Lawfare and Judiciary Abuse

Using Courts for Special Interests

Time was that people elected governments who created regulations or laws that the courts then interpreted and upheld. Today it seems that courts have taken on new roles: protecting populations from climate change; protecting institutions from elected officials; being used for PR campaigns; and as tools for governments to combat their opposition.

In the last week, a series of cases emerged from all corners of the globe that showed how courts are no longer being used to protect individuals and ensure the proper interpretation or implementation of laws. The courts have become weaponized into a form of lawfare – a tool for interest groups and political actors to use and abuse for their ends.

The term “lawfare” was used in a Firebreak article on how a group of foundations funded a newly formed tort law firm, Sher Edling, for the sole purpose of suing fossil fuel companies for causing climate change. They have no chance of winning or even having their claims heard in most courts, but these public nuisance lawsuits served the purpose of reputational harm and shareholder harassment. The Firebreak showed how Sher Edling has received tens of millions from foundations (funds that used to do important charity work with their funds), to turn the courts, quite simply, into a PR flank in the larger climate conflict.

This a good example of how courts are being used to go around laws and regulations (also called “legislation by litigation” or “adversarial regulation”). Hundreds of thousands of lawsuits on glyphosate or talc, based on spurious correlations to cancers, are using the courts to change corporate and public behavior because the lack of scientific evidence meant no regulatory changes deemed necessary.

But courts themselves are also crossing the line. The recent Firebreak guest article by Dan Fisher showed how Hawaiian justices have ignored rulings by federal courts, with judges using their powers to promote climate change campaigns and handcuff industry, going beyond any realistic remit or reasonable interpretation of the law.

Is this judiciary abuse only going on in America?

Kangaroo Courts around the World

In Thailand, last Wednesday, the constitutional court dismissed the prime minister, after less than a year, because he had appointed a minister who had previously been charged with contempt of court. Nobody was taken aback by this intervention (it was the fourth such time Thai judges had dismissed prime ministers in the last 16 years). It is widely understood that the judges act on behalf of the Thai military and royalists so the ruling government coalition just got on with the task of naming a new prime minister (for a while). Thailand, meanwhile, is becoming the new sick man of Asia.

The new Labour government in the UK was facing an anti-immigrant backlash that was fast getting out of control. First they labelled anyone who was protesting the government’s accommodation of migrants as extreme right agitators. Then they warned that any people who were disrespectful to foreigners on social media would get the force of the law coming down on them. And the courts complied, sending citizens to jail for just sharing Facebook posts. The case reported last Monday showed a British man sentenced to prison for eight weeks for amplifying three social media posts that, while disrespectful, did not threaten violence against any group of people (the loose interpretation of the law the courts were told to enforce).  Should the UK government be pushing the courts beyond the letter of the law in their battle against political opponents they have branded as extreme right?

Of course courts continue to be used in frivolous cases where people who had their reputation or feelings hurt can make a dash for cash. Take the lawsuit in France reported five days ago by Algerian Olympic boxer, Imane Khelif (who was disqualified from the International Boxing Association for not meeting their standards to compete as a woman). The charges are against J K Rowling and Elon Musk for not saying nice things online about the boxer’s chosen gender. The curious point here is that Musk simply reposted a remark made by US swimmer Riley Gaines. Why not sue Riley for this “cyberbullying”? OK, being a billionaire matters (even if their remarks don’t fall under French jurisdiction) and this is just a nonsense lawsuit.

Raygun, are you watching this space?

Declining Trust?

The judicial system is so regularly being used to interfere with political processes, silence free speech, go around regulations and amplify political interests that such transgressions rarely get noticed in the media. It is rare today for a judge to stand up and defend the traditional roles of the courts. It is even more unlikely that this abuse of the judiciary becomes the news.

If courts go beyond their remits, no longer interpret and uphold the laws, don’t consider the best evidence or get involved in divisive political issues without reason, then trust and respect in the authority of the courts will decline.

Some would want to argue that the American judiciary, as the third branch of power, is highly respected due to its independence. Now, after the Chevron Deference was struck down by the Supreme Court, justices are free to determine for themselves what they believe constitutes valid evidence. What could possibly go wrong?