Rodney Sims, chairman of the Australian Competition and Consumer Commission (ACCC), said on 25 March: “… there are civil and criminal penalties for both cartel conduct and attempts to engage in cartel conduct.” Evan Whitton suggests that the ACCC take a look at certain legal persons.
Members of a cartel collude to increase prices and profits. I take the following three opinions on cartel conduct to be generalisations; there are presumably exceptions.
Richard Posner, a US economist and appellate judge, wrote in 1995 that lawyers and judges have always been “a cartel”. He was referring to those in common law countries, England and its former colonies: the US, India, Canada, Australia, New Zealand etc.
Chief Judge Dennis Jacobs, a US federal appellate judge, said in a 2005 speech that judges have “a serious and secret bias” like a figure in an oriental carpet: “The underlying image of the dragon emerges only after you stare for a while. I discern … a bias in favor of the bar and lawyers: what they do, how they do it, and how they prosper in goods and influence. This is the figure in the carpet.”
Law professor Benjamin Barton, of the University of Tennessee, wrote in 2007: “ … many legal outcomes can be explained, and future cases predicted, by asking a very simple question: is there a plausible legal result in this case that will significantly affect the interests of the legal profession (positively or negatively)? If so, the case will be decided in the way that offers the best result for the legal profession.”
* * *
If Judge Posner is right, a cartel has run the law for 849 years. How could that happen? I blame a Frenchman who happened to be king of England, William II. He put every public office on sale; buyers in turn extorted bribes from people who dealt with the office.
William was shot dead on 2 August 1100, but his system continued for several centuries. Among the consequences:
• In 1166, the common law began as an extortion racket; lawyers were the natural bagmen for judges, as they were in Chicago quite recently: 20 judges and 50 of their bagmen went to prison for extortion.
• Judging is different from lawyering, but judges have never been trained as judges; they are lawyers trained in sophistry – lying by false arguments, trick questions, shifting the goalposts etc. – elevated to the bench.
If truth does not matter, a legal system is capable of anything. In 1219, a few judges in London (pop. c. 25,000) formally rejected truth as the basis of justice.
From about 1460, civil law was totally redesigned in a way that made more money for lawyers. Control of the process, including questioning of witnesses, was gradually transferred from judges to lawyers. Opinions of the new adversary system:
• Dickens: “The one great principle of the English law is to make business for itself.”
• Yale law professor Fred Rodell: “The legal trade is nothing but a high class racket.” A racket is a criminal enterprise.
• US Judge Harold Rothwax: “ … we have a system that is run entirely by lawyers for their own interests and for their own benefit.”
• Judge Posner: “ … a contest of liars.”
Hence Joel Siegel: “It’s only the 99% of lawyers who give the rest a bad name.” In fact, the bad name is largely down to trial lawyers, some 40% of the total; the other 60% may be really nice persons who would never tell a lie.
The first law school opened at Oxford in 1758; Judge Posner said academics are part of the cartel. Some lawyers and judges actually believe theirs is the Rolls Royce of legal systems. Possible causes: brain-wash/self-deception/legal positivism: “Laws are considered … without drawing any conclusions about their essential justness or merit.”
Following are some cases which tend to suggest there may actually be a cartel.
1. The deceased estate racket
The Chancery Court was dubious from its beginning about 1385. The head of the court, the Chancellor, was also politician and often a white collar criminal; Lord Macclesfield, Chancellor 1718-25, extorted bribes of £5000 (at least £500,000 today) from barristers who sought appointment as Masters in Chancery
About 1650, a Chancellor, possibly Bulstrode Whitelock, ruled that in will cases lawyers were to be paid from the deceased estates, not by clients. Chancellors and lawyers then engaged in a conspiracy which lasted for centuries.
The Chancellor held hearings but did not finalise will cases for decades; lawyers got money from the estates for turning up. By 1800, Chancellors held 6000 hearings a year and finalised about 60.
The model for Dickens’ Jarndyce v Jarndyce in Bleak House was Jennens v Jennens. The case began in 1798 and 32 Chancellors kept it going until 1915, when the remnants of an estate originally worth some $1.5 billion today were finally “devoured”.
My illustrious predecessor at Truth, A. B. (Banjo) Paterson (1864-1941), was also a lawyer; he knew about the deceased estate racket. This from Gilhooley’s Estate:
But his Honour the Judge said, “I think that the joint
Legatees must be called to pro-bate;
Ex parte Pokehorney is clear on the point,
The point of Gilhooley’s Estate.“I order a suit to be brought just to try
If this is correct that I state —
A nice friendly suit, and the costs, by and by,
Must be borne by Gilhooley’s Estate” …From the Barristers’ Court there’s a mighty hurrah
Arises both early and late:
It’s only the whoop of the Junior Bar
Dividing Gilhooley’s Estate.
Law Professor Prue Vines told The Law Report on 12 February 2008: “It’s been traditional for a very long time … that the estate would pay the costs of the litigation, but recently, particularly in the New South Wales court, there’s been concern among the judges that there’s … quite a lot of litigation which actually is completely wiping out the value of the estate in the legal costs.”
2. Rich criminals encouraged to pay trial lawyers
Lawyers did not defend criminals for five centuries: libel law protected white collar criminals, and petty criminals had little money. A few appeared at the Old Bailey from 1695, but conviction was fairly certain; not many criminals hired lawyers for another century.
George Orwell said: “Omission is the most powerful form of lie.” Over the past two centuries, more truth-defeating mechanisms, including rules which omit significant criminal (and civil) evidence, have encouraged rich criminals to hire lawyers.
The 24 anti-truth mechanisms are detailed at pp 156-220 of Our Corrupt Legal System. See netk.net.au/whittonhome.asp.
I mention one. Understanding facts depends heavily on context; a chronology is the first element of deduction. Farrer Herschell, one of the 32 white collar criminals who kept Jennens going for 117 years, largely eliminated context and chronology in 1894.
Herschell devised a rule which to this day omits evidence of a criminal’s pattern of behaviour. Countless victims of repeat offenders – serial rapists, sexual abusers of children, white collar and other organised criminals – have thus been deprived of justice.
3. Tax evaders encouraged to pay lawyers
The poor and humble have their tax removed at source, but Lord Atkin ruled in 1936: “ … the subject, whether poor and humble or wealthy and noble, has the legal right to so dispose of his capital and income as to attract upon himself the least amount of tax”.
Section 260 of the Australian Income Tax Assessment Act 1936 barred “absolutely” all artificial schemes designed to evade tax. In 1957, five judges on Owen Dixon’s High Court ruled that “absolutely” does not mean “absolutely”; there could be exceptions.
There is no doubt that Chief Justice Garfield Barwick was a white collar criminal on a vast scale, but he did not spend a day in prison. In 1970, his court ruled that a “wholly artificial scheme” was legitimate. In the next eight years, the Treasury was deprived of $800 million, at least $10 billion today.
In 1978, Treasurer John Howard used retrospective legislation to get some of the money back, and in 1981 he introduced Part IVA to the 1936 Act. Part IVA again sought to bar “blatant, artificial or contrived arrangements”. It didn’t work:
• A tax office survey in the early 1990s found “a significant segment of BRW’s Rich List claimed to have a taxable income below the minimum wage”.
• Tax Commissioner Michael Carmody said in 1999 that tax schemes had caused “$3.5 billion in claims and rising”.
Tax evasion is theft from the poor and humble. It may thus be necessary for Parliament to put the frighteners on judges: hint that any who uphold artificial schemes will be at risk of dismissal for incapacity or misbehaviour.
And while they’re at it, members of Parliament might encourage Mr Sims and his consumer commissioners to cast their beady eyes on the cartel.
Evan Whitton’s Our Corrupt Legal System is sourced to more than 300 lawyers and judges. China Fangzheng Press has contracted to translate and publish the book in mainland China.
