . 'fixed or static,' but one to 'be molded and extended to meet changing conditions and needs of the public it was created to benefit.'").
253 But see Wilkes, supra note 48, at 196 ("The public trust doctrine has never been extended to protect the public interest in works of art, but [the removal of a Picasso from the San Francisco Museum of Modern Art] seems to highlight the necessity for more extensive regulation to safeguard public expectations in objects that have become part of a local cultural heritage."). 255 See id. at 664-65 ("However, the argument that art museums own the artworks in their collections subject to the 'public trust' is obviously false and borders on ridiculous. As observed above, the 'public trust' doctrine only applies to natural resources like navigable waters and parks, not chattel property like artworks."). But see Fincham, supra note 72, at 27 ("It is often said that once a work of art enters a museum collection, that museum holds those works in the public trust for future generations in much the same way that the public may enjoy navigation on public waterways.").
256 See Frye, supra note 255, at 658 ("'It is in fact quite conceivable: most works of art are privately owned.' Indeed, most art museums are nonprofit corporations that privately own works of art which they may freely sell." (footnote omitted) ( 1984) (holding that "the public must be given both access to and use of privately-owned dry sand areas" to protect the public's right of access to trust-protected property).
259 See Tam, supra note 72, at 861 ("Before entering a museum collection, art is private property with no public interest. Thus, the public trust doctrine, as applied to museums, connotes the idea that art owned by museums is part of the public domain for the public benefit. In this regard, the public trust doctrine would treat art as an abstract trust held by public institutions as a public resource." (footnotes omitted)). 260 Id. at 864 (footnote omitted).
Although the trust that guides museums in their management of their collections, which binds museums to use their property for identified charitable purposes, 261 is different from and narrower than the trust envisioned in the public trust doctrine, 262 there are interesting overlaps between the narrower charitable trust doctrine and the broader public trust doctrine. 263 For example, under both doctrines the trustee has a "responsibility to serve and hold assets in trust for the public benefit." 264 Questions about the geographic reach of the public trust doctrine and the inclusiveness of triggering activities under it are not so dissimilar from questions about whether the word "public," which defines a museum's charitable trust obligations with respect to the management of its collections, refers to a national, regional, state, or local public, or even the community where the museum is located. 265 And behind both the narrow museum charitable trust doctrine and the broader public trust doctrine is the desire to prevent commodification of public resources and their transformation into a private ones. 266 Critics of deaccession argue that deaccession violates the museum's charitable trust obligation to keep art for future generations, and that the practice commodifies art by putting art onto the market. 267 Just like 261 See id. at 860 ("A public, or charitable, trust is a trust designed to benefit the public. A museum organized as a public trust has the fiduciary duties to use trust property for designated charitable purposes." (footnotes omitted)). 263 See Tam, supra note 72, at 861-62 ("[L]eaders in the museum field have put their own twist on the term 'public trust,' and they employ the term not only in the legal sense of setting aside property for the benefit of the public, but also to refer to 'the public's trust in art museums' as a moral issue."). 264 Id. at 861; see also id. at 862 ("The public's trust refers to the trust and confidence that the public has given to the museum to collect, preserve, and make available works of art. This view contends that the public has entrusted museums with the authority and responsibility to develop and manage a collection of art and provide public enjoyment of art through exhibitions." (footnotes omitted)).
265 See id. at 862 (noting that the scope of the public trust is important). 266 The fact that a museum's operation might be governed by two versions of trust doctrines, its own and the broader public-trust doctrine, does not preclude the latter's application to art in its collections, any more than the application of the public-trust doctrine is blocked by the application of other common-law doctrines, like the wildlife trust. See generally Where the Wild Things Are, supra note 237, at 849 (discussing the wildlife trust). 267 E.g., Tam, supra note 72, at 886-87 ("[P]roponents of a broader deaccessioning policy argue that the limitation on the use of deaccessioning sales proceeds to future acquisitions contradicts the insistence on keeping art in the public trust for future generations. To illustrate, the Brodsky Bill concludes that monetization of selected objects from a collection undermines the existence of museums; however, a deaccession and disposition by sale requires, no matter the use of the sales proceeds, that art should be considered a commodity. Even when deaccessioning sales proceeds are used for future acquisitions, that sale itself puts the artwork in the market, makes it a commodity, and removes if from the public trust. Sometimes, even a transfer of artwork to another museum could violate the public trust by taking the artwork away from the public to which it was given in trust." (footnotes omitted)).
advocates who use the public trust doctrine to prevent privatization of natural resources, those who oppose museums selling off their public collections to private individuals argue that "art has an intrinsic value that cannot be monetized." 268 While the use of the public trust doctrine to gain public access to public art in private hands is "uncertain," 269 this Part has tried to develop credible arguments that it could. To support this thesis, the Article has pointed towards commonalities between public art and public trust-protected resources, especially the communal importance and educative purpose of both, and the overlap between doctrines that govern a museum's trust obligations towards its collections and the strictures of the more general public trust doctrine. Additionally, both doctrines seek to prevent commodification of the trust res and its transfer into private hands, both employ the concept of a trustee, and public access to trust property can fulfill the purpose of both doctrines. The public trust doctrine's essential communal nature and the educative purpose of public art, the doctrine's nimbleness and capacity to expand in response to new problems, and the comfortable fit between the trust concepts that guide the management of public museums and those which protect natural resources make the public trust doctrine a better vehicle than public dedication as a means to gain public access to privately held important works.
Any application of the doctrine to gain public access to art of national importance, while theoretically possible, may generate negative consequences given the doctrine's capacity to provoke controversy. This could weaken the doctrine and harden resistance to opening up private art to public view. 270 Therefore, the final Part of the Article searches for ways to encourage the opening of privately held art to public view prior to the doctrine's application, thus softening its use.

VI. USING INCENTIVES TO GAIN ACCESS TO PRIVATELY HELD PUBLIC ART
If government values cultural treasures, then it may need to change existing doctrines in order to provide incentives for their preservation. 271 268 Id. at 883. 269 See Smith, supra note 2, at 404-05 ("Whether a court would find the public trust doctrine to apply to public art, especially public art that is that is privately owned, but of great public interest, is uncertain.").
270 See SAX, supra note 3, at 66 ("[I]t would be self-defeating to do anything that would encourage emigration of major collections out of this country to what might be considered more hospitable venues . . . ."). 271 Gechman, supra note 21, at 594.
Anyone can bring an action in court to enforce the public trust against someone violating its tenets and seek an injunction to stop the injurious activity. The injurious action in the case of public art would be preventing access to it. One way to blunt anticipated resistance to such an undertaking is to employ ancillary incentives to encourage positive behavior before the doctrine is resorted to, thus possibly avoiding its application in the first place. 272 This Part discusses three possible incentives which might inspire private hoarders of important art to release it for public viewing: (1) listing the art on a national or statewide public register of culturally important art; (2) using the tax code to encourage the release of privately held art and discourage its withholding; and (3) providing a system of rewards and punishments, like shame or guilt, to activate a norm of positive social behavior. Any one or combination of these, when accompanied by the wellfounded threat of litigation under the public trust doctrine, might induce private owners of important art to invite the public into their homes or open their private museums on a limited basis, or to make periodic loans to public museums or universities where the art could be viewed by the public and scholars. 273 However, any right of public access, such as that proposed here and above, "would have to be reasonable; it could not overly inconvenience the owner's enjoyment of the work or force additional costs upon him." 274 Any right of access should not be "random"; but rather the right should be "carefully controlled . . . to ensure that works are not totally or arbitrarily withheld from public view." 275 272 This Article stops short of recommending the enactment of national legislation that might provide public incentives encouraging private owners to open their collections to public viewing or encouraging their loan to a public institution like a museum. See Wilkes, supra note 48, at 187 ("The goal of a comprehensive art preservation law would be to provide public incentives for private owners to open their collections to the public, subject to certain (time, place and manner) restrictions."). A concern is that such a regime might implicate the takings doctrine under the Fifth Amendment. See id. at 193 ("A preservation law directed at the protection and maintenance of art objects, justified in terms of the public interest, would be limited by the Takings Clause, with the public interest in art preservation weighed against the burden on the individual who seeks to use his property in a way that is contrary to that interest. A regulatory scheme does not constitute a taking so long as it advances a legitimate state (public) interest and does not deny the (private) owner an 'economically viable use of his property.'" (citation omitted)).
273 See, e.g., Elsen, supra note 1, at 970 ("The [Polish] Law of 1962 places restrictions on private ownership that in civil law are called impoverishment of owners' rights. When a given object or book is registered, the owner 'is obligated to offer it for sale to national museums or national libraries.'" (quoting Halina Nieć, Legislative Models of Protection of Cultural Property, 27 HASTINGS L.J. 1089, 1094 (1976)). 274 Price, supra note 11, at 1188-89. Professor Price adds additional constraints, such as that the museum displaying the private art would be liable for any damage to them, and that no single piece of art could be borrowed by a museum more than once every five years. Id. at 1189. 275 Id. at 1188. Professor Price acknowledges that implementing this right would "involve enormous practical problems, such as deciding what is reasonable, who is to make the relevant determinations, and which museums are eligible," but he believes that state art councils can overcome them. Id.

A. Creation of a Public Register for Important Works of Art
Listing art on a state or federal register of important art might encourage its owners to preserve it and to view the listing "as an honor, driving interest, prestige, and popularity to the art and its owner." 276 Placement on a register of important art could also enhance its resale value. 277 In exchange for the positive attention such a listing would give to collectors, they might be encouraged, even required as a condition of listing, to loan their art to a museum. 278 Every state has an agency whose mission is to promote and support the arts. 279 Each state agency could draw up and manage a list of important public art within its jurisdiction and administer any program designed to make that art publicly available. State arts councils or the National Endowment for the Arts could keep lists of qualified art to put owners of public art on notice of their vulnerability to short-term requisitions for public showing. 280 The National Endowment could secure the public's interest in art supported by the Endowment "by asserting a qualified proprietary interest in them." 281 To assure that important public art is maintained in its original condition, its owner would be under a perpetual obligation to protect that art, similar to the obligation of owners of publicly dedicated land to maintain that land in its original condition. 282 The concept of a registry of nationally important art is based on the National Register of Historic Places, authorized by the National Historic Preservation Act. 283 This register contains a list of places deemed "worthy of preservation." 284 "The principles underlying historic preservation of buildings and sites, particularly the emphasis on maintaining structures of 276 Smith, supra note 2, at 385. 277 An unrelated side benefit, a register of nationally important art might also "heighten public awareness of the importance of maintaining our cultural heritage." Wilkes, supra note 48, at 204-05. 278 Id. at 205. On the ability of federally funded programs to require public access as a condition of receiving money, see Protecting the Public Interest in Art, supra note 145, at 142 ("Because NEA-supported projects can usually be possessed by only one individual at a time, the NEA cannot, like other agencies, secure the public interest by guaranteeing the public access to the work it funds."). architectural significance, translate quite easily into a framework for the preservation of art." 285 While the mere listing of art on some type of public register by itself places no obligations on the art owners and does not restrict their "use, treatment, transfer, or disposition" of it, 286 there exists a possibility that it might. Courts have upheld local ordinances allowing the designation of private property to be of historical value without the owner's approval, sometimes even over the owner's objection. 287 The most common use of these ordinances is to protect "cultural and artistic creations" from destruction or alteration. 288 So there is some potential for the art register to be used to open up privately held art for public view as a condition of listing and for courts to sustain those conditions.

B. Use the Tax Code to Encourage Public Display of Privately Held Important Art
Another source of possible incentives is the tax code. It could be used to encourage the loan of privately held public art to museums or other public institutions, or to encourage private owners of such art to make it publicly available on the owner's premises. 289 (1978)); see also id. at 387 ("For instance, similar to other landmark ordinances, Chicago's Landmarks Ordinance states that its purpose is to 'safeguard . . . historic and cultural heritage, as embodied and reflected in such areas, districts, places, buildings, structures, works of art, and other objects' and to 'identify, preserve, protect, enhance, and encourage continued utilization and the rehabilitation of such . . . works of art . . . having a special historical, community, architectural, or aesthetic interest or value to the City . . . and its citizens.'"). 288 Id. at 391.
In 1982, California enacted the California Art Preservation Act ('CAPA'). CAPA was the first of its kind in the U.S. to acknowledge 'a public interest in preserving the integrity of cultural and artistic creations' independent of the interest of the artist. Specifically, CAPA permits an arts organization 'acting in the public interest' to seek an injunction preventing 'a work of fine art' from 'physical defacement, mutilation, alteration, or destruction.' The Act defines 'fine art' as an 'original painting, sculpture, or drawing, or an original work of art in glass, of recognized quality and of substantial public interest.' It looks to opinions of 'artists, art dealers, collectors of fine art, curators of art museums, and other persons involved with the creation or marketing of fine art' to determine whether a piece of art is of recognized quality and substantial public interest.
Id. (footnotes omitted); see also Wilkes, supra note 48, at 205 ("An art preservation regime should apply only to those works of art deemed to embody a substantial public interest."). 289 Wilkes, supra note 48, at 187; see also id. at 204 ("[T]he government could provide tax credits for loan-related expenses directly to the owners of works of art to be placed on display or incorporated into a traveling exhibition. This system would provide stronger incentives to the wealthy owners of these works, who are consistently seeking mechanisms by which to offset their tax liability."). museums and count on the largess of the tax code to shelter the value of the art they donate to those museums when they die, any tax benefit accruing to these private institutions could be conditioned on opening them to the public on a regular basis. Like a national or state register of important public art, using tax credits to encourage owners of such art to loan their art to a public museum or make it publicly available on site might increase the donation value of the art and enhance the donor's prestige in addition to providing a welcome deduction from an owner's annual tax. 290 However, modifying the tax code requires congressional or regulatory action, both of which may be problematic.
Access incentives through a loan-donation program to a public museum require a willing museum. Professor Sax, in his book Playing Darts with a Rembrandt, mentions a summer loan program that the Metropolitan Museum of Art in New York City administers as an example of such a program in which the museum invites collectors of important works of art to lend them to the museum for temporary exhibition during vacation months. 291 He even suggests that such a loan donation program might be made obligatory, 292 which might be viable if the donor receives any type of tax credit as a result of the loan. Other museums might adopt this program as a relatively costless way of temporarily augmenting their collections.

C. Activate Behavioral Norms to Discourage Private Hoarding of Important Art
Well-publicized incentives and clear norms of expected behavior can foster desirable behavior. Norms, which are neither created nor enforced by 290 Id. at 203 ("The most logical step would be to provide tax breaks to private owners who loan their works to public institutions for public display. This type of arrangement would have dual benefits for owner-collectors, since the sale price and donation value increase when artwork is placed on loan."); see also Price, supra note 11, at 1190 ("The administration of such a tax might include an exemption for works loaned to public museums for exhibition. In the United States prior to 1969 some courts implied that the owner of a painting could take a charitable deduction for the value of the work for the period of exhibition. One could conceive of a regime which extended the rationale for this implication to require that the owner of a work could avoid exhibition only by the payment of a tax." (footnote omitted)). 291 SAX, supra note 3, at 66. 292 Id. at 67; see also Wilkes, supra note 48, at 209 ("Where incentive structures (or the 'carrot' method) fail to satisfy the public interest in particular works of art, a more stringent approach would be to implement 'a system of obligatory, expense-compensated loans to public institutions.' Under this system, owners would be obligated to loan previously unavailable works in which there is a strong public or scholarly interest to a major museum or other public institution." (footnote omitted)). Professor Sax proposes using a committee of experts to identify important artists and/or works of art of sufficient importance to be on a "national loan list" that have not been publicly exhibited recently. The requisitioned art could then be exhibited at a museum in the United States for a limited period of time, not to exceed three months, and would be free from a repeat requirement for at least ten years. Id. at 209. Wilkes believes implementing Sax's proposal would be difficult, but within "the realm of practicability." Id. the government, 293 offer a low-keyed way to influence personal behavior. They are informal rules that reflect society's view of what is correct behavior and can carry some persuasive power with respect to individual actions. 294 This Section examines whether there is an external social norm that might induce private owners of public art to make that art available for public viewing, or if one does not exist, whether circumstances exist that might activate such a norm.
Social norms can be "internalized (and enforced through guilt) or . . . may arise without internalization (and be enforced through external non-legal sanctions such as stigma or ostracism)." 295 Non-internalized (or external) norms reflect a broad public consensus about social obligations which may result in external social sanctions if they are not complied with. 296 External norms reflect "a social consensus regarding what behaviors are esteem-worthy. They are enforced by the consensus through a process of surveillance of others, and they are externally imposed on the norm-violator by others through the withholding of esteem." 297 An example of an external norm in this situation would be one that disapproved of keeping from public view privately held important works of art. But it is not clear that there is a social norm against hoarding of public art, though there may be one against its destruction, alteration, or misappropriation.
Norms, or correct social behavior, can be taught, but they can also arise in an "unplanned fashion out of ongoing interaction." 298 A "[m]oral order" can be "an interactional phenomenon," 299 in which one party's actions show the other the right thing to do. In some situations, behavioral norms arise when enough individuals indicate a desire to cooperate in some positive behavior, through what Eric Posner calls "signaling," 300 which, in turn, makes the correct behavior seem ordinary. 301 Thus, there is a possibility that a norm in favor of public viewing of important art could arise among private collectors, if enough of them conceived this as the correct behavior and acted accordingly.
However, to activate a behavioral norm, the targeted individuals must be aware of the consequences of their action on the public welfare or the welfare of others and must understand their personal responsibility for those actions. 302 These feelings will generate a sense of internal obligation to comply with the norm and a feeling of guilt, if they violate it. 303 Once a behavioral norm is activated, an intention is formed in the mind of the actor to behave in a particular way if barriers to that behavior are not created-like additional costs, increased effort, or social costs, for example, rejection by one's social or professional group. 304 Obeying the dictates of a norm can generate monetary costs, lost opportunities, inconvenience, or additional effort. 305 For example, conforming to a norm supporting the public interest in viewing important art requires effort, such as opening private homes or museums to the public or loaning art to a museum, and may generate costs, like additional insurance, private guards, and transportation fees, if the art is being loaned to a museum. On the other hand, opening privately held art to public view can generate "praise, esteem, promotion, and preferential dealings" from like-minded individuals who ascribe to the same norm, and avoids the risk of social sanctions for doing the reverse. 306 The government can help an individual internalize positive social behavior, here opening privately held art to public view, by honoring that individual in some way-such as listing that art on a public register, giving the owner an award, or even publicly praising the owner-or by doing the opposite, for example by withdrawing or constraining tax benefits. 307 302 Vandenbergh, supra note 298, at 73 (2003); see also Vandenbergh, Order Without Social Norms: How Personal Norm Activation Can Protect the Environment, 99 NW. U.L. REV. 1101, 1120 (2005) ("To activate a concrete norm, an individual must hold two types of beliefs. First, she must be aware of the consequences of her act regarding the objects of the abstract norm . . . . Second, she must take personal responsibility for causing those consequences."). 303 Vandenbergh, supra note 298, at 73. 304 Vandenbergh, supra note 304, at 1121-22. 305 On the importance of effort and its obverse convenience, Professor Carlson concludes, based on empirical data on successful recycling programs, that the force of social norms is fairly limited.
Instead, reducing the effort required to engage in the desired behavior can have far greater success in increasing the numbers of people who will cooperate over a long period of time than efforts to intensify social norms. In fact, increasing convenience is so effective that individual commitment toward the desired behavior bears little relationship to whether someone will engage in it.
Although people can be encouraged to adopt and adhere to desired "normative frameworks," the targeted individual must justify these frameworks cognitively if they are going to positively motivate the individual's behavior. 308 Therefore, for an external norm to work that discourages private hoarding of public art, the art owner must appreciate the art's value to the public. An individual who possesses an important piece of art probably is aware of that art's public value or the individual would not have acquired it in the first place, although he or she may be less aware of its broader public educational value. Owners might also reason that it is to their advantage to conform to a norm of making important art available to public view to avoid public shame for withholding art that the public wants to see.
Guilt and shame are effective informal motivators and enforcers of socially desirable behavior. 309 The typical circumstances in which guilt can be neutralized, such as legal complexity, the absence of an identifiable victim, necessity, and denial of responsibility, 310 would not be relevant in the case of an individual hoarding public art. The public is an identifiable victim, there is no legal complexity involved, there is no need to hoard art other than personal gratification, and there is no way to avoid responsibility, as there is also no one else to blame.
A feeling of guilt can be brought about because of the person's education and upbringing regardless of the external effects of his or her action. 311 Thus, an individual might be unmoved by the negative effects on the public weal of the withdrawal of art from public view but, because of his or her privileged background, might feel guilt. However, wealthy individuals like art hoarders, even in "closeknit societies," are among the most likely to ignore or contravene social norms and "risk shaming sanctions" because their wealth insulates them. 312 The most effective ways to increase individual compliance with a social norm are face-to-face contact with the norm violator and personal feedback. 313 The reasons these two techniques are effective is that they increase "opportunities to signal or gather esteem, while simultaneously symbol" of "success under prevailing social norms." 320 The same public esteem that the collector seeks for himself or herself as an owner of important art can make that individual susceptible to negative feedback about his or her behavior. 321 In most situations, people want to be seen as socially responsible individuals. 322 Business leaders, who may also be public art hoarders, "may be especially susceptible to shaming rituals." This is because they are likely to be sensitive to public appearances and "vulnerable to moralistic or judgmental social groups." 323 Shaming can ruin an offender's good reputation, which could adversely affect their business dealings. 324 The effectiveness of shame depends on the community in which negative action took place. One reason shaming may not work in this situation is that art hoarders may not be members of a discrete group, like a religious or ethnic community, so the shame may not compromise their social standing in any group. To the extent the offender's group is other private art collectors or dealers, they may not shun him or her as they share the offender's values. 325 Moreover, in atomized communities, such as the highly competitive community of wealthy art consumers where "social life is so thin," shame is unlikely to be an effective deterrent. 326 Shaming can "backfire, if the person being shamed does not accept the legitimacy of the punishment," and can destroy the effectiveness of the sanction. 327 Thus, the effectiveness of any form of social ostracism, including shame, is not assured in the case of a private art hoarder, even though in many other situations it can be an effective sanction. 328 All else being equal, shaming penalties are likely to be more effective in Kenosha than they are in Manhattan. It is more likely that art hoarders live in or close to major urban areas like New York City than in Kenosha, Wisconsin, with a population of less than 100,000. 329 "This is not to say they will be wholly ineffective in Manhattan, only that we should expect less." 330 In sum, an external behavioral norm to discourage private hoarding of public art may be difficult to activate and enforce, although not impossible if conditions are conducive to its emergence. To the extent private owners of public art benefit from public approval of their behavior and are harmed when their actions are condemned, the external norms may be effective. Publication of good and bad behavior in widely read print or online journals can arm the public with information that can be used to pressure improved social behavior by targeted art hoarders; public honors or awards recognizing art owners who make their art publicly available could make their esteem rise in the eyes of the public.
The goal of this Part has been to identify extralegal inducements to encourage hoarders of public art to make that art available for public viewing. Because application of the public trust doctrine to achieve this goal might be too incendiary to invite its use, this Part has suggested a mix of incentives and disincentives to complement the doctrine's application. Each one by itself or in tandem with any of the others, backed up by the threat of public trust litigation, might pry the art out of the hoarder's grasp for public view. For example, conditioning listing art on a prestigious register of important art on its public availability or using the tax code to encourage art owners to open their private museums to the public might achieve that result. Activated norms might also promote more public-spirited social behavior by private art collectors where the benefit of opening their collections is greater than its costs, and thus may also be a viable way to cushion the use of the public trust doctrine. 331 CONCLUSION A legal regime mandating preservation of art objects could be constructed to account for this delicate balance between the public interest in the maintenance of cultural heritage and the economic expectations of collectors/purchasers of art objects. 332 What this Article has done is identify a problem (the hoarding of nationally important art by private individuals) and propose a solution (the application of an "enhanced" public trust doctrine, triggered only if other measures fail to compel public access to that art). In doing this, the Article defines a category of art to be of such importance to the education and good citizenship practices of a country's citizenry that to withhold it from public appreciation is to diminish both and thus weaken important republican values. It identifies and critiques ways to persuade hoarders of this art to open it to public view, specifically the doctrine of moral rights and laws like the Visual Artists Rights Act, but finds them wanting as they only protect the art from physical destruction and give enforcement rights to the artist, not to the public. The Article also examines the common-law doctrines of public dedication and public trust, finding that of the two, the latter's flexibility and better fit with public art makes it the more attractive doctrine for these purposes.
However, applying the public trust doctrine stretches it well beyond its traditional comfort zone, and even its traditional application generates significant controversy. Therefore, the Article recommends what it calls an enhanced public trust doctrine, one augmented by personal and financial incentives or by external social norms designed to persuade owners of important public art to allow access to it by opening their own residences or private museums to the public or loaning this art to a public institution like a museum. In such a scenario, the public trust doctrine would wait in the wings, a stick held aloft, but not descended unless incentives and sanctions failed to induce the correct behavior.
In writing this piece, the author has drawn on the contribution of many others, principally Professor Joseph Sax who remains an inspiration for many of us. 333 She has borrowed ideas from him and others and tried to 331 See Carlson, supra note 303, at 1233 ("The viability of norms management as a regulatory approach depends, however, on the nature of the social problem, the context in which it arises, and the availability of other regulatory tools."). 332 Wilkes, supra note 48, at 194. 333 "Secularized today, the term 'inspiration' goes back to the Greeks and means the breath of the gods." Elsen, supra note 1, at 954.