Spokespersons for Donald Trump and Peter Thiel are denying a report that the Republican presidential candidate has told the billionaire venture capitalist he plans to nominate him to the Supreme Court if he succeeds in winning the White House in November.
That's good, because Thiel, a co-founder of PayPal and member of Facebook's board of directors, has given the world a taste of his legal philosophy and it's not one any of us should want guiding the decisions of our highest court. With his successful years-long secret war against Gawker Media, Thiel showed he understands the law well enough to abuse it and respects it about as much.
Hulk Hogan's invasion-of-privacy suit against Gawker, which resulted in a back-breaking $140 million judgment, handed down by a judge who clearly meant it as a death sentence, was only the best-known of a slew of lawsuits brought by unhappy Gawker subjects with Thiel's funding. Most of the others, like one by a man who feels wronged by a story debunking his claim to have invented email, appear liable to founder on First Amendment grounds if not on their own merits. Backing so many suits regardless of their strength was part of a campaign to weaken Gawker by pushing it above the cap on its legal insurance so that any sizable damages awarded, even one far smaller than Hogan's award, would register as a death blow.
That may be a novel legal strategy. But it's a familiar one to anyone who understands email marketing. What Thiel did--issuing complaint after complaint, knowing one of them would eventually find its way before a gullible jury--is no different from what phishing scammers do every day.
He spammed the courts.
The courts have remedies for plaintiffs who use lawsuits as tools of harassment, a practice known as vexatious litigation or barratry. A plaintiff who brings an egregiously frivolous or false lawsuit can be ordered to pay legal costs; a lawyer who commits abuse can be sanctioned or disbarred.
But those remedies are there to address patterns of abuse, not individual instances. The laws around vexatious litigation and barratry hinge on details like the number of frivolous lawsuits brought within a time period and determinations of "bad faith." By concealing his involvement until after the Hogan trial concluded, Thiel made it impossible for any judge to connect the dots between the lawsuits he funded, or to assess his motives and determine if he was acting in bad faith. The Hogan jury, meanwhile, would have benefited from knowing who was ultimately behind the suit just as a phishing scam target might act differently if told that email wasn't really from an exiled African prince.
That Thiel was able to pursue this course of action at all results from two particular features of American jurisprudence. First, unlike most other parts of the world, American courts typically don't require plaintiffs to pay defendants' legal fees when they lose. America also lacks laws against "champerty," or the third-party funding of lawsuits. Both of these features exist to ensure the rich aren't the only people who can afford justice or take a risk on an uncertain outcome.
Without a doubt, Thiel, a Stanford Law graduate, knows this. He also know if his strategy were to be copied, it would quickly result in new laws requiring the third-party funding of lawsuits to be disclosed, if not outlawing it altogether. (Indeed, there's already a movement afoot among judges to compel more disclosure of litigation financing.) Exploiting loopholes meant to protect the weak and vulnerable, Thiel, a billionaire, gamed the legal system to achieve an outcome he likely couldn't have gotten operating in the open.
A contrarian, Thiel likes to ask prospective hires to say one thing they believe that everyone else disagrees with. He's made a career of betting against the crowd, believing that unexamined groupthink represents an opportunity for those who don't buy in.
But shared assumptions are one thing. Shared values are another. Laws represent our society's best attempt at shared values, and exploiting their flaws isn't contrarianism. It's cynicism.