Legal & DebateMANIPULATIVE

Lawfare

What it is

The use of legal process as a weapon rather than as a means of resolving a dispute: suits, complaints, subpoenas, and prosecutions filed or threatened for the burden they impose on the target (cost, delay, disclosure, fear) rather than for the remedy they seek.

How it works

The term was popularized by Dunlap in 2001 to describe the use of law as a substitute for military means; it has since spread to domestic litigation and politics. The mechanism is asymmetry of cost: a filer who can afford the process uses it against a target who cannot, and the process itself, discovery, depositions, legal fees, reputational harm, becomes the punishment regardless of the merits. Strategic lawsuits against public participation (SLAPPs), a term coined by Pring and Canan, are the classic form: a developer or corporation sues critics for defamation not to win but to silence. Serial filings, vexatious litigation, weaponized subpoenas, and "libel tourism" in claimant-friendly jurisdictions follow the same logic. The label is itself a persuasion move: calling a legitimate prosecution or lawsuit "lawfare" delegitimizes it without engaging the evidence, and in current politics every side applies the word to proceedings against its own. The test is whether the filer would still proceed if the process were costless to the target. Courts counter with anti-SLAPP statutes, Rule 11 sanctions, fee-shifting, and vexatious-litigant orders.

Real-world examples

  • •Pring and Canan's 1996 study SLAPPs: Getting Sued for Speaking Out documented suits filed against citizens for petitioning, testifying, or protesting, most of them eventually dismissed but only after years and large costs; more than thirty US states now have anti-SLAPP statutes.
  • •Peter Thiel secretly funded Hulk Hogan's privacy suit against Gawker Media, which produced a 140 million dollar verdict in 2016 and the company's bankruptcy; supporters called it accountability for a publisher that had outed Thiel, critics called it a billionaire using litigation to destroy a news outlet, and both descriptions are accurate as far as they go.
  • •In 2005 a Saudi businessman obtained a London default judgment against the American author Rachel Ehrenfeld over a book never published in Britain; the "libel tourism" case led New York to pass a shield law in 2008 and Congress to pass the SPEECH Act in 2010, which bars enforcement of foreign libel judgments inconsistent with the First Amendment.
  • •Russia repeatedly sought Interpol red notices against the financier Bill Browder after he campaigned for the Magnitsky sanctions; Interpol rejected the requests as politically motivated, and the episode became the standard example of transnational lawfare against dissidents.
  • •The word is applied across the spectrum: supporters of Donald Trump called the prosecutions brought against him in 2023 lawfare, and critics of his second administration applied the same word to its 2025 executive orders targeting law firms; whether any given proceeding deserves the label is exactly what the parties dispute, and the label does not settle it.

Ethical guidelines

  • ●Filing a claim with a good-faith basis in law and fact is the right the courts exist to serve; the abuse is filing, or threatening to file, for the burden the process imposes rather than the remedy it could yield.
  • ●Federal Rule of Civil Procedure 11 and Model Rule 3.1 require a non-frivolous basis for every filing and forbid claims brought to harass or to cause needless expense; Model Rule 4.4(a) forbids means that have no substantial purpose other than to embarrass, delay, or burden a third person.
  • ●Applying the word "lawfare" to a proceeding is an argument, not a finding; the honest version says what is wrong with the case on its merits or its process, and the dishonest version uses the label to avoid doing so.
  • ●Educational; rules vary by jurisdiction; not legal advice.

How to defend against it

  • ►Targets: consult counsel early about anti-SLAPP motions, which in many states stay discovery, shift fees, and allow early dismissal; the statute converts the filer's cost asymmetry into a liability.
  • ►Targets: document the process burden (hours, costs, demands) from the first letter, because Rule 11, fee-shifting statutes, and vexatious-litigant orders turn on a record of what the filer did and why.
  • ►Targets: do not settle a meritless claim for silence without advice; the confidentiality and non-disparagement terms are often the real objective of the suit.
  • ►Readers and citizens: when a proceeding is called lawfare, apply the cost-free test (would the filer proceed if the target bore no cost?) and then read the filings and rulings laterally rather than trusting the label; every side uses the word about proceedings against its own.
  • ►Journalists and advocacy organizations: carry media-liability insurance, keep the records that support published claims, and know which jurisdictions offer anti-SLAPP protection before publishing.

References

  1. Dunlap, C. J., Jr. (2001). Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts. Carr Center for Human Rights Policy, Harvard Kennedy School (conference paper)
    The paper that popularized "lawfare" as the use of law as a substitute for traditional military means.
  2. Pring, G. W., & Canan, P. (1996). SLAPPs: Getting Sued for Speaking Out. Temple University Press
    The study that named and documented strategic lawsuits against public participation.
  3. Federal Rules of Civil Procedure (2015). Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions. Federal Rules of Civil Procedure, Legal Information Institute · link
    The certification that a filing is not presented to harass, delay, or increase cost, and the sanctions for violation.
  4. United States Congress (2010). Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act, Public Law 111-223. United States Statutes at Large
    Federal bar on enforcing foreign defamation judgments that would not survive First Amendment scrutiny, the legislative response to libel tourism.
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