Jones v. United States: Fourth Amendment Standing & Coercive Police Interrogations, Exercises of Law

Download Jones v. United States: Fourth Amendment Standing & Coercive Police Interrogations and more Exercises Law in PDF only on Docsity! 655 Rock and Hard Place Arguments Jareb Gleckel and Grace Brosofsky* Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn’t, but if he was sane he had to fly them. If he flew them he was crazy and didn’t have to; but if he didn’t want to he was sane and had to.1 CONTENTS I. FROM WITCH TRIALS TO THE ELUSIVE “FAIR TRIAL”: ROCK AND HARD PLACE DILEMMAS IN THE CRIMINAL JUSTICE SYSTEM .............. 657 A. Dilemmas that Force a Defendant to Forfeit a Constitutional Right .......................................................................... 658 1. The First Dilemma: Admit to Ownership of Illegally Seized Evidence and Waive the Fifth Amendment, or Allow the Prosecution to Use the Illegally-Seized Evidence and Surrender a Fourth Amendment Claim ............................................................ 659 2. The Second Dilemma: Testify and Forfeit the Fifth Amendment Privilege or Allow the Jury to Infer Guilt. ................................... 663 B. Dilemmas that Coerce Confessions .............................................. 665 C. Dilemmas at Death Penalty Proceedings .................................... 676 II. ROCK AND HARD PLACE DILEMMAS THAT KEEP PLAINTIFFS OUT OF COURT ....................................................................................... 678 * Jareb Gleckel, J.D., Cornell Law School, Class of 2020. Grace Brosofsky, J.D., Cornell Law School, Class of 2020. First, we want to thank the editors of the Seattle University Law Review for their tremendous work. We are also grateful to Joshua C. Macey for his guidance; to Mariann Sullivan and the Animal Law Podcast for introducing us to much of the important but otherwise obscure case law that we discuss in this Article; and to Sherry F. Colb, Michael C. Dorf, and Jeffrey J. Rachlinski for their advice. 1. JOSEPH HELLER, CATCH-22, at 55 (1961). Catch-22 situations are a subset of rock and hard place dilemmas. See infra note 139. 656 Seattle University Law Review [Vol. 44:655 A. Knick v. Township of Scott: An Example of a Rock and Hard Place Dilemma that the Court Addressed ................................................... 679 B. Rock and Hard Place Arguments that Plaintiffs Face While Seeking Standing ............................................................................................ 680 C. Rock and Hard Place Arguments and Abrogation of Sovereign Immunity ........................................................................................... 683 III. CRAFTING ROCK AND HARD PLACE ARGUMENTS .......................... 686 A. Rock and Hard Place Arguments as Syllogisms .......................... 686 B. Rock and Hard Place Arguments and Jurisdictional Hurdles ..... 691 IV. A CASE STUDY OF AMERICAN ANTI-VIVISECTION SOCIETY V. UNITED STATES DEPARTMENT OF AGRICULTURE ................................................. 694 A. The History of the Animal Welfare Act and the PETA Case ........ 695 B. Rock and Hard Place Arguments in American Anti-Vivisection Society v. USDA .............................................................................. 697 V. ROCK AND HARD PLACE ARGUMENTS THAT DICTATED UNEXPECTED SUPREME COURT DECISIONS IN 2019 ................................................... 698 VI. SUGGESTIONS FOR MISSION-DRIVEN PLAINTIFFS AND CONCLUDING THOUGHTS ............................................................................................. 702 This Article explores what we coin “rock and hard place” (RHP) arguments in the law, and it aims to motivate mission-driven plaintiffs2 to seek out such arguments in their cases.3 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 2. Throughout this Article, we use the term “mission-driven plaintiffs” to reference plaintiffs represented by firms with “a social justice goal that looks beyond merely advancing the interests of particular clients.” Private Public Interest Law and Plaintiff’s Firm Guide, HARV. L. SCH., https:// hls.harvard.edu/dept/opia/private-public-interest-law-and-plaintiffs-firm-guide/ [https://perma.cc/ 8E6N-5JGQ]. 3. The origin of the term, of course, is 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. Be (Caught) Between a Rock and a Hard Place, CAMBRIDGE DICTIONARY, https://dictionary.cambridge.org/us/dictionary/english/be-caught-between-a-rock-and-a-hard-place [https://perma.cc/BG8L-9RDH]. 2021] Rock & Hard Place Arguments 659 testimony that could be used to convict them of a crime.11 Two main implications of this are that (1) criminal defendants have the right not to testify during the trial on their guilt or innocence and (2) all witnesses have the right to refuse to answer self-incriminating questions in any court proceeding, unless they are promised that the testimony will not be used as evidence against them in a criminal trial.12 1. The First Dilemma: Admit to Ownership of Illegally Seized Evidence and Waive the Fifth Amendment, or Allow the Prosecution to Use the Illegally Seized Evidence and Surrender a Fourth Amendment Claim Despite the clear constitutional commands, criminal defendants were once caught between the rock of forfeiting their Fourth Amendment rights and the hard place of giving up their Fifth Amendment privilege when deciding whether to file a motion to suppress evidence. This dilemma was especially acute for defendants charged with possessory crimes.13 When possession of contraband (such as drugs) is an essential element of a crime, the government often seeks to prove its case by introducing seized contraband into evidence and explaining where it was found, thereby connecting the contraband to the defendant.14 If the government seized the contraband during a search that violated the Fourth Amendment, the defendant might wish to file a motion to suppress to exclude the critical evidence.15 Importantly, a defendant cannot succeed on his suppression 11. U.S. CONST. amend. V; see Lefkowitz v. Turley, 414 U.S. 70, 77 (1973) (“The Amendment not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.”). If the state wishes to make a witness to testify (outside the presence of a jury deciding his own guilt or innocence), it can do so without violating the Fifth Amendment if it grants the testifying witness “use and derivative use” immunity, meaning that neither the testimony nor evidence derived from it can be admitted as evidence against him in any trial on his own guilt or innocence. Kastigar v. United States, 406 U.S. 441, 453 (1972). Another option is for the state to grant the witness “transactional immunity,” a broader protection “which accords full immunity from prosecution for the offense to which the compelled testimony relates.” Id. 12. See Kastigar, 406 U.S. at 453–54. 13. See, e.g., Jones v. United States, 362 U.S. 257 (1960), overruled by United States v. Salvucci, 448 U.S. 83 (1980). 14. E.g., id. at 258–59 (the government obtained narcotics and narcotics paraphernalia through a search and sought to introduce this evidence and connect it to the defendant to prove possession of narcotics); Defendant’s Motion to Suppress & Dismiss Charges at 2, State v. Huynh, No. DC-2017- 98 (Mont. Dist. Ct. 2018) (the State charged the defendant with possession of dangerous drugs with intent to distribute, basing its case on drugs found in the defendant’s rental car during a police search). 15. E.g., Jones, 362 U.S. at 259 (“Prior to trial petitioner duly moved to suppress the evidence obtained through the execution of the search warrant on the ground that the warrant had been issued without a showing of probable cause.”); Defendant’s Motion to Suppress & Dismiss Charges, supra note 14. 660 Seattle University Law Review [Vol. 44:655 motion unless he demonstrates that he has “standing”16 to file the motion—and he cannot establish standing unless he proves that he has an ownership interest in the premises searched or in the seized contraband.17 In 1960, when Jones v. United States was decided, if a defendant made any statements in support of his motion to suppress, the government could use the statements as evidence against him during trial.18 The defendant thus faced an RHP dilemma. Testifying that he had an ownership interest in the premises would bolster the government’s case by enabling the prosecutor to say, “The defendant admitted to owning the place where the police found the contraband.” Testifying that he owned the seized contraband would be even worse—it would be equivalent to proving his own guilt of possession.19 In other words, the defendant could not offer any explanation for why he had Fourth Amendment standing without incriminating himself and thus forfeiting his Fifth Amendment privilege. But if the defendant failed to testify that he had Fourth Amendment standing, he would allow the prosecutor to use unlawfully seized evidence to secure his conviction. Recognizing that courts were “pinion[ing]” defendants with this “dilemma,”20 the Supreme Court in Jones provided the first solution21: automatic Fourth Amendment standing.22 The Court found that “[t]he same element in this prosecution which has caused a dilemma, i[.e]., that possession both convicts and confers standing, eliminates any necessity for a preliminary showing of an interest in the premises searched or the property seized, which ordinarily is required when standing is challenged.”23 In other words, under Jones, a defendant charged with a possessory crime automatically had standing to file a motion to suppress evidence of possession.24 He therefore had the opportunity to keep 16. “Fourth Amendment standing is another way of saying that the person who wants to complain about a Fourth Amendment violation is the one (or among those) whose own Fourth Amendment rights were violated.” Sherry F. Colb, Rental Cars, Privacy, and Suppression of Evidence, JUSTIA: VERDICT (June 20, 2018), https://verdict.justia.com/2018/06/20/rental-cars-privacy-and- suppression-of-evidence [https://perma.cc/2GV6-BWF4]. 17. Jones, 362 U.S. at 261. 18. Id. at 262. 19. Id. at 261–62. 20. Id. at 262. 21. As discussed infra, the Court overruled Jones when its later cases provided an alternative solution to the RHP dilemma of choosing between the waiver of Fourth and Fifth Amendment rights. 22. Jones, 362 U.S. at 263–64; Simmons v. United States, 390 U.S. 377, 391 (1968) (“We eliminated that Hobson’s choice in Jones v. United States . . . by relaxing the standing requirements.”). “Hobson’s choice” is another term used for an RHP dilemma. See Hobson’s Choice, BALLENTINE’S LAW DICTIONARY (3d ed. 1969). 23. Jones, 362 U.S. at 263. 24. Darlene Stosik, The Death Knell of Automatic Standing—Another Blow to Fourth Amendment Privacy, 35 U. MIA. L. REV. 361, 362 (1981). Jones also had an alternative holding. See 2021] Rock & Hard Place Arguments 661 the evidence out without having to incriminate himself by claiming ownership. A later Supreme Court case, Simmons v. United States, provided an alternative solution to the RHP dilemma that defendants face when seeking to suppress illegally seized evidence—a solution that extended even to non-possessory cases. The Simmons defendants faced charges for armed robbery of a bank.25 The government sought to introduce a suitcase containing money wrappers from the victimized bank into evidence against one of the defendants, Garrett.26 Garrett filed a Fourth Amendment motion to suppress the evidence.27 Because the Jones automatic-standing rule did not apply to defendants charged with non-possessory crimes such as armed robbery, Garrett testified that he owned the suitcase to demonstrate that he had standing to file the motion.28 The Supreme Court found that “[t]estimony of this kind, which links a defendant to evidence which the Government considers important enough to seize and to seek to have admitted at trial, must often be highly prejudicial to a defendant.”29 In other words, the Simmons Court recognized that defendants charged with any crime face an RHP dilemma if their options are to either (1) allow incriminating, unconstitutionally seized evidence in or (2) testify that they own incriminating evidence or a place where incriminating evidence was found, when that testimony could itself be used as evidence against them.30 The Court recognized that Option One required defendants to give up their right to raise a Fourth Amendment claim, while Option Two required defendants to give up their Fifth Amendment privilege against self-incrimination.31 Finding “it intolerable that one constitutional right should have to be surrendered in order to assert another,” Simmons fashioned an effective new solution extending to all defendants.32 Appearing to rest its decision on one or both of the two amendments at issue,33 the Court held that when defendants Jones, 362 U.S. at 265 (“As a second ground sustaining ‘standing’ here we hold that petitioner’s testimony on the motion to suppress made out a sufficient interest in the premises to establish him as a ‘person aggrieved’ by their search.”). 25. Simmons, 390 U.S. at 379. 26. Id. at 391. 27. Id. at 382. 28. See id. at 391. 29. Id. 30. Cf. id. at 393 (“In such circumstances, a defendant with a substantial claim for the exclusion of evidence may conclude that the admission of the evidence, together with the Government’s proof linking it to him, is preferable to risking the admission of his own testimony connecting himself with the seized evidence.”). 31. Id. at 393–94. 32. Id. at 394. 33. The Court did not explicitly state what the constitutional ground for its decision was (i.e., what constitutional provision mandated the decision the Court reached), but it discussed each 664 Seattle University Law Review [Vol. 44:655 jurors’ presumption that silence equates to guilt. His attorney can explain to the jury that an innocent defendant might not want to testify for many reasons,44 but no matter what the attorney says, some jurors may still think the defendant would have taken the stand if he had a true story of innocence to tell.45 While the Supreme Court cannot entirely resolve this dilemma,46 the Court has at least prevented prosecutors from exploiting it by holding that the government cannot encourage the jury to equate silence with guilt. In Griffin v. California, the defendant chose not to testify at the trial on his guilt or innocence, claiming the protections of the Fifth Amendment.47 During the State’s closing argument, the prosecutor repeatedly commented on the defendant’s silence, suggesting to the jury that if the defendant had an innocent explanation for the evidence against him, he would have taken the stand.48 The Court found that “comment on the refusal to testify” “is a penalty imposed by courts for exercising a constitutional privilege” that “cuts down on the privilege by making its assertion costly,” violating the Fifth Amendment.49 By holding that imposing a costly penalty on the exercise of a constitutional right violates the Constitution, the Court again expressed the view that the government should not use RHP dilemmas to pressure defendants to forfeit their rights. 44. Many defense attorneys use voir dire or closing statements to address this issue. E.g., Jeffery P. Robinson, Sacrifice Control to Learn What Jurors Really Think, in NAT’L ASS’N OF CRIM. DEF. LAWS., HIGH ALTITUDE TRIAL SKILLS FROM THE MASTERS OF ADVOCACY 1, 10 (2015) (including the following sample voir dire question: “If some people on the jury may think that a person who testifies can’t be trusted because their freedom is on the line, and others think that if a person doesn’t testify they are hiding something, how does an innocent person resolve that conflict? Have you ever heard the expression ‘between a rock and a hard place?’”); SPENCE, supra note 41, at 185 (providing a sample portion of a closing argument addressing this issue: “[The defendant] is not skilled in dealing with the likes of Mr. Prosecutor over there, who would love to bombard him with those clever questions that can confuse and confound and make the most innocent person look guilty. How could [the defendant], with an eighth-grade education, ever compete with this prosecutor who is skilled in this business of cross-examination? It’s for these reasons that our founders have protected us [with the Fifth Amendment]. I have decided as his lawyer that it is best for Jimmy to let me speak for him as best I can”). See supra notes 41, 42, and 43 for sources discussing the reasons a defendant might not want to testify, aside from guilt. 45. Bellin, supra note 40, at 426. 46. As the text accompanying supra note 44 suggests, it is impossible to fully prevent jurors from thinking, “If he were innocent, he would talk.” Thus, no matter what solution the court devises, defendants will face a dilemma when choosing whether to testify. 47. Griffin v. California, 380 U.S. 609, 609–10 (1965). 48. Id. at 610–11. 49. Id. at 614. The decision also, similarly, held that the court could not instruct the jury that the defendant’s silence could be used as evidence against him. Id. at 615. 2021] Rock & Hard Place Arguments 665 B. Dilemmas that Coerce Confessions Government officials have used RHP dilemmas not only to pressure defendants into forfeiting their constitutional rights but also to elicit confessions.50 During the most egregious interrogations, detectives have forced suspects to choose between the rock of confessing and the hard place of physical torture.51 Other detectives have elicited confessions by warning that suspects will face violence from third parties if they do not confess.52 Still others have convinced suspects to confess by suggesting that if they remain silent, they will face a longer prison sentence53 50. Forcing a suspect to confess during interrogation could be seen as forcing the suspect to forfeit his Fifth Amendment privilege against self-incrimination, provided that the suspect was not granted immunity. Cf. Miranda v. Arizona, 384 U.S. 436, 478 (1966) (holding that the Fifth Amendment privilege against compulsory self-incrimination applies in custodial interrogations); Mark A. Godsey, Rethinking the Involuntary Confession Rule: Toward a Workable Test for Identifying Compelled Self-Incrimination, 93 CALIF. L. REV. 465, 491 (2005) (arguing that courts should use the Fifth Amendment Self-Incrimination Clause to regulate the methods used to elicit confessions “because [the Clause] unambiguously speaks to the issue by banning the use of compulsion to obtain self-incriminating statements that are later admitted at trial against the suspect”). However, confessions have long been governed by “voluntariness” doctrines—first, the common law voluntariness doctrine, and later, the Due Process voluntariness doctrine—that are not rooted in the Self-Incrimination Clause. Cf. Miller v. Fenton, 474 U.S. 104, 110 (1985) (“Indeed, even after holding that the Fifth Amendment privilege against compulsory self-incrimination applies in the context of custodial interrogations [in] Miranda[,] . . . the Court has continued to measure confessions against the requirements of due process.”). See generally Laurence A. Benner, Requiem for Miranda: The Rehnquist Court’s Voluntariness Doctrine in Historical Perspective, 67 WASH. U. L.Q. 59, 99 (1989) (discussing development of the common law voluntariness doctrine and Due Process voluntariness doctrine). These doctrines are based not on the idea that the government should not force the waiver of a constitutional right, but on the idea that inducing confessions through RHP dilemmas is problematic for other reasons: such confessions are unreliable, and eliciting them is unfair. See infra Section I.B. It is for this reason that we discuss dilemmas coercing confessions separately from dilemmas forcing the forfeiture of a constitutional right. 51. E.g., Brown v. Mississippi, 297 U.S. 278, 282 (1936) (“[T]he two last named defendants were made to strip and they were laid over chairs and their backs were cut to pieces with a leather strap with buckles on it, and they were likewise made by the said deputy definitely to understand that the whipping would be continued unless and until they confessed . . . .”). 52. E.g., Payne v. Arkansas, 356 U.S. 560, 564 (1958) (the defendant “testified, concerning the conduct that immediately induced his confession, as follows: ‘I was locked up upstairs and [the detective] . . . told me that I had not told him all of the story—he said that there was 30 or 40 people outside that wanted to get me, and he said if I would come in and tell him the truth that he would probably keep them from coming in’”). 53. E.g., Wyatt Kozinski, Comment, The Reid Interrogation Technique and False Confessions: A Time for Change, 16 SEATTLE J. SOC. JUST. 301, 312 (2017) (describing how interrogators commonly use a method known as the Reid Technique to make suspects believe they will receive a longer sentence if they refuse to confess, inter alia). 666 Seattle University Law Review [Vol. 44:655 or the death penalty;54 have their kids taken away;55 lose their job;56 or undergo endless, incommunicado detention, perhaps without adequate food and water.57 In all these examples, the overall strategy of the interrogator is to make the accused believe that confessing is the lesser of two perils. This strategy is very effective—so effective that it can lead people to confess to crimes they did not even commit58 because innocent suspects, just like guilty suspects, often decide whether to confess by “consciously or unconsciously” weighing the costs and benefits of their options.59 If interrogators paint a picture of a hard place that seems more costly than confessing, it makes sense for the (often scared and overwhelmed) innocent suspect to confess.60 This can be true even when, objectively 54. E.g., Lauren Morehouse, Confess or Die: Why Threatening a Suspect with the Death Penalty Should Render Confessions Involuntary, 56 AM. CRIM. L. REV. 531, 532 (discussing the Norfolk Four case, in which four men falsely confessed to the rape and murder of a young woman because the police “threatened the men with the death penalty during the interrogations[, and] told them that the only way to avoid the death penalty was to confess”). 55. E.g., Lynumn v. Illinois, 372 U.S. 528, 534 (1963) (“It is thus abundantly clear that the petitioner’s oral confession was made only after the police had told her that state financial aid for her infant children would be cut off, and her children taken from her, if she did not ‘cooperate.’”). 56. E.g., Garrity v. New Jersey, 385 U.S. 493, 494 (the defendants, who worked as police officers, confessed after they were told that if they “refused to answer [they] would be subject to removal from office”). 57. E.g., Haynes v. Washington, 373 U.S. 503, 514 (1963) (“The petitioner at first resisted making a written statement and gave in only after consistent denials of his requests to call his wife, and the conditioning of such outside contact upon his accession to police demands. Confronted with the express threat of continued incommunicado detention and induced by the promise of communication with and access to family Haynes understandably chose to make and sign the damning written statement.”); Reck v. Pate, 367 U.S. 433, 441 (1961) (the accused “was, for all practical purposes, held incommunicado,” without access to his friends and family or adequate food or water, until he finally confessed). 58. Richard J. Ofshe & Richard A. Leo, The Decision to Confess Falsely: Rational Choice and Irrational Action, 74 DENV. U. L. REV. 979, 986 (1997) (“Investigators elicit the decision to confess from the innocent in one of two ways: either by leading them to believe that their situation, though unjust, is hopeless and will only be improved by confessing; or by persuading them that they probably committed a crime about which they have no memory and that confessing is the proper and optimal course of action.” (emphasis added)). According to Ofshe and Leo, the techniques used by interrogators to elicit confessions “work[] effectively by controlling the alternatives a person considers and by influencing how these alternatives are understood.” Id. at 985. In essence, they make even the innocent suspect believe that the rock of confessing is better than the hard place of the punishment the suspect will experience if he refuses to confess. See also False Confessions Happen More Than We Think, INNOCENCE PROJECT (Mar. 14, 2011), https://www.innocenceproject.org/false-confessions- happen-more-than-we-think/ [https://perma.cc/ZNA2-SUH4] (“In approximately 25% of the wrongful convictions overturned with DNA evidence, defendants made false confessions, admissions or statements to law enforcement officials.”). 59. Alan Hirsch, Threats, Promises, and False Confessions: Lessons of Slavery, 49 HOW. L.J. 31, 35–36 (2005). 60. Id. A famous example of this is the “Central Park Five” case. Evan Nesterak, Coerced to Confess: The Psychology of False Confessions, BEHAV. SCIENTIST (Oct. 21, 2014), https://behavioralscientist.org/coerced-to-confess-the-psychology-of-false-confessions 2021] Rock & Hard Place Arguments 669 the Fifth Amendment’s Self-Incrimination Clause required voluntariness, “equating the ‘compulsion’ proscribed by the [F]ifth [A]mendment with the English common law voluntariness test.”72 However, the Fifth Amendment voluntariness doctrine did not limit the admissibility of confessions in state court because, at the time of Bram and through the mid-1960s, the Fifth Amendment only applied to the federal government.73 Because of this, starting in 1936 with Brown v. Mississippi, the Supreme Court used the Due Process Clause of the Fourteenth Amendment to develop a separate doctrine limiting the admissibility of confessions in state courts.74 Unlike the common law voluntariness doctrine, the Fourteenth Amendment Due Process voluntariness doctrine is based primarily on concerns about fundamental fairness rather than reliability.75 Early Fourteenth Amendment voluntariness decisions like Brown were concerned with the imposition of especially egregious hard places that are “revolting to the sense of justice,” such as physical torture.76 As the doctrine evolved, it became focused on whether a “defendant’s will was overborne at the time he confessed”77 and recognized that many different types of “coercive police conduct”78 can lead to an involuntary confession. Even after the Supreme Court incorporated the Fifth Amendment against the states,79 the Fourteenth Amendment Due Process 72. Benner, supra note 50, at 107; see Godsey, supra note 50, at 478 (“Rather than examine the text [of the Fifth Amendment], the Court [in Bram] simply borrowed the voluntariness test from a line of early English and American common law cases and used it in place of the compulsion paradigm textually delineated within the self-incrimination clause. . . . confus[ing] two distinct confession doctrines . . . .”); Bram, 168 U.S. at 542. 73. Godsey, supra note 40, at 488. 74. Brown v. Mississippi, 297 U.S. 278, 287 (1936) (holding that the state violated the Due Process Clause by eliciting confessions from three defendants through torture). 75. E.g., id. at 286 (“The due process clause requires ‘that state action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.’” (quoting Hebert v. Louisiana, 272 U.S. 312, 316 (1926))); Lisenba v. California, 314 U.S. 219, 236 (1941) (“The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence whether true or false.”). 76. Brown, 297 U.S. at 286. In Brown, one of the defendants was hung from a tree and severely whipped until he confessed, and the other two defendants were stripped and severely whipped until they confessed. Id. at 282. 77. Lynumn v. Illinois, 372 U.S. 528, 534 (1963); Schneckloth v. Bustamonte, 412 U.S. 218 (1973). 78. Colorado v. Connelly, 479 U.S. 157, 164 (1986). 79. In Malloy v. Hogan, 378 U.S. 1, 6 (1964), the Supreme Court incorporated the Fifth Amendment Self-Incrimination Clause against the states through the Due Process Clause of the Fourteenth Amendment—the same clause forming the basis of the Due Process voluntariness doctrine. As this could generate some confusion, it is important to note that the Due Process doctrine that governed (and continues to govern) confessions in state courts is not merely the Bram Fifth Amendment voluntariness test applied to states, but it is an independent doctrine that is not rooted in 670 Seattle University Law Review [Vol. 44:655 voluntariness doctrine continued to govern the admissibility of confessions in state courts,80 and the Court developed an analog (based on the Due Process Clause of the Fifth Amendment81) that supplanted the Bram doctrine to govern confessions in federal courts.82 This Article, in the tradition of other scholarship, refers to the Fourteenth Amendment Due Process voluntariness doctrine and the identical Fifth Amendment Due Process voluntariness doctrine cumulatively as the “Due Process voluntariness doctrine.”83 The shift away from the Bram/common-law voluntariness test to the Due Process voluntariness test was significant because it meant that the manipulation of RHP dilemmas through threats and promises was no longer per se impermissible.84 To determine whether a “defendant’s will the Fifth Amendment Self-Incrimination Clause and predated the incorporation of the Fifth Amendment. See Bram v. United States, 168 U.S. 532, 534 (1897). 80. Connelly, 479 U.S. at 163 (“The Court has retained this due process focus, even after holding, in Malloy v. Hogan, that the Fifth Amendment privilege against compulsory self-incrimination applies to the States.” (citation omitted)); see also Miller v. Fenton, 474 U.S. 104, 110 (1985) (“Indeed, even after holding that the Fifth Amendment privilege against compulsory self-incrimination applies in the context of custodial interrogations [in] Miranda v. Arizona, and is binding on the States, [in] Malloy v. Hogan, the Court has continued to measure confessions against the requirements of due process.” (citation omitted)). In Miranda, the Court had suggested a return to using the Fifth Amendment Self-Incrimination Clause to govern the admissibility of confessions, issuing a prophylactic rule to protect a suspect’s privilege against self-incrimination during custodial interrogations. Godsey, supra note 50, at 499−501. Under this prophylactic rule, a confession elicited during custodial interrogation is inadmissible unless the interrogator reads “Miranda warnings” to a suspect, and the suspect subsequently waives his “Miranda rights,” including his right to remain silent. Id. at 501. However, many suspects are read the warnings and waive their rights; the confessions of these suspects are then governed under the Due Process voluntariness standard. Welsh S. White, Miranda’s Failure to Restrain Pernicious Interrogation Practices, 99 MICH. L. REV. 1211, 1218 (2001). The Due Process doctrine thus continues to dominate the admissibility of confessions. See Godsey, supra note 50, at 508 (“What we are left with at the foundation of confession law is a return to the basic rule of decades past that involuntary confessions are inadmissible under notions of due process.”). 81. As distinct from the Self-Incrimination Clause of the Fifth Amendment, which Bram had relied on. 82. Godsey, supra note 50, at 489 (“After creating this due process involuntary confession rule, the Supreme Court began using it to suppress involuntary confessions not only in state cases but in federal cases as well. The Court relied on the due process clause of the Fourteenth Amendment in state cases and the nearly identical due process clause of the Fifth Amendment in federal cases.”); see also discussion in supra note 80. 83. See generally Godsey, supra note 50, at 489 (using the term “due process involuntary confession rule” throughout to refer to the rule applied under the Fourteenth Amendment Due Process Clause and under the identical Fifth Amendment Due Process Clause). 84. Cf. id. at 490 (describing how the Due Process voluntariness rule is more “police-friendly” than the Bram/common-law rule because “the involuntary confession rule became more subjective than it had been under Bram”). Godsey observes how the elimination of Bram’s per se prohibitions on threats and promises allows law enforcement officers to use more interrogation tactics: In Bram, the Court had stated that “[t]he law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and, therefore excludes the declaration if any degree of influence has been exerted.” During the due process era, however, the Court ignored its own warnings from an earlier era and boldly ventured into 2021] Rock & Hard Place Arguments 671 was overborne” by police questioning, courts applying the Due Process voluntariness test attempt to ascertain whether the suspect actually felt forced to confess, engaging in a subjective totality of the circumstances inquiry.85 The Supreme Court has found certain tactics involving the use of severe hard places—such as physical brutality, extremely prolonged incommunicado interrogation, or deprivation of physical necessities such as food and water—coercive as applied to any suspect.86 But courts have begun to permit other less severe RHP dilemmas when applied to a suspect of typical mental fortitude,87 while sometimes prohibiting the same dilemmas when applied to an especially susceptible suspect, such as an intellectually disabled person or minor.88 The flaw with this approach is that it is impossible to determine just how costly or undesirable a given hard place seems to an individual suspect by simply looking at his age and an analytic quagmire by attempting to measure the level of force used against a suspect and the effect of such force on the suspect’s state of mind. This move allowed the Court to greatly expand the levels of force permissible before a confession would be considered involuntary. Id.; see also Barry C. Feld, Police Interrogation of Juveniles: An Empirical Study of Policy and Practice, 97 J. CRIM. L. & CRIMINOLOGY 219, 297 (2006) (“Legal scholars criticize the [Due Process] ‘voluntariness’ test as subjective, amorphous, and incapable of consistent judicial administration.”). 85. See supra note 80. 86. Brown v. Mississippi, 297 U.S. 278, 287 (1936) (physical brutality); Ashcraft v. Tennessee, 322 U.S. 143, 154 (1944) (continuous thirty-six-hour interrogation); Brooks v. Florida, 389 U.S. 413, 414−15 (1967) (per curiam) (deprivation of physical necessities). 87. See Feld, supra note 84, at 297 n.217 (“[I]n the absence of extreme cases of threats, force, or prolonged interrogation, voluntariness focuses on interrogators practices and individual’s characteristics with no determinative factors.”); see also discussion in supra note 84. 88. Compare Blackburn v. Alabama, 361 U.S. 199, 207 (1960) (rejecting confession obtained after eight to nine hours of sustained interrogation where the suspect was likely “insane and incompetent at the time he allegedly confessed”), with Stein v. New York, 346 U.S. 156, 167–68, 185 (1953), overruled in part on other grounds by Jackson v. Denno, 378 U.S. 368 (1964) (upholding confessions obtained after twelve hours of intermittent questioning “stretched out over a 32-hour period” where the suspects were “not young, soft, ignorant or timid”; one suspect was arrested at 9 AM, interrogated for four to five hours starting at 9 PM, and then interrogated for eight more hours starting at 10 AM the next day; the other suspect was arrested at 2 AM, questioned for an hour the next morning, for another two hours after lunch, and then for seven hours from 7 PM to 2 AM). Compare In re Elias V., 188 Cal. Rptr. 3d 202 (Cal. Ct. App. 2015) (finding a 13-year-old’s confession involuntary where the Reid Technique was used), with JOHN E. REID & ASSOCS., WHAT DO THE COURTS SAY ABOUT THE REID TECHNIQUE?, http://www.reid.com/pdfs/wtcs.pdf [https://perma.cc/Z2XN-HBSK] (listing excerpts from court cases permitting the use of the Reid Technique). But see Reck v. Pate, 367 U.S. 433, 442 (1961) (distinguishing from Stein based on the suspect’s “youth, his subnormal intelligence, and his lack of previous experience with the police,” inter alia); Haley v. Ohio, 332 U.S. 596, 599–600 (1948) (“A 15-year-old lad, questioned through the dead of night by relays of police, is a ready victim of the inquisition. Mature men possibly might stand the ordeal from midnight to 5 a.m. But we cannot believe that a lad of tender years is a match for the police in such a contest.”). 674 Seattle University Law Review [Vol. 44:655 “‘a choice between the rock and the whirlpool’ which made the statements products of coercion in violation of the Fourteenth Amendment.”103 According to the Court, the officers faced the impossible decision either to incriminate themselves or lose their jobs.104 This set of options, the Court found, “is the antithesis of free choice to speak out or to remain silent.”105 The Court concluded that presenting an individual with an RHP dilemma is “likely to exert such pressure upon an individual as to disable him from making a free and rational choice,” making his confessions involuntary and inadmissible as evidence under the Fourteenth Amendment.106 Garrity is interesting for two reasons. First, Garrity treats RHP dilemmas that coerce confessions as closely analogous—if not identical—to RHP dilemmas that force suspects to forfeit their Fifth Amendment privilege against self-incrimination.107 In reaching the conclusion that the police officers’ confessions were involuntary, the Court relied on previous decisions that held it is impermissible to penalize the exercise of the Fifth Amendment privilege with the “deprivation of a livelihood.”108 Garrity also repeatedly uses Fifth Amendment language 103. Id. at 496. 104. Id. at 497. 105. Id. 106. Id. at 497–98 (quoting language from a prior Supreme Court decision: “Where the choice is ‘between the rock and the whirlpool,’ duress is inherent in deciding to ‘waive’ one or the other” (citation omitted)). 107. Perhaps because of this, the Supreme Court later spoke of Garrity as if it were a decision not about coerced confessions but about compelled testimony that would violate the Fifth Amendment unless the police officers were granted “use and derivative use” immunity. Steven D. Clymer, Compelled Statements from Police Officers and Garrity Immunity, 76 N.Y.U. L. REV. 1309, 1317–20, 1342 (2001) (describing how the Garrity Court “determined that the due process protection for coerced confessions . . . required suppression,” but the Supreme Court’s later decision Lefkowitz v. Turley “offered a different rationale for the result in Garrity: The police officers’ compelled statements were analogous to immunized testimony and thus inadmissible under the Fifth Amendment privilege” (quoting Kastigar v. United States, 406 U.S. 441, 453 (1972))); see Lefkowitz v. Turley, 414 U.S. 70, 82 (1973) (“It seems to us that the State intended to accomplish what Garrity specifically prohibited— to compel testimony that had not been immunized.”). See supra note 11 for a discussion of Fifth Amendment immunity. Some scholars have also described Garrity as a Fifth Amendment decision, in spite of Garrity’s explicit reliance on the Fourteenth Amendment Due Process voluntariness doctrine. See Godsey, supra note 50, at 494 (“The [Garrity] Court held that the imposition of this penalty rendered [the officers’] statements compelled in violation of the self-incrimination clause . . . .”). This confusion reflects both Garrity’s repeated references to Fifth Amendment cases and principles and the general murkiness surrounding the line between when the Due Process voluntariness doctrine governs and when the Fifth Amendment governs. 108. Spevack v. Klein, 385 U.S. 511, 514 (1967) (holding that the Fifth Amendment “should not be watered down by imposing the dishonor of disbarment and the deprivation of a livelihood as a price for asserting it”); see Garrity, 385 U.S. at 497 (citing Spevack, 385 U.S. at 514). The Court later discussed whether the police officers had somehow waived the protection of the Fourteenth Amendment Due Process voluntariness requirement by accepting state employment. Garrity, 385 U.S. at 498–99. It resolved the issue by looking to a case about using the “threat of discharge” to elicit 2021] Rock & Hard Place Arguments 675 when describing the coercive RHP dilemma faced by the police officers, framing it as a choice between “self-incrimination” and job loss.109 This suggests that while courts generally apply the Due Process voluntariness doctrine (rather than Fifth Amendment doctrine) in confession cases,110 some judges and justices may still view the suspect’s decision to confess as the forfeiture of his privilege against self-incrimination (unless he is granted immunity).111 In this way, the modern Due Process voluntariness doctrine effectively operates not only to promote fundamental fairness and discourage tactics that result in unreliable confessions, but also to limit attempts of law enforcement officers to force suspects to waive the Fifth Amendment privilege during interrogation.112 Second, Garrity is significant because if the Supreme Court applied Garrity’s reasoning—that forcing a defendant to choose between “the rock and the whirlpool” is inherently coercive—more broadly, the Due Process voluntariness doctrine would look more like the Bram/common law voluntariness doctrine. However, in the years since Garrity, courts have continued to allow interrogators to use various tactics manipulating RHP dilemmas to obtain confessions.113 This is likely because courts recognize forfeiture of the Fifth Amendment, finding that case more relevant than other cases about conditioning employment on the waiver of a constitutional right. Id. at 499. 109. E.g., id. at 496 (“[The question is] whether, valid or not, the fear of being discharged . . . for refusal to answer on the one hand and the fear of self-incrimination on the other was ‘a choice between the rock and the whirlpool’ which made the statements products of coercion in violation of the Fourteenth Amendment. . . . The choice imposed on petitioners was one between self-incrimination or job forfeiture.”). 110. See Miller v. Fenton, 474 U.S. 104, 110 (1985) (“Indeed, even after holding that the Fifth Amendment privilege against compulsory self-incrimination applies in the context of custodial interrogations [in] Miranda v. Arizona . . . the Court has continued to measure confessions against the requirements of due process.”). This is true unless there is a Miranda issue—e.g., if the suspect was subject to a custodial interrogation, and the interrogators failed to read the Miranda warnings. See supra note 80. 111. Cf. Godsey, supra note 50, at 509 (“The self-incrimination clause’s ban on compelled confessions remains applicable to interrogations, but the Court has not clearly defined its meaning. As a result, many have undoubtedly assumed that the test under the self-incrimination clause is now identical to the due process involuntary confession rule and that both doctrines overlap and simultaneously prohibit the admission of involuntary confessions. Dicta and ‘loose language’ in several Supreme Court opinions may support this assumption.”). For a more detailed discussion on the relationship between the voluntariness doctrine and the Fifth Amendment privilege, see supra note 50. 112. See supra note 50. 113. See, e.g., Frazier v. Cupp, 394 U.S. 731, 737–38 (1969) (decided just two years after Garrity, upholding the validity of a confession where the police first created a hard place by telling the defendant “falsely, that [his confederate] had been brought in and that he had confessed” and then implied that the government might be understanding if the defendant confessed by “sympathetically suggest[ing] that the victim had started a fight by making homosexual advances”); see also other cases and tactics discussed in supra note 90. 676 Seattle University Law Review [Vol. 44:655 that such tactics can be a powerful tool for interrogators114 and fear a decline in confessions if police officers are entirely banned from using them. These courts may have forgotten that, for the same reasons RHP dilemmas are effective at convincing the guilty to confess, they are also effective at convincing the innocent to confess.115 Perhaps the best solution is for the criminal justice system to move away from a reliance on confessions as evidence because confessions elicited during interrogation often say more about how defendants handle RHP dilemmas than about their guilt or innocence.116 C. Dilemmas at Death Penalty Proceedings Prior to Penry v. Lynaugh, jury instructions at Texas death penalty proceedings placed intellectually disabled defendants117 between a rock and a hard place. Under Texas law, during a death penalty sentencing hearing, the jury had to answer three questions (or “special issues”).118 Of relevance to the intellectually disabled defendant’s dilemma, Special Issue 1 asked whether the defendant acted “deliberately” in causing the victim’s death, and Special Issue 2 asked whether the defendant would likely pose a danger in the future.119 If the jury answered “yes” to all of the special issues, the defendant would receive the death penalty.120 An intellectually disabled defendant had two options: (1) introduce evidence of his disability in hopes of earning a “no” on Special Issue 1 or (2) conceal the evidence in hopes of earning a “no” on Special Issue 2. Each option carried its own risks. If the defendant pursued Option One, he could use the evidence to argue that he was not capable of acting deliberately (Special Issue 1). However, the prosecutor could then argue that if the defendant was indeed disabled, his disability made him more likely to pose a danger in the future (Special Issue 2) by preventing him 114. See Kozinski, supra note 53 (describing the high success rate of the Reid Technique); Ofshe & Leo, supra note 58, at 985−86 (“Police [successfully] elicit the decision to confess from the guilty by leading them to believe that the evidence against them is overwhelming, that their fate is certain (whether or not they confess), and that there are advantages that follow if they confess.”). 115. See supra note 58 and accompanying text. 116. Cf. THE MIRANDA DEBATE: LAW, JUSTICE, AND POLICING 56 (Richard A. Leo & George C. Thomas III eds., 1998) (“[B]y any standards of human discourse, a criminal confession can never truly be called voluntary. With rare exception, a confession is compelled, provoked and manipulated from a suspect by a detective who has been trained in a genuinely deceitful art.”). 117. “The mental health community has provided clear criteria for a finding of intellectual disability: significant limitation in intellectual ability and adaptive behavior, manifesting itself prior to the age of 18.” Intellectual Disability, DEATH PENALTY INFO. CTR., https://deathpenaltyinfo.org/ policy-issues/intellectual-disability [https://perma.cc/A3U2-6VUF]. 118. Penry v. Lynaugh, 492 U.S. 302, 310 (1989), holding modified by Boyde v. California, 494 U.S. 370 (1990), and abrogated by Atkins v. Virginia, 536 U.S. 304 (2002). 119. Id. Special Issue 3 is not relevant to the dilemma discussed. 120. Id. 2021] Rock & Hard Place Arguments 679 detriment of plaintiffs seeking standing. Most frequently, plaintiffs find themselves stuck between losing a case for failing to assert standing on the one hand and losing for failure to state a claim on the other. In addition, plaintiffs—climate activists in particular—have found themselves unable to simultaneously satisfy the different prongs of Article III standing. In Subsection C, we explain an RHP dilemma that some plaintiffs have faced when trying to sue states. A. Knick v. Township of Scott: An Example of a Rock and Hard Place Dilemma that the Court Addressed The Takings Clause of the Fifth Amendment prevents private property from being “taken for public use, without just compensation.”132 However, prior to Knick v. Township of Scott,133 an RHP dilemma “precluded [plaintiffs] from ever bringing a Fifth Amendment takings claim”134 in federal court, making the Takings Clause difficult to enforce. Williamson County Regional Planning Commission v. Hamilton Bank required a plaintiff to exhaust all possible remedies in the relevant state regulatory agency and state court before suing for “just compensation” in federal court.135 At the same time, under San Remo Hotel v. City and County of San Francisco, a final state court decision in a takings case precluded the plaintiff from relitigating the same issue in federal court.136 In a law review article expertly describing the dilemma, Professor Ilya Somin commented that it was “virtually impossible to bring a takings case in federal court without first going to state court. But going to state court itself made it impossible to file a case in federal court afterwards.”137 In Knick, the Supreme Court overturned Williamson County, eradicating this RHP dilemma by allowing takings plaintiffs to go directly to federal court.138 Writing for the Court in Knick, Chief Justice Roberts acknowledged this explicitly, observing that under Williamson, “[t]he takings plaintiff . . . f[ound] himself in a Catch-22: He [could not] go to federal court without going to state court first; but if he [went] to state court and los[t], his claim [would] be barred in federal court. The federal 132. Id. 133. Knick v. Twp. of Scott, 139 S. Ct. 2162 (2019). 134. Santini v. Conn. Hazardous Waste Mgmt. Serv., 342 F.3d 118, 130 (2d Cir. 2003), abrogated by San Remo Hotel v. City of San Francisco, 545 U.S. 323 (2005). 135. Williamson Cnty. Reg’l Plan. Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186–97 (1985), overruled by Knick, 139 S. Ct. at 2162. 136. San Remo Hotel, 545 U.S. at 326–27. 137. Ilya Somin, Knick v. Township of Scott: Ending a Catch-22 that Barred Takings Cases from Federal Court, 18 CATO SUP. CT. REV. 153, 156 (2019). 138. Knick, 139 S. Ct. at 2167. 680 Seattle University Law Review [Vol. 44:655 claim [would] die[] aborning.”139 Although the Knick Court did away with this dilemma, the courts enforce, rather than rectify, most other RHP dilemmas that plaintiffs face. B. Rock and Hard Place Arguments that Plaintiffs Face While Seeking Standing Plaintiffs often find themselves confronted with RHP situations when seeking standing in civil suits. To be successful in a lawsuit, a plaintiff must both show that she has standing and present a winning argument on the merits. Standing doctrine finds its roots in Article III of the Constitution, which restricts federal courts to hearing “actual cases or controversies,” as opposed to abstract harms and advisory opinions.140 It is the reason that Hillary Brooke cannot sue Bud Abbott for hitting Lou Costello; Costello has to raise his own complaint.141 To prove standing, a plaintiff must allege that (1) she has suffered a concrete, particularized injury or that such an injury is imminent, (2) her injury is traceable to the defendant’s misconduct (traceability), and (3) her injury is redressable, meaning that a favorable outcome in the case would remedy her injury (redressability).142 Many scholars have critiqued standing as arbitrary and ineffective on the theory that plaintiffs can recharacterize a claim to overcome standing hurdles.143 However, recharacterizing the claim has an important 139. Id. Catch-22 situations are a subset of RHP dilemmas. In a typical RHP dilemma, an actor is caught between two choices, which we can refer to as A and B, each of which leads to a negative outcome. In a Catch-22 situation, both A and B lead to the same negative outcome C, which is generally maintaining the status quo. There is no way for the person facing the dilemma to escape C. This may be because A and B are mutually dependent, so the person cannot succeed at doing either (i.e., he cannot succeed at A without first doing B, and he cannot succeed at B without first doing A); or it may be because both A and B simply lead back to C. See Catch-22, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/catch-22 [https://perma.cc/59TD-NNUG] (defining Catch-22 as “a problematic situation for which the only solution is denied by a circumstance inherent in the problem or by a rule” and providing the example of “the show-business catch- 22—no work unless you have an agent, no agent unless you’ve worked”). In this Article’s introductory example, Orr faces a Catch-22 situation because no matter whether he (A) voluntarily continues to fly or (B) asks to be grounded, he is unable to escape the negative outcome C— maintaining the status quo of flying. Both A and B lead back to C. See text accompanying supra note 1. 140. U.S. CONST. art. III, § 2. 141. Abbott and Costello: Who’s on First? (ABC television broadcast Oct. 6, 1938). For younger readers, Abbott and Costello was a slapstick comedy, and Abbott often smacked Costello around. Hillary Brooke was their neighbor. We recommend watching an episode when you finish reading this Article! 142. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). 143. See, e.g., Cass R. Sunstein, Article II Revisionism, 92 MICH. L. REV. 131, 132 n.9 (1993) (“In Lujan [(a key case where the plaintiff was denied standing)], the injury could have been recharacterized in opportunity-like terms, and, in that event, there would have been no problem with injury in fact, causation, or redressability.”); Christopher T. Burt, Comment, Procedural Injury 2021] Rock & Hard Place Arguments 681 downside: It often erects a hurdle to bringing a successful claim on the merits. Although plaintiffs can usually find something that can be characterized as a concrete, particularized injury, many harms that may be de facto injurious will not give rise to a substantive legal claim.144 Consider, as one example, a tort plaintiff who brings a federal diversity action claiming that a defendant (e.g., a landlord, school district, or employer) failed to adequately mitigate risk from lead paint or asbestos exposure.145 If the plaintiff has already developed an illness due to the exposure, then the plaintiff has an easy case for damages.146 On the other hand, a plaintiff who does not yet exhibit symptoms cannot demonstrate the same injury in fact. Therefore, to surmount the standing hurdle, the plaintiff must recharacterize the harm that she has suffered. The clearest way for the plaintiff in our example to establish injury in fact is to assert that the harm she suffered is the exposure itself. In certain states, plaintiffs can sue for damages such as medical monitoring costs, whereas in other states, tort law does not create a cause of action for mere exposure.147 In states like Michigan and Kentucky that do not recognize medical monitoring costs,148 recharacterizing the injury to surmount the Article III threshold removes the plaintiff’s claim for liability under state law. Therefore, depending on the choice of law provision that the federal court applies, a plaintiff will face an RHP dilemma: She can Standing After Lujan v Defenders of Wildlife, 62 U. CHI. L. REV. 275, 296 (1995) (noting that cases in the affirmative action context “suggest that the Court will recognize the claims of procedural injury plaintiffs if they satisfy the redressability criteria by recharacterizing their injuries as injuries to opportunity”); Heather Elliott, The Misfit Between Standing Doctrine and Its Purposes, ADMIN. & REGUL. L. NEWS, Spring 2009, at 13 (“Numerous critics have assailed standing jurisprudence, and dissenting members of the Court have described the extremes of standing analysis as a ‘word game played by secret rules . . . .’”); cf. Heather Elliott, Congress’s Inability to Solve Standing Problems, 91 B.U. L. REV. 159, 171 (2011) (“A standard critique of standing doctrine holds that the doctrine is so malleable that courts have unseemly opportunities to implement their policy preferences under the guise of a jurisdictional dismissal.”). 144. See, e.g., Allen v. Wright, 468 U.S. 737, 755 (1984) (discussing that plaintiffs’ stigmatic harm did not constitute a legal injury), abrogated by Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014). 145. Michael C. Dorf, Professor, Cornell L. Sch., Federal Courts Lecture (Sept. 2019). 146. For example, the plaintiff may use hospital records and medical bills as evidence to present their claim. 147. Compare, e.g., Friends for All Child., Inc. v. Lockheed Aircraft Corp., 746 F.2d 816, 837–38 (D.C. Cir. 1984) (interpreting District of Columbia law to allow medical monitoring injuries), and Doe v. City of Stamford, 699 A.2d 52, 55, 55 n.8 (Conn. 1997) (allowing medical monitoring for workers compensation), and Petito v. A.H. Robins Co., 750 So. 2d 103, 106–07 (Fla. Dist. Ct. App. 1999) (recognizing medical monitoring as an injury for negligence claims), and Burns v. Jaquays Mining Co., 752 P.2d 28, 33–34 (Ariz. Ct. App. 1987) (allowing medical monitoring claims where plaintiff has asserted an environmental tort), with, e.g., Henry v. Dow Chem. Co., 701 N.W.2d 684, 686 (Mich. 2005) (rejecting monitoring claims without present injury), and Wood v. Wyeth-Ayerst Lab’ys, 82 S.W.3d 849, 859 (Ky. 2002) (same). 148. See supra note 147. 684 Seattle University Law Review [Vol. 44:655 plaintiffs from suing a state for monetary damages in federal court.161 A state may, however, waive its sovereign immunity by consenting to a particular lawsuit or agreeing to be sued in general.162 Additionally, the states all implicitly consented to suit by the federal government by ratifying the U.S. Constitution.163 Thus, the federal government effectively has an exemption from state sovereign immunity and can bring lawsuits against states.164 Further, in limited circumstances, Congress may abrogate state sovereign immunity and thereby permit citizens to sue states165—for example, the Fourteenth Amendment gives Congress the power to pass legislation preventing state discrimination against protected classes and to abrogate state sovereign immunity from suits enforcing such legislation.166 To abrogate state sovereign immunity, Congress must make a clear legislative statement of its intent to allow certain lawsuits to proceed against states.167 This “clear statement” rule posed a hurdle to the plaintiffs in Blatchford v. Native Village of Noatak and Circle Village, who sought damages against the state of Alaska under a federal statute.168 Because the statute was somewhat ambiguous about whether Congress intended to abrogate state sovereign immunity, the plaintiffs had a losing abrogation argument.169 The plaintiffs tried to get around this hurdle by creatively170 161. Hans v. Louisiana, 134 U.S. 1, 20 (1890). Plaintiffs can, however, seek a prospective injunction against actions by state officers that would violate the Constitution or federal law. Ex parte Young, 209 U.S. 123, 159 (1908); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 73 (1996) (“[S]ince our decision in Ex parte Young, we often have found federal jurisdiction over a suit against a state official when that suit seeks only prospective injunctive relief in order to ‘end a continuing violation of federal law.’” (citations omitted)). 162. Hans, 134 U.S. at 17. 163. United States v. Texas, 143 U.S. 621, 646 (1892). 164. Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 785 (1991) (referring to the “Federal Government’s exemption from state sovereign immunity”). 165. Congress cannot broadly abrogate state sovereign immunity from all lawsuits. Rather, it can only abrogate state sovereign immunity from lawsuits enforcing Acts of Congress passed pursuant to certain constitutional provisions. See Seminole Tribe, 517 U.S. at 59 (“Thus our inquiry into whether Congress has the power to abrogate unilaterally the States’ immunity from suit is narrowly focused on one question: Was the Act in question passed pursuant to a constitutional provision granting Congress the power to abrogate?”). 166. E.g., Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976) (“We think that Congress may, in determining what is ‘appropriate legislation’ for the purpose of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts.”). 167. E.g., Blatchford, 501 U.S. at 786 (“We have repeatedly said that this power to abrogate can only be exercised by a clear legislative statement.”); Dellmuth v. Muth, 491 U.S. 223, 227–28 (1989); Seminole Tribe, 517 U.S. at 57 n.9. 168. Blatchford, 501 U.S. at 786–87. 169. Id. 170. The Court was not impressed with the plaintiffs’ creativity. See id. at 786 (“The delegation theory is entirely a creature of respondents’ own invention.”). 2021] Rock & Hard Place Arguments 685 recharacterizing the statute as a “delegation” of the federal government’s exemption from state sovereign immunity, instead of an abrogation of state sovereign immunity.171 They argued that through the statute, the federal government delegated its exemption to Native American tribes, such as the plaintiffs.172 However, the plaintiffs then faced a hard place: the federal government likely cannot constitutionally delegate its exemption, so (in accordance with principles of constitutional avoidance) the Court refused to read the statute as an attempted delegation.173 The Court found that state sovereign immunity barred the plaintiffs’ claims for damages and, cornered by an RHP dilemma, the plaintiffs did not get their day in court.174 Since Blatchford, other plaintiffs have (unsuccessfully) attempted to get around the rock of a weak abrogation argument by recharacterizing a statute as a delegation of the federal government’s exemption from state sovereign immunity. In the recent case In re PennEast Pipeline Co.,175 a pipeline company sought to exercise eminent domain against a nonconsenting state under the Natural Gas Act (NGA).176 The plaintiff company chose not to bring an abrogation argument, likely recognizing that such an argument would fail because Congress passed the NGA pursuant to its Commerce Clause authority, and Congress lacks the power to abrogate state sovereign immunity when acting under the Commerce Clause.177 Instead, it characterized the NGA as a delegation of the federal government’s eminent domain power against states—which it claimed inherently included the government’s exemption from state sovereign immunity—to pipeline companies.178 However, in making this argument, 171. Id. at 785 (“[O]ur cases require Congress’ exercise of the power to abrogate state sovereign immunity, where it exists, to be exercised with unmistakable clarity. To avoid that difficulty, respondents assert that § 1362 represents not an abrogation of the States’ sovereign immunity, but rather a delegation to tribes of the Federal Government’s exemption from state sovereign immunity.”). 172. Id. 173. Id. at 785 (“We doubt, to begin with, that that sovereign exemption can be delegated . . . .”). 174. Id. at 788. 175. In re PennEast Pipeline Co., 938 F.3d 96, 99 (3d Cir. 2019), as amended (Sept. 19, 2019), cert. granted, PennEast Pipeline Co., v. New Jersey, 2021 WL 357257 (U.S. Feb. 3, 2021) (No. 19- 1039). 176. Id. at 99 (describing how the NGA, a federal statute, “allows private gas companies to exercise the federal government’s power to take property by eminent domain, provided certain jurisdictional requirements are met. This appeal calls on us to decide whether that delegation of power allows gas companies to hale unconsenting States into federal court to condemn State property interests”). 177. Id. at 108; Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 59 (1996). The Third Circuit noticed and commented on the plaintiff’s strategic choice to take the “easier road” of avoiding making a weak abrogation argument. In re PennEast Pipeline Co., 938 F.3d at 104. 178. In re PennEast Pipeline Co., 938 F.3d at 105 (“To maintain these suits, then, PennEast had to offer a different answer [than abrogation] for why its suits do not offend New Jersey’s sovereign immunity. But, as just noted, the only reason it gives – an argument of implied delegation of the federal 686 Seattle University Law Review [Vol. 44:655 the plaintiff confronted a hard place: the Supreme Court had already expressed skepticism about the constitutionality of delegation in Blatchford. Therefore, the Third Circuit hesitated to pioneer a holding that the federal government can delegate its exemption to private parties.179 The court also recognized that if it sanctioned the delegation theory, it would effectively give Congress a way to work around abrogation requirements and open the door to a slew of new litigation against states.180 Thus, like the Supreme Court in Blatchford, the Third Circuit refused to read the statute as a delegation and found that state sovereign immunity applied.181 III. CRAFTING ROCK AND HARD PLACE ARGUMENTS This Part shifts from examining rock and hard place dilemmas to exploring rock and hard place arguments. More specifically, we discuss how mission-driven plaintiffs do not always have to be the victims of RHP dilemmas. Instead, they can turn the tables by constructing a pair of arguments that creates an RHP dilemma for the judge, pressuring (or even forcing) him to rule in their favor. Throughout Parts III through V of this Article, it is important to delineate which argument is the “rock” and which is the “hard place.” The “rock” argument refers to the plaintiff’s winning argument. The “hard place” is the alternative to the winning argument—often in the form of a losing argument—that persuades the judge or justice to accept the plaintiff’s winning argument. A. Rock and Hard Place Arguments as Syllogisms By definition, rock and hard place arguments are mutually reinforcing. In their strongest and most basic terms, RHP arguments are a simple form of the disjunctive syllogism: Either A or B. If A, then C. If B, then C. As the syllogism demonstrates, when perfectly implemented, RHP arguments create a world in which a judge must select between government’s Eleventh Amendment exemption under the NGA – ignores rather than confronts the distinction between the federal government’s eminent domain power and its exemption from Eleventh Amendment immunity.”). 179. See id. at 106 (“But the Supreme Court’s statements in Blatchford had . . . everything to do with the Court’s deep doubt about the ‘delegation’ theory itself.”). 180. See id. at 108 (“Yet accepting PennEast’s delegation theory would dramatically undermine the careful limits the Supreme Court has placed on abrogation.”). 181. Id. at 113. 2021] Rock & Hard Place Arguments 689 An important premise of this Article is that even if the alternative argument (Argument B above) is almost certainly a losing argument, it still has value. Its value comes from closing off the universe of possible defenses. Returning one final time to the above hypothetical, suppose that after the car accident, the police obtained a warrant to test the defendant’s blood, and the toxicology report showed that there were no traces of the defendant’s narcolepsy medication in his system. Here, the plaintiff has a strong argument that the defendant drove with severe narcolepsy without taking any precautions. That is likely the only argument that will be necessary to win the case: it is the “rock” argument. Moreover, arguing that the defendant was negligent because he took his medication before driving will almost certainly lose because, after the accident, there was no trace of the medication in his system. Nevertheless, the plaintiff benefits from bringing both claims. The claim that the defendant was negligent for driving on motor-impairing medication operates as the “hard place” claim. Without raising it, the plaintiff leaves the defendant with an escape route: The defendant can insist that he was taking narcolepsy medication regardless of what the toxicology report shows and hope he can convince the jury. Taking the medication is a valid defense to the plaintiff’s claim that the defendant should have anticipated having a narcoleptic fit while driving, and the jury has no reason to find that there is anything wrong with driving on the defendant’s narcolepsy medication if the plaintiff does not raise the hard place claim. In this hypothetical, of course, there is no reason to suspect that a jury would find for a defendant who raises an implausible defense. Imagine, however, that despite all odds (and ignoring the realities of voir dire) every juror has narcolepsy, and they all empathize with the defendant. Such a jury might look for a way to find in favor of the defendant. Without the hard place claim, it may be unlikely—but it is not impossible—for such a jury to find for the defendant. By including the hard place claim, the plaintiff secures a win irrespective of the jury’s inclinations. By virtue of being oversimplified, the above hypothetical aims to illustrate the mechanisms of RHP arguments in the legal context. Legal arguments, however, are complex and rarely perfect syllogisms, so it is important to recognize several more common and more realistic iterations of the disjunctive syllogism. The first, and most common, is a slightly more complex elaboration called the constructive dilemma: Either A or B. If A, then C. If B, then D. 690 Seattle University Law Review [Vol. 44:655 Therefore, either C or D. The constructive dilemma will be equally effective as the typical disjunctive syllogism so long as both C and D make a judge more likely to rule in the plaintiff’s favor. In the above example, whether the defendant took or did not take medication, the defendant was negligent. But it is more likely that two different sets of circumstances would make a defendant liable under different causes of action. Sticking with the theme of defendants running plaintiffs over in their cars, imagine a plaintiff who argues either (A) you had your eyes on the road, you saw me lying hurt in the road, and you decided to run me over anyway; or (B) you were not looking at the road. If A (you were looking), then C (you hit me on purpose), and you committed the intentional tort of battery.187 If B (you were not looking), then D (you were negligent). Under either theory, the defendant is liable. The constructive dilemma can also operate in a slightly different manner: where C is a desirable outcome for the plaintiff, but D is an undesirable outcome to the judge for reasons unrelated to the case at hand.188 The typical example is the slippery-slope or parade-of-horribles argument, which the late Justice Scalia deployed regularly, most famously in his dissenting opinion in Lawrence v. Texas.189 In that case, which struck down a Texas statute prohibiting same-sex sexual conduct, Justice Scalia argued that the decision would be the end of all laws based on “moral choices,” including “laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.”190 Other undesirable outcomes for a judge or justice might include abandoning tenets of judicial interpretation, such as stare decisis or an interpretive method like textualism. We explore such RHP arguments in Part V, examining two unexpected Supreme Court decisions from the 2019 Term. 187. See generally RESTATEMENT (THIRD) OF TORTS: INTENTIONAL TORTS TO PERSONS § 101 (AM. L. INST., Tentative Draft No. 1, 2015). 188. These types of dilemmas operate similarly to the RHP dilemmas that prosecutors use to coerce confessions. See supra Section I.B. Just as law enforcement officers (quite effectively) convince suspects to confess by making them believe they will otherwise face an undesirable outcome; plaintiffs can convince judges to rule in their favor by making the judges believe that ruling against the plaintiff will have undesirable consequences. 189. Lawrence v. Texas, 539 U.S. 558, 590 (2003) (Scalia, J., dissenting). 190. Id. (“State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers [v. Hardwick, 478 U.S. 186 (1986)]’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision[.]”). We wish that, rather than pushing back on the inevitability of this parade-of-horribles, at least one liberal justice had suggested that much of the parade (such as same-sex marriage) would not be so horrible. 2021] Rock & Hard Place Arguments 691 Finally, we note that the above syllogisms often operate, in practice, with lawyerly caveats. In law, ensuring definite outcomes is nearly always impossible: it is almost always more accurate to characterize “if A, then B” as “if A, then most likely B.” Even weaker forms of the syllogism are: “if not A, then B is more likely”; “if not B, then A is more likely.” Although arguments will rarely fit into perfect syllogisms, these weaker forms can still prove effective. B. Rock and Hard Place Arguments and Jurisdictional Hurdles Standing is frequently a major threshold challenge for mission- driven plaintiffs, and not in the least because of the RHP dilemmas described in Section II.B. But plaintiffs can also employ RHP arguments to surmount this preliminary hurdle. Below are two examples from 2020 out of the Southern District of New York. The first instance we consider is New York v. United States Department of Labor,191 a case in which New York brought suit under the Administrative Procedure Act challenging the Department of Labor’s (DOL) Final Rule implementing the Families First Coronavirus Response Act (FFCRA). The FFCRA “obligates employers to offer sick leave and emergency family leave to employees who are unable to work because of the pandemic.”192 New York argued that the DOL’s Final Rule unduly restricted paid leave and, therefore, that the DOL exceeded its statutory authority under FFCRA in promulgating the rule.193 To argue that it had standing to challenge the DOL’s regulations, New York implemented two RHP arguments. First, it established that New York had suffered injury-in-fact due to the challenged features of DOL’s Rule. New York explained that if employees did not have access to paid leave, then they would face one of two options: take unpaid leave or go to work sick. If employees chose the former, New York’s income-tax revenue would decrease because paid leave is taxable, whereas unpaid leave is not. This argument, standing alone, was likely sufficient to establish standing; as the court recognized, “some employees who need leave will . . . take unpaid leave”194 and “all New York must show is that it will be injured, not the magnitude of its injury.”195 But New York’s alternative argument cemented that it would suffer injury-in-fact regardless of whether any employees took unpaid leave. As New York’s record evidence showed, if employees went to work sick instead of taking 191. New York v. U.S. Dep’t of Lab., 477 F. Supp. 3d 1, 5–10 (S.D.N.Y. 2020). 192. Id. at 5. 193. Id. at 4. 194. Id. at 8. 195. Id. 694 Seattle University Law Review [Vol. 44:655 Defendants cannot credibly dismiss as speculative the logic underlying the States’ theory of injury.209 Broken down into our fundamental constructive dilemma, Judge Caproni recognized that either (A) by eliminating the threat of federal criminal prosecution under the MBTA, the Jorjani memorandum will significantly reduce deterrence and increase the risk that private actors will kill migratory birds; or (B) the memorandum will not impact the behavior of private actors. If A is true, then C, the DOI’s actions create the alleged injury. If B is true, then D, the agency is conceding that it cannot justify its departure from the longstanding interpretation of the statute. IV. A CASE STUDY OF AMERICAN ANTI-VIVISECTION SOCIETY V. UNITED STATES DEPARTMENT OF AGRICULTURE After eighteen years (or fifty-four years by veteran Bruce Wagman’s count),210 the United States Department of Agriculture (USDA) will finally issue regulations to protect birds under the Animal Welfare Act.211 In 2002, Congress explicitly required the USDA to issue such regulations, but the USDA never acted.212 No matter what a human being does to torture a bird, the federal government does not have a mechanism to hold that person accountable. So, both the American Anti-Vivisection Society (AAVS) and the Avian Welfare Coalition sued the agency, demanding that it comply with Congress’s mandate.213 Initially, the district court dismissed their case for failure to state a claim.214 But on January 10, 2020, D.C. Circuit Judge David Tatel reversed the lower court’s order and held that the plaintiffs “adequately alleged that USDA has failed to take a ‘discrete agency action’ that it is ‘required to take.’”215 The D.C. Circuit remanded, ordering the lower court to decide whether this failure had persisted for a sufficiently long period of time to constitute an 209. Nat. Res. Def. Council, 397 F. Supp. 3d at 439–40 (alteration in original) (citations omitted). 210. Mariann Sullivan, Animal Law Podcast #61: The Case of the Forgotten Birds, OUR HEN HOUSE (June 24, 2020), https://www.ourhenhouse.org/2020/06/animal-law-podcast-61-the-case-of- the-forgotten-birds/ [https://perma.cc/7EKK-PRJS]; see infra text accompanying note 222. 211. Order at 2–3, Am. Anti-Vivisection Soc’y v. U.S. Dep’t of Agric., 351 F. Supp. 3d 16 (D.D.C. 2020) (No. 1:18-cv-01138-TNM) (order granting joint motion to stay and proposed rulemaking schedule). 212. See 7 U.S.C. § 2143(a)(1) (stating that the USDA “shall promulgate standards to govern the humane handling, care, treatment, and transportation of animals”). The term “animal” is defined as “any . . . warm-blooded animal . . . but such term excludes (1) birds . . . bred for use in research . . . .” 7 U.S.C. § 2132(g). 213. Am. Anti-Vivisection Soc’y v. U.S. Dep’t of Agric., 351 F. Supp. 3d 16, 19 (D.D.C. 2018), rev’d and remanded, 946 F.3d 615 (D.C. Cir. 2020). 214. Id. 215. Am. Anti-Vivisection Soc’y v. U.S. Dep’t of Agric., 946 F.3d 615, 621 (D.C. Cir. 2020). 2021] Rock & Hard Place Arguments 695 unreasonable delay.216 The circuit court’s decision tipped the scales. Recognizing that a court would consider such a long delay unreasonable by any standard, the USDA folded and agreed to implement regulations.217 This case seems simple on its face: an agency fails to act in line with a direct congressional mandate for almost two decades, and eventually courts force the agency to act. Future plaintiffs who look to this case will likely not glean much beyond the basic takeaway about “unreasonable delay” claims under § 706(1) of the Administrative Procedure Act.218 Such a takeaway, however, drastically oversimplifies the case; it is far from clear whether an unreasonable delay claim would have won the day under even slightly different circumstances. The brilliance of the Anti- Vivisection Society’s lawyering was that the plaintiffs’ losing claims cemented the victory. The history of the litigation illuminates this point. A. The History of the Animal Welfare Act and the PETA Case The Animal Welfare Act (AWA) provides imperfect protection for animals, and some scholars have even argued that its protections are counterproductive.219 Whatever one’s views on the efficacy of the Act, however, the AWA formally extends protections to “warm-blooded animals” and has done so since its inception.220 Birds are warm-blooded.221 This is why, to animal-law veterans, regulations protecting birds are fifty- four years overdue.222 Nevertheless, since 1971, the USDA has refused to recognize that the AWA protects birds, rats, or mice.223 Recognizing protection for these animals would drastically increase the USDA’s workload because a vast majority of animals used in research are birds, mice, and rats; therefore, the agency was unlikely to ever recognize birds, mice, and rats on its own.224 Realizing this, and perhaps deciding that some protection of birds is better than none, Congress, in 2002, amended the 216. Id. at 617. 217. Order, supra note 211. 218. 5 U.S.C. § 706(1) (“The reviewing court shall compel agency action unlawfully withheld or unreasonably delayed.”). 219. See, e.g., Justin Marceau, How the Animal Welfare Act Harms Animals, 69 HASTINGS L.J. 925, 928 (2018) (“[A]nimal industries continually deploy the fact that they possess an AWA license as an argument against providing transparency in their animal handling practices, as a sound bite in the media to quell public concern, and even as a basis for defamation actions and related litigation against animal protection groups who criticize the treatment of confined animals.”). 220. Animal Welfare Act of 1966, Pub. L. No. 89–544, § 2(h). 221. See Sutherland Simpson, The Body Temperature of Birds, 110 NATURE 566, 567–68 (1922). 222. See Sullivan, supra note 210. 223. See Am. Anti-Vivisection Soc’y v. U.S. Dep’t of Agric., 946 F.3d 615, 617 (D.C. Cir. 2020) (citing 36 Fed. Reg. 24,917, 24,919 (Dec. 24, 1971)). 224. See Sue A. Leary, The Exclusion of Mice, Rats, and Birds, 125 AV MAG., no. 1, 2017, at 12, 12–13. 696 Seattle University Law Review [Vol. 44:655 AWA to require the USDA to issue standards “govern[ing] the humane handling[] [and] care”225 of “birds” not “bred for use in research.”226 This amendment, though hardly satisfying to animal-rights activists, at least required the USDA to act. It meant that “when feral dogs attacked and killed several flamingos at a zoo,” or when “15 parrots died in a fire,” the USDA should have been in a position to respond.227 Instead, over a decade passed, and the USDA failed to issue regulations for birds or take any action to protect them. Such was the case in People for the Ethical Treatment of Animals (PETA) v. United States Department of Agriculture, when PETA sued the USDA demanding that the agency comply with the AWA’s mandate.228 PETA argued that, because the agency had not implemented new regulations for birds despite a decade-old mandate, it had to enforce existing AWA regulations against people who were mistreating birds. In other words, USDA’s failure to enforce its general animal welfare standards with respect to birds constituted “unlawfully withheld” agency action under the Administrative Procedure Act.229 In one respect, the PETA case was a huge success: the court held that PETA had standing to bring its challenge, setting important standing precedent for non-profit organizations.230 On the merits, however, the court rejected PETA’s argument. The court held that “nothing in the AWA requires the USDA to apply the general animal welfare standards to birds . . . before finalizing its bird-specific regulations.”231 In hindsight, it is easy to say that PETA ultimately brought the wrong challenge.232 But such hindsight bias is not fair to PETA, nor is it helpful in guiding future litigants. The USDA seemed hellbent on excluding birds from protection, and the courts have supported the agency’s discretion. In fact, after PETA, animal rights groups abandoned an administrative law strategy altogether. Before bringing its case in 2018, the AAVS 225. Animal Welfare Act, 7 U.S.C. § 2143(a)(1). 226. Farm Security and Rural Investment Act of 2002, Pub. L. No. 107-171, § 10301, 116 Stat. 134, 491 (codified as amended at 7 U.S.C. § 2132(g)). 227. See Bruce Wagman, Birds Are Finally About to Get the Protection They Deserve, MARIN INDEP. J. (June 15, 2020), https://www.marinij.com/2020/06/15/birds-are-finally-about-to-get-the- protection-they-deserve/ [https://perma.cc/K8Q7-KSEN]. 228. People for the Ethical Treatment of Animals (PETA) v. U.S. Dep’t of Agric., 797 F.3d 1087, 1089 (D.C. Cir. 2015). 229. 5 U.S.C. § 706(1) (“The reviewing court shall compel agency action unlawfully withheld or unreasonably delayed.” (emphasis added)). 230. PETA, 797 F.3d at 1093–95 (noting that the plaintiffs had standing under Havens’ Realty Corp. v. Coleman, 455 U.S. 377 (1982)). 231. Id. at 1098. 232. Importantly, PETA abandoned two of its initial claims: (1) that the USDA unreasonably delayed enforcement in refusing to issue new regulations and (2) that the refusal to enforce existing regulations was arbitrary and capricious. The court explicitly noted these decisions. Id. at 1091 n.1. 2021] Rock & Hard Place Arguments 699 Part of the Article argues that the two most unexpected decisions from the 2019 term—Bostock v. Clayton County237 and June Medical Services v. Russo238—both resulted from a special RHP setup. This is the type of setup where the “rock” argument is (as usual) the winning argument, and the “hard place” alternative is a theory of jurisprudence that relevant justices wish to avoid.239 In Bostock, the Court held that Title VII of the Civil Rights Act of 1964, by prohibiting employment discrimination “because of . . . sex,”240 prohibits discrimination because of employees’ sexual orientation and gender identity.241 Justice Gorsuch, writing for the majority, recognized that if employers draw distinctions on the basis of sexual orientation and gender identity, they are necessarily drawing them on the basis of sex. His opinion can largely be boiled down to the following statement: “[I]magine an applicant doesn’t know what the words homosexual or transgender mean. Then try writing out instructions for who should check the box without using the words man, woman, or sex (or some synonym). It can’t be done.”242 Whether incensed or exuberant, Americans were largely shocked that a conservative-leaning Supreme Court ruled in favor of LGBT rights.243 But as LGBT advocate Chase Strangio explained, the petitioners had briefed the case to elicit Justice Gorsuch’s precise reasoning244—reasoning grounded in a strict adherence to textualism.245 Numerous scholars have claimed that textualism was not necessary to reach the outcome in Bostock.246 There were very strong arguments based on McLaughlin v. Florida247 and Loving v. Virginia:248 arguments that prohibitions on same- sex marriage discriminate based on sex, just as laws prohibiting interracial 237. Bostock v. Clayton County, 140 S. Ct. 1731, 1737 (2020). 238. June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2108 (2020). 239. See supra Section III.A and text accompanying note 188. 240. Civil Rights Act of 1964 § 7, 42 U.S.C. § 2000e. 241. Bostock, 140 S. Ct. at 1756. 242. Id. at 1746. 243. See, e.g., Jane Coaston, Social Conservatives Feel Betrayed by the Supreme Court — and the GOP that Appointed It, VOX (July 1, 2020), https://www.vox.com/2020/7/1/21293370/supreme- court-conservatism-bostock-lgbtq-republicans [https://perma.cc/EKM5-TFNV]. 244. 2020 Bingo Card, STRICT SCRUTINY: THE APPEAL (June 22, 2020), https://strict- scrutiny.simplecast.com/episodes/2020-bingo-card [https://perma.cc/CZ6S-85YD]. 245. Jonathan Skrmetti, Symposium: The Triumph of Textualism: “Only the Written Word Is the Law,” SCOTUSBLOG (June 15, 2020), scotusblog.com/2020/06/symposium-the-triumph-of- textualism-only-the-written-word-is-the-law/ [https://perma.cc/DU9H-3ZCP]. 246. See, e.g., Michael C. Dorf, Does Justice Gorsuch’s Magnificent Opinion in the Title VII Sexual Orientation and Gender Identity Cases Redeem Textualism?, DORF ON LAW (June 16, 2020), http://www.dorfonlaw.org/2020/06/does-justice-gorsuchs-magnificent.html [https://perma.cc/ZM7K- MT2X]. 247. McLaughlin v. Florida, 379 U.S. 184 (1964). 248. Loving v. Virginia, 388 U.S. 1 (1967). 700 Seattle University Law Review [Vol. 44:655 cohabitation and marriage discriminate on the basis of race.249 Likewise, there is a very strong argument that LGBT-discrimination is unlawful sex stereotyping under Price Waterhouse v. Hopkins.250 By focusing, however, on textualist arguments, the petitioners established a hard place for justices who adhere religiously to textualism. The constructive dilemma was as follows: If (A) the Court adheres to the plain meaning of Title VII’s language, then (C) Title VII prohibits discrimination on the basis of LGBT status. If (B) the Court does not adhere to a textualist approach, then (D) textualism is not the logical and neutral form of interpretation that its proponents purport it to be. Some justices, of course, rejected the premise of this dilemma and asserted that Justice Gorsuch’s opinion was not, in fact, a textualist interpretation.251 But for Justice Gorsuch, the strictest textualist on the Court, the merits of the case did fundamentally pit his social conservative bent against his principles of judicial review. His questions during oral argument revealed his struggle with the dilemma of whether to look beyond the text: When a case is really close, really close, on the textual evidence, and I—assume for the moment I’m . . . with you on the textual evidence. . . . The judge finds it very close. At the end of the day, should he or she take into consideration the massive social upheaval that would be entailed in such a decision, and the possibility that— that Congress didn’t think about it[?]252 Ultimately unwilling to forego his textualist principles and leave his tenets of judicial review open to attack, Justice Gorsuch authored the opinion on behalf of himself, the Chief Justice, and the four liberal justices on the Court.253 A similar RHP dilemma motivated Chief Justice Roberts’s ruling in June Medical Services.254 In that case, abortion providers challenged a Louisiana statute that required all physicians performing abortions to have hospital admitting privileges within thirty miles of their clinic.255 The 249. See Andrew Koppelman, The Miscegenation Analogy: Sodomy Law as Sex Discrimination, 98 YALE L.J. 145, 148 (1988); see also Andrew Koppelman, Bostock v. Clayton County, ORAL ARGUMENT 2.0 (Oct. 8, 2019), https://argument2.oyez.org/2019/bostock-v-clayton-county/ [https:// perma.cc/N6S5-AZDP]. 250. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). 251. See Bostock v. Clayton County, 140 S. Ct. 1731, 1755–56 (2020) (Alito, J., dissenting) (“It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated . . . .”). 252. Oral Argument at 22:18, R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Emp. Opportunity Comm’n, 140 S. Ct. 1731 (2020) (No. 18-107) (consolidated with Bostock, 140 S. Ct. 1731 (No. 17-1618)), https://www.oyez.org/cases/2019/18-107 [https://perma.cc/QJ5X-CCEY]. 253. Bostock, 140 S. Ct. at 1737. 254. June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2108 (2020). 255. Id. at 2112. 2021] Rock & Hard Place Arguments 701 physicians argued that the statute placed an undue burden on a woman’s right to seek an abortion because most abortion providers do not have (or need) hospital admitting privileges, and requiring them to obtain these privileges would have the practical impact of shutting down almost every clinic in Louisiana.256 Prior to reaching the Supreme Court, the Fifth Circuit had reversed the district court and upheld the admitting-privileges requirement as constitutional.257 Many pro-choice liberals feared that the conservative majority on the Supreme Court would side with the Fifth Circuit and significantly undercut the protections that Roe v. Wade famously guaranteed to women.258 Starting with the first sentence of their brief, the petitioners largely focused their argument on stare decisis.259 They characterized the Fifth Circuit’s ruling as contumacious, given that just four years prior, the Supreme Court had struck down an identical admitting-privileges requirement in Texas.260 The petitioners argued that if the Court failed to respect its Whole Woman’s Health holding from just four years prior, the decision would significantly undermine the integrity of the Court as an institution. In constructive dilemma terms, the petitioners asserted that either (A) the Court follows its recent holding in Whole Woman’s Health, and (C) Louisiana’s admitting-privileges requirement is unconstitutional; or (B) the Court refuses to follow its four-year-old precedent in Whole Woman’s Health and (D) proves that the Court simply acts along partisan lines irrespective of precedent. As they did in Bostock, several justices rejected the premise of the constructive dilemma. Here, they argued that June Medical and Whole Woman’s Health were distinguishable cases.261 The respondents in June Medical argued that the undue burden analysis is fact-specific and therefore must proceed case-by-case, and several dissenting justices in June Medical, latching onto this reasoning, concluded that the factual 256. Id. 257. June Med. Servs. L.L.C. v. Gee, 905 F.3d 787, 815 (5th Cir. 2018), rev’d sub nom. June Med. Servs. L.L.C., 140 S. Ct. 2103. 258. See Melissa Murray, Party of Five? Setting the Table for Roe v. Wade, SCOTUSBLOG (July 24, 2019), https://www.scotusblog.com/2019/07/symposium-party-of-five-setting-the-table-for-roe- v-wade/ [https://perma.cc/DN9K-8RNQ]. 259. Response & Reply Brief for Petitioners-Cross-Respondents at 1, June Med. Servs. L.L.C., 140 S. Ct. 2103 (Nos. 18-1323, 18-1460) (“The State disregards stare decisis at every turn.”). 260. Id.; see also Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016). 261. June Med. Servs. L.L.C., 140 S. Ct. at 2157 (Alito, J., dissenting) (“Stare decisis is a major theme in the plurality opinion and that of THE CHIEF JUSTICE. Both opinions try to create the impression that this case is the same as Whole Woman’s Health and that stare decisis therefore commands the same result. In truth, however, the two cases are very different.” (capitalization in original)). 704 Seattle University Law Review [Vol. 44:655 for certain changes.273 But more importantly, if the agency articulates its “efficiency” reasoning, it will likely have to admit that it expects the changes to accelerate drilling projects, undermining its defense to the NEPA claim.274 In other words, the real value of the APA claim is in how it would serve as a hard place, forcing the agency to undermine its NEPA argument by articulating its belief that the regulatory changes would actually have an effect. This type of RHP argument could also work well in challenges to regulatory changes meant to benefit hunters or fishermen. Such changes are designed to make it easier for sportsmen to kill wildlife, yet government agencies often argue that they will not affect wildlife populations and therefore do not need to be assessed in an EIS.275 273. Certain unexplained parts of the Proposed Rule (e.g., the removal of public notice and comment opportunities) look suspiciously like concessions to industry at the expense of the public. See Katherine Rogers & Grace Brosofsky, Comment Letter on Proposed Rule on Oil and Gas Resources 4 (Nov. 2, 2020), https://beta.regulations.gov/comment/FS-2020-0007-3786 [https:// perma.cc/R6R5-JCVQ] (“Here, the Forest Service avoided providing any explanation for (or even acknowledgment of) the proposed rule’s removal of public notice and comment opportunities in 36 C.F.R. § 228.107. In its [cursory] discussion of its proposed amendments to § 228.107, the FS . . . [gave] the misleading impression that the agency planned only to reorganize the section of code without making any substantive changes” to what the section required). 274. The agency almost undeniably does intend to accelerate drilling, and the phrase “streamline processes and promote efficiency” is a fairly transparent euphemism for this motive. See Memorandum from Sonny Perdue, Sec’y, U.S. Dep’t of Agric., to Victoria Christiansen, Chief, U.S. Dep’t of Agric., Forest Serv. 1 (June 12, 2020), https://www.fs.usda.gov/sites/default/files/2020- 06/secretarial_memo_national_grasslands.pdf [https://perma.cc/3AX4-X8WP] (describing the need to “provide relief from burdensome regulations, improve customer service, and boost the productivity of our National Forests and Grasslands” by “streamlin[ing] processes and identify[ing] new opportunities to increase America’s energy dominance and reduce reliance on foreign countries for critical minerals”). Comment letters written by industry groups make it apparent that oil and gas companies recognize this and also believe that the Proposed Rule will help them to conduct more drilling on federal lands at a faster rate. See, e.g., Tripp Parks, Vice President, Gov’t Affs., W. Energy All., Comment Letter on Proposed Rule on Oil and Gas Resources 1 (Nov. 2, 2020), https://www.westernenergyalliance.org/uploads/1/3/1/2/131273598/western_energy_alliance_comm ents_on_the_usfs_oil_and_gas_resources_regulations.pdf [https://perma.cc/Z32N-TMNN] (“Delays caused by the National Environmental Policy Act (NEPA) process discourage Alliance members from operating on USFS lands, thereby reducing revenues that would be generated for the federal government and limiting domestic energy production. . . . We greatly appreciate that U.S. Department of Agriculture Secretary Sonny Perdue understands the need to reduce these delays . . . .”). 275. Compare, e.g., Press Release, U.S. Dep’t of Interior, Secretary Bernhardt Proposes Historic Expansion of Hunting and Fishing Opportunities (Apr. 8, 2020), https://www.doi.gov/pressreleases/ secretary-bernhardt-proposes-historic-expansion-hunting-and-fishing-opportunities [https://perma.cc/ZF67-6NPK] (“‘America’s hunters and anglers now have something significant to look forward to in the fall as we plan to open and expand hunting and fishing opportunities across more acreage nationwide than the entire state of Delaware,’ said Secretary Bernhardt. ‘The U.S. Fish and Wildlife Service’s Hunt Fish Chiefs have been instrumental in our effort over the past two years to streamline our regulations and identify new opportunities for sportsmen and women like no other previous administration.’”), with 2020–2021 Station-Specific Hunting and Sport Fishing Regulations, 85 Fed. Reg. 20,030, 20,044 (proposed Apr. 9, 2020) (to be codified at 50 C.F.R. pts 32, 36, and 71) (declining to perform NEPA analysis of the cumulative impacts of the same changes that the agency 2021] Rock & Hard Place Arguments 705 Environmental and animal rights plaintiffs would do well to capitalize on this tension by arguing that either the decision is arbitrary and capricious, or the decision has environmental impacts that the agency must assess. A second area of law in which RHP arguments may work especially well is the First Amendment context, particularly when it is unclear how much speech the government intends to restrict. In these cases, if plaintiffs challenge a government regulation as unconstitutional because it imposes on free speech, they may do well to couple their First Amendment claim with a claim that the statute is unconstitutionally vague because it fails to give “people ‘of common intelligence’ fair notice of what the law demands of them.”276 To illustrate the efficacy of this type of argument, consider state statutes prohibiting companies from “[m]isrepresenting . . . a product as meat that is not derived from harvested production livestock or poultry.”277 These statutes target the marketing of plant-based meat alternatives, such as Tofurky deli slices and the Impossible Whopper at Burger King, which use strictly plant-based ingredients to replicate the taste and texture of animal products.278 Companies making plant-based products fear that they will be liable for using words like “meat” or “burger” on their labels to describe their products, and some states, like Arkansas, make this prohibition explicit.279 Other states, however, like Missouri, have been less explicit and have unofficially backed off of this had referred to as a “historic expansion” in its press release); compare Press Release, U.S. Fish & Wildlife Serv., Proposed Public Use Regulations Improve Hunting, Fishing and Recreation Access (May 20, 2020), https://www.fws.gov/news/ShowNews.cfm?ref=proposed-public-use-regulations- improve-hunting-fishing-and-recreation-&_ID=36564 [https://perma.cc/3FC7-4L65] (describing the decision to allow brown-bear baiting in order to “increas[e] opportunities for consumptive use[,]” inter alia), with FISH AND WILDLIFE SERV., DRAFT ENVIRONMENTAL ASSESSMENT FOR AMENDMENT OF PUBLIC USE REGULATIONS AT KENAI NATIONAL WILDLIFE REFUGE 25 (June 11, 2020) (concluding that an EIS did not need to be prepared because “[i]t is unknown what impact, if any, the allowance of hunting of brown bear over bait would have on the population trend”). 276. United States v. Davis, 139 S. Ct. 2319, 2325 (2019) (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)). 277. MO. REV. STAT. § 265.494(7) (2018). A number of states have passed (or at least proposed) statutes with similar language. See, e.g., ARK. CODE ANN. § 2-1-305(6) (2019) (prohibiting “[r]epresenting the agricultural product as meat or a meat product when the agricultural product is not derived from harvested livestock, poultry, or cervids”); see also Lauren Handel, New State Laws Restrict “Meat” Labeling for Cell-Cultured and Plant-Based Products, HANDEL FOOD L. (June 21, 2019), https://www.handelfoodlaw.com/labeling/new-state-laws-restrict-meat-labeling-for-cell- cultured-and-plant-based-products/ [https://perma.cc/7LFB-7E9U] (listing statutes). 278. See Jareb A. Gleckel & Sherry F. Colb, The Meaning of Meat, 26 ANIMAL L. 75, 78 (2020). 279. ARK. CODE ANN. § 2-1-305(10) (2019) (prohibiting companies from “[u]tilizing a term that is the same or similar to a term that has been used or defined historically in reference to a specific agricultural product”). We note that Arkansas’s statute may be unconstitutionally vague in different respects. 706 Seattle University Law Review [Vol. 44:655 position, claiming instead that if companies make adequate disclosures that their products are vegan, they will not face liability.280 In several states, plant-based companies are challenging these statutes as violating their First Amendment rights.281 A First Amendment claim alone was enough to procure a preliminary injunction in Arkansas, where the state left the court with little doubt of how aggressively it would implement the statute.282 But in states where the nature of the prohibitions is less explicit, pairing First Amendment challenges with vagueness challenges will likely prove beneficial. Vagueness challenges not only add value on their own merit, but also help to flush out free speech restrictions, thereby teeing up plaintiffs’ First Amendment claims. More specifically, when plant-based companies challenge a statute as unconstitutionally vague, the state must respond that the statute is clear—either because it prohibits the use of words like “meat” and “burger” or because it does not. If it does not, the statute does not have teeth because almost all vegan products contain disclosures that they are vegan, and when the products include such disclosures, they do not confuse consumers.283 If the statute does prohibit the use of specific words, then the statute very likely violates the First Amendment.284 These examples are, of course, not meant to be exhaustive. Beyond providing specific litigation strategies, this Article aims to motivate mission-driven plaintiffs to seek out RHP arguments in their own cases. For centuries, RHP dilemmas have operated to the detriment of criminal defendants and mission-driven plaintiffs alike. Our goal has been to shed light on these dilemmas and then to highlight scenarios in which brilliant lawyers have turned the tables. We hope our Article encourages and facilitates the continuation of that practice. 280. See Sherry F. Colb & Jareb A. Gleckel, Dear Big Ag: We Don’t Trust Your Motives, DORF ON LAW (June 14, 2019), http://www.dorfonlaw.org/2019/06/dear-big-ag-we-dont-trust-your- motives.html [https://perma.cc/VN8N-QPXE] (discussing how the Missouri Department of Agriculture has issued statements to cabin the statutory language). 281. See, e.g., Preliminary Injunction Order, Turtle Island Foods SPC v. Soman, 424 F. Supp. 3d 552 (E.D. Ark. 2019) (No. 4:19-cv-00514-KGB) (challenging Arkansas law). 282. See Turtle Island Foods SPC v. Soman, 424 F. Supp. 3d 552 (E.D. Ark. 2019). 283. See Jareb A. Gleckel, Are Consumers Really Confused By Plant-Based Food Labels? An Empirical Study, 12 J. ANIMAL & ENV’T L. (forthcoming 2021) (manuscript at 2) (on file with authors). 284. See Turtle Island Foods, 424 F. Supp. 3d 552.