They don't have to be more clever. They just have to be faster to adapt, which is trivial given the glacial pace at which legislation is passed in the US.
They also have to make an example out of cases which they know they can win dead-to-rights. The chilling effect can be a societal good if used correctly.
Which also means that the regulatory agency most be structured to remain un-captured by the corporate interests it regulates, and empowered to react and adapt rapidly to the 'clever' legal hacks.
