Monday, July 16, 2007

Physics Analogies and Law

Among my claims to truly minor (aka "nonexistent") celebrity status is (as I snidely observed back in January) that, as a law student, I was one of a team of five assistants to Larry Tribe on a law review article, with Barack Obama one of the other four. The article is The Curvature of Constitutional Space: What Lawyers Can Learn From Modern Physics, 103 Harv. L. Rev. 1 (1989), and my recollection is that I didn't do all that much work on the piece, in part because I thought the exercise somewhat ill-conceived.

The point of an analogy is to take something fairly complicated and compare it to something simpler that the reader/listener already understands. This is why the famous Judith Jarvis-Thomson hypothetical case---in which you inexplicably wake up one day with your circulatory system intertwined with that of an unconscious violinist who will die if disconnected (reproduced seemingly without permission here)---is not all that helpful in breaking deadlocks about the moral status of abortion. Most people have much clearer moral intuitions about abortion than they have about unconscious violinists.

And likewise with modern physics. The interconnectedness of space, time and gravity that general relativity posits and the seeming paradox of the two-slit experiment at the quantum level are hard enough for people with serious training in physics to wrap their heads around. For most lawyers, even most very-smart-but-not-physics-trained lawyers, the answer to the question "what can lawyers learn from modern physics?" is "not much," I'm afraid. Tribe's admittedly elegant article is, like Thomson's violinist, an analogy going in the wrong direction.

Or so I long thought, until I happened across this wonderful Tom Tomorrow cartoon, which explains VP Cheney's hilarious claims that he is both entitled to executive privilege and not part of the executive branch by reference to quantum mechanics, with a reference to black holes thrown in. If only Tribe had posed the question "What can lawyers learn from cartoons about modern physics?"