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Nathan Elkins on ACCG Coin Test Case

I have commented before on Nathan Elkins' article on "Ancient coins, find spots, and import restrictions: A critique of arguments made in the Ancient Coin Collectors Guild’s ‘‘test case’’" in the Journal of Field Archaeology (2015).

This is now available online via

The Ancient Coin Collectors Guild (ACCG) has launched multiple legal challenges aimed at undermining import restrictions on ancient coins into the United States in bilateral agreements with foreign countries.One key component of the ACCG’s argument is that the State Department has inappropriately restricted certain types of coins according to where they were made rather than where they are found, as mandated by the 1983 Convention on Cultural Property Implementation Act. Although the ACCG has thus far been unsuccessful, it has not been pointed out that existing import restrictions on coins, in fact, have been written to include coins that tended to circulate locally and that are found primarily within the borders of the country with which the bilateral agreement is made. The ACCG’s argument is thus on shaky ground. As the ACCG continues to press ahead with new litigation, it is worth drawing attention to realities and probabilities of ancient coin circulation as they pertain to protected coins.

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As I've pointed out previously, the problem with Elkins' work is that advocacy clouds his academic conclusions. In addition, his "primary circulation" standard is not the standard in the applicable statute, the Convention on Cultural Property Implementation Act. Rather, that statute requires before an artifact is restricted, it must be "first discovered within" and "subject to the export control" of that particular country. Finally, while I'm glad he's made his work available for public scrutiny, it's unclear to me why this could not have been done before under the principles of open access.
David Gill said…
Does your advocacy cloud your legal conclusions? I hope you would say no. So why make the assertion about Elkins?
While I strive to be accurate, I don't purport to be an academic, and readily admit that I advocate for a cause. That's the issue here. Dr. Elkins' work is pitched as that of an unbiased academic, which he isn't. His work is pure advocacy-- which is (or should be) different than academic analysis of a particular issue. Please note, I am not suggesting he is lying, but just like any advocate, he shades facts to support the proposition he is making.

As for legal issues, I've strived to make arguments that are made based on a good faith reading of the law. With regard to the issues raised in the ACCG case, these arguments find support in the plain meaning of the statute, the legislative history, including statements by Mark Feldman, the State Department's point man on the CPIA at the time it was being passed, as well as the views of members of the Cultural Property Advisory Committee. As far as I can tell, the Court's have not so much said the views of the government are correct, rather they won't get involved in what they characterize as a political question. Our problem with that is that this was done without considering the Supreme Court's test for what constitutes a political question.
Wayne G. Sayles said…
Professor Elkins has used the term "undermining import restrictions" in describing ACCG's objective in the current test case. In fact, the ACCG has been a strong advocate for CPIA, far stronger than Dr. Elkins and friends who have advocated major changes in burden of proof within that well conceived law. The record speaks for itself on this point and Dr. Elkins knows full well the provisions of the law and the position of ACCG. I think the shoe is on the wrong foot here. Certainly, the claims in this paper by Dr. Elkins are a misrepresentation, whether purposeful or merely misguided, of ACCG's longstanding support of CPIA and consistent call for adherence to that law which is being virtually rewritten without congressional action by the bureaucracy charged with administering it. I don't believe that is the way law works under the Constitution and ACCG is perfectly within its rights to challenge that in court.
Nathan Elkins said…
1. The phrase "undermining import restrictions" is used once, in the abstract, where it is followed immediately by the phrase "on ancient coins." Curious that was omitted... Similar phrases throughout the article are clear about the context of ACCG's intent to undermine import restrictions (on ancient coins)by way of the "test case."

2. It curious that the ACCG director and founder claims that their challenge is not aimed at defeating import restrictions on coins. In fact, this is the stated purpose of their "Test Case." In 2009, immediately after the staged importation and detention of Cypriot and Chinese coins, a release on their website states "The ACCG now plans to use this detention as a vehicle to strike down the unprecedented regulations banning importation of whole classes of ancient coins..." See

3. Page 237 of the article quotes the Federal District Court of Maryland, which in 2013 wrote about the implications of the ACCG "Test Case": "interpreting the ‘first discovered in’ requirement to preclude the State Department from barring the importation of archaeological objects with unknown find spots would undermine the core purpose of the CPIA, namely to deter looting of cultural property."
The quote needs to be put in context. The Court was undertaking a very limited "ultra vires" review of the statute. We were never allowed to introduce testimony about the intent of the statute, so its unclear to me how the Court could make such a conclusion fairly.

In any event, if you talk to Mr.Feldman and others who were involved at the time, the intent was to limit imports into the US of very limited number of objects of cultural significance-- not every coin ever made in a place like Cyprus for a period of a thousand years.

There are other parts of the opinion where the Court said that import restrictions only apply under the statute to artifacts first discovered within and subject to the export control of a specific UNESCO State party. This can be established by scholarly evidence-- so that even if the exact find spot is unknown-- it can still be restricted if scholarly evidence supports it. I just disagree that your "primary circulation standard" is consistent with what the statute says-- the standard is really "only circulated" if you read 19 USC Section 2601 and 2604 fairly.

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