Gleckel & Brosofsky on Rock and Hard Place Arguments

Jareb A. Gleckel and Grace Brosofsky (Cornell University - Law School and Independent) have posted Rock and Hard Place Arguments (Seattle University Law Review, Vol. 44, No. 3, 2021) on SSRN. Here is the abstract:

 

This Article explores what we name “rock and hard place” (RHP) arguments and proposes how mission-driven plaintiffs can implement this argument structure across different areas of the law. We steal the term, of course, from the expression “caught between a rock and a hard place,” which refers to a dilemma in which an actor must choose between two unfavorable options. We begin by dissecting RHP dilemmas that have long existed in the American legal system. As Part I reveals, prosecutors and law enforcement officials have often taken advantage of RHP dilemmas and used them as a tool to persuade criminal defendants to forfeit their constitutional rights, confess, or give up the chance to present mitigating evidence. Part I not only describes these dilemmas but also explains how the courts have largely, though imperfectly, curtailed their impacts.

Part II turns to civil law. It explains how RHP dilemmas can defeat plaintiffs’ mission-driven litigation—particularly their ability to overcome justiciability hurdles. Part III switches gears from RHP dilemmas to RHP arguments; it introduces the need for mission-driven plaintiffs to turn the tables by crafting RHP dilemmas for defendants and judges. It uses logical syllogisms and hypotheticals to introduce different RHP constructions that plaintiffs can implement. It then provides two real-world examples of how plaintiffs have used RHP arguments to overcome jurisdictional hurdles. Part IV provides an in-depth case study of American Anti-Vivisection Society v. United States Department of Agriculture (USDA), a case in which mission-driven plaintiffs implemented two, simultaneous RHP arguments and thereby forced the USDA to implement regulations protecting birds. This case highlights the efficacy of RHP arguments because the plaintiffs succeeded after decades of failed legislative reforms and litigation. Part V addresses cases from the 2019 Supreme Court term in which the Court reached surprising decisions; it proposes that a unique type of RHP argument drove the outcome in these cases. Finally, Part VI highlights areas of the law where mission-driven plaintiffs are likely to find success using RHP arguments and recommends future litigation strategies.