Examples of lawfare range from political operatives burying a rival candidate in subpoenas, to corporations filing defamation suits designed to bankrupt journalists, to governments dragging each other before international tribunals, to activist groups using environmental review laws to stall construction projects for years. The common thread is that the filer treats the cost, delay, and reputational damage of litigation as the real objective. Winning the case is optional. Draining the target is the point.
Political Campaigns Fought in Court
Political lawfare turns the courtroom into a substitute for the ballot box. Rival candidates, parties, and advocacy groups file criminal referrals, ethics complaints, and civil lawsuits timed to the election cycle, and the tactical effect matters more than the legal merits. High-volume subpoenas demand thousands of pages of documents. Depositions stretch across days. Discovery requests land during the final weeks of a campaign. Each of those pulls a candidate off the trail and into a conference room, and campaign money that would have paid for advertising or voter outreach gets redirected to legal defense.
Filings coordinated across multiple jurisdictions multiply the pressure. A politician defending suits in two or three courts at once faces scheduling conflicts, inconsistent legal strategies, and compounding fees. The consequences of falling behind are real. Under Federal Rule of Civil Procedure 37, courts can treat disputed facts as proven against a noncompliant party, bar them from introducing evidence, or enter a default judgment.1Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions A candidate who cannot keep up loses by default rather than on the merits.
Ballot access and eligibility challenges are a second common play. These suits deploy narrow readings of constitutional clauses or state election codes to disqualify a candidate before voters weigh in. Even when the challenge fails, it produces weeks of negative headlines and forces the candidate to litigate the right to run instead of making a political case. The strategy is perpetual litigation: keep the target in court long enough that the political message drowns in legal coverage.
Lawsuits Built to Silence Critics
Strategic Lawsuits Against Public Participation, or SLAPP suits, are the most recognizable form of lawfare. A corporation, developer, or public figure sues a journalist, activist, or small nonprofit for defamation, libel, or tortious interference. The filer does not expect to win. The filer expects the defendant to go broke defending the case.
The math makes the strategy work. Defeating a meritless defamation lawsuit can cost a defendant anywhere from $21,000 to well over $100,000 in legal fees, even when the case never reaches trial. For an independent reporter or a community activist, that is a career-ending number. Discovery is where most of the damage happens. The plaintiff’s lawyers can demand years of private emails, financial records, and communications with sources. Complying is expensive. Refusing invites sanctions.
The chilling effect spreads past the named defendant. Other reporters and activists see someone bankrupted by a SLAPP suit and conclude that silence is the safer option. The plaintiff never has to win in court. They only have to make criticism expensive enough that nobody else attempts it.
How Anti-SLAPP Statutes Fight Back
Roughly three-quarters of states have anti-SLAPP statutes that give defendants an early exit. The mechanism is a special motion to strike, filed early in the case, arguing that the lawsuit targets speech on a matter of public concern. If the court agrees, the burden shifts to the plaintiff to show the claim has genuine legal merit on a standard similar to defeating summary judgment. Allegations are not enough. The plaintiff needs real evidence.
Most state anti-SLAPP statutes require the plaintiff to pay the defendant’s attorney’s fees if the motion succeeds. That fee-shifting provision is the teeth of the law. It turns a SLAPP suit into a gamble, because losing the motion means subsidizing the very defense the filer was trying to crush. The protection is uneven, though. States without anti-SLAPP laws leave defendants to fight through the full litigation process, no federal anti-SLAPP statute exists, and cases filed in federal court may not benefit from state protections depending on the jurisdiction. A sophisticated filer can sometimes shop for a court with the weakest shield.
Billionaire-Funded Litigation: The Gawker Case
Lawfare becomes far more dangerous when someone with deep pockets funds it from behind the scenes. Third-party litigation funding lets an outside investor or benefactor bankroll a lawsuit in exchange for a share of recovery, or sometimes for purely strategic reasons with no financial return expected. The practice is legal and increasingly common.
The clearest example is Hulk Hogan’s privacy lawsuit against Gawker Media. Billionaire Peter Thiel quietly spent roughly $10 million funding Hogan’s legal team and several other lawsuits against the media company. A Florida jury awarded Hogan $140 million in damages. Gawker filed for bankruptcy, settled for over $32 million, and ceased to exist. Thiel had a personal grievance with Gawker and used litigation funding as the instrument to destroy it. He did not need a financial return. The outcome was the return.
Traditional legal doctrines like champerty and maintenance once prohibited outsiders from funding other people’s lawsuits, but most jurisdictions have loosened or abandoned those rules. Some courts and bar associations have pushed for mandatory disclosure of funding arrangements. No uniform federal requirement exists. A well-funded party can wage sustained legal warfare through proxies without ever appearing in a courtroom.
Nations Suing Nations
Countries use international courts and tribunals as strategic weapons in ways that mirror the domestic version. Filing a case at the International Criminal Court or the International Court of Justice does more than seek a ruling. It brands a rival government as a violator of international norms, generates diplomatic pressure, and can supply the political justification for sanctions. The ICC prosecutes individuals when national courts are unwilling or unable to handle war crimes, crimes against humanity, or genocide.2International Criminal Court. How the Court Works The ICJ handles disputes between states, but only when both parties consent to its jurisdiction or have previously accepted it.3International Court of Justice. Frequently Asked Questions
Arrest Warrants Against Sitting Leaders
ICC arrest warrants against heads of state show how international law can function as containment. The court has issued warrants for leaders including Sudan’s former president Omar al-Bashir and, more recently, Taliban Supreme Leader Haibatullah Akhundzada.4International Criminal Court. Defendants These warrants stay outstanding for years because the ICC has no police force and relies on member states to execute arrests. The practical effect is geographic restriction. A leader with an outstanding warrant risks detention if they travel to any of the ICC’s 120-plus member states, which weakens diplomatic influence and signals international isolation even if the warrant is never enforced.
The South China Sea Arbitration
International arbitration under the United Nations Convention on the Law of the Sea gives nations a tool to challenge a rival’s territorial and economic claims. UNCLOS Part XV establishes compulsory dispute settlement: when two nations disagree about maritime boundaries and cannot negotiate, either party can force the dispute into arbitration, and the resulting decision binds both sides.5United Nations. UNCLOS Part XV – Settlement of Disputes
In 2016, an arbitral tribunal unanimously ruled that China’s expansive maritime claims in the South China Sea had no basis in international law.6U.S. Department of State. On the 9th Anniversary of the Philippines-China South China Sea Arbitral Tribunal Ruling China refused to participate and has ignored the ruling ever since, continuing to assert the very claims the tribunal rejected. The case shows both the power and the limits of international lawfare. The Philippines won a sweeping legal victory that reshaped international opinion and gave diplomatic ammunition to other claimant states, but enforcement remains impossible without China’s cooperation. The litigation succeeded as strategy even though it failed as remedy.
Regulatory Review as a Delay Weapon
Regulatory systems offer their own toolkit. Opponents of infrastructure projects, energy development, or commercial construction can use environmental review requirements and zoning rules to generate years of delay without ever needing to win on the merits. The National Environmental Policy Act requires federal agencies to prepare detailed environmental impact statements for major projects. Completing one of those statements takes an average of 4.5 years, and highway projects average seven years. Litigation challenging the adequacy of those reviews adds further delay, with roughly 100 NEPA-related lawsuits filed per year. Every year of delay increases project costs by an estimated five percent, which for large infrastructure projects translates to millions of dollars.
The strategy works because delay is the goal. An administrative appeal over whether a public notice was properly posted, whether a review addressed a particular species, or whether a zoning variance followed the right procedure can stall physical construction for months while the appeal grinds through the system. For a developer carrying construction loans, those delays can make a project financially unviable long before any court rules on the underlying question.
Sue-and-Settle Agreements With Agencies
A particularly controversial version involves advocacy groups suing a federal agency and then settling the case through a consent decree that effectively creates new policy. Congressional investigators have described this sue-and-settle practice as allowing special interest groups to “dictate federal policy through lawsuits without adherence to normal regulatory processes.”7House Committee on Oversight and Accountability. Comer, Fallon Probe Secretive Sue and Settle Practices Between Special Interests and EPA The pattern is familiar: a group sues the EPA or another agency for missing a statutory deadline, the agency settles by agreeing to issue a new rule on a timeline the consent decree sets, and the resulting regulation takes effect without going through the full public comment process that ordinary rulemaking requires.
The EPA does make proposed consent decrees available for public review and comment for at least thirty days.8US EPA. Proposed Consent Decrees and Draft Settlement Agreements Critics argue that window is no substitute for the broader participation built into standard rulemaking. The result can be requirements that impose significant compliance costs on entire industries, giving a small advocacy group policy influence far beyond what it could achieve through Congress or ordinary agency action.
Tools Targets Can Use to Push Back
The legal system has built-in tools to punish lawfare, though they require the target to survive long enough financially to invoke them. The most broadly available is Federal Rule of Civil Procedure 11, which requires every attorney who signs a court filing to certify that it is not being presented to harass, cause unnecessary delay, or needlessly increase litigation costs, and that the legal claims are warranted by existing law or a nonfrivolous argument for changing it. When a court finds a violation, it can sanction the attorney, the law firm, or the party responsible. The rule includes a 21-day safe harbor: the opposing side must serve the sanctions motion and give the filer three weeks to withdraw the offending paper before presenting the motion to the court.9Legal Information Institute. Federal Rules of Civil Procedure Rule 11 – Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions
Rule 11 is useful but limited. Courts are reluctant to sanction aggressively because access to the courts is a fundamental right, and the line between hard litigation and bad-faith lawfare is rarely obvious from a single filing. For repeat offenders, federal courts can declare a person a vexatious litigant and impose pre-filing injunctions that require court permission before any new case can be filed, a power courts draw from Rule 11 and the All Writs Act but use sparingly.
When the government itself is the aggressor, the Equal Access to Justice Act provides a path to recovering legal fees. Individuals with a net worth under $2 million and businesses with a net worth under $7 million and fewer than 500 employees can recover attorney’s fees if they prevail and the government’s position was not “substantially justified.” The statute caps attorney’s fees at $125 per hour unless a court finds that cost of living or the scarcity of qualified attorneys justifies a higher rate.10Office of the Law Revision Counsel. 28 USC 2412 – Costs and Fees Tax-exempt organizations qualify regardless of net worth as long as they have fewer than 500 employees. The application must be filed within 30 days of final judgment.