Rock and Hard Place Arguments

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

Rock and Hard Place Arguments

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

The Meaning of Meat

Plant-based and cell-based meat companies are vying to take over the trillion-dollar meat industry—and, in recent years, they have gained momentum. Responding to consumer demand and widespread fear about global climate change, investors like Bill Gates, Richard Branson, and even Tyson Foods began investing in alternative meat. Beyond Meat became a publicly traded company and partnered with Dunkin’ Donuts, while Impossible Foods partnered with Burger King, bringing plant-based meat products into the mainstream. But many states with strong ties to animal agriculture have sought to impede the growth of the alternative-meat market. In August 2018, Missouri became the first state to restrict how alternative companies use the word ‘meat’ and related terms on their labels. Eleven more states have passed similar ‘Tag-Gag’ statutes. This Article reviews three primary constitutional challenges plant-based companies have leveled against such provisions—challenges based on the First Amendment, Due Process, and the Dormant Commerce Clause. After Part II evaluates the merits of these claims, Part III explores how they could advance or inadvertently undermine other animal and civil-rights lawyering strategies. To supplement the standard arguments, Part IV proposes ways for cause-driven plaintiffs like Tofurky—the first company to challenge Tag-Gag laws—to amplify their free speech claims. First, this Part suggests that although the statutes at issue appear to target mere commercial speech, courts have reason to view them as regulations of political speech calling for strict, rather than intermediate, scrutiny. Second, this Part suggests that plaintiffs could challenge Tag-Gag statutes not only under the First Amendment but also under the free speech provisions of state constitutions