Articles editors are the members of law reviews and journals who decide what submissions the journal should or should not accept for publication. They have a number of different criteria to consider when determining whether to publish an article. Most importantly (from a rankings perspective) how often will the article be cited? Who will it be cited by?--by other law journals, or by judges? How important is the subject of the article? Is it getting a lot of news coverage? Will the article itself get news coverage? (For example: like this one?) The list of considerations goes on.
In this post, I would like to list the reasons for and against publishing scholarship on the Third Amendment. As somebody who is interested in researching this amendment, I will not pretend to be completely disinterested, although I would hope that my criticism of Butler's article illustrates that I can approach scholarship on this amendment in a less-than-cheerful manner.
So, without further adieu:
Reasons to Publish Third Amendment Scholarship
- Citation probability: there is an almost guaranteed core group of articles that will cite Third Amendment scholarship. The group? Other articles on the Third Amendment. Any new paper on the Third Amendment must prove that the Third Amendment is not dead to the legal world. To show this, the article will string-cite all the third amendment articles that the author can find - whether or not it relates to the issue the article addresses. See, for example, footnote 14 of the previously-mentioned Butler article.
- Coverage: there is something quirky and fun about the Third Amendment. People forget it exists, so when scholarship on it is published, people are naturally intrigued. This means that it is more likely that people will react to the article -- either in the news or on blog posts, thereby increasing the coverage of the journal publishing the article.
- Influence: If a Third Amendment case were to surface, the judge overseeing the case would have very little case law to turn to in adjudicating the dispute. This makes it more likely that the judge would turn to law review articles -- giving those journals publishing the articles potential citations in judicial opinions, or in the very least, some influence on the judge's decision-making process.
- Importance: a discerning editor may be able to find Third Amendment scholarship that is not only interesting, but also important. This importance will most likely manifest from a historical perspective: examining past, significant events from a Third Amendment perspective. For an example of an article that fits this description, see Tom W. Bell, "Property" in the Constitution: The View From the Third Amendment, 20 Wm. & Mary Bill Rts. J. 1243 (2012).
Reasons Not to Publish Third Amendment Scholarship
- Citation probability: notwithstanding the previously-discussed core group of articles that cite Third Amendment scholarship, the probability that an article on the Third Amendment will be cited by future scholarship is decidedly lower than the probability of other articles being cited.
- Importance: a common feature of lots of Third Amendment scholarship is that it will involve evaluation of hypothetical Third Amendment violations. This is because there are not many real-world examples of Third Amendment cases. While hypotheticals might be intellectually stimulating, their ultimate relevance may be limited to the realm of the hypothetical.
- Sloppiness: closely related to the importance concern, Third Amendment scholarship is characterized by authors who want to make their scholarly contribution sound relevant by claiming that a real world problem may be approached from a Third Amendment perspective. As I discussed in my criticism of the Butler article, the specificity of the Third Amendment (constrained to soldiers, quartering, and houses), is a substantial obstacle to these endeavors. Editors who accept these articles run the risk of their journal endorsing this type of sloppy legal analysis.
- Preemption: while there may be some interesting historical perspectives on the Third Amendment, or interesting cases where the amendment was once relevant, there is a very real danger that new scholarship on the Third Amendment has been preempted. There are some folks out there who I would label "Third Amendment Scholars" (Tom Bell being one) who have written a decent amount on the Third Amendment and the limited areas of interest in Third Amendment scholarship. (See, e.g. Bell's article, The Third Amendment: Forgotten, But Not Gone)
- Prestige: higher ranking journals that routinely publish articles on cutting-edge, important legal topics might find that publishing scholarship on the Third Amendment tarnishes their reputation. While there is some value to quirky articles that raise interesting questions, these qualities, without something more, can only take an article so far. High ranking journals that publish such articles might find themselves the target of some raised eyebrows (or whatever the equivalent is in the legal scholarship world).
Conclusion
Third Amendment scholarship is a complicated subject for articles editors. Deciding whether to publish a Third Amendment article may well come down to the type of article the editor is on. For instance, a newer journal that has not yet established a substantial citation reputation and that wants media exposure would do well to consider Third Amendment scholarship. On the other hand, an old, highly ranked journal that regularly receives numerous, high quality submissions may wish to forego Third Amendment articles -- many of which are grounded in the hypothetical or use stretched analogies.
Whatever the answer is for articles editors deciding what to publish, I find the Third Amendment interesting and worthy of investigation, so don't be surprised if you see me discuss it again on this blog. And who knows? Maybe I will find a way around typical problems of stretched analysis and hypotheticals and end up throwing my own two cents into legal scholarship on the Third Amendment.
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