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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.

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.

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