Opinion: The law has become an ‘engine of oppression’

By now, most folks who follow politics are familiar with the concept of “lawfare,” a term with roots in outright combat that has come to mean the intentional destruction of a foe through legal — or pseudo-legal —means. A kind of lawfare is happening right before our eyes in 2025. As of this writing, liberal activists have filed some 100 lawsuits against the Trump administration, and at least 35 have at least temporarily restrained some Trump action.

This is not a good way to run a country. As Senator Mike Lee (R-UT), a noted constitutional thinker, argues, checks and balances are vital, and yet the idea that a single judge, somewhere — found as a result of opportunistic venue-shopping — can negate the outcome of a national election is abhorrent to the idea of popular sovereignty. Okay, and now here’s a bit of unpleasant reality that hasn’t received much media attention.



A kind of privatized lawfare has been going on for years. This lawfare is making a few insiders rich, but it’s costing most of us, and society as a whole, plenty. It’s hurting not only our pocketbooks, but also hurting our health.

This legal pox is Third-Party Litigation Funding (TPLF), which enables speculators to finance litigation, no matter how dubious, with an eye toward extracting or extorting a settlement from some hapless target. A new report from the Washington Health Innovation Council (WHIC) explains: “Today, mass tort litigation is driven by banks, private equity firms, and hedge funds, who are injecting a huge amount of investment capital into lawsuits. The unfortunate reality is that financiers who target life sciences (as well as other manufacturers) with public accusations against them are often successful at the expense of patients and taxpayers.

” The WHIC report adds, “These practices simultaneously drive up the cost of care while punishing innovators who are actively investing in research and development for cures.” How much does all this cost? An estimated $15.2 billion in actual outlays, plus an immeasurable future amount in the depressed trajectory of productivity.

The point here is not to stop litigation, including litigation based on the principle of contingency. But TPLF is the cynical and corrupt mutant form of contingency. It’s actually champerty, an age-old practice that turns litigation into speculative “investment.

” The ancient Romans, and English common law, forbade champerty. In the 18th century, eminent jurist William Blackstone dismissed it as “an offense against public justice, as it keeps alive strife and contention, and perverts the remedial process of the law into an engine of oppression.” In the 20th century, Judge Benjamin Cardozo ruled against champerty “for spite or envy or the promise or hope of gain” even as he allowed it for “charity or benevolence.

” Sadly, through that nice-sounding loophole, the practice has made a comeback. In this century, champerty, in the form of TPLF, has barged in. The recent case of Maslowski v.

Prospect Funding Partners LLC, is revealing, starting with the obviously money-questing name of the latter party. In response, a court in Minnesota ruled that the state’s anti-champerty law was needed to discourage “intrusion for the purpose of mere speculation in the troubles of others.” But the Minnesota Supreme Court overruled that wise finding, declaring the champerty statute “outdated.

” (Note to the Minnesota high court: a good principle is never outdated.) Alas, champerty, or TPLF, is in business, in Minnesota and many other states. So what to do? The beginning of reform is greater understanding of the problem.

WHIC calls for “Full transparency for judges, defendants and the public regarding who is funding litigation in the United States.” With that in mind, Rep. Darrell Issa (R-CA), joined by two other Republicans in the House, unveiled the Litigation Transparency Act of 2025 to target, in Issa’s words, “serious and continuing abuses in our litigation system that distort our system of justice by obscuring public detection and exploiting loopholes in the law for financial gain.

” Issa’s bill is a step in the right direction, but unfortunately, TPLF has become a partisan issue, as most Democrats appear to support it. According to the monitoring group Open Secrets, the Association of Trial Lawyers of America, a TPLF cheerleader, gave slightly more than $2 million to Democrats in 2024—and just $50,000 to Republicans. That’s a nearly 50:1 skew for blue.

So here’s a political struggle ahead. Non-expert citizens, watching from the sidelines, might do well to keep this much in mind: If you oppose lawfare and the un-democratic rule of judges and high-powered litigators, if your gut tells you that champerty, and other forms of legal trickery, are a bad idea, then you should be suspicious of Third-Party Litigation Funding. For starters, let’s shine a light on it.

James P. Pinkerton worked in the White House domestic policy offices of Presidents Ronald Reagan and George H.W.

Bush..