Memories of Donald H. Wollett...

A full grown horse or dog is beyond comparison a more rational as well as a more conversable animal, then an infant of a day or a week or even a month old. But suppose the case were otherwise, what would it avail? The question is not, can they reason? Nor, can they talk? But, can they suffer, Jeremy Bentham.

Don was 86 when I met him. We worked together for the next seven years on two books and labor arbitrations. Over time a mutual appreciation grew for the interplay of anthropology and law.

Don sat in his judge's chair and I sat on one chair or another. We kept a third chair for Jeremy Benton. The legal philosopher wasn't into this God-given right thing and had a few things to say about the newly formed American constitution. He tried to tell the president and then later the governors of every state that natural law was easily co-opted without codification. They didn't listen. After all building a rule of law through principled codification was hard work. Idealism and morality as somehow something to do with natural laws was easier.

He said once, you and I are true socialists. Intellectually, I wasn't sure what he meant by that but in my heart I understood. By his definition, Don is thinking of others, about the past before World War II. He is recalling his contemporaries, friends, and teachers –Levi Strauss, Robert Hutchins, Archie Cox, Learned Hand… not idealists, something more. Something about the rule of law.

He became more emotional in his old age, whether he recalls the death of his two daughters or the insane number of executive orders coming out of Obama which proclaimed don't help anyone on humanitarian grounds or you will be judged by the company you keep and you will go to jail.

Donald Trump announced he was running for president. A lot of people were laughing. We were not laughing. Don knew about injustice after a couple thousand labor arbitrations and he felt the legal structure needed serious fixing. He believed things were ready to blow.

Don had been a constitutional lawyer, labor lawyer, teacher and a new York state administrator under governor Hugh Carey. What he had really wanted to be was a minor-league baseball player like his father. However life had a different place for him. His bent was toward law at an early age. When he was 17 he won a statewide wide competition critiquing the Supreme Court in the case of Roosevelt’s court packing plan. His essay was titled “Nine Old Men”. The die was cast.

Don became a revered teacher at various universities including Harvard and the University of Washington and the McGeorge School of Law. He frequently used unorthodox methods to reach students. He applied the principles he had learned in life to teaching law.

His love of baseball was abiding along with his fascination with the collective spirit. He served for 15 years as a counselor advisor and salary arbitrator for Scott Boras, a renown sports agent and former student. He believed that the “team” in baseball represented the collective spirit." However, at age 93 he wrote,

“The principal reason for my regrets is set forth in Dan McGrath’s review of Getting on Base where he quotes me, ‘baseball is a team game, not merely a collection of highly skilled personnel, some making a lot more money than others. It is the performance of the team that governs success or failure. A sensible compensation system must reflect that fact. I would like to think that performance as a player is what counts.’"

My regret is about the inequality that I helped create which is illustrated by the case of Alex Rodriguez. When Scott first called me with the news he had made a $250 million deal for Alex with the Texas Rangers, $25 million each year for the next ten years, I was troubled. I still am. He was spending so much money on the Rodriguez deal that he didn’t have enough left to field a competent team. Dealing with more cosmic matters than baseball I remain concerned about how this same inequality in status and income has engulfed our nation.”

As Don grew older he would look out the bay window over the waters of Puget Sound in Washington State and frequently turn our conversation to World War II and his time as a captain of Subchaser 511. He said this is where he learned about collective actions, listening, and therefore walking behind as a leader. From there during his career he developed an acute awareness of the voices behind unions and negotiations. He faithfully followed his principle of enlightened self interest when it came to negotiations with unions and management. Along with a few cohort survivors such as Levi Strauss and Archie Cox, he was in many ways asynchronous, a leftover in an essential history that would not make its way into the classrooms.

When we met Don was still receiving a good flow of arbitrations from the AAA and other sources and remained a practicing labor arbitrator into his 90s. I believe his common practice of enlightened self interest remains a primary lesson on how to realize the rule of law.

Don and others were survivors of a golden age of law prior to World War II. This law presented a more humanistic view that, to my benefit, gave equal weight to the inclusion of social sciences. In New York, Don saw that this law was also guided by a Jewish perspective on ethical, cultural, and religious teachings. Today, this critical contribution to the rule of law has become sadly misplaced thanks to Israel's far-right government and the ascendancy of Christian Zionism.

Something in law itself was lost in the WW11 postwar era. The development of legal reasoning was increasingly replaced by competitive and economic motives that subsumed principled practices that define the rule of law.

Don was deeply concerned. He loved the law as much as he loved baseball. He, more than most, worked to realize not a rule of law subject to arbitrary practices, but the rule of law through principled practices that, as international law attempts to do, leads to codification. He built his understanding, not through arbitrary decisions, a practice Jeremy Bentham decried, but through growth. Harking back to his essay, nine old men, he was dismayed at what was happening to the US Supreme Court. He said that their job was to interpret the law, not make it. They were straying beyond their bounds.

We spent many hours talking about the meanings of fairness and justice and trying to understand what these concepts meant from our respective positions. Even after his death this search for understanding stayed in my bones.

We co-authored two books. The first book, Getting on Base, was about the plight of minor leagues in baseball. The second book, with a nod to Jeremy Bentham in the third chair, was initially titled "Dog Law". We had to change the title because potential readers thought it was about dogs. Well, from Jeremy Bentham's perspective, it was. Why would you punish a dog that did not know what crime it committed?

We work together on labor arbitrations for several years. To me, Don as an arbitrator represented how the law should and could act, yet didn't.

Notably, Don had never had a case remanded to a court. This was primarily due to the fact that he was good at what he did. It was also true that it was due to trust and respect which he had received over the years from both management and unions. Whatever the venue for a labor arbitration, and they varied, he brought some formality with the same respect that would occur in a court. He asked for respect in return and he received it.

There were differences of course. He put the parties first. When lawyers interfered based on questionable motives he would tell them to leave his “courtroom”, which might have been a hotel room or a fire station. He paid particular attention to the more difficult subjects in arbitration (and in law generally), motive and remedy.

He believe that ultimately the law's promised equity could only be achieved with the realization that the failure of law was based on broken relationships.

He was hands-on and pursued questions directly one-to-one when necessary.

The more I worked with him the more I realize that law in general had an untapped and poorly recognized resource in the stories that drove labor arbitrations.

We looked at the crucible of people's lives in weighing applicable procedural and substantive laws within the limits of arbitrarily law.

In most cases we could not introduce social externalities and broader extenuating circumstances. Decisions and awards were bound by the limitations of arbitral law.

Still, a broader context was part of our conversations on a regular basis and helped enlighten decisions within arbitral boundaries.

Overtime, our side conversations became more fluid and interesting. Legal reasoning and anthropological perspectives merged in consideration of cases in their meanings to broader issues, which were increasingly disturbing under Presidents Bush and then Obama. In that regard, some cases simply stuck to our bones and would not leave us.

Today, following Don Wollett’s death, certain cases still resonate in my mind especially given today’s world. We had called this one “Stick Man.”

The subject of a possible firing said "I got up, walked around over to the toolbox, I took out a safety wire, 25,000 of an inch, and came back over, sat down and proceeded to make the hour and the minute hand just sitting there. Then I had an extra piece left over so I made a stick man and laid it right on the table.""

Someone witnessed his "stickman" drawing. She testified, "I don't know of any one who would sit there and do something like that especially with the situation in the world" (referencing 9/11).

The accused explained "I was bored."

So 9/11 had happened. Accusations and supporting “facts” against the former marine spread like wildfire. The marine had made a prototype for a bomb in the lunchroom. The facility, which manufactured weapons and serviced military planes, was put on high alert.

The "evidence" grew. Someone remembered that a briefcase has been sitting at his feet. An employee's wife was afraid he would find out where they lived and come after them. Another employee said he seemed angry. A couple of employees said they were afraid of him.

In Don’s mind there was too much fear and two few facts. Something else was going on.

He decided to have a conversation with the marine. He learned that he was a widower raising two girls as best he could. For the most part he was a loner. As an ex marine he believed in rules. He saw right and wrong in pretty rigid terms. This was especially true when it involved safety.

Over time, the accused had observed too many safety violations by employees who worked on the military planes and in response he had filed grievances and had gone through the right channels to lodge complaints with no success.

He had became increasingly frustrated. He didn't understand. he said none of this had anything to do with his doodling because he was bored.

As an aside, without attribution, we conducted a poll by showing different people the "stickman" and asked them what they thought the doodle was. No one came up with answers that had anything to do with a threat.

Don found for the marine. People didn't like him because of his aloneness and rigid attitude about following the rules regarding safety concerns. Don saw that infectious fear in the workplace had dictated reason and the workplace had failed to address the problem.

In truth, Don had his bias. Lies told by the accusers was something Don had zero tolerance for. In contrast, he was impressed by the way the marine had looked him in the eye and spoken simply. He understood the meaning of the marine's aloneness as someone trained to follow the rules; as a father raising his children by himself.

Today, Don is gone. Today, employees, students, journalists or apparently anyone, can be fired or condemned for a single sentence expressing their views about the state of the world. It is even worse than it was in 2016.

It is difficult to find a remedy for this if the crime is not defined or addressed based on principles that build the rule of law and are meant to inform the US Constitution. It appears as if there is no remedy in sight and this allows the contagion of fear.

Today, in this two-party system, one party seems to foster this fear by adopting powerful overtones of morality. They have put differences displayed by human beings (eg.racism or condemnation of Pro-palestinian protesters) as moral endeavors with little empathy.

Jeremy Bentham view of humanitarian law, when considering whether animals have moral rights, was not whether the dog can think rationally or communicate through speech, but whether it can experience pain and suffering; essentially arguing that the ability to suffer should be the primary factor in determining if any being (or cause) deserves moral consideration. 

The purpose behind the hard work and meanings that lead to codification in the process of upholding as well as building the rule of law, according to Jeremy Bentham, is to "maximize the greatest happiness and minimize suffering for all sentient beings; not to capitalize on suffering with moral explanations

The means to achieve this exist for example in Donald Wollett's principles such as enlightened self-interest. Can this be codified in law? Yes.