Abstract
This Article explores what we coin “rock and hard place” (RHP) arguments in the law, and it aims to motivate mission-driven plaintiffs to seek out such arguments in their cases. The RHP argument structure helps plaintiffs win cases even when the court views that outcome as unfavorable.
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 used RHP arguments to overcome jurisdictional hurdles in New York v. Department of Labor and Natural Resources Defense Council v. United States Department of the Interior. Part IV provides an in-depth case study of American Anti-Vivisection Society v. United States Department of Agriculture, a case in which mission-driven plaintiffs implemented two simultaneous RHP arguments and thereby forced the Department of Agriculture to implement regulations protecting birds.4 This case highlights the efficacy of RHP arguments because the plaintiffs succeeded after decades of failed legislative reforms and prior litigation. Part V addresses several surprisingly liberal decisions from the Supreme Court of the United States’ 2019 term and 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.
Recommended Citation
Jareb Gleckel and Grace Brosofsky, Rock and Hard Place Arguments, 44 SEATTLE U. L. REV. 655 (2021).
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