Litigiousness

THE OPEN MIND
Host: Richard D. Heffner
Guest: William McGill
Title: Litigiousness
VTR: 4/29/79

I’m Richard Heffner, your host on The Open Mind. Our subject is our country’s increasing litigiousness, and my guest is a man who has given the most pointed and brilliant expression I’ve encountered to the deepening concern of ever more thoughtful Americans that “We are well on the road toward building one of the most undistilled adversary societies the world has yet seen”. Whatever the reasons, we as a people are experiencing extraordinary and dangerous stress and a consequent sea-change in our national psychology – perhaps our national character – as a result of the escalation into general policy of adversarial procedures that once were peculiar only to legal combat with its assumption that” a client’s interest is pursued to the disregard of nearly all other considerations”, and that “the criterion of success is not necessarily the public good, but the advancement of the special interests of one’s own constituency by any means not specifically prohibited”. This isn’t a good situation. It deserves identification and analysis. And clearly one of the most articulate analysts in American life today of this theme is my guest, Dr. William McGill, the President of Columbia University. Dr. McGill, thank you for joining me today.

McGill: It’s a great pleasure.

Heffner: I wonder if I could start off by noting that you’ve noted that efforts to identify and to analyze this problem, the role that has been played by the surfacing of more and more advocacy groups in America, women, blacks, Hispanics, students, homosexuals, the aged, the handicapped, consumers, environmentalists, etcetera, runs the risk of denunciation as being hostile to those causes. And I wonder if you’ve gotten caught up in that flap.

McGill: Oh, sure. I’ve been caught up within the last two weeks in the struggle around the Columbia community involving the environmentalists’’ pressures with respect to a teaching device, a small fission reactor in the basement of the engineering school. The merits of that question really don’t concern us here. What is interesting is that an effort to pursue any form of rational analysis of a complex public question always thrusts you into the middle of adversary catcalling. I’ve been a chief campus administrator for 13 years, and I’m literally amazed at the extent to which I have found myself constantly embroiled in one struggle after another. I suspect that it’s because these small, these one-issue constituencies, as they are now called in Washington, really emerged on university campuses right after the big stresses of the antiwar protests. We all urged our students to work within the system and to make use of the political devices that were available for pursuing their interests. And, by gosh, they did. They did it with great skill and effectiveness. But there is something to be concerned about here. Right now we’re spending a lot of time visiting china. The Chinese are coming to see us. This is the People’s Republic and its great effort to make a leap forward in technology by getting into contact with American universities. And all of us are enormously struck at the difference in outlook, in atmosphere between modern china and the US. You don’t want to be naïve about this. You cannot go across the boundaries of another culture, and especially a system that does not welcome dissent, naively. But on the other hand, what seems clear to us about china is the great sense of pride which the very large majority of the people there have about the advancement of their society, their working together for a common purpose, which is to extract itself from what they had been plunged into by centuries of western exploitation. They did it themselves. They did it by the main force of organization and unity, and they tell us that. And we come back to lawsuits and investigations and media pressures, and we sense the difference. It does seem to me that there is a developing condition of stress in American life now which is very dangerous to us.

Heffner: You seem to feel that that stress stems from what historically we once were able to tolerate. The assumption in Madison’s, in the Federalist #10 and in the notion that this country is composed of various groups bringing different kinds of pressure that those pressures balance themselves out. You seem to feel that that notion today is perhaps a source of the stress you refer to.

McGill: Yes, I think so. In my adult life I’ve been enormously struck with the wisdom of the founding fathers. They understood the weaknesses of the human spirit a darn sigh better than many of us did. We grew up in the World War II generation. We revered rationality. We were snactimoni9ous about the emotional pressures of other societies. We used to pat the heads of the French and the Italians and the volatile Europeans who would tolerate public excesses. When they began to appear in our own society in the early 1960s, many people were terribly appalled, aghast. They ran away from them. All of these things were known to the people who wrote the Constitution. They provided the basic protections that went with tolerance of dissent. The avoidance of moralizing. One of the things that has struck me so powerfully in the years since I first was projected into the chancellorship of the University of California in the middle of the antiwar protests is the God-awful moralizing that goes on continuously among young people on campus. It takes the form, “Gosh, Mr. President, why is it that Columbia has to be on the wrong side of every moral issue?” Imagine a simplistic statement like that. As though issues had two sides. As though one of them was clearly moral and right, and the other was clearly destructive and wrong. And so when you do, given this intense thrust of thinking, if you try to organize a small group of like-thinking people and then create a focus of political pressure to achieve your objectives, it is not so much the political technique that bothers me, and I think that’s what this society was built to do. But what bothers me is the sense of unctuous moral righteousness that goes with this organizational style. You find it everywhere. You find it among the homosexuals on campus, among the feminists. And, indeed, what is appalling to me is I listened to the vice president of Mobil Oil yesterday talking to the engineering school alumni, telling them that they had to get angry, that they had to use the same approaches or they were going to be smeared by these other forces, hostile to rationality in American society. Isn’t that fascinating? To achieve rationality again, one needs to be irrational for a time in order to get the objective that you believe is right. That’s the essential part of what’s wrong with us at the present time. You know, I don’t want to view with alarm or be sanctimonious in my own way about this. This is very interesting and a very serious problem. The roots of it lie, I think, as you said, in the projection of the adversary techniques of combat which were properly used as a method of the courtroom to discover truth into a much larger public vehicle where I think the interest is not the discovery of truth, but the advancement of a narrow interest. How do you find the truth about the effects of low levels of radiation on public health? It seems to me that there is a rational course here, and that it requires the patient analysis of data and the publication of data for scrutiny by fellow scientists who approach it from a level of basic skepticism, trying to determine what’s wrong with it. It wasn’t done that way now. Of course, what happens is that a good many biostatisticians publish their work in the New York Times or The Washington Post before they publish it before their colleagues. And one draws the cynical conclusion that they have a political objective in mind. And that produces a condition of entropy, of confusion in communication that permits narrow interests to be advanced but does not, I think, foster discovery of truth.

Heffner: Well, the confrontation tactics which you identify with the rebellions of the young in the ‘60s, and they the rebellions of all these other groups, is there some way of not turning the hands of the clock back – because that’s what we don’t want to be involved with – but of minimizing confrontation politics, of minimizing the use of the adversarial procedure outside of the courtroom and in the area of public policy?

McGill; Well, I think it’s probably the case where we ought to talk about this. That with the development of mass media communication, confrontation is a far more attractive way of doing business because it sells newspapers, it makes people watch television. You look at the eleven o’clock news in New York now and just, I ask our audience to look. Just look at the eleven o’clock news and wait for the cancer scare. It will be there almost every night. Why is that done? Well, it attracts an audience. So the confrontational method, it seems to me, goes with mass communication. What’s troubling is that we do not seem to have developed in this country the alternatives to adversarial struggle by which we can solve public problems. The British, you know, devised the Royal Commission approach. The Royal Commission was a group of citizens who were regarded as so honorable and so above petty interests that their analysis of a major public problem would be compelling. I don’t want to be critical, but America’s use of the commission, the presidential commissions or the governors’ commissions usually are public relations devices. They are not really intended to create a solution as an alternative to confrontation. They are meant to paper over a difficult that a president or a governor finds himself in. the president has just appointed a national commission to look at the Three Mile Island disaster in Pennsylvania. It has a housewife that’s a member of the commission. Well, I don’t really object to that it just doesn’t seem to me that she is likely to contribute much to the work of the commission. It has its geographical and ethnic components. It has its distribution of advocacy interests. There are proponents of nuclear energy. There are opponents of nuclear energy. The idea is to get the thing so balanced that I has a public relations appeal, but not to solve the problem. And that seems to me to be a perversion of what ought to be the development of an extremely useful alternative in this society.

Heffner: Dr. McGill, you talk about the British appointing commissions, the Royal Commission groups of citizens regarded as so honorable, etcetera, etcetera,. I wonder if, in our confrontational times, one could find a commission that could be made up of citizens generally regarded as so honorable and so above their own petty involvements. Isn’t, I mean, again in this adversarial situation, my, I suspect you, you suspect me, and the media will go to town. And, as you suggest, capitalize in the best or most traditional sense of that word, on our mutual suspicions. How does a royal commission, presidential commission, overcome that basic suspicious that this litigious society ours now encourages?

McGill: Well of course Mr. Heffner, you’re quire right. It can’t be done in an instant or overnight, perhaps not in a year or five years. But we ought to do the beginnings of the effort. There are a whole set of extremely sensitive public issues now relating to public health. The analysis of substances that are potentially mutagenic or carcinogenic. You know, the substances that are said to create cancer. It’s an extremely complex public issue. One of the really remarkable and I think fundamental discoveries of the last 15years is the gradually developing conclusions of people working in molecular biology and public health medicine that the origins of many cancers are environmental, that they come from the advanced chemical environment that we’ve created in the years since World War II. And that of course then sets in motion latent anxieties in the population. People can become afraid. Is the hairspray you use going to give you cancer? Are the hamburgers you eat going to sometime produce cancer? I did read about a month ago that hamburgers are carcinogenic. I’m afraid that we’re going to discover before we’re through with all this that that’s not really the question. You know, almost everything is carcinogenic in some population at some dose level. And the real question is whether or not that’s a serious matter of concern in relation to the omission of those things from the population. Is it better to have a low-level risk of cancer from a sugar substitute than it is to have a heart attack as a consequence of the weight problems that are caused by failing to control sugar intake?

Heffner: Yeah, but now you’re talking about tradeoffs.

McGill: Yes.

Heffner: We’re not very good at tradeoffs in this country.

McGill: No.

Heffner: We’re not very good at the reasonableness, at the rationality that you spoke of before. We haven’t been for some time. How do you then institutionalize tradeoffs? How do you find…you suggested the Royal Commission. That isn’t happening. In one of your addresses, I was so impressed, when you talk about the need for finding, encouraging the institutions in our society that will stand apart from these battle royal that go on, and somehow or other bring reason and conciliation, rather than further division.

McGill: Yes.

Heffner: What are those institutions?

McGill: Well, we’re on the right track with the basic discovery here, that, what is that issue? Is this very complex set of tradeoffs that are required in an advanced society, how does one build the institutions that discuss them in reasonable and sensible ways? The commission device is important. It’s been perverted. We might correct that. But that’s not all that needs to be done. It seems to me that one of the great weaknesses of universities as centers of rationality in society is the fact that for most of the time in which this process has been evolving, we haven’t been analyzing it. We have not attempted to develop the alternatives. Indeed, it’s perhaps an indictment that much of the adversary character of the public process derives from the views of a limited number of academic people who saw that as a way of achieving social change quickly by intervention in the society.

Heffner: That’s an indictment.

McGill: Well, but it’s true. I’m afraid that it is the case that the regulatory environment that we all denounce was invented by lawyers and political scientists who came from the academic life who saw evil and tried to change it. The problem was that they didn’t think it through completely. They tried to change it too rapidly. There is something to be said for trying to achieve social change by the patient use of incentives rather than by intervention. Because once you begin to intervene, you create a process that requires further intervention. And you develop what is now this colossus of regulatory intervention that does not seem to me easily to be controllable. Look, universities: the National Academies of Science, one of the most distinguished bodies in the country, the National Institutes of Health. There are institutional bodies. Let’s pick another one for amusement. The American Bar Association. You know, one might try, from the most distinguished of the leadership bodies of this society, not just the task of protecting their own turf, but the development of a more harmonious context in which to solve public problems. Maybe I overreact to this, but I’ve been a university president for 13 years, and I have seen nothing but lawsuits, investigations, pressures. And they distract me from what I think is my main job, which is the direction of an educational institution and the improvement of it. I’ve become a modest expert on human rights law. I’ve had to become that. I also am an authority on government regulations in the university area. That’s not what a university president should be doing. He should be thinking about the future, trying to evolve the character o the disciplines that are going to come out of the educational framework now.

Heffner: But you know, if – that makes me think of a question I’ve asked many guests, and I always have to back away from the question because of the answer eventually, because generally we become Pollyannas – is it not possible (let me phrase the question that way), is it not possible that we have reached a stage where, for whatever reasons, mass media of communications, advanced technology in the area of science, the potential for the tradeoffs being lethal, one side of the tradeoff is lethal, is it possible that we’ve passed the time, the point at which there is enough faith and belief and trust in our society to find an answer in any institution, “I don’t’ trust Columbia University”, says its own students at times about this or that.

McGill: Yeah, yeah.

Heffner “I don’t trust the President of the united states. I don’t trust the Supreme Court. I don’t trust this company or that.” Perhaps we’ve got to think through another societal structure that encompasses and deals with and recognizes distrust. Our forefathers thought in terms of trust, essentially.

McGill: Well, it is interesting to speculate whether we have reached the ultimate in the paranoid state, because indeed that is a possibility. I’m inclined to be doubtful. I really do think that these matters are modifiable, that we’re in a kind of evolutionary flux, and that really the best framework in which to try to visualize these developments is not one of the dissolving structure into a kind of mass paranoid distrust, but an ebb and flow of criticism in which a tide will come along rather shortly in which it will be possible, when people view the excesses of one style, to try to correct it a bit. I think that is more characteristic of our democratic evolution over two centuries. My guess is that these problems are really the distillation of a number of trends that happen to come together all at about the same time, and at the best we have encountered a rather powerful thrust toward narrow constituencies and special interests. We have the gradual disappearance of idealistic forms of religious control of behavior. You had the ultimate exposure in the early 1960s by the blacks of the completely sanctimonious approach that the country had taken to equal rights, with the blacks getting tough about it for the first time and insisting on real equality rather than the platitudes that we had given before: “Just wait. We’re going to evolve a better society in which you can feel more of a role”. We had the war, and the murder of major public figures in the United States. Things that were unheard of before. All of these came together at the same time. And I think that they created an emotional context for young people that led to the thought of mass rejection. The whole student counterculture of the 1960s seemed to me to be a way to get out of the ugliness of that environment into a kind of primitive, pastoral, romantic era in which everyone would do his own thing. That, of course, didn’t work. But the central philosophical theme of the counterculture, as I see it, was that we all ought to be in charge of the decisions that control our lives. And that led right to the environmental movement and to the small constituencies. And I don’t think we’re stuck there. It does seem to me that what we are facing now is a paralysis of decision-making in the country, because our political system is seemingly unable to handle the pressures of small constituencies, for the reasons that you outlined. The amplification of a small constituency by its attractiveness to the media. I think we can change that. I don’t think that we can change it in a Pollyanna way. One of the things that’s perfectly apparent to me is that there is a great weakness in the social theory that underlies American law. American law evolved out of – I’m not an expert in the law – but it evolved from British law. It has built into it a concept in areas where civil affronts are involved, a concept of redress of grievances that I think is based on the most primitive kinds of social conceptions. It seems to me, for example, that you can redress people’s grievances to the point that you make them into imbeciles, that you rob them of their motivation. It’s better, somehow or other, it’s more satisfying to file a lawsuit than it is to try to change an ugly environment in which you find yourself.

Heffner: Legal profession hasn’t basically embraced that concept as you’ve put it forth.

McGill: Not all of them. I find that some of the leading academic theoreticians in law, and some of the judges of the high courts, are quite sensitive to this. Their view is that a courthouse in the future ought to have many doors, and only one of the doors would be the one in which adversary combat takes place. The other doors are essentially conflict resolution doors, where disputes that arise in the normal course of conducting our national life would be resolved by means other than the adversary struggle. And they’re thinking here of divorce, of child care, of negligence law. There is a great prospect for social reform in the law if we can begin to develop a less primitive form of social theory.

Heffner: Dr. McGill, I think when you say, “A less primitive form of social theory”, leads me to the conclusion, as we reach the end of our program, that what we have to do here, clearly, is come back again, if you will, and come with those who are involved and defend and embrace it philosophically, this, the litigiousness is a result of what they embrace, the whole concept of resolving conflict in this way, of defending the interests of your constituency or your client. And we’re going to have to, not fight that out, but mediate it out here…

McGill: Talk it out.

Heffner: …at another time. And I really do appreciate your joining me today, Dr. McGill.

McGill: I’m delighted. I enjoyed it very much.

Heffner: And thanks too, to you in the audience. I hope that you’ll join us again on The Open Mind. Meanwhile, as an old friend used to say, “Good night, and good luck.”