Wednesday, March 3, 2021
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.