Lawfare: so many options, one has to work

Debra Saunders talks about Lawsuits as a weapon using the terrorist interrogation advice as an example. Lawfare by prisoners who have nothing to do but file lawsuits is one problem. The Padilla case against administration lawyers is another.

John C. Eastman, law school dean at Chapman University in Orange County, Calif., where Mr. Yoo has taught for the past year, is appalled. He fears that if Padilla wins, “everybody in prison can sue the lawyers who gave advice to the sheriff for making the arrest.” Most important, Mr. Eastman said, “The notion that someone is going to be held civilly liable for giving legal advice that other people didn’t like is preposterous.”

In this case, Padilla managed to find a sympathetic judge to let the lawsuit proceed. That requires the accused to spend time and money in defense. Often that is enough for the accuser. It also has implications for following lawsuits.

The rub: Lawyers always say such lawsuits are narrow, but then, over the years, others push to expand what once was a tiny tort. The law applies in unintended ways as the stakes escalate and partisans use the courts for payback. After a while, smart lawyers on both sides of the aisle will be more timid about everything. It will be change you can’t believe in. The only sure outcome? Taxpayers get stuck with the bill.

It may be the government paying the bills in this case but the ‘taxpayers’ also get hit on other fronts in this war. The issues of malpractice suits in medicine or liability suits in manufacturing that pay off for questionable – or even downright silly – claims also have their cost.

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