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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Black Holes
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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.