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Evan Whitton
23 December, 2009  
Whitton at large

Munchkin, Abbott and the sitting ducks … Cory Bernadi’s unique take on the way the ETS will fundamentally change the law … How the King of Torts scammed the tobacco boys … The galloping presumptions of libel law


Ernie and Bud

imageErnie Hemingway is said to have invented the false-hair-on-the-chest school of novel-writing.

Anthony (Bud) Abbot seems to be trying to invent the false-hair-on-the-chest school of political discourse.

Munchkin’s miracle

Members of a group are said to be victims of the Gadarene Swine Fallacy (GSF) when they are not heading in the right direction, although they all possess the same beliefs.

The GSF derives from a miracle at Gadara near the Sea of Galilee in which Jesus Christ is said to have transferred devils from a man to a group of swine, who then trundled over the edge of a cliff and into the sea, where they perished.

(The reporter of this not altogether charming fable did not disclose whether the penniless deity compensated the aghast swineherd for the loss of his porcine charges.)

imageThere is plenty of the GSF about. Thus:

War. E.g. Vietnam, Iraq, Afghanistan.

Finance. E.g. lending money to people who cannot pay it back.

The media. E.g. Farkxx News.

The law. E.g. some common lawyers actually believe that concealing evidence helps to find the truth.

Politics. Where do you start? With George W. Bush? The egregious Tony Blair? Jackie the Lackey? The whacko right rump of the “Liberal” Party?

But it would be wrong to say that Bud Abbott and his gallant crew suffer from the Gadarene Swine Fallacy, if only because Senator Nick Munchkins (LLB ANU, Cert of Law, NSW, pic above) has contrived to turn them into sitting ducks.

Cat out of bag

A liar is defined as a person who tries to persuade others to believe things he knows are false. The motive is gain.

I imagine trial lawyers get round that problem by convincing themselves they don’t know their client is guilty or in the wrong.

Malcolm Turnbull (BCL Oxon) has now disobligingly revealed his view that trial lawyers sometimes do know they are lying.

When the rumpsters wanted him to oppose the Emissions Trading Scheme (ETS), Malcolm said he is no longer a barrister, and hence could not run an argument in which he did not believe.

Thruster rumpster

imageCory Bernardi (seen here) was once a rower, a publican, and a financial adviser. Now he’s a thrusting young (40) Catholic rumpster.

Senator Bernardi knows global warming is a hoax and he knows a lot about the law.

In November, he said:

“This ETS will also fundamentally change the way our legal system operates. It reverses some important legal concepts such as presumption of innocence, the right to remain silent, the burden of proof, and protection from self-incrimination.”

I’m surprised Bud Abbott did not appoint dear old Cory shadow AG, but he will still be able to call on him for hairy-chested legal advice.

On December 8, Bud made Cory parliament secretary to his own good self and shadow secretary for infrastructure and population.

Kings of Tort

I suspect that Kings of Tort (Pediment, 2009) by Alan Lange and Tom Dawson would be a nice Chrissie pressie (hint hint) for avaricious young law students. (Or is “avaricious” a tautology?)

imageIt has the essentials: how to make a billion, and how to avoid being caught trying to bribe a judge.

The book records the rise and fall of the Mississippi shyster, Dickie Scruggs (pic), who is now doing seven years for conspiracy to bribe a beak.

In The Great Tobacco Wheeze of the 90s, Scruggs was mainly responsible for forcing tobacco companies to agree to pay US$246 billion over several decades to US states because the states had to use Medicaid funds to care for people made ill by tobacco.

Reviewing Kings of Tort for the Jackson, Mississippi Northside Sun (December 3, 2009), David Sanders suggested that the tobacco companies had a perfect defence: tobacco smoking kills people off early and hence gives Medicaid a net benefit. Sanders wrote:

“It would be easy enough to counter this claim by demonstrating that smoking actually reduced the total sum of Medicaid expenses by promoting premature deaths among smokers, who would not then hang around into senescence, consuming expensive medical goods and services. Since the case was settled without trial, Scruggs’ usual modus operandi, this evidence was never presented in court.”

Which raises some questions.

Did the tobacco companies’ lawyers so advise their clients? If not, could the companies get other lawyers to sue the first lot for negligence to the tune of US$246 billion?

Libel jinks

Libel tourism has sadly caused British law and British judges to suffer hatred, ridicule and contempt.

So much so that Brit politicians are talking about doing something about libel law.

One’s first response: Not before time.

The common law is judge-made law. By way of precedent, beaks who insist on the prefix Justice have inflicted terrible injustice on libel defendants.

Libel law has seven false presumptions, including a presumption of guilt, for defendants.

imageIt also conceals the truth about plaintiffs; a witness for a defendant can say the plaintiff has a dubious reputation, but cannot say why.

US judges realised in 1964 (New York Times v Sullivan) that the presumptions are false and that the onus of proof should be on the complainant.

One’s second response: That will be the day.

Since Defoe (seen here) invented modern journalism on February 19, 1704, the whole point of libel law has been to stop reporters exposing the corruption of politicians and judges.