Technical Babble

Copyright 2000 by Ronald B. Standler

Introduction "penumbras, formed by emanations" Hydraulic Pressure Heisenberg's Uncertainty Principle
Return to my essay on style in legal writing.

Introduction

This essay is an extension of my terse remarks on style in legal writing, where I objected to misuse of technical words or phrases from science or engineering:

From time to time, one sees allusions in court opinions to technical words or phrases from mechanics, electricity, magnetism, nuclear physics, etc. Such allusions are objectionable because they are jarring to the reader (i.e., they stick out like a sore thumb) and – to a scientifically literate reader – they show that the writer does not understand scientific terms. The latter point raises the question, if the writer uses scientific terms that the writer does not understand, then what else in the document has a weak justification?

"penumbras, formed by emanations"

One famous example of out-of-place technical jargon is Justice Douglas' opinion for the U.S. Supreme Court:

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.
Griswold v. Connecticut, 381 U.S. 479, 484 (1965)

Douglas found the right of privacy in the penumbras of the U.S. Constitution. A penumbra is a partly lighted area around the complete shadow in an eclipse. An emanation is an emission, as radon gas is emitted from radium metal. Neither technical allusion is appropriate here. The right of privacy is nowhere mentioned in either the Constitution or the Declaration of Independence. Justice Douglas simply created the right of privacy and then tried to assert, in a piece of sloppy scholarship and flowery writing, that it came from the Constitution. Let me make clear that I, personally, think the "right to privacy" is a good thing, but Justice Douglas gave an inadequate justification for its existence.

Hydraulic Pressure

For reasons that I do not understand, judges have a fascination with "hydraulic pressure". I have no objection to using "pressure" in a metaphorical sense, but "hydraulic pressure" is pressure in a liquid that is confined within a closed system, such as rigid tubing, with cylinders and pistons. The adjective "hydraulic" is not appropriate in the metaphorical use of pressure.

There are several U.S. Supreme Court opinions that mention "hydraulic pressure" in a metaphorical context:

Great cases[,] like hard cases[,] make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.
Northern Securities Co. v. U.S., 193 U.S. 197, 400-01 (1904)(Holmes, J., dissenting).: The hydraulic pressure inherent within each of the separate Branches [of government] to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted.
Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 951 (1983).: ... the axle tax has a forbidden impact on interstate commerce because it exerts an inexorable hydraulic pressure on interstate businesses to ply their trade within the State that enacted the measure rather than "among the several States."
American Trucking Associations v. Scheiner, 483 U.S. 266, 286-287 (1987).

As would be expected, these statements by Justices of the U.S. Supreme court are frequently quoted by other judges. Here is an example by the Chief Justice of the Missouri Supreme Court, in a case involving sexual abuse of children:

Child abuse and sexual molestation are crimes that deserve society's deepest outrage and most stern punishments. Because of the outrage we justifiably feel when confronted with these crimes, there is a grave danger that we will allow them to alter our commitment to basic evidentiary concepts designed to guarantee due process. Cases like this one appeal to "the feelings and distort[ ] the judgment. These immediate interests exercise a kind of hydraulic pressure ... before which even well settled principles of law will bend." Northern Securities Co. v. United States, 193 U.S. 197, 400-01, 24 S.Ct. 436, 487, 48 L.Ed. 679 (1904) (Holmes, J., dissenting). Regretfully, the hydraulic pressure of outrage we feel when a person exercises his position of authority to abuse children sexually has resulted in a rule that places a defendant's right to a fair trial in jeopardy.
Missouri v. Bernard, 849 S.W.2d 10, 21 (Mo. 1993)(Robertson, C.J., concurring).

Robertson not only quoted Holmes' metaphorical use of "hydraulic pressure", but Robertson also invented his own phrase: "hydraulic pressure of outrage".

In addition to the metaphorical use of "hydraulic pressure", there are many cases involving legitimate uses of this phrase, such as torts involving the failure of a hydraulic brake system on a truck. But, although "hydraulic pressure" is used in a legitimate context, the exact phrasing shows that the judge did not understand the technical concept. As examples:

... the system depended on hydraulic pressure "of a very high magnitude" being contained within steel tubing, called brake lines. If the steel tubing failed, and hydraulic pressure escaped, the brakes would not function.
Gall v. McDonald Industries, 926 P.2d 934, 936 (Wash.App. 1996).
It is the brake fluid that would escape, not the pressure.: The RBI is a large machine used to stamp metal sheets to design specifications through the application of many tons of hydraulic pressure.
Bursey v. Kewaunee Scientific Equipment Corp., 459 S.E.2d 40, 41 (N.C.App. 1995).
Pressure is properly measured in units of force per unit area, such as "pounds per square inch" or – better – "newtons per square meter", not in units of force (i.e., "tons").

Heisenberg's Uncertainty Principle

The famous uncertainty principle states that the product of the uncertainties in each of a conjugate pair of variables (e.g., position and momentum) can not be less than Planck's constant (i.e., 6.63 × 10^-34 joule second). Hence, any increase in precision of one variable is associated with a decrease in precision of the other variable in the conjugate pair. This is an important principle in modern physics that only applies to elementary particles and other sub-atomic phenomena.

I did a search of all of the state court opinions in the WESTLAW database on 23 Aug 2000 that mention "Heisenberg" and "uncertainty" in the same sentence. I found three cases.

Two of these cases involved criminal prosecutions for shell games in New York City:

The skilled Monte dealer verifies the adage that the hand is quicker than the eye and provides practical proof of Heisenberg's uncertainty principle. The odds are clearly two to one against the player, but some dealers are so good at this trompe l'oeil that they induce the bettor to specifically pick a wrong card rather than guess one out of three, thus increasing the odds against the bettor.
New York v. Turner, 629 N.Y.S.2d 661, 663 (Crim.Ct.NYC 1995), quoting Judge Irving Lang in
New York v. Williams, 402 N.Y.S.2d 310, 311 (Crim.Ct.NYC 1978).

The shell game has nothing to do with Heisenberg's Uncertainty Principle. Judge Lang was just tossing out an intellectually sophisticated phrase to make him appear more intelligent than he really was. The judge's remark about "practical proof" is also objectionable: not only is gambling not a proof of the Uncertainty Principle, but also there is no such thing as a "practical proof". One proves laws of physics by doing an experiment; one proves mathematical theorems by doing derivations. And, for good measure, Judge Lang also tossed in a French phrase, "trompe l'oeil".

The other use of the Uncertainty Principle was in a divorce proceeding that had been appealed to the West Virginia Supreme Court.

The sheer complexity of custody decisions means that the measurement process itself changes the thing that is measured. Lack of neutrality in measuring things is a recurring problem in many areas of human endeavor. In physics the problem is known as the Heisenberg uncertainty principle — which refers to Werner Heisenberg's discovery that it is impossible to measure both the speed and the location of an electron simultaneously because the measuring devices themselves affect the speed and location being measured. Heisenberg, "Über den anschaulichen inhalt der quantentheoretische Kinematik und Mechanik," 43 Z.Phys. 172 (1927); see also A. Zee, Fearful Symmetry: The Search for Beauty in Modern Physics 140 (1986). A similar principle applies to divorce cases — measuring family problems usually makes these problems worse.
David M. v. Margaret M., 385 S.E.2d 912, 920, n.24 (W.Va. 1989).

Anyone who has been through litigation knows attorneys can make a bad situation worse. But the ordeal of litigation has no relevance to Heisenberg's Uncertainty Principle:

People are macroscopic, so the principle does not apply to people.
There is no measurement in courts, in the sense that the word measurement is used by physicists.
The question before the court was whether the mother was fit to have custody of the children. If the mother's parental fitness is one variable, what is the other conjugate variable? It can not be the father's parental fitness, because the pair of conjugate variables must have different dimensions.

And the court mangled the Uncertainty Principle: it is possible to measure both the speed and location of an electron. A correct statement of the principle is that an increase in precision of one variable has a corresponding decrease in precision of the conjugate variable. It is not the variables themselves, but the precision of the variables, that is the subject of the Uncertainty Principle. One wonders if the court, in its pretentious display of physics, was not trying to distract the reader's attention from the fact that divorce litigation is out-of-control and often does appreciable harm to both adults, as well as the children. Perhaps the state supreme courts should reform the process by enforcing strict limits on the conduct of attorneys during divorce litigation. But, by comparing divorce litigation (which is strictly under the control of the state supreme court) with a law of nature (which must be inexorably obeyed), the West Virginia Supreme Court seems to make an excuse for their refusal to correct a flawed system that is under their control.

I am amused by this judge's citation of Heisenberg's original publication in the prestigious German journal, Zeitschrift der Physik. There is an academic rule that one must personally read material before citing to it. Do you think this judge can read a scholarly physics journal in the German language? Not a chance, given his mangling of the Principle! This judge can not even understand an English-language physics journal.