PrawfsBlawg

The Supreme Court of the United Kingdom

This month marks a historic moment in the history of the Anglo legal tradition. As of October 1, 2009, the United Kingdom did away with the judicial function of the House of Lords and opened a new court, the Supreme Court of the United Kingdom, to be the highest judicial authority in the country. 

This is no small break with tradition. Remember, this is a country where lawyers still wear wigs in the courtroom. Until this month, the House of Lords had been the tribunal of last resort for most cases since 1399, which was when the House of Commons stopped hearing petitions for reversal from lower courts. In 1876, the judicial authority of the House of Lords was modernized when professional judges were appointed as Lords of Appeal in Ordinary to carry out the judicial functions of the House of Lords. But these law lords maintained a legislative role by having the power to vote in parliament – though they rarely did so.

All that has changed. As of this month, the law lords are now “justices.” And although the current justices retain their title of “lord,” the Supreme Court members are now disqualified to vote in the House of Lords. Moreover, as absences occur on the new Supreme Court, seats will be filled by judges who may not bear the title of “lord” at all.

For American lawyers and law professors, the creation of the new U.K. Supreme Court provides some cause for reflection: Our American legal tradition evolved from the U.K.’s. Our common law tradition, our courts, and our ideals of jurisprudence all come in large part from the Mother Country. It strikes me as a tremendous compliment to the USA that, in the 21st Century, traditions appear to be flowing back across the Atlantic. The U.K. has followed the American exemplar not only in concept, aiming for a strictly independent judiciary, but in in name as well, using the appellations “Supreme Court” and “justices.” 

Now, let me admit that I am not a scholar of British law. Thus, I cannot say how much of the new U.K. court structure is directly modeled on the U.S. example. (If anyone can chime in on to what SCOTUK and the Constitutional Reform Act of 2005 owes to SCOTUS and the U.S. Constitution, I’d be grateful to hear it.) But I, for one, take it as a sure sign of Ameriphile sentiment that Britain chose to call their new high court by the same name as ours – especially since the U.K. has such a tradition of super cool names for judicial tribunals: “Privy Council,” “Exchequer of Pleas,” and “Court of the Queen’s Bench” to name just a few.

A couple of interesting trivia bits to point out: 

• The crest for the new court is built around a Greek omega – a reference to the institution’s status as the court of last resort. 
• The court has been given spectacular new digs at a renovated courthouse, Middlesex Guildhall, which is next to the Houses of Parliament and Westminster Abbey. 
• The U.K. Supreme Court has colorful pdf-based forms for aspiring litigants, such as a very friendly looking fill-in-the-box cert petition (called an “application for permission to appeal”) with instructions on where the completed form can be e-mailed. (Anyone who has dealt with the PACER system or the elaborate document formatting rules for U.S. appeals courts might find the British approach highly refreshing.)

ABOVE: The home of the new Supreme Court of the United Kingdom, Middlesex Guildhall.

front-page news

With my habit of glancing at the news online in the am, I didn't pick up on why exactly District Judge Jed Rakoff's rejection of the SEC-Bank of America settlement appeared on the front page of the New York Times, bumping little ol' President Obama's speech to Wall Street to the business pages. 

Until I looked at the print version last night. And there on the front page of the New York Times, the article said that Judge Rakoff's ruling "invoked justice and morality."

I get it now. A judge invoking justice and morality. That is front-page news. 

More about the European Pharmaceutical Sector: Procedural Changes

Earlier, I described the European Commission’s recent examination of the pharmaceutical sector.  Part of the EC's inquiry focuses on procedural concerns. 

 

Perhaps the most pressing concern for the EC is the lack of any unified system of litigation. The EC’s pharmaceutical sector inquiry examined transaction costs needed to enforce rights across all member states and concluded that, “[t]he total cost of patent litigation in the EU relating to the 68 medicines on which litigation was reported for the period 2000 – 2007, is estimated to exceed € 420 million, of which a significant proportion could have been saved” if a cross-border litigation system could have been enacted.

 

A separate review of the European patent system by Prof. Dietmar Harhoff, Ph.D states:

 

The results obtained here suggest that currently, between 146 and 311 infringement cases are being duplicated in the Member States. By 2013, this number is likely to increase to between 202 and 431 cases. Total private savings in 2013 would span the interval between EUR 148 and 289 million.

 

Meanwhile, it appears that the EC is rapidly moving toward a unified litigation system for all types of patents. This raises a more profound question: to what degree is a uniform litigation system desirable?

The Harnoff study considers literature studying the U.S. Court of Appeals for the Federal Circuit, which has provided a unified system for patent litigation at the appellate level since 1982.  This includes Rethinking Patent Law's Uniformity Principle, a paper by Craig Nard and John Duffy, which, as Harnoff describes "questions the values of uniformity altogether."   In their paper, Nard and Duffy point out that "uniformity is not a proxy for quality," and propose a "polycentric decisionmaking structure that would allow for a diversity of peer appellate voices to be heard."  Certainly, Nard and Duffy's proposal has been subject to debate, including an article co-authored by Lynne E. Pettigrew and the Federal Circuit's Hon. S. Jay Plager, Rethinking Patent Law's Uniformity Principle:  A Response to Nard and Duffy, 101 Nw. U. L. Rev. 1735 (2007).  It will be fascinating to see whether the EC considers these issues when contemplating these large structural changes to its system.

Empathy for Schoolmasters, Bong Hits 4 Jesus, and Lawyers for Change

There’ve been some interesting observations in the legal editorial pages and blogosphere lately about what role empathy does – and should – play in judicial reasoning. There’s a short debate about it in the LA Times between Ilya Somin and Erwin Chemerinsky, and some interesting posts on the subject from Orin Kerr and Ilya Somin at The Volokh Conspiracy, and from Mark Graber and Susan Bandes at Balkinization (and I’m sure many others I haven’t read). But as far as I can tell no one’s yet mentioned the First Amendment decisions in the “Bong Hits 4 Jesus” case (aka Morse v. Frederick) and in Legal Services Corporation v. Velazquez, which I think help shed some interesting light on the question (even if they’re not the only potential sources of such light).

As Orin Kerr rightly points out, there’s an important distinction to be drawn between empathy which is “doctrinally-relevant” and that which is “doctrinally-irrelevant.” He presents a clear-cut example of the former: “if a state has a rule that a person sentenced to death cannot be put to death using a method of execution that is ‘very painful’” then judges will find it hard to apply that rule without drawing upon their capacity for empathy. Even if they’ve never been on death row awaiting execution – and I’m guessing the closest many Supreme Court Justices have come to that situation is the time when they’re waiting for a skeptical Senate to decide whether to confirm their nomination – they have to find some way to imagine what would be “very painful” for someone in the prisoner’s position. One can also imagine situations where empathy would be completely unnecessary, such as determining whether a particular person is old enough to be a Senator, Representative, or President.

I’d add that for empathy to be a legitimate part of judicial-reasoning, its doctrinal relevance should not only be present in the case, but als the source of the judge’s motivation for drawing upon empathy. Imagine, for example, a situation where a judge shifts his or her favored methods of judicial interpretation in order to get the best result for a favored party or interest group. In other words, an empathic judge might be a textualist when it favors the little guy, and then – to help out the next suffering petitioner – switch to focusing on statutory purpose or legislative history. Empathy might plausibly be said to be doctrinally-relevant in both the first and second cases, but I think something is likely going wrong if a judge is changing judicial philosophies or switching interpretative frameworks simply to get a result that is more emotionally-satisfying for him because it helps a disadvantaged litigant. The same would be true of a a judge who switches interpretative methods to help a certain industry, or big business more generally, because he or she has been a businessperson before (or had lots of clients who were) and finds it easier to identify with their concerns.

I suspect that there are subtle variants of this framework shifting that might sometimes take work and self-reflection to avoid. Imagine, for example, that a Supreme Court Justice is applying the factors set out in Planned Parenthood v. Casey to determine whether they should vote to overrule an existing Supreme Court precedent. It’s quite possible (I’d guess) that varying degrees of empathy with different parties might affect judges’ determinations about when a certain “reliance” interest is or isn’t strong enough to weigh in favor of retaining that precedent, or whether a certain precedent is or isn’t “workable” in the real world – and that judges would thus have to ask tough questions of themselves (and each other) about the legitimacy for deeming a certain reliance or workability concern stronger or weaker than another.

What the Bong Hits 4 Jesus and Velazquez cases highlight, I think, is that it will often be very hard – particularly in Supreme Court cases – to find empathy “doctrinally-irrelevant” and that, for this reason, empathy will often play some role, and present some danger in Supreme Court decision-making. Take the Bong Hits 4 Jesus case, Morse v. Frederick. . As most readers of this blog probably know already, that was the case where the Supreme Court held that a school principle did not violate the First Amendment in punishing a student for displaying a huge “Bong Hits 4 Jesus” banner at a gathering near the school to view and cheer a portion of the Olympic Torch Relay in 2002 Unlike the hypo Orin Kerr offers, where a statutory rule practically requires judges to imagine the perspective of a prisoner in order to decide if an execution method is “very painful,” none of language in the court-crafted rules at issue in Morse clearly required the Court to place themselves in the shoes of school officials or students. The Tinker case required them to judge whether a certain student’s speech would cause a “substantial disruption of or material interference with school activities,” Hazelwood to decide if a certain speech was an example of a “school-sponsored publication, theatrical production, and other expressive activit[y] that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school,” and if so, whether the school’s restriction was “reasonably related to legitimate pedagogical concerns,” and Fraser to ask whether the school’s speech restriction was part of its exercise of its “highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse” (or perhaps some other school function that is equally appropriate?).

One might argue that judges could have made each of these inquiries entirely from where they sit (as judges) instead of by imaginatively placing themselves in the position of a school official or student. But that’s not what they did. Rather, there were plenty of attempts on the part of the Justices to imagine how it would be if they were principals or teachers confronting different kinds of student speech under different possible rules. Justice Roberts observed in the plurality opinion that “principals have a difficult job,” and that the principal in that case “had to decide to act – or not act – on the spot.” In the oral argument, Justice Breyer expressed similar concerns about what it was reasonable to demand of a school principal forced to make quick, on-the-spot decisions about what speech about drugs constitute a threat, and what didn’t: “He doesn’t know the law, the principal. His job is to run the school. And so I guess what I’m worried about is . . . we’ll suddenly see people testing limits all over the place in high schools . . . I want some help here and I’m worried about the principal.” Justice Kennedy noted that a decision in favor of the students’ damages suit would hurt “this principal who has devoted her life to the school.” And Justice Roberts added that such a decision in favor of damages might leave “principals and teachers around the country hav[ing] to fear that they’re going to have to pay out of their own personal pocket whenever they take actions pursuant to established board policies that they think are necessary to promote the school’s educational mission.”

Part of this questioning was made in the context of the argument over whether the principal had qualified immunity, when the Justices were asking the party’s lawyers about whether the relevant law could have been clear enough to someone in the prinicipal’s situation to justify removing such immunity. But empathy was clearly playing a more larger role here: It was contributing to a decision not merely about whether the principal’s judgment was reasonable at the time, but whether an equivalent decision made by another principal (taken after the Morse) decision should or shouldn’t be considered reasonable under the First Amendment going forward. And empathy was playing such a role, I think, because even though there’s no clear verbal command in the First Amendment’s language requiring the Justice to determine someone else’s feelings in a certain circumstance (as a hypothetical statute does when it requires judges to determine if a certain experience is “very painful”) , it’s very difficult for them to understand how a First Amendment regime will work in a school, and the day-to-day consequences it will have, except by imagining how it will look and feel from the vantage point of principals, teachers, students, and their parents.

All of this is consistent with Orin Kerr’s statement that empathy is often indispensable when judges “to try to assess the real-world impact of a particular practice on a person or group of people.” But I also think that, although I haven’t done any kind of survey or case count, that it’s likely to be true of a large percentage of the Supreme Court’s high-profile cases. Justices (and judges elsewhere, for that matter) will often have to get a sense of how the world looks from some party’s perspective in Fourth Amendment search cases, for example, when deciding whether someone had a reasonable expectation of privacy in a certain environment, or in deciding just how significant an intrusion into privacy takes place in a particular warrantless search regime (like a random school or employment drug testing regime). They may likewise have to do so when balancing individual and government interests,, and assessing the risk of existing procedures, and value of additional procedures, in applying the Mathews v. Eldridge test to determine if a person has received the process that is due to her.

Morse v. Frederick also highlights something else about empathy. While having a diversity of backgrounds and life experiences on a court may well make a positive difference in this regard, there’s no way such diversity can possibly provide for all the perspective-taking that happens (and is arguably indispensable) in judicial decision-making. I don’t believe any of the Justices were high school principals before they had their current job. None of them, as noted earlier, were sitting on death row awaiting execution. And none of them, of course, are non-lawyers. So all of them might have to go far beyond their own experience to show doctrinally-relevant empathy no matter how diverse the court is.

And no matter how much capacity for empathy judges bring to the Court, it will probably take a good deal of self-questioning on their part to avoid the dangers of using it selectively and unfairly. As Susan Bandes points out at Balkinization, “despite our best intentions, [empathy] is always selective and riddled with blind spots. We can try to correct for this partiality if we are self-aware. But those who study cognitive psychology and decision-making find that we aren’t all that good at identifying and critiquing our own background assumptions.” Justice Scalia, I think, suspected that precisely this kind of selective empathy was at play in the Court’s decision in Legal Services Corporation v. Velazquez. That case held that First Amendment prohibited Congress from telling Legal Service Corporation what kind of legal arguments lawyers could make with legislative funding for welfare-related legal work. (Congress had told LSC the funds could not be given to any organization challenging existing welfare laws). But it came only a few years after the Court’s decision in Rust v. Sullivan, which permitted Congress and government administrators to impose very similar speech limits on doctors receiving certain federal funds for planning services – limits that barred them from “counseling, referral, and the provision of information regarding abortion as a method of family planning.” Scalia protested that Velazquez was in fact indistinguishable from Rust and guessed that the Court had reached a different result only because the case involved the “work of lawyers” rather than that of doctors and the Court was “display[ing] an improper special solicitude for our own profession.” I’m not sure that’s the right explanation for why Velazquez came out the way it did. But it probably is true that, after decades in the legal profession, it will sometimes take some efforts on the part of judges not to display “an improper special solicitude for [their] own profession.” Some, like Erwin Chemerinsky, have also worried that there are other systematic biases in the way empathy works on the Court. He writes in his LA Times debate with Ilya Somin that “today’s Supreme Court justices apparently feel it more for businesses than employees, and more for victims of crimes than criminal defendants.”

One way of addressing this problem, perhaps, is the one Ilya Somin proposes: that judges determine mental states rather than identify with those mental states. That kind of move sometimes makes a good deal of sense, but it won’t always suffice for the judge’s task. For example, I think it would have been hard for judges trying to get a sense of the challenge facing a school principal to understand that challenge by relying on a purely external indicia of the principal’s feeling state. They needed, and sought to obtain, an internal understanding of the principal’s experience: a sense of how the world looked (and would look) from a principal’s own vantage point. This isn’t to say that their identification with the principal’s visions in Morse, for example, should have led them to ultimately come down on her side. Other legal considerations may trump whatever concerns they have about the difficulties that would face principals in a certain First Amendment regime, including perhaps concerns about what kind of an environment public schools will be for students if the Court adopts a First Amendment regime that is overly generous to certain teachers and principals. Moreover, the result of judges’ placing themselves in another party’s shoes may sometimes cut against that party’s legal position. If, for example, such an imaginative exercise tells them that a certain First Amendment regime **would not** be as burdensome as a party is claiming it is, that may hurt rather than help the case of the party in whose place they are imagining themselves.

Nor is it by itself a corrective to unfairly one-sided exercises empathy for a President to appoint Supreme Court Justices who are unfair and one-sided in a different direction: I doubt individuals will feel much better about a constitutional law decision they perceive as unfair just because there are dissenting justices who are partial towards them instead of towards the winner. The hope must instead be that having judges with very different perspectives and backgrounds will make it likely that all judges will hear questions and arguments they otherwise wouldn’t have heard, and that this will make judges better able to draw upon the right kind of empathy when they need it, and better able to detect and stop themselves from finding themselves emotionally-pulled toward one side of the dispute, when the situations demands more even-handed exercise of empathy (or putting it aside altogether in favor of other sources of legal decision-making).

On the Brilliance of People like Judge Sonia Sotomayor and Barack Obama

Let me start with the obvious conclusion that anyone would draw if they were to get to know Judge Sotomayor and her work both intimately and deeply: she is an absolutely brilliant jurist and an absolutely brilliant person.  Having clerked for her, worked very closely with her over the course of a year, and then known her well for more than a decade, I have a very good take on who she is both as a judge and as a person.  Ordinarily, I would not weigh in on things like this, but, given some of the spurious comments that have been emerging from people who are less familiar with her, I feel a need to set the record straight.

 

I count myself privileged to have worked closely with some of the very best minds in the world, in both law (at Yale Law School and in the legal academy) and philosophy (at both Harvard College and the University of Michigan’s graduate school, which was widely considered the best department in ethics in the world when I was there.)  Judge Sotomayor stands out from among these people as one of the very brightest; indeed, she is in that rarified class of people for whom it makes sense to say that there is no one genuinely smarter.  (Others who have stood out in this way in my experience would include Harold Koh, the former dean of Yale Law School, and Peter Railton, a moral philosopher at the University of Michigan.)  Judge Sotomayor is much smarter than most people in the legal academy, and much smarter than most judges who are granted almost universal deference in situations like this.  And while I have worked with numerous people who are thought of as some of the best minds in the nation, and about whom the question of brilliance would never even arise, most of them are—quite frankly—pedantic in comparison. 

 

Indeed, Judge Sotomayor reminds me in some ways of Obama himself in that she has surprising dimensions to her brilliance, which are completely original to her.  She knows how to pull out the best in people with whom she works, how to motivate people through her words and conduct, and how to forge deep and abiding relationships with people from all walks of life, and from all political stripes and ideologies.  She is courageous and fearless, but non-ideological, and wholly unimpressed by the kind of pomp and false theoretical excess that can sometimes make one look smarter in the short term but only at the expense of distorting the underlying issues.  One measure of the extraordinary judgment she has is reflected in her incredible life story: she moved unerringly, and without any hint of doubt or hesitation, from the Bronxdale Public Housing Projects to graduating summa cum laude from  Princeton, where she received the Pynes Prize (for their top graduate), and then to Yale Law School, the DA’s office, and the Second Circuit Court of Appeals.  The force of character that it takes to live such a life should never be underestimated: we have no other person on the bench with her experience and intellect who has come from these beginnings and who has developed with such clarity of purpose and vision.  The federal judiciary houses a number of intellectual giants, but, if we are honest with ourselves, we will have to admit that almost none of them would have made it to where they are from her starting point.  The temptations to take other paths would have been far too strong, and the absence of hope too stultifying.  Because of this, she also has the power to lift people up, and inspire.  Her story can bring unique hope to many for whom there is only despair; can help heal some of the deepest internal crises of faith that people struggling in this country have had to face; and can establish the fact (about which there is still far too much unwarranted skepticism) that brilliance comes in many surprising forms.  She can also give a concrete face to the American promise, and what we stand for as a country, and to the kind of change that will bring us directly back to our core human values.

 

Like Obama, there is thus something special and incomparable about this woman—though it lies in qualities that are not always seen by those who do not know just where to look.  In my view, the level of conviction and independence of mind that Judge Sotomayor displays is absolutely essential to the best work of a Supreme Court Justice, but it is in short demand, and rarely have we seen it on such full display in the federal judiciary. 

 

Given these facts, I should probably be less surprised than I am to see some of the initial reactions to Judge Sotomayor mirroring early reactions to Obama’s presidential candidacy.  Early in the last primary season, I remember a number of people saying that Obama was not “as smart” as Hillary Clinton—at least until people began to catch onto his sheer genius at things like (1) reframing seemingly intractable issues in ways that might move us forward and out of stale debates; (2) identifying and articulating the core values of social practices in ways in ways that people who were once skeptical find compelling; (3) charitably understanding the fullest range of seemingly diverse positions, and the kinds of concerns and warranted hopes that lead to their articulation; and (4) maintaining humility, and a sense of calm and perseverance, in the face of seemingly insurmountable difficulties.  (These are rare forms of brilliance, which Judge Sotomayor also has in spades—but that very few on the federal judiciary can claim for themselves.  They are also not qualities that one will typically see if one is a law clerk for another judge who receives suggested revisions on one’s work from another judge; or if one is an attorney, who is less than prepared before a judge who has particularly exacting standards of excellence.)  I also remember a number of people talking about how Obama rubbed senior colleagues in Congress the wrong way, when he—like Judge Sotomayor—displayed his native brilliance from the very start of his tenure in some ways that others found unsettling.  And I remember how some on the left expressed concern when Obama began to break the mold of democratic thinking, by drawing on his independent but genuine insights into how people work and mobilize in socially productive ways not only in urban but also in rural settings, to help push our collective thinking on matters of genuine importance.  I will confess that I myself did not see the full range of Obama’s brilliance at first, and that these things only began to become clearer to me after hearing his speech in Iowa and after Ted Kennedy came out letting people know that there is something special about the man.  But whereas Obama had an extended campaign period in which to introduce himself to people, and to overcome some of the difficult but inevitable first impressions that arise with brilliance in this form, Judge Sotomayor is being maligned by people who do not know her, and who may not be able to see of all of her qualities from afar.  I am—of course—no Ted Kennedy, but I do know what Senator Kennedy was talking about with regard to Obama, and I see special qualities of precisely this caliber not only in Obama but also in Judge Sotomayor.

 

I suspect that some people on the left may be concerned about Judge Sotomayor because she may not be the “liberal antidote to Justice Scalia” that some have desired.  But this is no indictment of her intelligence, but rather of their imagination.  Getting at the truth in the law, and beginning to change the tone on the Court, will not involve concocting a distinct but overly general, and ultimately erroneous, theory of how things like meaning or interpretation work to counter Justice Scalia’s.  Nor will it involve the development of ideas, or forms of expression, that increase the mutual sense of alienation and resentment among Americans in both parties toward one another.  In my view, the standard liberal expectations for a great jurist are thus behind the times in many ways, and it is a testament to Judge Sotomayor that she would much more likely break the mold for such expectations and bring us all forward in the process.  The time for endless tit-for-tats on the Court, as in politics, is coming to an end, and Judge Sotomayor would be the ideal justice to help move the Court into a newer, saner, more thoughtful, and more unified era.  Indeed, she is perhaps uniquely qualified to do so. 

 

To give you a sense of what I mean by some of the rare dimensions to Judge Sotomayor’s brilliance, let me quote several passages of a description I once wrote up of her in 2002, which begin to capture some of the social, emotional, and procedural brilliance that she has.  After describing the judge’s tireless work ethic, and the sheer quantity of work she was able to produce, I wrote: “The ultimate secret of the judge’s success lay not in the quantity, however, but rather in the quality of the work she inspired. The judge made it positively enjoyable to struggle to reach better legal resolutions together, due to another rare and surprising dimension to her brilliance.  Although we had come to the clerkship with very different backgrounds, strengths, and temperaments, the judge seemed to identify them almost immediately, to cultivate them and to create an atmosphere in which we each felt respected and as though we had something positive to contribute, coming from our own particular angle.  We were some of the strangest of bedfellows, but the judge orchestrated an environment in which we all forged very real and lasting friendships with one another and felt comfortable deliberating with one another and engaging with one another’s ideas.  We discussed each and every case with genuine vigor and concern that year, and the judge’s confidence gave us the confidence to push and develop one another’s thoughts to their limits.  Have no doubt: the judge knew when to take the lead and when to rein us in.  But she also helped us to see that we could have important ideas that, with the appropriate development, would help to push the envelope of the law and help clarify or harmonize legal doctrines in beneficial ways.  The judge thereby taught us the brilliance that goes with creating an environment in which deliberation is free from insecurity, and reasoning is vibrant and sincere.  The judge also showed us how valuable such a process can be, and how much it can add to one’s ability to perceive better, more probing and more honest answers to legal questions.  With regard to her peers on the Court, the judge took the same basic approach, both at oral argument and in her interoffice correspondences.  She thereby enlivened and enriched the tenor of the deliberations of the Court more generally.  This is, without doubt, one highly tangible and pervasive way in which the judge’s presence has already changed the Second Circuit Court of Appeals, and has helped produce a better jurisprudence within the Circuit.”

 

I then continued: “The judge’s ability to bring out and draw upon the best in others and her confidence and perseverance are not ultimately unrelated qualities in her.  It is the judge’s confidence that allows her never to be afraid or jealous of a thought that can help improve her reasoning or her views on things; and it is, in turn, her ability to identify and nourish such thinking, and to listen to sincere challenges to her own thinking, that allows her confidence to hit its mark and track the truth so unerringly.  The judge is, in fact, extraordinarily generous in her crediting of others.  During her induction speech for the Court of Appeals, in a room filled with senators, federal judges and other persons of relative power and social status, the judge went to great lengths to thank not only President Clinton, the senators, her peers and her legal mentors for helping her attain her numerous judicial accomplishments but also, in equal detail, the fed cap employees who had kept the hallways and chambers clean, the cafeteria staff, the security officers who had watched the doors to the courthouse and the numerous other persons who were part of the vast web of relations upon which her work had in fact depended from day to day.  She was not afraid to acknowledge the genuine role that each person had played in allowing her to succeed as a judge, regardless of the person’s perceived standing in the room, and her heartfelt expressions of gratitude had the power to motivate.  The judge also spoke of her mother, and of how her mother had worked extra hours as a nurse in a methadone clinic to save up enough money to buy the judge and her brother the one set of Encyclopedia Britannicas in the Bronxdale Public Housing Projects, where the judge had been raised; the judge spoke of her committed and lasting friendship with Theresa, her secretary, who has enriched all of our lives and has helped cement all of our relations with one another; and the judge spoke of family and love, including that of her mother for the man her mother would marry that night.  Anyone seeing the amount of goodwill toward the judge that filled that room, arising from every type of person with every type of background, could not help but get a sense of the very real power that the judge had invoked through her sheer force of character.  One began to get the sense that, without even trying, the judge had created and could move a small but silent army.  What makes the judge’s courage really shine, then, is that it involves the courage not only to express views that are worthy of consideration but also to listen, to be open to reason and to validate and acknowledge contributions that others can make to her own development and thinking.  We are all better for having a person with her type of character in a position of power.”   

 

Lastly, but importantly, Judge Sotomayor is a genuinely good person, with an enormous heart.  She is incredibly skilled on levels that push every imaginable envelope, and I really do hope that people will get to know who she is before taking the easy route of discrediting that which they do not yet understand. 

 

Professor Kar is a Professor of Law and Philosophy, and the Thomas Mengler Faculty Scholar, at the University of Illinois in Urbana-Champaign, beginning in the Fall of 2009.

Judicial writing, court structure, and the judicial process

Chad wrote yesterday about Bill Stuntz's argument that writing ability is an important (but overlooked) factor in selecting a Supreme Court justice because writing ability--as much as smarts and experience--define judges' influence. Let me take the point in a slightly different direction: How much should writing ability be considered in the scholarly literature on appellate decisionmaking? And how can it be taken into account as a variable?

I just finished reading an intriguing essay by Tracey George and Chris Guthrie (forthcoming in Duke Law Journal) arguing for a change to the structure of the Supreme Court, primarily by expanding the size of the Court (to 15 justices) and having most cases argued and decided in panels of three (with an en banc process for important cases, including those in which a state or federal law is challenged on constitutional grounds). This was a follow-up to a larger 2008 article proposing a panel structure for the Court (which I have not had a chance to read). They argue that the overwhelming majority of cases (almost 90 %) since 1953 would have come out the same if decided in randomly selected panels (based on how each justice voted), including in a high percentage of 5-3 and 5-4 cases.

But how does or should writing quality and the writing skill of different justices play in here?

Random re-distribution of justices into panels means random re-distribution of opinion-writing. It is likely that the original opinion-writer (or original dissenter) would not be on the panel. Or, if she were, she might not be assigned the opinion because the author-selection process will be different (in terms of who does the assigning, how assignments are made, and what other cases there were to be assigned). Prospectively, the distribution of opinions is likely to be different--subject to the randomness of panel selection, as well as the effects of a hoped-for increase in the Court's docket on who takes which cases.

This means responsibility for the opinion in a given case could be placed in the hands of a different author, for better or for worse. At a minimum, this might alter the political and precedential influence of the decision, accepting Stunt'z point (and I think I do) that influence beyond the Court is, in part, a product of the craft of writing. The effect an opinion will have in political, policy, and academic debates is a product of the quality and style of the opinion. The ease and consistency with which lower-court judges can apply a precedent depends greatly on the clarity, power, rhetoric, and overall quality of the Supreme Court opinion. Keeping things focused on Justice Souter, one need look no further than the mess created by his weak, all-over-the-map opinion on pleading standards in Bell Atlantic v. Twombly. The panel proposal might, incidentally, have its greatest effect on the work of the lower courts.

And what of the influence of writing skill within the Court? How, if at all, might changing authorship alter case outcomes? For example, imagine the panel in an 8-1 case now consists of the dissenter and two of the non-writing majority; if that dissenter is an influential writer (or no longer has to argue against the original influential writer on the other side), might she convince at least one of her colleagues to vote differently?

Prospectively, George and Guthrie assume that future justices will behave consistent with how they have behaved in the past, thus future cases likely will come out much as we predict from the preferences of the full current Court. But does the variable of writing abilities of individual justices alter that conclusion, based on which justices are assigned to which panels and how opinions are assigned within the panel and what cases justices take? Might a case that likely would come out one way if an influential justice (say, Scalia) is writing the majority opinion now come out differently if Scalia is not on the panel and not able to exert the influence of the pen?

I am not sure the answer to the question. And I am not sure it is measurable in any meaningful way. But I put it out there for consideration.

Stuntz argues for Karlan & the importance of writing skills

Bill Stuntz recently put up a post advocating in favor of Pam Karlan for Justice Souter’s seat.  In the course of his advocacy Stuntz makes the case for writing skills as an important (and generally overlooked) component of a justice’s influence.  I think he’s onto something.  I just finished my maiden voyage teaching Con Law, and was struck by the extent to which the really well-written opinions stand out.  Stuntz’s post is well worth a read.

An Analog Rule in a Digital World?: Court of Appeals of Indiana Precludes Jury Impeachment Based Upon Text Message Found in Defendant's Cell Phone

I noted in my first post here that I planned to do all of my posts this month on the grading and evaluation of students, but I came across an opinion today that I wanted to share with the wider audience of PrawfsBlawg because it deals with an issue that is becoming impossible to ignore:  How do we deal with the increasing intersection between adavnced technology and the right to trial by jury? A recent New York Times story identified the Google mistrial, i.e., the increasing use of Blackberrys and iPhones  by jurors gathering information about cases and wreaking "havoc on trials around the country, upending deliberations and infuriating judges." Last week, CrimProf Blog did a post about the judge in the trial of Brooke Astor's son prohibiting Blackberry use by jurors.  The week before the New York Times article, I had posted an entry on my blog about an appeal in which the Eleventh Circuit refused to allow jurors to impeach their verdict after trial through allegations that "jurors allegedly exchang[ed] e-mail both during trial and during deliberations." At the time I mused that "[t]his was undoubtedly the correct decision under [Federal Rule of Evidence 606(b)], but I have to wonder whether improper e-mailing among jurors is an increasing problem that courts will have to address at some point." 

Well, today, I read the recent opinion of the Court of Appeals of Indiana in Hape v. State, 2009 WL 866857 (Ind.App. 2009), and while it deals with a slightly different issue, it prompts me to wonder whether judges are as ill-equipped as Rule 606(b) to address what courts should do when technology has encroached upon the jury deliberation process. The issue: What should be done when a juror comes forward after trial and claims that jurors retrieved incriminating text messages from a cell phone that was admitted into evidence, but without either party or the court knowing that the messages existed.  According to the Court of Appeals of Indiana, the answer was "nothing." And according to me, that answer was wrong.

In Hape, Darby L. Hape appealed from his convictions for possession of methamphetamine with the intent to deliver and resisting law enforcement (Hape was also improperly found to be a habitual offender). One of the grounds for Hape's appeal was that he learned from a juror after trial that the jurors were able to turn on one of the cell phones taken from Hape during a search of him incident to a lawful arrest, which was admitted as an exhibit, and recover several text messages, including one from "Brett," which stated:

Hey man do you think you can do something 4 one of what I gave you the other night. I could care less about ours right now but my other dude keeps asking & I don't even have the funds to pay him back I guess I will freakin tell him to get it off the water tower.

Hape claimed that the trial court erred by denying his motion to poll the jury to determine the effect of this unadmitted text message on their verdict, but the Court of Appeals of Indiana found that this denial was improper pursuant to Indiana Rule of Evidence 606(b), which indicates that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occuring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify (1) to drug or alcohol use by any juror, (2) on the question of whether extraneous prejudicial information was improperly brought to the jury's attention or (3) whether any outside influence was improperly brought to bear upon any juror. A juror's affidavit concerning a matter about which the juror would be precluded from testifying may not be received for these purposes.

Indiana Rule of Evidence 606(b) is mostly similar to Federal Rule of Evidence 606(b), but the key difference that divides them explains the erroneous decision of the Court of Appeals of Indiana. You see, in Tanner v. United States, 483 U.S. 107 (1987), defendants sought to have jurors impeach their verdict through allegations that jurors were drunk, high, and sleepy during trial and deliberations. The Supreme Court found that the lower courts properly precluded such impeachment because there is an external/internal dichotomy in Federal Rule of Evidence 606(b), pursuant to which jurors cannot impeach their verdicts based upon anything internal or intrinsic to the jury deliberation process (such as misunderstood jury instructions or inferring guilt based upon the defendant's choice not to testify) but can impeach their verdicts based upon anything external or extrinsic to the jury deliberation process, whether it be external evidence (extraneous prejudicial information such as a biased newspaper article about the case finding its way to the jury room) or external influence (improper outside influence such as a threat from a family member of a party to a juror).

In explaining the common law precedent leading to the adoption of Federal Rule of Evidence 606(b), the Court noted that

Lower courts used this external/internal distinction to identify those instances in which juror testimony impeaching a verdict would be admissible. The distinction was not based on whether the juror was literally inside or outside the jury room when the alleged irregularity took place; rather, the distinction was based on the nature of the allegation. Clearly a rigid distinction based only on whether the event took place inside or outside the jury room would have been quite unhelpful. For example, under a distinction based on location a juror could not testify concerning a newspaper read inside the jury room. Instead, of course, this has been considered an external influence about which juror testimony is admissible....Similarly, under a rigid locational distinction jurors could be regularly required to testify after the verdict as to whether they heard and comprehended the judge's instructions, since the charge to the jury takes place outside the jury room. Courts wisely have treated allegations of a juror's inability to hear or comprehend at trial as an internal matter.

The Court then applied this dichotomy to the allegations at hand and concluded that there could be no jury impeachment in the case before it because, inter alia, "[h]owever severe their effect and improper their use, drugs or alcohol voluntarily ingested by a juror seems no more an 'outside influence' than a virus, poorly prepared foor, or a lack of sleep." In other words, the jurors' alleged conditions were conditions caused by them, not something that was improperly presented to them. 

What's clear from Tanner is that, unlike Indiana Rule of Evidence 606(b), Federal Rule of Evidence 606(b), does not contain an exception for post-verdict juror testimony concerning drug or alcohol use by jurors, and I'm betting that Indiana's rule, which was enacted in 1994, was a response to the Court's 1987 opinion in Tanner. Nonetheless, the Court of Appeals of Indiana in Hape adhered to Tanner's internal/external dichotomy, albeit in what I regard as a nonsensical manner.  According to the court in Hape, Hape's jury impeachment argument failed because

the text messages are intrinsic to the cellular telephone. The jury discovered the text messages at issue by turning on a cellular telephone that was admitted into evidence without objection....First, the text messages themselves are not extraneous to the cellular telephone. We agree with the State that text messages are intrinsic to the cellular telephones in which they are stored. "Intrinsic," as defined by Black's Law Dictionary, means "[b]elonging to a thing by its very nature; not dependent on external circumstances; inherent; essential." Black's Law Dictionary 842 (8th ed.2004). We conclude that the text messages at issue here are part and parcel of the cellular telephone in which they were stored, just as pages in a book belong to the book by their very nature, and thus they are intrinsic to the telephone. 

This ruling mischaracterizes the Tanner internal/external dichotomy. Under that dichotomy, the question is whether the information/influence at issue was intrinsic or extrinsic to the jury deliberation process, not whether it was intrinsic or extrinsic to something that was properly in the jury deliberation room. As the Court of Appeals of Indiana correctly noted, the text message was never authenticated and thus never deemed admissible, and as the United States District Court for the Southern District of New York noted in collecting cases in Benjamin v. Fischer, 248 F.Supp.2d 251, 261 (S.D.N.Y. 2002), "extrinsic information does not transform itself into admissible evidence simply because it is hidden within a properly admitted exhibit introduced into evidence without restrictions." As I noted above, the only quesion for the Court of Appeals of Indiana in Hape should have been whether the text message was something that was improperly presented to the jurors, and based upon Benjamin v. Fischer, that the answer is a clear "yes."

But even using the logic of the Court of Appeals of Indiana, do you agree that an incoming text message is "intrinsic" to a cell phone? Using the same definition as the court, is an incoming text message something that "[b]elong[s] to [it] by its very nature; not dependent on external circumstances; inherent; essential?" Again, the answer seems to me to be a clear "no," and an extension of the court's logic would lead to scary results. For instance, let's say that a friend sent a text message to a juror indicating that a news story just revealed that the defendant failed a polygraph test. According to the Court of Appeals of Indiana, this text message would be intrinsic to the cell phone and could not form the proper predicate for jury impeachment. Such a conclusion would be both nonsensical and troubling.

All of this leads me to believe that the Supreme Court of Indiana might reverse Hape's conviction, but what about cases with intra-jury e-mailing, which is indeed intrinsic under Federal Rule of Evidence 606(b)? Well, one of the arguments in my new article, Dismissed with Prejudice, is that courts should find that the Rule violates the right to present a defense, at least in criminal cases.  But what do readers think?  Is it, to paraphrase John McClane, an analog rule in a digital world? Or does it still make sense?       

Justice Jackson on Umpires and Judges

This post was written by John Q. Barrett of St. John's and the Robert H. Jackson Center; it was sent to the Jackson List (Link: http://new.stjohns.edu/academics/graduate/law/faculty/Profiles/Barrett/JacksonList.stj) and was forwarded by my FIU colleague, Tom Baker. Jackson's comments are in line with arguments I have made against Chief Justice Roberts's views of the judge-umpire connection.

On Thursday, December 13, 1951, Justice Robert H. Jackson spoke at the New York County Lawyers’ Association’s annual dinner, held at the Waldorf=Astoria Hotel in Manhattan. The Association and its 1,000 guests that evening honored senior federal Circuit Judges (and cousins) Learned Hand (age 79, and a judge since 1909) and Augustus Noble Hand (age 82 and a judge since 1914). To close the program, Justice Jackson delivered a “benediction” speech that included a now-famous line: “if I were to write a prescription for becoming the perfect district judge, it would be always to quote Learned and always to follow Gus.”

Justice Jackson also paid tribute to the Judges Hand that evening by drawing the analogy between an excellent judge and a baseball umpire. As Jackson put it,

the test of an independent judiciary is a simple one—the one you would apply in choosing an umpire for a baseball game. What do you ask of him? You do not ask that he shall never make a mistake or always agree with you, or always support the home team. You want an umpire who calls them as he sees them. And that is what the profession has admired in the Hands.

In recent years, the umpire-like work of judges has been described as much more mechanical than volitional. In 2005, then Circuit Judge John G. Roberts, Jr., nominated to serve as Chief Justice of the United States, testified to the Senate Judiciary Committee that

[j]udges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire.

Chief Justice Roberts was, of course, confirmed. In the process, his description of judging as mere rule-applying umpiring became a topic of much attention and discussion. Among lawyers, law professors and judges, the consensus view seems to be that the Chief Justice knows better, and that confirmation candidate advocacy should be recognized for what it is.

Interestingly, a captivating new book, New York Times reporter Bruce Weber’s As They See ‘Em: A Fan’s Travels in the Land of Umpires (Scribner) (click here), takes direct issue with the robotic, rule-enforcer view of umpires’ work. According to Mr. Weber,

[t]hough fans and broadcasters may treat the [home] plate umpire as if he were a mere ballot counter, punching the ticket of each pitch as it crosses the plate and acknowledging its ostensibly obvious credentials, in truth he’s much more of an arbitrator, keeping the most contested area on the ball field from being taken over by one side or the other.

Mr. Weber’s account of the umpireal job is not just his opinion. He quotes from major league umpires who explain their work as involving autonomy, responsibility and opportunities for judgment that resemble the work and responsibilities of, well, judges. The author explains that during two-plus years of attending umpire school and then interviewing almost 200 umpires and other baseball people,

[m]ore than one major league umpire spoke to me of calling balls and strikes as a kind of political enterprise, an activity requiring will and conscience and a point of view.

“It’s like the Constitution,” [current Major League Baseball umpire] Gary Cederstrom said to me. “The strike zone is a living, breathing document.” When I asked [MLB umpire] Tim Tschida why balls and strikes provoked so many arguments and so much enmity, he responded by comparing the rulebook strike zone to one of the most controversial Supreme Court decisions of the twentieth century. “Have you ever read Roe v. Wade?,” Tschida said. “It’s very clear. What it says is very clear. And we’ve still been fighting for twenty-five or thirty years over what it means.”

It seems, at least according to these umps, that Justice Jackson (who was, by the way, not a baseball fan) had it right about both their work and his own. Indeed, Jackson in his 1951 speech about “umpires” Learned and Augustus Hand seems to have been channeling some of the wisdom of one of that era’s, and humanity’s, greatest “judges”: an umpire’s qualities must include, said Branch Rickey, “the discretion of a judge….”

Erie meets the First Amendment

The Maryland Court of Appeals last month established a standard for when a defamation plaintiff suing an anonymous on-line poster can enforce a subpoena against the non-party ISP to obtain the identities of the anonymous speakers. Commentary on the case here.

The court thoroughly discussed the standards that various state and federal courts have adopted for when such a subpoena should be enforced, ultimately adopting a three-part test: 1) the plaintiff must attempt to give notice to the Doe defendants that a court order has been sought to obtain the Doe identities and await a possible response; 2) the plaintiff must identify the precise statements alleged to be defamatory; 3) the plaintiff must make a prima facie showing of defamation; and 4) the court must balance the anonymous poster's First Amendment interests in anonymous speech with the strength of that prima facie case. The court was trying to balance First Amendment concerns inherent in such discovery efforts, a problem that arises primarily in defamation cases (which tend to arise in state court), but also could come up in copyright cases (which are brought exclusively in federal court).

So here is a nice Erie question: In a diversity action, must a federal court apply the state-law standard for when a plaintiff can subpoena the identity of an anonymous poster or can it utilize a different federal standard? Are these standards part of substantive state defamation law, where a federal court must follow state law? Or do they reflect an interpretation of the federal Constitution, which state and federal courts are equally competent to interpret? Or is it an interpretation of the procedural rules governing subpoenas, in which case federal courts interpret and apply one set of rules and state courts interpret and apply a different set?

Thoughts?

Black Holes and the Law: This is the End

Let’s hope that CERN’s risk-assessment committee did a better job than their symbolism-approval committee. Top: CERN-campus statue of Hindu deity Shiva, “the destroyer of worlds,” doing his cosmic dance that ends the universe. Bottom: The ATLAS particle detector, namesake of the mythological figure depended upon to prevent the cosmic sphere from collapsing and crushing the Earth into its primordial form.

I want to thank everyone who gave such insightful and, in many cases, well-researched comments to my various posts (here, here, here, and here) about the legal dimension of the safety controversy regarding the Large Hadron Collider, the European super-sized particle smasher which detractors claim might spawn an Earth-ending black hole.

This is a case that poses a number of extremely interesting questions about the philosophy of law, legal epistemology, the intersection of the law and politics, the intersection of law and psychology, and other areas. Because I think the subject is so worthwhile, I plan on doing some additional posts on my own blog, Pixelization, about the matter, including responses to many of the comments I’ve received to the PrawfsBlawg posts.

Part 5 of

Black Holes
& the Law

[Part 1]

[Part 2]

[Part 3]

[Part 4]

[Part 5]

Additionally, I’ve created a webpage where I will post court documents, links, and any follow-up work I do on the matter. I think this case could be fertile ground for classroom discussion in various classes, including Remedies, International Law, Jurisprudence, Civil Procedure, and Evidence. To the extent there are written opinions or other documents that could make good teaching materials, I will try to track them down and make them available.

For this post, I’d like follow up on something I wrote in my first post. I noted then that this is “a case that highlights the trust modern civil society has vested in the institution of the law and courts.”

“A court of law,” I continued, “wields enormous power. That power includes, ostensibly, the authority to shut down what is perhaps the most expensive scientific endeavor in history.”

Well, apparently not. As commenter “martined” noted, it turns out there was an action in a Swiss court aimed at delaying LHC operations. But the case was rejected because CERN – the intergovernmental organization operating the LHC facility – has immunity. (When I can obtain the court documents for these proceedings, I will post them on the resource webpage.)

The issue of CERN’s immunity is a whole other area of this case that is highly intriguing. From my brief review of what documents I’ve been able to find so far, the following appears to be the case: The treaties establishing CERN have vested it with legal personality. The host countries, Switzerland and France, have given CERN and its employees broad immunity and protection against interference by the courts and host country laws and regulations. That immunity is preventing plaintiffs, who argue their lives are at stake, from being able to use judicial process to mount any kind of challenge to CERN’s planned undertakings.1

Immunity for intergovernmental organizations may, in general, be benign. Applied to CERN, however, I find it troubling. Unlike most intergovernmental organizations, CERN is engaged in a category of activities – even putting black holes aside – that clearly qualifies as “abnormally dangerous” and “ultrahazardous” under American common-law doctrine. Governed by a council of delegates from its 20 member countries, power over the organization, and responsibility for it, is diffuse. When it comes to safety, CERN appears to be entirely autonomous, making its own rules and deciding whether or not those rules are being obeyed. Moreover, where the alleged harm is a planet-ending catastrophe, there is no prospect of after-the-fact remediation by CERN’s state sponsors.

This results in a situation in which CERN has many of the characteristics of a sovereign nation, but, unlike a normal state, CERN has no system of courts. CERN also lacks any constituency within its population beside scientists and their close associates. As such, CERN – and, perhaps, other intergovernmental organizations operating nuclear facilities – poses some interesting questions in the field of international law. CERN’s quasi-sovereign nature means that it may constitute a “scientocracy” in even a more palpable sense than I appreciated in my previous posts.

In view of CERN’s assertion of immunity from host-state courts, the failure of the European Court of Human Rights to deal with the case on its merits is even more unfortunate.

As a final note, to wrap up this series of PrawsBlawg posts, let me say that I do not want to stop the LHC. I have yet to be convinced of the experiment’s alleged hazards. In addition, I’m personally eager to see the theoretical advances in physics that the LHC promises to deliver. Nonetheless, I do think the LHC critics should get their day in court, and it should count. The case should be taken seriously, decided on the merits, and memorialized in a published opinion. Anything less would be very disappointing.

---

Notes
1Since CERN's immunity does not apply to contracting entities doing business with CERN, it would seem that suing for an injunction to stop CERN's contractors or suppliers might be a way to get the case into court. I do not know if the LHC critics' lawyers have explored such a strategy. I also wonder if it would be possible to get an injunction in some non-CERN signatory country against resident CERN personnel or even against CERN itself, if CERN has some business in the jurisdiction.

Scientocracy and the Need for Judicial Process

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

[Part 1]

[Part 2]

[Part 3]

[Part 4]

[Part 5]

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

A 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.

---

Notes
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.

Judicial Process Course Materials

Despite my best intentions, I’m about to break the promise I made in my last post (and what better way to celebrate an election than by breaking a pre-election promise?).  I thought about whether I could do another Malcolm Gladwell post, based on his latest piece, but haven’t quite been able to find an angle on that that I like.  And so, it’s back to the judicial process.  I’ve posted a “tentative draft” of my course materials on SSRN.  As I note in the abstract, these materials are a work in progress, and are surely incomplete in many important respects.  I welcome all feedback concerning how they might be improved.

Logic and Precedent

I'm not a jurisprudence guy, but as I noted in my post about In re Bilski here, I think there are some serious flaws in the way the Federal Circuit settled on the "machine or transformation" test as the only way a process patent claim can be patentable subject matter.  As a recap, here is what I said:

Here's how the court gets there:

1.  We know that natural principles aren't patentable.

2.  We know it is difficult to determine what is and what is not a natural principle.

3.  We know for sure that there are two ways to tell if something is not a natural principle:

    A. If it is tied to a machine or

    B. If it transforms the subject matter

4.  Therefore, the only way for a process to be patent eligible is to be tied to a machine or tranform subject matter.

5.  In order to make sure all principles are excluded, insignificant post-solution machines or transformations don't count.

Anyone else see the logical jump from 3 to 4?  I put this leap on the level of (i) if you weigh the same as a duck, you much be a witch (for you Monty Python fans) and (ii) Descartes' proof of the existence of god (for you philosophy fans).

I want to take a look at the court's logic (literally) and how it used precedent to support that logic.  I think the result will be that the court's test simply does not follow the precedent it cites.  Of course, that doesn't mean the court can't extend or limit a test and see what the Supreme Court does with it, but to say that the test follows as a matter of fidelity to precedent seems an unlikely claim due to three errors: semantic, precedential, and jurisprudential. 

Analysis follows after the jump.

The court does a good job of making its argument, and to avoid any claim that I am distorting the argument, I will quote the opinion directly where possible, though I do reorder quotes into their logical sequence.  Thus, this post may run a bit long, but it's easy reading.

The court starts with the basic proposition:

A claimed process is surely patent-eligible under § 101 if: (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing.

Fair enough.  I won't quibble with this basic reading for the purposes of this analysis.  Of course, even if a process is surely patentable in one of these ways does not mean there is no other such way.

The court then attempts to limit the rule to only this proposition.  It starts with Benson:

Applicants and several amici have argued that the Supreme Court did not intend the machine-or-transformation test to be the sole test governing § 101 analyses. As already noted, however, the Court explicitly stated in Benson that "[t]ransformation and reduction of an article 'to a different state or thing' is the clue to the patentability of a process claim that does not include particular machines.

The court later notes:

We recognize, however, that the Court was initially equivocal in first putting forward this test in Benson. As the Applicants and several amici point out, the Court there stated:

It is argued that a process patent must either be tied to a particular machine or apparatus or must operate to change articles or materials to a 'different state or thing.' We do not hold that no process patent could ever qualify if it did not meet the requirements of our prior precedents.

So far, so good.  M or T is the clue (heavy emphasis by court) but explicitly not the only test.  The court fails to note that the Supreme Court in Benson was urged to limit the test and refused to do so.  The court takes up the next case,  Flook:

Flook, 437 U.S. at 589 n.9 ("An argument can be made [that the Supreme] Court has only recognized a process as within the statutory definition when it either was tied to a particular apparatus or operated to change materials to a 'different state or thing'"

Hardly a ringing endorsement for the test - a footnote that says an argument can be made.  The court goes on to say:

In Flook, the Court took note that this statement had been made in Benson but merely stated: "As in Benson, we assume that a valid process patent may issue even if it does not meet [the machine-or-transformation test]." [emphasis added in Bilski]

After Flook, it appears that the test is in the same state - one method but explicitly not the only way to get to eligibility.  From a persuasive point of view, I think Flook moves me away from the test, but that's not enough to say the analysis is wrong.  Next comes Diehr:

And this caveat [the assumption from Flook] was not repeated in Diehr when the Court reaffirmed the machine-or-transformation test. See Diehr, 450 U.S. at 184 (quoting Benson, 409 U.S. at 70) (“Transformation and reduction of an article ‘to a different state or thing’ is the clue to the patentability of a process claim that does not include particular machines.”).

And also:

Diehr, 450 U.S. at 192 (holding that use of mathematical formula in process "transforming or reducing an article to a different state or thing" constitutes patent-eligible subject matter)

That's right, a string cite.  What of the "clue" language?  Here is the argument, in a footnote:

We believe that the Supreme Court spoke of the machine-or-transformation test as the "clue" to patent-eligibility because the test is the tool used to determine whether a claim is drawn to a statutory "process"—the statute does not itself explicitly mention machine implementation or transformation. We do not consider the word "clue" to indicate that the machine-or-implementation test is optional or merely advisory. Rather, the Court described it as the clue, not merely "a" clue. See Benson, 409 U.S. at 70. [emphasis in Bilski]

From this, the court comes to the conclusion that M or T is the only test allowed by precedent:

Therefore, we believe our reliance on the Supreme Court's machine-or-transformation test as the applicable test for § 101 analyses of process claims is sound.

There you have it - the Federal Circuit's transformation of a "clue" that is not explicitly limited to a mandatory and exclusive rule. 

I believe the reasoning makes three errors, which I call semantic, precedential, and jurisprudential for no reason other than I couldn't think of better names.

Semantic - Interpreting "the clue" to mean that one and only test may be applied seems to put a lot of faith in a single article.  I'll leave it to others to debate whether "the" means "a" in textual interpretation, but not before I note that the Federal Circuit addressed a similar issue in patent claim construction earlier this year in Baldwin Graphics v. Siebert.  The court there ruled that the article "a" means "one or more" and that a later singular qualifier article ("the") does not change that.  For example, if a claim says

A computer monitor comprising

a liquid crystal display panel

wherein the panel is in color

then the claim covers monitors having multiple LCD panels, notwithstanding the reference to "the" panel.  Analogized to the Benson case, the Supreme Court defined "a" test, and later referred to "the" clue.  The later "the" does not mean that there cannot be one or more rules.

Even disregarding linguistic definitions of "the" - something the court would call extrinsic evidence - there are at least two instances within the opinion - let's call it intrinsic evidence - that make clear that "the" clue cannot mean the M or T test is the one and only test.  First, the clue provided is not about machines or transformations - it is only about machines: "Transformation and reduction of an article 'to a different state or thing' is the clue to the patentability of a process claim that does not include particular machines."  This means that there must be at least two clues - transformation or particular machines.   Second, M or T is not the only part of the test - there is also the part that "insignificant post-solution activity" does not count as a machine or transformation.  If "the" clue really meant that this was the one and only test, then the additional requirement would not be necessary - that is an additional clue.  If there are two clues, then "the" cannot mean one.

Finally, extrapolating a single rule from "the" clue makes little sense.  Consider all of the following statements, all of which can be true at the same time in the decision:

• the clue is whether fundamental principle is implicated
• the clue is preemption of a natural principle
• the clue is statutory categories - if not in a category no eligibility
• the clue is application of the principle
• the clue is data relating to physical objects

These too are clues, and calling them "the clue" does not detract from the import of the others.

Precedential - I call this error "precedential" because, quite frankly, the court mis-states the precedent.  A lynchpin in the court's analysis is that Diehr failed to include the caveat present in Benson and Flook that there may be other ways to show patentable subject matter than the M or T test.  Whatever one thinks of this leap (discussed in the next section), the reality is that Diehr does include that caveat.

As Judge Newman points out in dissent,

The Court explained that the presence of a mathematical formula does not preclude patentability when the structure or process is performing a function within the scope of the patent system, stating:

[W]hen a claim containing a mathematical formula implements or applies that formula in a structure or process which, when considered as a whole, is performing a function which the patent laws were designed to protect (e.g., transforming or reducing an article to a different state or thing), then the claim satisfies the requirements of §101.

This statement’s parenthetical “e.g.” is relied on by the majority for its statement that Diehr requires today’s “machine-or-transformation” test. However, this “e.g.” does not purport to state the only “function which the patent laws were designed to protect.” This “e.g.” indeed describes the process in Diehr, but it does not exclude all other processes from access to patenting.

The majority addresses this in a footnote: "...language such as the use of "e.g." may indicate the Supreme Court's recognition that the machine-or-transformation test might require modification in the future."  Noting that additional tests might be considered in the future seems like a caveat to me.  In the context of the argument it weakens - if not guts - the claim that Diehr simply "reaffirmed" a narrow holding of Benson and deliberately ruled that M or T is the only test by leaving out a caveat.

Jurisprudential - The final error is jurisprudential, by which I mean the court's logic legal reasoning leaves something to be desired.  Even assuming that Diehr did not include an "e.g." and could be read as eliminating the caveat that M or T is not the only test, reliance on a missing caveat seems misplaced from a legal analysis standpoint.  The logical concern is obvious - just because a disclaimer is missing does not mean that all other avenues are foreclosed, but the issue goes beyond simple logic in my mind.  I think it goes to the heart of how we think about holdings and dicta.

Here's a breakdown of the three key precedents:

1. Benson:  The patent does not meet M or T, and is not patentable, though there may be other ways to show patentability
2. Flook: The patent does not meet M or T, and is not patentable, though there may be other ways to show patentability
3. Diehr: The patent does meet M or T, and is therefore patentable

The first problem is in Benson and Flook - if a patent is to be rejected, then shouldn't every test be explored to see if one of them is met?  There are three explanations for the court's failure to do so: (1) M or T really is the only test (belied by the explicit language of the case); (2) The court knows a bad patent when it sees it - also known as "insignificant post-solution activity" (not terribly palatable, because it still ignores the possibility of other ways to acheive patentability); or (3) some other test is actually being applied (this is my theory).  Because of these issues, it is difficult to ascertain the actual rule that leads to the holding of these two cases.  However, the court is explicit that whatever that rule is, there may or may not be others. 

The second problem goes deeper - and it is associated with Diehr.  Taking Benson at its face, one may show patentable subject matter by (i) machine; (ii) transformation; (iii) maybe some other way.  The Diehr Court rules that the process at issue is at least a transformation, and is thus patentable.  From a holding/dicta point of view, that's it - end of story.  The applicant need not prove that the process is tied to a machine, and the court need not address it.  The applicant need not prove that there is some other way to show patent eligibility, and the court need not address it. If the court did address either of these subjects, it would have been an alternative rule at best or dicta at worst.   Either way, the posture of Diehr - granting a patent by meeting one of many tests - makes reliance on its silence about other rules quite strange.

Jurisprudentially, the failure to provide an alternative rule or further dicta mandates a later reading that no such alternative rules or dicta exist.  And that is the real failing here - it took a lot of words to say something pretty simple - the failure to perpetuate a dicta-based caveat does not warrant an elimination of the caveat.  I'll push it further - even if Benson and Flook did not include explicit caveats but instead simple logic allowed for the possibility of other rules, then the failure of later cases to recognize that logic would still not eliminate the possibility of such rules until the court actually considered the issue and rejected a patent after applying such a rule.

So what?

That's a good question.  Reasonable minds can differ on whether the Federal Circuit got the test right or not (I don't think so), whether machine or transformation is the only test possible (I don't think so), and whether or not this limitation is good for the patent system (I don't think so).  I think that it would be difficult to justify the ruling as the only one justified by logic and precedent.

Culture and Inscrutable Science: An Analytical Method for Preliminary Injunctions in Extreme Cases

Is it plausible that scientists and engineers could overlook fatal flaws in a multi-billion-dollar project? Top: Foam from the external tank strikes the leading edge of Columbia's left wing. Bottom: The now iconic image of Columbia breaking up over Texas.

It’s one of the most interesting and daunting judicial controversies to come around in a long time: A few very worried individuals claim that a brand new, largest-of-its-kind particle accelerator under Switzerland and France, CERN’s Large Hadron Collider, could create a black hole that is capable of reducing the Earth and everything on it to an infinitesimal lightless speck.

So here’s the question of the moment: Is it plausible that a group of extremely smart, highly trained, non-sociopathic scientists and engineers could overlook fatal flaws in a multi-billion-dollar project and thus cause a catastrophe?

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It is plausible. In fact, it has happened multiple times. A recent example is the space shuttle Columbia disaster.

Previously I blogged about the analytical problems of considering a preliminary injunction against CERN. In this post, I’m going to attempt to provide an analytical solution. Here’s a recap of the dilemma: The science involved in this case is so complex, it would take years of physics training for a judge to make an independent evaluation of the arguments on either side. The old fallback, expert testimony, is problematic here, since all the experts are interested parties, and since our legal tool for sifting out unreliable expert opinion, the Daubert framework, collapses into analytical nonsense when faced with extreme facts such as these.

If the judiciary surrenders to these difficulties and refuses to involve itself in the dispute, the judiciary is then rendering consensus judgments within scientific communities effectively injudicable – even where those judgments are disputed, and even where the alleged harm is destruction of the Earth. That seems unacceptable. Yet if the judiciary plows ahead and issues an injunction in such cases – despite not having a principled way of evaluating the merits of the plaintiffs’ arguments – the courts are then transformed into a marionette – manipulable by frivolous objectors into halting any scientific undertaking that is sufficiently complicated so as to be opaque to the layperson. That seems unacceptable as well. Either way, we lose the benefits of fair judicial review.

Is there any way out?

I believe there is. And the Columbia accident points the way. The Columbia Accident Investigation Board concluded that several aspects of the culture of NASA’s human spaceflight program led to the disaster, including, among other things, political considerations and “stifled professional differences of opinion.”

While courts are not well equipped to evaluate theoretical science, they certainly are adequate to the task to investigating social dynamics, psychological factors, political influences, and organizational cultures. In evaluating a preliminary injunction request regarding the Large Hadron Collider, a court should scrutinize the culture of CERN and the particle-physics community, as well the political, social, and psychological context in which their decisions are made. Having done so, the court should then determine, with reference to those gathered facts, whether “serious questions” exist, and, thus, whether the case for a preliminary injunction has been made.

An honest appraisal of the situation reveals that there are many apparently plausible reasons why the culture at CERN and within the particle-physics community could lead to flawed risk analysis. I will list several:

To begin with, it seems highly plausible that particle physicists might fear serious reprisals and negative repercussions for their careers if they were to speak out about perceived dangers of the LHC. Denial of tenure, unaccepted manuscripts, and ostracism by peers are among the penalties an academic in such a situation might plausibly face. Such an apprehension would appear to be all the more acute because the LHC is the crown jewel of particle-physics experimentation. It dwarfs all predecessors in size and power, and represents a leap forward that could radically advance fundamental theory, possibly answering some of the most basic questions about our universe. To say that the LHC is important to the particle-physics community seems to be an understatement.

Further, in mulling over whether to speak out, particle physicists with private doubts might well resign themselves to a fatalistic assessment. They might plausibly figure that they, as individuals, are powerless to overcome the momentum of a multinational multi-billion-dollar project. If that is their appraisal, then such individuals have nothing to gain, but much to lose, by making a public objection. Consider the possible outcomes: If a scientist speaks out and nothing bad happens, the scientist is a laughingstock. If a scientist speaks out and disaster does come to pass, professional vindication will be fleeting and bittersweet. If a scientist keeps mum or even extols the safety of the project, in a disaster scenario, embarrassment will be short-lived.

But let's suppose particle physicists with private doubts reach the opposite conclusion about the likely impact of their public dissent. Suppose a private doubter predicts that his or her voice could be the tipping point that leads to widespread public concern and a permanent shutdown of the LHC. In such a case, whether the objecting scientist is right or wrong, he or she can anticipate being blamed for ruining the most exciting opportunity for advancing scientific understanding in this generation. And there’s no hope of vindication in such an event – naysayers cannot be proved right if the experiments are never run.

The math-oriented are often fond of using matrices to elucidate decision-making. A physicist creating such a matrix, using the logic detailed above, would be faced with a series of boxes in which all outcomes are quite bad, except one: to be a supporter of the LHC in the event that it turns out to be a benign scientific triumph.

Additional pressure on scientists not to question the LHC may also come from the fact that the LHC appears increasingly to be the only game in town for particle physicists wanting to work at the leading edge of discovery. In fact, the world’s largest particle collider currently in operation, Fermilab’s Tevatron outside of Chicago, Illinois, is slated for shutdown in 2010, apparently in large part because the LHC will render it obsolete. Other particle accelerators planned for the future have had their funding suspended or cutoff.1

A psychological or sociological explanation for how particle physicists could reach a consensus on safety, despite the existence of real danger, is the phenomenon William H. Whyte, Jr. called “groupthink.” This process allows individuals to maintain a worry-free outlook that is not justified by the facts. In such a dynamic, the existence of group consensus causes individuals to forego or dismiss their own independent thinking. A circularity develops: Group consensus justifies individual confidence, and individual confidence justifies group consensus. The result is flawed decision-making. Groupthink has been offered as an explanation for both the Challenger and Columbia space-shuttle disasters.

Another set of concerns arises from the question of how political realities might have affected the decision-making environment at CERN. As a consortium run by 20 member states, it is plausible that politics plays a significant role in the CERN milieu.

Still another point of worry is the independence, or lack thereof, of the safety reviews that have been advanced as evidence that the LHC is safe. While an independent report was completed in 2003, more current documents said to confirm the safety of the LHC, which were issued in response to recent criticism, are the product of CERN itself, and are not independent.

Other factors are worthy of investigation as well. It may be, for instance, that the timeline of infrastructure construction and critical theorizing is such that LHC interests were thoroughly vested by the time potentially convincing theoretical work on safety concerns surfaced. That is, the late hour at which objections were made could well have prevented their open-minded consideration, regardless of merit. Some elements of the broad timeline of the LHC endeavor suggests this: The LHC was approved in 1994, and construction began in 1998. Construction was nearing completion in September 2007 when Otto Rössler released a paper explaining his new mathematical work, which, according to Rössler, demonstrates the LHC’s grave danger. Rainer Plaga’s article making a negative assessment of the risk at the LHC was published in August 2008, a month before operational testing began. At the point these papers were advanced, it is plausible that the LHC project had already reached the point where halting it was politically unthinkable.

Supporters of the LHC have argued that Dr. Plaga and Dr. Rossler are not career-dedicated particle physicists, and, therefore, their theoretical work should not be taken seriously. As discussed above, it seems plausible that the cultural environment in which particle physicists operate is such that public objection to the LHC is discouraged and stifled to the point where it is non-existent. Given such a state, we would expect public objection to come from outside the particle-physics community. Thus, rather than being a reason for discounting such theoretical work, the outsider nature of such work might be a reason to embrace it.

Even putting aside the social and cultural pressure on particle physicists to conform, it is a well-talked about phenomenon, famously advanced by Thomas S. Kuhn, that paradigm-shifting revolutions in scientific thought often come from individuals who are new to a field of study, and thus not entrenched in its conventional modes of thinking. (Jim Chen wrote about the virtues of juniority in the legal academy on MoneyLaw.) Thus we might expect that career particle physicists would be slow to accept paradigm-shifting theoretical work that undermines confidence in the safety of the LHC. As a corollary, the lack of particle-physics bona fides among LHC critics, especially ones who are serious and respected scientists, should not be relied upon as a way to dismiss their concerns.

There may be several other sociological, psychological, political, and cultural factors, in addition to those I’ve listed above, that would be relevant. The matter requires some deeper thought. Nonetheless, I believe this list of considerations shows that questions about the reliability of LHC safety assessments are not specious.

Let me be clear: I am not accusing CERN or the particle-physics community of incompetence or malfeasance. The above points are not set forth as factual contentions demonstrating the case for a preliminary injunction. Rather, I posit them as realistic possibilities that raise non-trivial questions, the answers to which could seriously undermine the consensus view that the LHC is safe.

I should also emphasize that I am not arguing in favor of a preliminary injunction against the LHC. Whether one should be granted is, to me, an open question. What I am arguing is that there is an analytical way for a court to reach a well-reasoned decision in cases such as this, even where the merits of the scientific controversy itself are opaque to judges lacking specialized scientific training, and where expert testimony is of dubious use in adjudicating the matter. In considering a preliminary injunction, the court should investigate the cultural, organizational, political, psychological, and sociological context in which safety determinations were made, and then ask whether the results of that inquiry raise serious questions on the merits. If serious questions are raised, and if the balance of hardships tips strongly in the plaintiffs’ favor (as it clearly does with a black hole destroying the Earth), then an injunction should issue.

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Notes

1Mark Alpert, Future of Top U.S. Particle Physics Lab in Jeopardy
Congress's budget cut decelerates U.S. high-energy physics research, Scientific American, January 22, 2008.

Planet-Eating Black Hole vs. Maverick Scientists: The Ultimate Preliminary-Injunction Case

Photos from CERN. Top: A section of the 27-km particle raceway critics say could spawn a black hole. Bottom: A safety-conscious CERN scientist wears a hard hat.

I’ve noted that I am fascinated by a case that is pitting a group of worried individuals against the multinational CERN consortium, which, last month, completed work on the Large Hadron Collider – the most powerful subatomic particle smasher ever built. It was constructed with the hope of resolving fundamental questions about the universe. Among other things, scientists hope to create particles that have not existed since the Big Bang.

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Not everyone is excited. Some people believe the $5-billion-plus LHC machine, which inhabits a circular tunnel under the French and Swiss countryside outside of Geneva, could create exceedingly tiny black holes. In time, critics worry, these little black holes could grow in size to eventually devour the Earth. A malfunction causing mechanical damage and a helium-coolant leak has delayed the critical LHC experiments until early spring 2009. In the meantime, we have yet to see how a court would handle, on the merits, the perplexing judicial conundrum posed by this granddaddy of all preliminary-injunction requests.

Jurisdictionally, there might be no way to apply American preliminary-injunction law in litigation against CERN. But how American law would handle such a request is, I think, an interesting question, and one that is worth exploring.

Like mathematical equations that seem to break down under the weight of very large or infinite variables, our rubric for preliminary-injunction analysis begins to unravel when faced with alleged facts such as these. Let’s step into the mire.

Under American law, preliminary-injunction requests often involve an attempt by the plaintiffs to make a showing of probable success on the merits. For many reasons, that would be difficult to do in a case against CERN. Better for plaintiffs in this case is doctrine allowing a court to grant a preliminary injunction if “serious questions are raised” and the “balance of hardships tips sharply” in favor of the plaintiffs.1

So let’s balance the hardships.

Granting the requested relief would shut down, for years, one of the most expensive, complex, and ambitious scientific undertakings in human history. That’s a lot of hardship. Further, the discoveries the LHC could enable, which might alter and greatly expand our understanding of the universe, would be removed years into the future. Certainly that is not insignificant. Moreover, as a practical matter, a judge would likely be compelled, even at the preliminary-injunction stage, to consider the effects of a permanent decommissioning of the LHC. Why? A court-issued preliminary injunction would undeniably give LHC critics an imprimatur of credibility. That, in turn, could cause a tipping point in public sentiment that would make an LHC restart politically impracticable. In such a situation, even if safety concerns were finally proven unfounded, the political will to go through with the experiments might be irreparably lost. The harm flowing from a permanent halt to the LHC program would certainly include colossal economic loss – the LHC has already been built, and it represents billions in unrecoverable costs. More philosophically troubling, a permanent stoppage would largely end humanity’s quest to understand the fundamental nature of the universe – or at least it would until we could build a similar particle collider on a heavenly body we cared less about. (Pluto comes to mind.) Add it all up, and that’s a lot of hardship to balance.

Now, on the other end of the scales is the Earth and everyone on it being devoured by a black hole.

Result? Black hole wins. You can’t get more hardship than that.2

So the plaintiffs clearly prevail under the first prong. Now we just need to consider whether “serious” questions are raised. This is where it gets complicated.

Here’s a quick summary of the scientific dispute:3 Detractors say that colliding particles at the incredible velocities achievable by the LHC will collapse matter so compactly, a tiny black hole will be formed. LHC-supporters actually admit this is a possibility. But they say this is not a cause for worry, because if microscopic black holes are produced, they will evaporate immediately through a process called “Hawking radiation.” Critics respond that Hawking radiation is merely an unproved theory; it’s never been observed. Besides, they argue, their own calculations show that black holes could be stable. LHC-supporters retort that if stable black holes can be produced at the LHC, then they would be naturally occurring on Earth, since cosmic rays bombarding our planet commonly collide with Earth-bound particles at the same energy levels as those produced at the LHC. Therefore, LHC-supporters reason, the fact that the Earth is still here proves that the LHC poses no threat. Detractors point out that cosmic rays bombarding Earth do so at a very high velocity relative to that of the Earth. Thus, they reason, any black hole created through this natural process gets ejected out into space as quickly as it is formed. Contrast that situation with the LHC, say the critics, which shoots two beams of particles from opposite directions so that they collide with one another head on. The head-on collision will cancel out the momentum, and any black hole that is created will be trapped by the Earth’s gravity, they argue. From there, the argument goes, it would be pulled down through the laboratory floor and fall toward the planet’s core.

Who is right? Who is wrong? Let’s put ourselves in the position of judge. What is our independent evaluation of the matter? What result do we get when we check the calculations for ourselves?

Of course, that’s precisely the problem. We can do no such thing. The subject is utterly recondite. The few people on Earth who are capable of understanding the subject matter form a very exclusive club, and judges and lawyers are not members. Physicists themselves are a rare enough breed, but only a relative handful of them understand the applicable subfield of theory and calculations that is relevant to rendering a meaningful opinion on the matter.

Thus, we lawyers are sent looking for our old fallback in such a situation: expert testimony.

Here’s a rundown of the experts. The international physics community says that the LHC is safe. CERN commissioned a safety review, which gave the facility a clear bill of health, and there is, so far as I can tell, no one within the particle physics community who disputes it.

The only opposition, at least among credentialed academic scientists, appears to come from two German scientists.

Dr. Otto Rössler of the University of Tübingen in Germany is one. He is no lightweight. Dr. Rössler, originally trained as an immunologist, is an acknowledged pioneer in chaos theory. He’s held professorial appointments in mathematics, chemistry, theoretical biochemistry, nonlinear studies, chemical engineering, and theoretical physics. Dr. Rössler is clearly very smart and something of a maverick. Reading about him, you quickly begin to wonder if he wasn’t the inspiration for Jeff Goldblum’s character, Dr. Ian Malcolm, in Jurassic Park.

The other critic is astrophysicist Rainer Plaga of Germany, also an apparently respected academic, if less colorful than Dr. Rössler.

While Dr. Plaga and Dr. Rössler may be respected scientists, neither is a “particle physicist” per se.

So far as I can tell, there is not a single particle physicist anywhere who has expressed doubts about the safety of the LHC.

So now that we have the experts in front of us, what are we to do with their testimony? Let’s do the legal analysis.

Just as the overall preliminary-injunction analysis seemed to break down under the weight of the variables imposed by this problem, the expert-witness qualification analysis from the U.S. Supreme Court’s teachings in Daubert v. Merrell Dow Pharmaceuticals seems to break down as well. Daubert provides that, in making a threshold determination of scientific validity, we must look to whether the expert’s asserted theories are testable, falsifiable, and refutable. Here we reach a logical absurdity, for it is the testing itself that hangs in the balance of the injunction determination. The theories of Rössler and Plaga can only be confirmed through the obliteration of the court, the parties, and the planet. Daubert does not seem well-suited for the challenge on this score.

Daubert also asks us to look at whether the proffered theories are generally accepted among scientists. Here, we have a definitive answer. Dr. Rössler’s and Dr. Plaga’s theories are not; CERN’s are. But can that be the end of the inquiry? In some situations, looking at the general acceptance of scientific theory is sensible, such as inquiring into causation issues with cancer clusters. But in the realm of black-hole litigation, we encounter circularity. If the Rössler/Plaga theories were generally accepted, and CERN’s were not, there would be no controversy before the courts. LHC construction would have been halted long ago. It is the very fact that the theories are not generally accepted that gives rise to the litigation.

Moreover, since it is the conduct of the scientists themselves that is in issue, requiring scientific-expert opinion in this matter to be “generally accepted” would be tantamount to making consensus decisions of the scientific community on laboratory safety issues unsusceptible to judicial review. Can that be right?

The logical vortex grows.

What’s a judge to do? In a follow-up post, I’ll describe what I see as a possible analytical way out of this conundrum.

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Notes

1See Natural Resources Defense Council, Inc. v. Winter, 518 F.3d 658, 677 (9th Cir. 2008).

2You might argue that destroying the entire Earth, while bad, is not the worst that could happen. The absolute worst thing, you might say, would be destruction of the entire universe. Strangely enough, destruction of the entire universe, though something called a “vacuum bubble,” is actually another theoretical disaster scenario placed on the table by LHC critics. The vacuum-bubble scenario, however, seems to be less of a concern for critics than the black-hole scenario.

3UC Irvine’s Jonathan L. Feng runs down the don’t-worry arguments here, and panic-now arguments are here. More complete, but less accessible documentation of the dispute is found here: Abraham-Solution to Schwarzschild Metric Implies That CERN Miniblack Holes Pose a
Planetary Risk; Otto E. Rossler, “A Rational and Moral and Spiritual Dilemma”; Comments from Prof. Dr. Hermann Nicolai, Director, Max Planck-Institut fur Gravitationsphysik (Albert-Einstein-Institut) Potsdam, Germany on speculations raised by Professor Otto Roessler about the production of black holes at the LHC;
Rainer Plaga, “On the potential catastrophic risk from metastable quantum-black holes produced at particle colliders,” arXiv:0808.1415; Steven B. Giddings and Michelangelo L. Mangano, “Comments on claimed risk from metastable black holes,” arXiv:0808.4087.

Could Bad Judging Cause the Earth to Be Sucked Into a Black Hole? Maybe.

Top: A black hole. Bottom: A judge.

Last month, courts on two continents were asked to grant injunctions to stop the Earth from being sucked into a black hole. Really.

Complainants claimed that the just-completed Large Hadron Collider, a ground-breaking particle smasher built beneath the border of Switzerland and France, could create microscopic black holes that would eventually grow in size to swallow the Earth. Plaintiffs sued to stop the European Center for Nuclear Research (“CERN”) from turning on the multi-billion-dollar machine.

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The case is absolutely fascinating on a number of levels. In fact, it has all the makings of a law-school classic. At this point, however, we lack a thorough written judicial opinion on the merits to inspect. One lawsuit, filed pro se in federal court in Hawaii, was dismissed, as you might expect, on jurisdictional grounds. The other lawsuit, filed in the European Court of Human Rights, has not produced any written opinion that I can find. News reports indicate the ECHR rejected a request for interim measures, indicating that the case may take years to reach the most interesting questions. So far as I can tell, there is no legal action being pursued in the Swiss or French courts. It may be that the case has simply not been teed up such that we will be able to see a judicial review on the merits. If so, that would be a shame.

But even without that, I find the controversy to be, from a legal academic perspective, highly intriguing.

To begin with, it is a case that highlights the trust modern civil society has vested in the institution of the law and courts. A court of law, unarmed and employing only a tiny staff, wields enormous power. That power includes, ostensibly, the authority to shut down what is perhaps the most expensive scientific endeavor in history.

At the same time, if we take the case seriously at first face, as I think fairness requires, then literally the fate of the entire world rests, potentially, upon the decision of a judge.

That is food for thought.

The lawsuits have been ridiculed by CERN supporters as absurd. I understand why they would take that stance. But it would be a shame for judges and academics to shrug off these claims as silly before looking at the merits. Lawyers and judges have always been arbiters of life and liberty. And that heady responsibility only increases as humanity’s destructive capacity mounts. If this case does not put a judge in the position of saving the world, another soon might. In a technological age of human-induced climate change, genetic engineering, and nuclear chain-reactions, the prospect of the courts confronting a real doomsday scenario is decidedly non-trivial.

If and when the titans of science and industry find themselves at odds with bystanders about what constitutes acceptable risk to the environment and the human species, lawyers and judges are the citizens’ bulwark. That’s a sobering responsibility – one that might rightfully lead to some deep reflection about the education of lawyers and the nature of the legal profession.

There’s a lot to unpack here. I’ll follow up soon with a post discussing the hypothetical preliminary-injunction issues.

The Judicial Process, Defined

Last week I bemoaned the fact that those of us who do work in the judicial process area have no organizational home of our own.  My aim in this post is to talk a little bit more about what I've got in mind when I talk about the judicial process as a field of learning.  Probably the best way to do so is to describe the seminar I'm teaching this semester - "Judging and the Judicial Process" - which provides a pretty good first cut.

Our focus, as I put it in the course description, is "on courts as institutions and on judges as the primary actors within those institutions."  We started with what one might call the "standard" model of judging, which calls for judge-umpires to apply determinate law via formalist analysis.  Then we pretty much blew it up, considering the work of the legal realists, public law theorists, political scientists, cognitive scientists, and so on.  Having blown it up, we tried to put it back together.  Is there still a case to be made for formalism?  Is pragmatism the way to go?  (Judge Posner appears on the syllabus often enough that he ought to get credit for co-teaching the class.)  Are we left to rely on the good faith of judges and Karl Llewellyn's "major steadying factors?"  Now we're on to some more discrete topics: are judicial activism and judicial independence meaningful concepts?  What purposes do judicial opinions serve?  What's the proper role of precedent?  What are the relative merits of specialized versus generalist judges?  Although I had initially thought we'd start with judicial selection, it turns out that we'll end there (on the theory that only after we've been thinking about the descriptive and normative aspects of judging for a while can we really address the question of how judges ought to be selected).

The seminar has been a blast.  The students are engaged, the discussion is lively, and the comments are thoughtful (and I've gained a lot from the exercise of putting it all together).  So it's somewhat puzzling to me that this isn't standard fare in U.S. law schools.  No doubt some of it gets covered here and there in the curriculum.  But as far as I can tell that coverage is typically piecemeal.  Sometime over the medium term I'd like to turn these seminar materials into a casebook.  As I suggested last week, it's apparent to me that there are enough people out there writing on judicial process topics that some of you might be persuaded to teach a class on the subject.  Either way, there's still plenty of time to join the movement.