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Response from Patty Gerstenblith

Published online by Cambridge University Press:  24 September 2007

Patty Gerstenblith
Affiliation:
DePaul University College of Law, United States

Extract

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

Type
RESPONSES
Copyright
© 2007 International Cultural Property Society

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References

Meier, Barry, and Martin Gottlieb, “An Illicit Journey Out of Egypt, Only a Few Questions Asked,” New York Times 23 February 2004, A1.
U.S. v. Schultz, 333 F.3d 393, 410414 (2d Cir. 2003).