11 November 2008

Earth Destroyed — Film at 11

I must vehemently disagree with the attitudes underlying this post at PrawfsBlawg, a forum for law professors. Professor Johnson asserts that the Large Hadron Collider ("LHC") simply cannot be allowed to operate until judges approve of it.1 It is founded on the worst kind of argument from invalid analogy, perhaps most openly expressed in the middle of the essay as

The argument that no one but scientists can understand science, so no one but scientists should exercise control over experimentation, is not only an easy argument to make, it is too easy. Acceptance of such a view effectively vitiates the rule of law for a category of human activity which is potentially of ultimate importance. Thus, this ground should not be conceded. While the knowledge gap provides a tremendous challenge to providing meaningful and fair judicial review of leading-edge scientific research, it should not be permitted to bar the involvement of the courts.

This reflects a severe misunderstanding of both the scientific method and process of experimental design and validation; it is nonetheless at the core of the entire argument expressed in the four-part essay.

It is simply untrue either that "no one but scientists can understand science" or that the LHC proponents are even making such an argument. The real problem is that no one but scientists can accurately communicate with others about details at the frontiers of science... and that job has been poorly done. The notorious meme that only a few people in the world could understand Einstein's theory of relativity rested as much on poor writing and poor translation as it did on anything else; advances in the ability to communicate about it mean that four decades after that meme became common, relativity was covered in greater depth and detail (and with greater rigor) than did Einstein in advanced undergraduate physics classes at most American universities, and at about an equal level at the sophomore level. Lawyers don't evade this problem, either: Consider the difficulty that lawyers have with explaining the hearsay rule even to themselves. What we have here is failure to communicate.

That failure to communicate also extends to the potential consequences of the LHC. From the scientists' perspective, the arguments being raised resemble an argument that Columbus should not be allowed to travel west seeking Indian spices because he would unbalance the planet when he sails off the edge in the middle of the Atlantic. Even in the fifteenth century, it took only concerted effort to understand reproducible observations to realize that the "flat earth" model was incorrect; the difficulty is that so few people were willing to make that concerted effort. Similarly, the law has a parallel difficulty; it's not that hard to reject the thesis that "all judging is partisan and ideological" by observation with concerted effort. Understanding the hard questions in any field of knowledge takes substantial effort and assimilation of the basics in that field of knowledge, which is one reason that lawyers get so irritated when clients suggest particular wording and structure of letters to opposing counsel.

The real problem that I see with Professor Johnson's position is its somewhat subtle, but nevertheless not clearly stated, assumption that the "rule of law" is always superior to "scientific experimental design." And, implicitly, it rests on the derivative assumption that the scientists who advocate using the LHC did not, themselves, consider the potential consequences of the experiment. Rhetorically, this gets transmogrified in the last paragraph to characterizing this as a "faith in scientists" problem... which it might be if, and only if, the scientists were operating in secret as a star chamber.2 Unlike a star chamber — or, for that matter, a multijudge panel in US practice — the LHC advocates' evidence and deliberation are fully open to the public and have been debated rather extensively in the open. There are no smoke-filled back rooms, cloaking rooms, or conferences in the Chief Justice's chambers here. There certainly are/have been with some scientific endeavours (e.g., medical "experiments" in Nazi concentration camps), but I see no sign of such with the LHC.

The process for evaluating the LHC's own process simply does not lend itself to judicial intervention. Consider this gedankenexperiment: Would American lawyers be happy with the converse, such as arguing a complex matter at the intersection of First Amendment and defamation law, on the law only, before a panel consisting of a mechanical engineer, a particle physicist, and a clinical psychologist, none of whom had taken even a single law-school course? No; instead, both "sides" of the matter, and probably more than a few amici, would inundate the panel with "evidence" from respected "authorities" that agree with them, and it would all come down to which of those "authorities" proved more persuasive while arguing before people who did not have the background and experience — however intelligent they are — to understand nuances in legal theory, such as what kind of evidence lawyers would/would not accept in determining whether a particular individual is a "limited purpose public figure" (and that the "purpose" applies), or whether a given speaker performed a reasonable inquiry into the facts so as to deny "actual malice."

None of this is to say that the LHC process has been perfect. Of course, almost no legal process is perfect, either... but lawyers are even more loath to admit that than are scientists. There is always an unforeseeability problem in any human endeavour, and claiming the priority of a single reference frame in all reference frames is so ironically recursive that I don't know what more to say.

  1. I was a biochemist long before attending law school, and I have kept up with many aspects of the natural sciences since. In particular, I believe that I can still explain a Hermetian and its relevance to a bright, scientifically literate person... perhaps including Professor Johnson, whose resume does not disclose any real background in science, engineering, or technology (or at least not one with any rigor outside the needs of advocacy for particular cases).
  2. Pun intended. <SARCASM> Besides, if the LHC does destroy the planet, it's obviously part of some deity's plan. Or due to legal malpractice when that deity's lawyer wrote up the Restatement (2d) of Rules for Operating the Universe. </SARCASM>