Legal Commentary

Top: A black hole. Bottom: A judge.

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.

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.