LAW

Except where otherwise stated, all events described in this exam occurred in the city of

Metropolis, located in the State of Erehwon, which was recently admitted to the United

States as the 51st state. Therefore while all federal law (including the U.S. Constitution,

federal statutes and federal case law) is binding on the courts of Erehwon, case law and

statutory law from other states have only persuasive authority. There is no prior Erehwon

court precedent interpreting any of the issues raised in these questions.

Excerpts from the Erehwon State Code:

§ 2.1. Claims for fraud and negligent misrepresentation must be brought within six years

from the time the cause of action accrued.

§ 2.2. Claims for breach of warranty and breach of contract must be brought within four

years from the time the cause of action accrued.

§ 2.4. Claims for recovering possession of personal property shall be commenced within

six years from the time the cause of action accrues and not afterwards.

Excerpt from the 1900 Decree of the French Governate for Cambodia:

§ 1. All designated lands are part of the public domain and are inalienable, including those

structures … assigned to a public service. All art and archaeology located above and below

ground are part of the public domain.

Excerpts from the 1993 Cambodia Resolution on the Protection of Cultural Heritage:

Article 3. All cultural property created or discovered on national territory is part of the

national cultural heritage.

Article 4. Cultural property is considered to be any work produced by human agency and

… is of a scientific, historic, artistic or religious nature which bears witness to a certain

stage in the development of a civilization ….

Article 8. Restricted areas containing a group of immovable cultural properties, such as

temples or other historic monuments, may be established. All restricted areas constitute

public property. All cultural property found within a restricted area is imprescriptible and

inalienable.

QUESTION I

(30% of points)

The art collector, Chelsea Collector, lives in Metropolis in the state of Erehwon.

She purchased at auction a pair of urns in 2006 for $4 million. Christie’s, the auction house

in New York where the urns were sold, and the previous owner, the Marquess of Ownersby,

had claimed that the foot-tall decorative pieces were from the 18th century. The Christie’s

catalogue made the same statement all in capital letters without any qualifying information

concerning the date of the urns. The sale price estimates given for the urns in the Christie’s

catalogue were $800,000 (low) to $1.2 million (high). The Christie’s catalogue also stated

that the urns had been made for the Duke of Parma or for a member of his court. At the

auction, the heiress Ann Getty, who owns an identical pair, bid the price up against Chelsea.

Chelsea is now claiming that she recently discovered that the urns were actually

made in the mid-19th century during a time when the earlier Baroque style of the 18th

century had come back into fashion and many imitations were made. Chelsea is suing

Christie’s for restitution of the $4 million purchase price, plus interest since the time of the

sale.

Chelsea has filed suit against Christie’s in the Southern District of New York based

on diversity jurisdiction. You are a clerk for the judge in whose court this claim has been

filed. Contradictory expert testimony was presented at trial as to whether the urns were

made in the 18th or the 19th century. On the other hand, no evidence was presented at trial

that the urns were made for the Duke of Parma or a member of his court.

The judge has asked you to draft a memo outlining the legal issues raised by this

claim, the bases for the plaintiff’s claim, any defenses that Christie’s might rely on, any

relevant policy considerations, and a tentative resolution for the claim. Include in your

memorandum whether your answer would change if the sale had taken place in Erehwon,

which has adopted the Uniform Commercial Code.

QUESTION II

(70% of points)

In March 2022, the New York auction house, Sotheby’s, Inc., entered into a

consignment agreement with a private collector for the sale of a Khmer sculpture of the

tenth century A.D., which originated in Cambodia. The sculpture, known as the

Duryodhana (“D” or “the Sotheby’s sculpture”), was to be sold as part of the spring 2023

“Asia Week” sales. The sculpture is a guardian figure that would have been one of a pair

of sculptures located at the entrance to a temple. Sotheby’s imported the Duryodhana

sculpture into the United States later in the spring of 2022, and it is currently located in

New York City.

All individuals involved in this case agree that the consignor, who is located in

Belgium purchased the sculpture in 1980 from an auction house located in London. All

parties also agree that the sculpture is of the tenth century and originates from a temple

complex, known as Koh Ker, located within the boundaries of the modern nation of

Cambodia. The sculpture, which is missing its base and feet, matches a base and feet that

have been found at a temple at Koh Ker. The parties disagree as to the history of the

sculpture between the tenth century and 1980. Additional evidence suggests (but is

disputed) that a collector living in Thailand, now known to be Douglas Latchford,

purchased the sculpture in 1976 and then sold the sculpture to the London auction house.

A photograph of the Duryodhana sculpture was used as the cover illustration of

Sotheby’s March 2023 catalogue for its sale of art from India and Southeast Asia. It was

offered with a high presale estimate of $5 million and a low presale estimate of $3 milliomillion.

However, shortly before the sale was to occur, Cambodia’s Ministry of Culture contacted

Sotheby’s and asked it to withdraw the sculpture from sale. Sotheby’s complied with this

request. For a year, Sotheby’s and Cambodia attempted to negotiate a resolution as to the

fate of the sculpture, but in April 2024, the U.S. Attorney’s office for the Southern District

of New York filed a civil forfeiture complaint against the sculpture. The forfeiture

complaint alleges that (1) the sculpture is stolen property; (2) it was imported in 2022 in

violation of the US-Cambodia Memorandum of Understanding under the Convention on

Cultural Property Implementation Act (CPIA), and (3) it was imported by means of a false

statement. The false statement to which the complaint refers is an affidavit, executed by

Sotheby’s in 2022, stating that the sculpture had been located in the United States in early

1972 before it was sent to London for sale. Sotheby’s has entered the civil forfeiture

proceeding as a claimant, acting on behalf of the consignor of the Duryodhana sculpture.

While these proceedings were ongoing, it was revealed that the Metropolis Museum

of Art (“MMA”) has in its collection the companion piece to the Sotheby’s sculpture. The

companion piece (“MMA sculpture” or “Metropolis Museum of Art sculpture”) would

have been a matching door guardian and is also missing its base and feet, which are still in

place at the temple in Koh Ker. This sculpture has a similar provenance history in that it

was purchased by the Metropolis Museum of Art in 1980 from the same London auction

house where the Sotheby’s consignor acquired the Duryodhana sculpture. The MMA

sculpture has been on display at the MMA since 1980. The Minister of Culture of

Cambodia has, in the past, visited the Metropolis Museum of Art and admired the sculpture

in its collection.

In addition to the statutory excerpts given at the beginning of the exam, the

following facts may be of use to you:

1. Cambodia ratified the 1970 UNESCO Convention on the Means of Prohibiting and

Preventing the Illicit Import, Export and Transfer of Ownership of Cultural

Property in 1972.

2. Cambodia ratified the 1954 Hague Convention on the Protection of Cultural

Property in the Event of Armed Conflict and its First Protocol in 1962.

3. The United States and Cambodia entered into a bilateral agreement under Article 9

of the 1970 Convention and the Convention on Cultural Property Implementation

Act (“CCPIA” or “CPIA”) in 2003. Among the categories of objects included on

the designated list are sculptures of the 9th through the 14th centuries.

Cambodia was under French colonial administration from approximately 1863 until 1953,

when Cambodia achieved independence and established a kingdom. From 1972, Cambodia

was engaged in a brutal civil war with the Khmer Rouge, which took power in 1975 and

remained in power until 1979. The Khmer Rouge was an extremely brutal government,

which engaged in genocide. In 1993, the Monarchy was restored to power and continues

as the current government of Cambodia. In answering the following questions, if you need

additional information or if there are facts that would need to be resolved by a trier of fact,

state those facts and explain how those facts would influence or change the outcome.

Part I (40 points)

You are a clerk working for the judge who will be hearing the case concerning the

forfeiture complaint. She has asked you to prepare a memorandum of law that will address

the following three questions. This memorandum should present and explain the arguments

that each party (the U.S. government and Sotheby’s, as applicable) will make including the

reasons for each claim and legal authorities on which each party will rely. In addition, your

memorandum should present a tentative conclusion as to how you think each issue should

be resolved and any relevant policy considerations.

A. Whether the Duryodhana sculpture is subject to civil forfeiture on the grounds that

it is stolen property (30 points)

B. Whether the Duryodhana sculpture was imported in violation of the US-Cambodia

Memorandum of Understanding under the Convention on Cultural Property

Implementation Act (5 points)

C. Whether the Duryodhana sculpture is subject to civil forfeiture on the grounds that

Sotheby’s imported the sculpture by means of a false statement (5 points)

Part II (20 points)

Cambodia has decided to sue the Metropolis Museum of Art in Erehwon to recover

the Metropolis Museum of Art sculpture, which Cambodia alleges is stolen property. You

are working for the Museum’s in-house legal counsel, who has asked you to prepare a

memorandum of law assessing any defenses that the Museum has available and any policy

considerations that the court might taken into account in resolving such a claim. Regardless

of your answer to Part I and for the purpose of answering this part only, assume that the

Metropolis Museum of Art sculpture is stolen property. Do not repeat any of your analysis

in your answer to Part I.

Part III (10 points)

Regardless of your answer to Part I and for the purpose of answering this part only,

assume that the U.S. government’s forfeiture complaint against the Duryodhana (the

Sotheby’s statue) was not successful and Sotheby’s is now offering the sculpture for sale.

You are the legal counsel to a museum that is considering buying the sculpture. What

advice would you give to the museum’s Board of Trustees in deciding whether to make

this acquisition?

thee Duryodhana sculpture