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Thursday, June 30, 2005

Money and Symbols in Establishment Clause Cases

Mark Tushnet

Because priority in academic matters is important, I'd just note that the distinction Noah Feldman draws between money cases and symbols cases was discussed in 1994 by Kenneth Karst in Law's Promise, Law's Expression, and elaborated by Chip Lupu in an article in 2001, Government Messages and Government Money, 42 William & Mary Law Review 771 (2001). (Excerpts from the article are included in the Stone et al. casebook, 5th edition, at page 1548-49. Space constraints dictated the elimination of a quotation from the Karst book that the fourth edition contained.)

Comments:

I'm a big fan of Chip's and Ken Karst's work, and thus readily second the recommendations that readers take a look at their pieces. In fairness to Noah, however, I'd note that -- at least as far as the NYTimes Magazine article is concerned -- he's not purporting to be the first to focus on the symbols/funds distinction, but instead simply offering a rather unorthodox and provocative proposal (based, apparently, on a particular historical account) of how the dual problems ought to be handled as a matter of constitutional law.
 

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