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Monday, November 10, 2008

Scientocracy and the Need for Judicial Process

John Ellis, physicist Audience at CERN colloquium Top: John Ellis writes equations you can’t understand on the blackboard. Bottom: CERN scientists are warned about Richard Posner.
There is a controversy among scientists as to whether a colossal new particle accelerator outside of Geneva could produce a black hole that might grow to annihilate the Earth. Slated to begin operations in Spring 2009, the Large Hadron Collider is a project of the multinational CERN consortium and is the result of billions of dollars in spending and decades of planning and construction.

Despite the obvious ramifications for everybody on the planet should a black hole be produced, many scientists seem to have the attitude that any controversy about safety should be settled among scientists – engaging one another in argument – and not in the court of public opinion or among lawyers and judges in a court of law.

Part 4 of
Black Holes
& the Law
The desire among scientists to keep the controversy from being vetted by laity is an intriguing aspect of the story of the LHC and the controversy about its safety. There is an inclination – both inside and outside of CERN – toward what might be called a limited-form scientocracy, a regime in which the community of scientists alone has the authority to determine what experiments will be run, regardless of alleged public hazards.

Such an attitude is in evidence in a colloquium talk given by decorated physicist John Ellis. The purpose of the August 2008 presentation was, in part, to give fellow scientists “the tools to convince other people that the LHC is safe.”1

In his talk, Ellis expressed in various ways a concern about the potential of the law and judicial process to interfere with particle-physics experimentation. Particularly interesting was hearing him talk about Richard Posner, whose 2004 book, Catastrophe, discussed the possibility of Earth being destroyed by a “stranglet” disaster – a scenario some feared from the now-active Relativistic Heavy Ion Collider on Long Island, New York.

“This guy, I find really worrying,” Ellis said about Posner.2 Using a slide show, Ellis flagged for his audience Posner’s suggestion that high-energy physics experimentation should perhaps be subject to a federal catastrophic-risk-assessment board and Posner’s view that a “scientifically literate legal profession” should be involved in adjudicating science-intensive controversies.

“This, I think, is not a particularly encouraging trend,” Ellis said.3

It is unfortunate that anyone would find the prospect of judicial review discouraging.

Overall, the Ellis colloquium would seem to indicate a pervasive belief among high-energy physicists that lawyers and judges have no proper place in investigating and reviewing their experimental undertakings. If that is true, such a standpoint constitutes a substantial and direct threat to a cherished bedrock concept of modern society, the rule of law.

Throughout history, various groups have tried to exploit imbalances in political or economic power to undermine the rule of law. But the modern experimental-science juggernaut wields a very different sort of power, one that arises from a knowledge gap.

When it comes to a question such as whether the LHC might plausibly create a black hole, particle physicists can easily claim that no one, other than one of their own, has the depth of understanding required to weigh in. Ellis, for his part, does not make this claim explicitly, but he hardly needs to. Indeed, at Ellis’s talk, the phrase “scientifically literate legal profession” was met with a hearty chortle from the crowd.4

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.

But apart from the knowledge gap, John Ellis and his colleagues at CERN have another, blunter instrument for preventing the public and the courts from making up their own minds about the LHC program: They plan to render the debate moot by turning the machine on.

“The way to stop all this argument about whether the LHC is going to destroy the planet is to get the LHC working,” Ellis said.5

The_best_answer_get_the_lhc_workingA slide from John Ellis's August 2008 talk, "The LHC is Safe."
Perhaps the LHC really is quite harmless. But planning to win a debate about its safety with a fait accompli is bereft of propriety.

It is apropos to mention here a comment I received to my first post in this series. A self-identified scientist wrote to me, “I think you're putting shocking little faith in scientists.”

The word “faith” is ironic in this context. To profess faith in science is to pay it a dubious compliment. Yet, the use of the word is not, I think, misplaced. The commenter, perhaps unintentionally, ends up raising a very good question. Is that what CERN is asking all non-scientists to do? To put faith in them?

There’s a close connection between the biblical definition of faith and the implicit claim being made by CERN. “Now faith is the substance of things hoped for,” Hebrews 11:1 says, “the evidence of things not seen.”

Indeed, the meaning of the arguments and equations of particle physicists are, for nearly all of us, well hidden from sight. They lie behind a veil that would take years of training in mathematics and science to penetrate, at which point, of course, the debate will be moot. So, for all of us standing outside the community of particle physicists, what should be our basis of belief in their claims?

I would submit that if we are to believe the conclusions of the particle-physics community about safety, our belief must be rooted in a favorable appraisal of the soundness of their decision-making, the demonstrated trustworthiness of their dealing with those outside the community, and the impartiality and rigor of their risk-assessment methods. Judicial process can investigate whether these hallmarks of veracity exist in this case. And that is why scientific endeavor, like all other human activity, must be subordinate to the rule of law.

I believe in science. I believe in the scientific method. I even believe in the good intentions of the scientific community. But “faith in scientists” is another matter.

1 John Ellis, colloquium talk, August 14, 2008, at elapsed time 1:57.
2 Id. at 54:35.
3 Id. at 56:16.
4 Id. at 56:00.
5 Id. at 62:31.

Posted by Eric E. Johnson on November 10, 2008 at 12:12 PM in Judicial Process, Law and Politics | Permalink


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I'm curious about your definition of "rule of law." From this post it seems more expansive than any widely shared "bedrock concept of modern society." I'm reasonably certain that "the law" is inextricably involved in a project like the LHC in a multitude of ways: funding, permitting, credentialing, etc.... Your remarks seem to conflate "rule of law" with judicial review.

Everyone finds the prospect of judicial review discouraging. It's expensive. It's prone to error. It's time-consuming. These problems are magnified on issues like this where, as you note, there is a large and challenging knowledge gap. I share your skepticism of self-interested scientists, but I question your faith in judges and the judicial process.

As far as I can tell, your proposal is essentially for a common-law of scientific decision-making processes. There are multiple democratically-accountable political government entities that could regulate projects like the LHC. Why would judge-made law be better?

Posted by: JP | Nov 10, 2008 6:04:32 PM

Dear JP

You are wrong in your expectation that "There are multiple democratically-accountable political government entities that could regulate projects like the LHC". There are none. The U.S. even does not send members to the commission of the LHC, the board of the LHC (see wiki on cern). But you are also wrong on the expectation that government (executive administration) could do the same job as the jurisdiction. Judges, lawyers are literally creating new standards on the actual case, legislation is always years behind, and has to.

Anyway, I read the analysis of Dr.Johnson with great pleasure. what you are claiming may be called sort of "scientific governance". Some kind of responsibility label. Any of the researchers, especially those doing experiments with other people (physicists, sociologists, medical doctors, etc) should be rewarded for considering "environmental risks" in a bonus-malus-score system, on which everybody has agreed upon. Sth like self-regulation as it exists for banks with Basel II (remember: the Bush administration refuted to ratify the international contract... do you see now the true structural cause of the financial disaster??)
Self-regulation, comprising rules, ratification by legislation.
Interesting here is the statement of Jürgen Mittelstrass, a german philosopher of science: "Science, conceived as an ambitious science, i.e. intending a rational practice, includes always the demand for a clearing (enlightenment, Aufklärung) about itself, also and just in view of the concepts of truth and the pure cognition, which always serve legitimating purposes." [„Wissenschaft in einem anspruchsvollen, d.h. eine vernünftige Praxis intendierenden Sinne schliesst stets das Erfordernis einer Aufklärung über sich selbst ein, auch und gerade im Hinblick auf die stets legitimierenden Zwecken dienenden Begriffe der Wahrheit und der reinen Erkenntnis.“]

Such, self-regulation should be installed, i.e. enforced by appropriate actions: (1) a judgment (very soon), and (2) the following law (later).

The "only" but very serious problem is that there seems to be no court having jurisdiction, due to the status of CERN. It seems that only politics can correct its own mistakes from the 1950ies. Thus, probably there is the chance to put a claim at an administration court.

Another problem are professors like Ellis, showing a considerable amount of criminal energy, when he calls for doing the experiment DESPITE not knowing anything, taking hostage of all non-physicists. I think, such guys should be removed immediately from academy.

Nico Martirelli

Posted by: nico martirelli | Nov 10, 2008 6:41:06 PM


Thanks for your comment, which prompted me to learn a little about CERN. The US isn't involved in governing CERN because it's a European organization (we have our own research agencies, and participate in CERN as an observer). The member nations are democracies. If the political will existed, any of them could withdraw funding, personnel, etc.... As a practical matter, the French or Swiss could shut down the LHC militarily. [Of course, there's a danger that France would end up surrendering to CERN, but lets ignore that.]

These actions would all be consistent with "rule of law." Of course, any of those actions would be denounced as capitulation to fear-mongering Luddites (regardless of whether or not they saved the world). My question is whether and why the judicial process is any different.

Posted by: JP | Nov 11, 2008 11:28:36 AM

I must vehemently disagree with the attitudes underlying this post (n.b. I was a biochemist long before attending law school). 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.

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 get off scott-free here, 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.

The real problem that I see with this post 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 the scientists were operating in secret as a star chamber (pun intended). 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.

Posted by: C.E. Petit | Nov 11, 2008 11:45:20 AM

CE Petit,
I don't think that Johnson is claiming that law should serve as the single reference frame. He clearly points out that the LHC experiment is a social process, and as such it is vulnerable for a whole range of malicious processes. For example, everybody knows about its flaws, but for "political" reasons it is nevertheless performed. Another issue you raise is the problem of delegation, the deep problem of all societies of how much to rust the experts. That's not just a question of rationality, which itself is a rather hard problem. Its a political problem, since relying completely on experts would be a serious categorical mistake. It is known that it leads directly to most evil totalitarian structures.
Now you will probably ask for an explanation of "political reasons" in case of LHC. There are a lot, since "political reason" readily translates into "individual preference order", especially if there is so much money involved. Political interests are spurred by the race for scientific attention and public attracivity, of course. There is a lot of competition, think about the Tevatron, the RHIC, the Planck mission of ESA, addressing more or less the same questions.
So we can conclude, that there is a political process, which inherently does NOT guarantee the honest consideration of all risks a well-educated, reasonable man can understand and think of.

At this point, often the discussion comes falls back to the physical level, but people claiming then "I believe there is no risk" or similar, "physicists know well what they are doing" or similar, or "safety calculations have been performed checking any imaginable risk" or similar, "physicists wll never conduct an experiment which will endanger themselves". For any of these arguments, counter-examples are found easily. But what strikes me always most, are the "believe sentences". Now, letting even this beside, we should take a look to the arguments of the physicists itself. As I have written above, the arguments are utterly circular. And that circularity can be understood by ANY person, without much training. In the same way, you would be able to rate a judges verdict as circular. Example? Think of Freisler's jurisdictions. It is VERY easy to understand the abuse of logic practiced by this evil, even if you did not study any law, ad rate it as illegitimate. Against humanity, so to say.

You end your comment of saying"... 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."

Well I say, given the circularity of the physicists religolous confessions, which ultimately turn into bad propaganda (see: http://lhc.blogsite.org/index.php?option=com_content&view=article&id=57), I could take the same stance for the opposite. Note: I am NOT against science, I am earning money practicing it (and improving the mainstream practice). However, I am pretty sure that relying on experts making propaganda from an expatriate territory is not the appropriate attitude.

So far we can conclude that there is a deep problem between stakeholders in a quite complex situation, which includes very different domains, not just physics. Thus it is NOT just a communication problem. Solving the communication problem you quickly will detect the underlying paradoxes.

Experts of Law, then, are well grounded in a meta-competence of solving situations which are made from paradoxes. Credibility comes to the fore, among other non-technical, i.e. social and ethical issues. As I said, we have to negotiate the further steps to be taken with LHC, we all together. Nothing else Johnson started to elaborate.

It is just the opposite

Posted by: nico martirelli | Nov 12, 2008 8:42:17 AM

remark: just drop the last snip "It is just the opposite", it should not be there!!! sorry for cluttering the post.

Posted by: nico martirelli | Nov 12, 2008 8:44:20 AM

The idea that scientists are adequately careful and knowledgeable about risks, asserted in preceding comments, is refuted by the history of “safety factor” arguments for colliders. Several confidently-asserted safety factors eroded. A safety study for the Relativistic Heavy Ion Collider at Brookhaven (produce in response to criticism) asserted that black hole production required energy beyond the reach of any collider. [1] Shortly afterward, and independent of the collider controversy, multiple physics papers were published, based on new string theory, predicting, if the somewhat speculative theories are true, creation of black holes at colliders. [2] The first similar safety study for CERN anticipated black hole production, but asserted that black holes would dissipate via “thermal processes,” which in this context means Hawking radiation. [3] At about the same time, and independent of the collider controversy, several physics papers were published that question the fundamental theory behind Hawking radiation. [4] What I call the ”naïve analogy” between colliders and cosmic rays was also used to demonstrate safety. This analogy asserts that cosmic rays with energy similar to collider collisions have been hitting the earth for billions of years, and have not caused trouble, therefore colliders should not cause trouble. Collider opponents found enough holes in this analogy so that a second CERN safety study found it necessary to assert a more sophisticated version of the analogy by going beyond Earth conditions, where they agree that conditions are not analogous, and considering the case of cosmic rays hitting white dwarf stars and neutron stars. [5] The current safety study may be definitive, although several scientists have proposed reasons for doubt. [6] My point here is that without collider opponents to force further study, the LHC collider would have been started based on the assurance of safety factors now admitted to be inadequate. This does not say much for the suggestion that humanity simply rely on whatever safety factors scientists propose, without contention or review.
[1] W. Busza, R.L. Jaffe, J. Sandweiss, and F. Wilczek; "Review of Speculative ‘Disaster Scenarios' Brookhaven, 2000.
[2] For example, [Steven Giddings and Scott Thomas, "High energy colliders as black hole factories: the end of short-distance physics," Physical Review D 65(5) (2002) 056010.] and [ Savas Dimopoulos and Greg Landsberg, "Black holes at the Large Hadron Collider," Physical Review Letters, 87(16) 161602, (2001).]
[3] J.-P. Blaizot, J. Iliopoulos, J. Madsen, G.G. Ross, P. Sonderegger, and H.-J. Specht, "Study Of Potentially Dangerous Events During Heavy-Ion Collisions At The LHC: Report Of The LHC Safety Study Group" CERN, 2003 p12.
[4] For example, [Adam D. Helfer, "Do black holes radiate?" Reports on Progress in Physics. Vol. 66 No. 6 (2003) pp. 943-1008.] and [ William G. Unruh and Ralf Schützhold, "On the Universality of the Hawking Effect," Physics Review D 71(2005) 024028.]
[5] [John Ellis, Gian Giudice, Michelangelo Mangano, Igor Tkachev, and Urs Wiedemann, (Large Hadron Collider Safety Assessment Group(LSAG)) "Review of the Safety of LHC Collisions," CERN June 2008.] The specific consideration of cosmic rays and neutron stars appears in the associated paper, [ Steven B. Giddings and Michelangelo L. Mangano, "Astrophysical implications of hypothetical stable TeV-scale black holes”]
[6] For example, [Otto. E. Rössler, "Abraham-Solution to Schwarzschild Metric Implies That CERN Miniblack Holes Pose a Planetary Risk" ] and [ Rainer Plaga, "On the potential catastrophic risk from metastable quantum black holes produced at particle colliders," arXiv 08081415v1, Aug 10, 2008. ]

Posted by: James Blodgett | Nov 12, 2008 10:18:11 AM

I am both a scientist by training [physics and biology], as well as a lawyer by training. Your comments are very well taken.

It should be noted that last week a collaboration at the Tevatron at Fermilab announced the discovery of a new particle at 1.96 TeV, some six-fold below the intended start-up energy of the LHC at circa 12 TeV.

What is unusual about this new particle is that no one was looking for it. Not a single theorist had predicted its existence. It was discovered, essentially, by happenstance, when large numbers of muons were being produced several centimeters away from the point of collision of the proton/anti-proton beams. This led the experimenters to deduce that a new type of particle was created which then travelled several centimeters [at near light speed] before spontaneously decaying into muons. At least one of these new particles travelled far enough to reach a point outside of the vacuum beam-pipe before decaying into known particles.

Theorists will now be busy trying to figure out what this new particle is, and how it fits into existing theory.

I find it interesting as an example that theorists really are in the dark as to what will happen at even higher energies [such as the LHC will produce, scheduled to create energies of 1,000+ TeV with Lead-Lead collisions] when we exceed the circumstances created naturally by cosmic rays.

Posted by: Walter L. Wagner | Nov 12, 2008 11:20:38 AM

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