an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Is There Anything Wrong With (Legal) Guerrilla Wars?
Let's put together several recent developments in the law, broadly understood. (1) The campaign to abolish the death penalty. It is conducted in legislatures (see Nebraska) and the courts (see the pending case on the use of lethal drugs in executions), and in the forum of public opinion (generating government pressure in Europe on drug manufacturers to refrain from exporting lethal drugs to the United States without assurances about their use). In the oral arguments in the lethal injection case, some of the Justices referred to the case as a battle in an abolitionist guerrilla war.
(2) The campaign against Obamacare. Same venues (repeal votes in the House, several rounds of litigation, political mobilization). By my count there are two (and a half) legal challenges to Obamacare yet to be resolved. None seem to me entirely frivolous. There's a challenge based on the origination clause, where the quite thin judicial precedents that would lead to rejecting the challenge are countered by a substantially thicker body of congressional and executive "precedents" that would lead to accepting it. There's a challenge brought by the House of Representatives, nominally to the deferral of the employer mandate but actually (as I understand it, but I might be wrong) to the use of funds not specifically authorized for the purpose to manage things during the transition year. And there are a bunch of follow ups to Hobby Lobby. Should defenders of Obamacare think about these efforts as guerrilla warfare? Call them by that name?
(3) Lawfare, defined roughly as the use of legal arguments to enforce or create barriers to policies against terrorism that, absent those barriers, political actors would adopt. Again, conducted in all the venues.
Is it possible to describe all these as examples within a larger category? Seems to me that they do resemble one another. Clearly, the term "guerrilla war" has (to some) negative normative connotations. Is there a better term?