Monuments to the Confederacy and the Right to Destroy in Cultural-Property Law
abstract. This Note identifies problems in cultural-property law that the recent wave of removals of Confederate memorials has illustrated. Because cultural-property law’s internal logic tends inexorably towards supporting preservation, it has no conceptual framework for recognizing when a culture might be justified in destroying its own cultural property. I argue that destruction of cultural property can, in some cases, serve values that the preservationist impulse of cultural-property law has overlooked. I propose a new regime for cultural-property law that permits destruction in cases where the monument in question was established in celebration of a violation of the customary international law of human rights.
author. Yale Law School, J.D. 2019. I am very grateful to Professor James Whitman, for first suggesting this topic to me and for his guidance through the research and writing process. Special thanks to Yena Lee, for her many generous and insightful comments throughout the editorial process, and to the editors of the Yale Law Journal.