NB: Lawyers are not scientists, please stop trying to recruit us

By skepticlawyer

Elsewhere, I’ve pointed out that good lawyers are perfectly capable of ‘doing’ science, or history, or [insert non-legal academic discipline here]. That we can do it, however, doesn’t mean we ought to do it (see what I did there?). That this may be the developing common sense of the profession is evidenced in part by yesterday’s ruling in the British Chiropractic Association v Simon Singh [2010] EWCA Civ 350 (01 April 2010) libel case in the Court of Appeal, heard before Sedley and Judge LLJ and Neuberger MR. In brief, Simon Singh is able to use the defence of fair comment should the matter proceed to full trial. He does not have to prove that his assertions (originally made in the Guardian) are true. 

For those who haven’t been following the Singh case, it’s probably fair to say that it was the Gunfight at the OK Corral between science journalism and alternative medicine, dragging in prominent skeptics and scholars in support of Simon Singh and allowing Eady J to show just how much he dislikes the ladies and gentlemen of the press. It also represents the high water mark of the chilling effects English defamation law can have on freedom of speech.

The facts

On April 19, 2008, the Guardian ran a piece by science journalist Simon Singh that included the following:

You might think that modern chiropractors restrict themselves to treating back problems, but in fact they still possess some quite wacky ideas. The fundamentalists argue that they can cure anything. And even the more moderate chiropractors have ideas above their station. The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.

I can confidently label these treatments as bogus because I have co-authored a book about alternative medicine with the world’s first professor of complementary medicine, Edzard Ernst. He learned chiropractic techniques himself and used them as a doctor. This is when he began to see the need for some critical evaluation. Among other projects, he examined the evidence from 70 trials exploring the benefits of chiropractic therapy in conditions unrelated to the back. He found no evidence to suggest that chiropractors could treat any such conditions.

The piece was published in a section of the newspaper headed ‘comment and debate’ (something important to bear in mind) and was clearly designed to provoke lively discussion. Initially, the response of the British Chiropractic Association was to complain to the newspaper. A few vital facts fell out of this response. The Guardian offered the BCA an opportunity to write an article responding to the criticisms that would be published in the newspaper in a position of equal prominence. This — in Australian defamation law, which Legal Eagle and I have already outlined in detail here — is the appropriate response in these circumstances. Media organisations that make strong claims about private individuals or corporate bodies should offer them an opportunity for fair reply. This is recognised (in Australia at least) by the Media Entertainment and Arts Alliance (formerly the Australian Journalists’ Association) code of ethics, the first article of which states:

Report and interpret honestly, striving for accuracy, fairness and disclosure of all essential facts.  Do not suppress relevant available facts, or give distorting emphasis. Do your utmost to give a fair opportunity for reply. (emphasis added).

At trial in an Australian court, that the Guardian did this — quickly, cleanly and without rancour — would weigh heavily on any litigation. It also shows that strong defamation laws can be productive of a culture of civilised debate. Media organisations that traduce people are forced to allow the victims to come to their own defence. This is surely a good thing and should not simply be cast aside in analyses of defamation law that paint it always and everywhere as an enemy of free speech.

However, in the Singh case, the BCA proved unwilling to play by the rules and — eventually — this meanness proved its undoing. Relying on the fact that it is an incorporated body, not merely an association of members (who, as individuals, would lack standing), it chose not to accept the Guardian’s offer. Instead, it sued for libel using its corporate personality. And it did not sue the Guardian newspaper. It sued Simon Singh, personally. This is the legal equivalent of biting an opposition player in rugby. One doesn’t. It does not become one. And so on and so forth.

The litigation at first instance

The matter was then heard at first instance before Eady J, the judge probably best known from his ruling in the Mosley case, which introduced European jurisprudence on invasion of privacy into English law. Eady J, I think it is fair to say, does not like journalists. He thinks they are bumptious little upstarts who cause mistrials and contaminate juries. It is important, I think, to state at this point that this view is widespread in the legal profession, although not universal. I am a criminal barrister. I have occasionally felt it myself (especially during one memorable incident early in my career where irresponsible journalism meant two juries had to be discharged and a trial had to be aborted, all at taxpayers’ expense). That said, most lawyers are capable of walking and chewing gum at the same time, at seeing the difference between intelligent commentary like that of Simon Singh and pointless titillation like what was done to Max Mosley. As that linked article in The Lawyer points out, the media are on much stronger ground when they criticise defamation for its chilling effects on freedom of speech than they are when arguing for a right to invade citizens’ privacy with impunity. Eady J, however, remained unmoved by Simon Singh’s particular circumstances. He held that:

12. What the article conveys is that the BCA itself makes claims to the public as to the efficacy of chiropractic treatment for certain ailments even though there is not a jot of evidence to support those claims. That in itself would be an irresponsible way to behave and it is an allegation that is plainly defamatory of anyone identifiable as the culprit. In this case these claims are expressly attributed to the claimant. It goes further. It is said that despite its outward appearance of respectability, it is happy to promote bogus treatments. Everyone knows what bogus treatments are. They are not merely treatments which have proved less effective than they were at first thought to be, or which have been shown by the subsequent acquisition of more detailed scientific knowledge to be ineffective. Bogus treatments equate to quack remedies; that is to say they are dishonestly presented to a trusting and, in some respects perhaps, vulnerable public as having proven efficacy in the treatment of certain conditions or illnesses, when it is known that there is nothing to support such claims.

13. It is alleged that the claimant promotes the bogus treatments “happily”. What that means is not that they do it naively or innocently believing in their efficacy, but rather that they are quite content and, so to speak, with their eyes open to present what are known to be bogus treatments as useful and effective. That is in my judgment the plainest allegation of dishonesty and indeed it accuses them of thoroughly disreputable conduct.

14. I therefore would uphold the claimant’s pleaded meanings. It will have become apparent by now that I also classify the defendant’s remarks as factual assertions rather than the mere expression of opinion. Miss Rogers reminded me, by reference to Hamilton v Clifford [2004] EWHC 1542 (QB), that one is not permitted to seek shelter behind a defence of fair comment when the defamatory sting is one of verifiable fact. Here the allegations are plainly verifiable and that is the subject of the defence of justification. What matters is whether those responsible for the claims put out by the BCA were well aware at the time that there was simply no evidence to support them. That is an issue capable of resolution in the light of the evidence called. In other words, it is a matter of verifiable fact. That is despite the fact that the words complained of appear under a general heading “comment and debate”. It is a question of substance rather than labelling.

Eady J, then, held that Singh’s article — despite its location in the newspaper, and despite its combative tone — was making statements of fact, not opinion. And, under English defamation law, if one makes assertions of fact in this way, one must then prove that they are true to the civil standard (‘on the balance of probabilities’). This would have meant — should the matter proceed to full trial — turning a courtroom into a laboratory, and the marshalling of masses of complex — and very expensive — evidence. 

Now, courts have done this before. The Dover Intelligent Design case is one such instance, as is the Irving case. When called upon to rule whether something is science, or history, or whatever, good lawyers do a commendable job, something for which we deserve more credit. However, there is a serious argument to be made that this is not the job of the courts, that it is perverting of scholarship and a profligate and wasteful use of resources.

On appeal

The Court of Appeal resisted having its premises converted into a laboratory by construing Simon Singh’s words as statements of opinion, rather than assertions of fact. It outlined the usual test, which is essentially a pair of nested circles, the first drawn by the judge, the second — within it — drawn by the jury:

What the words in issue in a libel action mean is subject to two controls: a decision, reserved to the judge, as to whether the defamatory meaning alleged by the claimant falls with the range of possible meanings conveyed by the words in their context; and a decision, traditionally reserved to the jury, as to what they actually mean. The former is regarded as a question of law, the latter as one of fact, with the result that the meaning eventually decided upon by the jury is shielded from attack on appeal save where it has crossed the boundary of reasonableness.

However, the parties had agreed in this case (as they can; this also happened in the Irving trial) to have the matter proceed before a judge alone. This means Eady J’s findings (quoted above) were set aside. The upshot may well be that a judge’s findings of fact are open to challenge in a way that a jury’s are not, although that is by the by; the matter before Eady J was not a full trial on the facts, but rather a ruling on two preliminary issues, viz, what defamatory meaning the words bore and whether they constituted assertions of fact or comment.

The Court of Appeal clearly made the judgment call that construing Singh’s words as statements of opinion rather than fact was the easiest and simplest way to avoid a lengthy and messy trial. Their Lordships’ reasoning on point is worth quoting in detail:

One has only to contemplate this prospect to conclude that something is amiss. It is one thing to defame somebody in terms which can only be defended by proving their truth, even if this ineluctably casts the court in the role of historian or investigative journalist. It is another thing to evaluate published material as giving no evidential support to a claim and, on the basis of this evaluation, to denounce as irresponsible those who make the claim. Recent years have seen a small number of high-profile libel cases in which the courts, however reluctantly, have had to discharge the first of these functions. But these have been precisely cases in which the defendant has made a clear assertion of highly damaging fact, and must prove its truth or lose.

The present case is not in this class: the material words, however one represents or paraphrases their meaning, are in our judgment expressions of opinion. The opinion may be mistaken, but to allow the party which has been denounced on the basis of it to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth. Milton, recalling in the Areopagitica his visit to Italy in 1638-9, wrote:

  1. I have sat among their learned men, for that honour I had, and been counted happy to be born in such a place of philosophic freedom, as they supposed England was, while themselves did nothing but bemoan the servile condition into which learning among them was brought; …. that nothing had been there written now these many years but flattery and fustian. There it was that I found and visited the famous Galileo, grown old a prisoner of the Inquisition, for thinking in astronomy otherwise than the Franciscan and Dominican licensers thought.

That is a pass to which we ought not to come again.

Quite apart from anything else, settling scientific controversies is not what courts are there for. Courts are there to settle legal controversies. If one must use lawyers’ forensic intellectual dissection skills, then a Royal Commission is the place, not a trial.

The upshot

This is not an ideal outcome, because if nothing else it shows that at least one part of English defamation law has outlived its usefulness. Scientists (and by extension science journalists) routinely make assertions of fact in their work. I am satisfied that Eady J was correct when he held that Singh was making factual assertions. Where I part company with Eady J’s reasoning is in the effect of that ruling. In other words, the Court of Appeal has now made the right decision, but has done so on the basis of bad law. This suggests that the law of defamation in this country is in desperate need of reform.

One (tangential point): I am afraid no lawyer will be swayed by earnest philosophical arguments about ‘falsification’; courts treat established scientific findings as facts. They receive what is known in the trade as ‘judicial notice’. That is, they don’t have to be (re) proved so the course of evidence can flow smoothly. That the Court of Appeal has had to engage in some quite serious muddying of the waters on the distinction between fact and opinion is worrying, especially as it does what courts (and lawyers) routinely do and bats the difficult philosophical question away, much as a certain type of Roman intellectual would describe philosophy as ‘the second Greek vice’ (the first, of course, being homosexuality):

One error which in Ms Page’s submission affects Eady J’s decision on meaning is that in §14, quoted above, he treats “verifiable fact” as antithetical to comment, so that any assertion which ranks as the former cannot qualify as the latter. This, it is submitted, is a false dichotomy. It led the judge to postulate the resultant issue as “whether those responsible for the claims put out by the BCA were well aware at the time that there was simply no evidence to support them”. This, he held, was “a matter of verifiable fact”.
 
It seems to us that there is force in Ms Page’s critique – not necessarily because fact and comment are not readily divisible (that is a philosophical question which we do not have to decide), but because the subject-matter of Dr Singh’s article was an area of epidemiology in which the relationship of primary fact to secondary fact, and of both to permissible inference, is heavily and legitimately contested. The issue posed by the judge is in reality two distinct issues: first, was there any evidence to support the material claims? and secondly, if there was not, did the BCA’s personnel know this? If, as Dr Singh has contended throughout, the first issue is one of opinion and not of fact, the second issue ceases to matter.

These cavils aside, there are some very good things in this judgment. Their Lordships show that they understand the scientific method, for example, along with the relationship between cause and effect, discussing both with clarity and vigour:

What “evidence” signifies depends heavily on context. To a literalist, any primary fact – for example, that following chiropractic intervention a patient’s condition improved – may be evidence of a secondary fact, here that chiropractic works. To anyone (and not only a scientist) concerned with the establishment of dependable generalisations about cause and effect, such primary information is as worthless as evidence of the secondary fact as its converse would be. The same may equally well be true of data considerably more complex than in the facile example we have given: whether it is or not is what scientific opinion is there to debate. If in the course of the debate the view is expressed that there is not a jot of evidence for one deduction or another, the natural meaning is that there is no worthwhile or reliable evidence for it. That is as much a value judgment as a contrary viewpoint would be.

The judgment also demonstrates a willingness to draw upon American and Commonwealth authority, both on the general development of defamation law and on the specific question of the proper forum for the resolution of scientific controversies. It points out, for example, that Australian defamation law’s use of the phrase ‘honest opinion’ in lieu of English law’s ‘fair comment’ is a truer description of the reality of public debate. The judgment also ends with something that has become increasingly common in English law: a barely disguised appeal to parliament to reform the law and so make it more closely resemble that in various countries of the British Commonwealth.

I hope Parliament hears the appeal and does something about English defamation law. I am seldom a fan of yet more legislation, but this is a mess. When three of the country’s finest lawyers have to engage in such contorted reasoning in order to arrive at the ‘right’ outcome, we have — at least — prima facie evidence that the law is an ass.

[In preparing this analysis, I drew on two brief discussions elsewhere, one at Russell Blackford’s place, and the other at Jack of Kent’s place].

UPDATE: Another lawblogger thinks we’re dealing with the right decision, but for the wrong reasons. More here.

UPDATE II: A truly excellent summation/links round-up post on this issue is available over at Cearta.ie.

27 Comments

  1. Peter Patton
    Posted April 3, 2010 at 5:13 am | Permalink

    Thanks SL. Fascinating issue, and you sure know how to make legal judgments compelling reading! I agree totally with your theme that there are limits to not only what the courts can do, but also limits to what they should do.

    I was discussing this with some lawyer friends recently in the context of many groups increasingly frustrated at the failures of their political campaigns now turn to the courts, especially ‘international law’ to achieve their political aims. My lawyer friends argued that one reason for this is that a court, particularly an appellate court like the HCA, is extremely unlikely ever to say “no, we cannot hear this matter, as it falls outside our jurisdiction.”

    How often do courts say (effectively) “sorry guys, we can’t help you with this one, you’ll have to lobby parliament, or fight it out amongst yourselves”?

  2. Tim
    Posted April 3, 2010 at 1:28 pm | Permalink

    Thanks for treating on this issue. I will have to read the blog more closely when I have time. I think my country, the United States, could learn a lot from British jurisprudence, from whence we inherited our common-law traditions.

    In the U.S., if a person speaks about a public figure, like a politician, she cannot be punished in any way unless the public figure can show “actual malice,” which the high Court strangely defined as knowledge that the statement was false, or with reckless disregard for whether it was true or false (or something like that). It’s been a strange ride in free speech jurisprudence here.

    I am curious what your thoughts might be on journalists who publish cartoons on Mohammed. I am tempted to think that so long as journalists are murdered, or threatened, because of parodies of the prophet, there is no freedom of speech in the West.

  3. Tim
    Posted April 3, 2010 at 1:32 pm | Permalink

    Oh, I forgot to mention, if possible, consider spelling out your abbreviations (perhaps the first time). They are unknown to U.S. readers. The only abbreviations I and my parochial countrymen know are King’s Bench and Member of Parliament. Thanks.

  4. Tim
    Posted April 3, 2010 at 1:36 pm | Permalink

    Me again. I once represented a chiropractor against a malpractice charge. I found it challenging. At his deposition (sworn testimony), he described some of the theories behind chiropractic. I found them rather strange. Needless to say, we settled. It seemed unlikely that the jury pool would have bought the guy’s theories on cross examination.

  5. Posted April 3, 2010 at 2:37 pm | Permalink

    Tim: While I think US law on ‘public figures’ goes too far the other way, this is clearly a case where the UK could learn from US jurisprudence (the CoA explicitly quotes a US decision on point). People slapping writs on those they disagree with or lobbying for hate speech laws or whatever is distressingly common, and I don’t think it’s to the good.

    Personally I was appalled at the cowardly response of much of the press (and public more generally) to the Muhammad cartoons fooferaw. It was a sad indictment of our tendency to be overborne by the silliness of identity politics and multiculturalism.

    Teasing is not nice, I accept this. Most of us, however, learn to get over it in grade school. Muslims need to get over themselves, end of. Their sensitivity is particularly galling as one has a choice about one’s religion; it does not come pre-installed, unlike being black, or female, or gay. That this crucial difference is often elided by Islam’s boosters is evidence of sloppy thinking if nothing else.

    Abbreviations: MR=Master of the Rolls; LLJ=Lord Justices (a plain LJ is singular). Let me know if there are any other confusions buried within!

    Also, I’m not surprised by your dealings with a chiropractor client. In my experience they are good for dealing with sports injuries to the back (which Singh admitted in his piece), but some of their other medical claims really are completely potty.

    Peter: I wish I knew the answer to your last question, but alas I do not, and now you’ve asked it I’d like to know, as I suspect it would be revealing. Maybe as the various lawyers who read this blog come back from holidays, someone will have access to some figures, at least for a couple of jurisdictions.

  6. Posted April 3, 2010 at 3:16 pm | Permalink

    How often do courts say (effectively) “sorry guys, we can’t help you with this one, you’ll have to lobby parliament, or fight it out amongst yourselves”?

    Enter, stage right, Mabo #2.

  7. John H.
    Posted April 3, 2010 at 3:17 pm | Permalink

    One (tangential point): I am afraid no lawyer will be swayed by earnest philosophical arguments about ‘falsification’; courts treat established scientific findings as facts.

    As it should be but I have concerns about bringing the law into such matters. For example, in Australia there are endless ads about bio magnetic beds. There is no scientific consensus on magnetic and electro magnetic fields but there is undoubtedly a wide range of physiological effects that can arise from exposure to these fields. In relation to these beds just the other day I saw an abstract claiming that EM fields can reduce inflammation, albeit throughout a rather undesirable process(death of immune cells!). Most pain killers aim at reducing inflammation. Last week I read a terrifying study wherein the rats were exposed to EM fields for approx 2500 hours and massive cerebral atrophy of the Alzheimers type was observed.

    At present we have no clear understanding of the impact of EM fields. However it wasn’t that long ago that people thought all this research was nonsense. But if anyone reads the relevant literature, and it is vast and in good journals, they cannot avoid the conclusion that EM fields are potentially a serious health hazard.

    Nice post SL.

  8. Posted April 3, 2010 at 3:27 pm | Permalink

    More generally, courts do deal with matters of meta-law very carefully. If nothing else they’re in danger of coming to grief on the reefs of paradox. As soon as you have a self-referential question (“can this court rule on its own jurisdiction?”), paradox is guaranteed to be lurking nearby.

    Actually this is another point of contact between law, mathematics and computer science. The mighty upheavals of 20th century mathematics via Cantor, Russell and especially Turing and Godel, have shown us the limits of pure logic.

    In particular, Godel showed that you could have a logical system which was consistent, or a logical system that was complete, but not both at the same time. Lawyers, I suspect, prefer consistency — otherwise they’re surrendering stare decisis.

    One way around paradox is through Russell and Whitehead’s theory of ‘types’. But in a way that just pushes the problem out of sight. It creates layers of logical systems; but ultimately someone somewhere pays the piper.

    Again, this is aped by legal history and practice. Different tributaries of the law have different rules on what can affect what, and how changeable things are. Legislation is infinitely malleable, subject to the constitution; the constitution is infinitely malleable, subject to referenda or civil war. And so on. It’s a bit like a hierarchy of types.

    An interesting twist on this is a game called Nomic, in which the purpose of the game (at least initially) is to change the rules of the game. Some games of Nomic have been going on for decades.

  9. Posted April 3, 2010 at 3:31 pm | Permalink

    In particular, Godel showed that you could have a logical system which was consistent, or a logical system that was complete, but not both at the same time. Lawyers, I suspect, prefer consistency — otherwise they’re surrendering stare decisis.

    This strikes me as quite a profound insight, in that I suspect that civilian (Roman law) systems have gone for ‘complete’ over ‘consistent’, with the effect that they don’t have precedent but do elevate law codes to a rather god-like status.

  10. Posted April 3, 2010 at 3:49 pm | Permalink

    The problem with picking completeness is that you are guaranteed to wind up with paradoxes. In maths those paradoxes ripple through the whole system of proof and you wind up with something that simply can’t be relied on to prove or disprove anything.

    In legal terms this is like having legally identical cases spitting out contradictory rulings. Not cool in the common law tradition. And not OK with traditional notions of fairness, either.

    Godel’s proof really did set off a bomb underneath how people understand truth and falsehood. He kicked the edifice so hard that I suspect Socrates felt it.

  11. Posted April 4, 2010 at 10:02 pm | Permalink

    The university’s email service appears to have fallen over for the Easter weekend, so if anyone is trying to contact me via email, there may be some delay.

  12. Steve
    Posted April 5, 2010 at 6:19 pm | Permalink

    I think there is a lot of bogus stuff being posted on the internet about this case.

    Let me ask you a question, skepticlawyer. You quoted paras 12, 13 and 14 of Eady J’s judgment. I want to imagine a hypothetical Dr Singh, reading his article in the Guardian on the day of its publication. Here’s the question: based on a reading of the article, Eady J attributes a number of attitudes or opinions to the author of the piece: with which of those attitudes or opinions would our hypothetical Dr Singh have disagreed?

    In my view, Dr Singh would not have denied any of them. He was saying that an organisation knowingly promoted medical treatments that it knew were at best ineffective and – especially if adopted instead of consulting a GP – at worst, dangerous. He was not merely attacking the accuracy of the claims of chiropractic, he was attacking the character of its practitioners.

    Dr Singh is a journalist, and one presumes that if he intended otherwise, he would have been able to use the tools of his profession (and indeed, of yours and mine) to make his intention clear.

    You correctly point out that the BCA declined to take advantage of the Guardian’s offer to publish a response. Knowing the law of defamation proceedings in England – particularly the pre-action protocols – one concludes that Dr Singh similarly declined to publish a further article which would have clarified his ‘original intention’ of criticising the pseudo-science of chiropractic without defaming its practitioners.

    The CA judgment – and I yield to no-one in my admiration of Lord Neuberger – is startlingly short, and almost totally devoid of precedents ‘on point’. It almost begs to be appealed to the Supreme Court. I find the idea that ‘honest opinion’ should replace ‘fair comment’ as the proper formulation of that defence completely daft: there are people who honestly hold all sorts of opinions from the mildly insulting to the wildly lunatic – and I do not see that the global debate on any issues are improved by allowing such persons a complete defence on that basis to any defamatory comment they care to make.

  13. Posted April 5, 2010 at 9:16 pm | Permalink

    Steve, if I read you right, you’re suggesting that Eady J’s characterisation of Singh’s article as containing many assertions of fact is correct.

    I do agree that the issue in this case turned on the phrase ‘happily promotes bogus treatments’, as it implies that the corporation in question (the BCA) is fraudulent. I think this was a factual assertion, and so I agree with Eady J.

    Unfortunately, that finding has an utterly perverse consequence in this case: Singh would have to prove at trial that the treatments were, in fact, bogus. This is a scientific dispute, not a legal one. In order to get around the perversity of the consequences, the Court of Appeal construed Singh’s factual assertions as opinions, and threw in some US jurisprudence on forum non conveniens (a principle reducible to ‘you picked the wrong place to have this fight, buddy, take it elsewhere’) to back their findings.

    Is this making a decision on the basis of policy? Yes. Is policy always the last refuge of desperate counsel (or courts)? Probably. Did the court confine the decision to its facts, or to science? No, although they did gesture in that direction.

  14. Patrick
    Posted April 6, 2010 at 5:02 am | Permalink

    To follow the off-topic sub-thread:

    How often do courts say (effectively) “sorry guys, we can’t help you with this one, you’ll have to lobby parliament, or fight it out amongst yourselves”?

    Don’t Australian courts say this rather a lot, really?

    (please delete the previous version!)

  15. Posted April 6, 2010 at 9:24 am | Permalink

    With a sceptical view of the claims of alternative treatments, AND a strong view that defo needs reform, I did still find myself thinking something along the lines of what Steve has drawn out:

    “…he was attacking the character of its practitioners.”

    I can understand your reluctance to see lawyers judging science, and agree there’s a need for greater intellectual humility among the profession, in respect of other professions. Yet most areas of litigation involve sometimes considerable judgements in respect of science, or indeed various other areas.

    I would argue that a typical positivist lawyer is better placed to analyse science than, say, art- see the recent Down Under decision for a case of a judge wholly losing the aesthetic differences as they artificially distill the pure notes.

    All that as an aside, back to what Steve observed, my concern comes down to the following distinction:
    – an article claiming that chiropracters lacked scientific evidence for their claims, and should be applying more rigorous principles to both their purported abilities and to the way they advertise them…. vs
    – an article that basically says ‘they’re quacks and they know it’.

    Now, I’m not completely certain I agree with the full extent of the meaning Eady J ascribes to the article, however if you accept those findings, which self-evidently go far beyond mere opinion OR scientific debate and directly eviscerate the character of those tied to the chiropractic body, I’m not sure that such an easy out should be available.

    Speaking more as a question of law than policy, at least.

  16. Peter Patton
    Posted April 6, 2010 at 10:22 am | Permalink

    LE

    Yeah, I’m familiar with that debate, but it wasn’t really what I was getting at; I probably didn’t express myself clearly. I’m not really talking about separation of powers stuff, but the more mundane. From television, we get this idea that should anything in life not go the way we want, we can always shout “I’ll sue!”

    The example provided by SL is a classic. We all at the back of our minds this idea that if somebody/thing gets up our noses we’ll “sue” for defamation/discrimination/being offended/whatever. I suppose this says that we all have this idea that the ultimate Big Chief who has authority over everything is the judge.

    What I am wondering is is there in fact a demarcated space of civic interaction that courts will not venture into. OR is it more like my lawyer friends say that courts (especially higher courts) will go out of their way to make ANY dispute justiciable (horrible word)?

    Dang. I’ve just re-read this, and I bet it makes no sense. Oh well, I’ll give it a go, as you lawyers might see more clearly the question I am trying to ask! :)

  17. Peter Patton
    Posted April 6, 2010 at 10:24 am | Permalink

    JC

    I don’t understand the Mabo example. Wasn’t Mabo an example of courts precisely presuming that all disputes are within their jurisdiction?

  18. Posted April 6, 2010 at 10:48 am | Permalink

    I back Patrick on the Courts in Australia- despite high profile examples like Mabo II, our Courts are generally low on activism, recalcitrant towards international law, and unwilling to overturn administrative decisions. Defensive and conservative for the most part.

    The recent human rights decision of Momcilovic is a good example. It has been reported in terms that sound like they’d give Janet A a seizure (‘Courts find VIctorian law incompatible…’) but in fact the crucial part of the ratio was their rejection of more expansive interpretations of the ‘interpretation provision’, leading to a refusal to make a generous interpretation of the provision in question (reversing onus) that might make the provision operate in a compatible manner.

    Instead they chose what might be described as a ‘reading down’, pulling the charter back alongside other matters of normal statutory interpretation. Their declaration of incompatibility has a soft effect- merely drawing the finding to parliament’s attention, and does nothing to save the criminal defendant in that case.

    I think similar conservative paths have been taken in respect of other aspects of public law outside the controversial human rights arena- such as legitimate expectations or jurisdictional error.

    This isn’t always a leftie-rightie issue, and I think the assumption that parliament/ministers/the public service need to be able to lie or incorrectly apply their own laws in order for democracy to flourish is open to apolitical challenge.

  19. Posted April 6, 2010 at 10:49 am | Permalink

    To give Momcilovic a UK perspective for SL and others- basically they rejected Ghaiden/Ghaidan.

  20. John H.
    Posted April 6, 2010 at 3:01 pm | Permalink

    If making unsubstantiated claims about medical treatment is a cause for defamation then a lot of psychiatrists and psychologists are in big trouble; as are many pharmaceutical companies.

  21. Patrick
    Posted April 6, 2010 at 4:57 pm | Permalink

    You just don’t have a good enough attention span/grasp of English, John H. Very few pharmaceutical company ads promise anything explicitly!

    Also, I am not quite sure who could be defamed by a typical pharmaceutical advertisement – remember that you need a legal person to support defamation 😉

    Armagny, I agree entirely, although I think the bigger picture is statutory interpretation generally – the Australian default approach, pre- and post- the ‘Mason Court’, is to apply the words more or less as they fall and let Parliament amend them if the outcome is not what it wanted. This is most obvious in areas like victim’s compensation (Brown about NSW victims of crime compensation legislation in the late 90’s), and tax (any number of cases, especially GST).

    For this reason I would not have expected any different outcome in Momcilovic, in the current era. I still think the charter should be repealed though.

  22. Posted April 6, 2010 at 7:53 pm | Permalink

    Wasn’t Mabo an example of courts precisely presuming that all disputes are within their jurisdiction?

    No. In Mabo there were issues that the Court ruled it could not address. Basically it came down to: can the court rule on whether the court’s rulings are legitimate?

    The answer was no, insofar as Mabo overturned terra nullius. The court faced a paradox: If it ruled that it was illegitimate, then its ruling is powerless, in which case it is legitimate, in which case its ruling has power, in which case it is illegitimate …

  23. John H.
    Posted April 7, 2010 at 1:16 am | Permalink

    Very few pharmaceutical company ads promise anything explicitly!

    No, they are much more subtle than that, like creating a “scientific journal” that had a pronounced tendency to provide favourable reports about its products. Illegal? Fraud. They got nailed on that.

    Increasing use of “off label” prescribing? Unproven treatment. In the case of dementia even worse, antipsychotic drugs are administered because they basically sedate the patient but there is solid research showing it also accelerates dementia. Nancy Andreasen, former Prof of Psychiatry at Harvard, is now even arguing that antipsychotic drugs are a direct cause of cerebral atrophy seen in some schizophrenics. Not to mention that big increases in heart failure and diabetes risk. All this is documented, even in Black Box warnings, which the FDA has been vigourously updating over recent years.

    It is not so much what they promise but what they don’t tell us about their drugs. Point may be moot legally but practically has big implications.

  24. John H.
    Posted April 7, 2010 at 1:26 am | Permalink

    Oh gosh and another thing, just read it ….

    http://news.bbc.co.uk/2/hi/health/8599443.stm


    The use of anti-psychotic drugs in the elderly doubles the risk of potentially fatal pneumonia, say Dutch researchers.
    A study of almost 2,000 patients found the increased risk starts soon after treatment begins and concluded that patients should be closely monitored.

  25. Posted April 7, 2010 at 8:53 am | Permalink

    Well that blows the whole AGW/Anti-AGW farnarkling circus. Damn you! Socialism’s fucked we need something new to fight about in Politics Land. Otherwise we’ll have to get jobs.

  26. Posted April 7, 2010 at 10:59 pm | Permalink

    Can I just recommend Eoin’s post over at Cearta.ie as the best summary of all the issues (and posts) on this topic? The link is above, but here it is again in case you missed it.

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