The Threat of Partisan Lawfare Jonathan H. Wright Edited by Whitney Gassmann Menes
As the gulf between America’s opposing political camps continues to widen, legal conflict between and within the states, the federal government, and corporations becomes increasingly common, threatening the basic functionality of the American legal system as the law itself is distorted for political ends. It is necessary to determine the nature and severity of the danger posed by this trend. The rise of this partisan belligerence is undeniable: it can be seen in recent actions such as governmental litigation against companies that officials perceive as political enemies, lawsuits between federal, state and local authorities over policy disagreements, and an aggressive legal campaign surrounding the 2020 election. There is a worrying likelihood that as the political climate continues to worsen, more serious forms of lawfare will become common, placing further strain on the country’s legal system. In this paper, I will examine several types of lawfare which appear likely to become more common in the United States, using prominent recent examples of legislation and litigation as case studies. Taking into account historical precedent, recent cases, and the people who make up the political and legal systems, I will examine the threat posed to the continued functionality of the U.S. legal system by each form of partisan legal warfare. In so doing, I will provide useful insights to those hoping to mitigate the damage caused by these trends.
89
