William B. Gould IV, the Charles A. Beardsley Professor of Law, Emeritus, is interviewed by his colleague and friend George Fisher, Judge John Crown Professor of Law and Stanford Criminal Prosecution Clinic faculty co-director.
GEORGE FISHER: I’d like to start with some of your personal history. You were born in Boston. And I know your great-grandfather escaped slavery—is that right?
WILLIAM GOULD: Yes. My great-grandfather escaped slavery from Wilmington, North Carolina, and joined the United States Navy and served in the Navy for three years in the fight against the Confederacy, patrolling the southeastern coast on a ship called the USS Cambridge and then going across to Europe to pursue Confederate ships that were being built in and emerging from Britain and France.
FISHER: And he ended up in Boston?
GOULD: Yes. When he was discharged. In September 1865, his ship reached Boston, Massachusetts. He had been there at least once previously, as he recorded in the diary that he kept during this period of time. And he was able to renew his acquaintance with my great-grandmother, who had been purchased out of slavery. He exchanged voluminous correspondence with her during the war. In 1865 they married on November 22 in Nantucket.
FISHER: You went to law school at Cornell in Ithaca, N.Y. What led you to law?
GOULD: Well, I didn’t know a lot about law schools. No one in my family had ever been a lawyer. My interest in law was sparked because of Brown v. Board of Education and also because of the Army-McCarthy hearings, some of which arose out of incidents at my father’s workplace in Fort Monmouth, New Jersey. Those hearings and the subsequent Watkins hearings, which I attended in Washington, were events that made me very interested in the law. But when I got to Cornell in the fall of 1958, I soon became quite unhappy and disappointed with what I had chosen to do because the law school curriculum there at that time was aimed primarily at people who wanted to work at a prestigious Wall Street firm or in some small town in upstate New York, where they would open up a general practice. And I wanted to do neither of those things.
FISHER: So somehow you managed to find your way to labor law. Did you have an inspiring labor law teacher—or was there even a labor law course?
GOULD: I got a series of very lucky breaks at Cornell. I had long had an interest in civil rights, but I knew that there really weren’t many civil rights jobs around. So I became interested in unions, which I thought had an egalitarian philosophy, particularly the CIO [Congress of Industrial Organizations] unions, and I had become very much interested in Walter Reuther and the United Auto Workers (UAW), and some of the others.
So, here I am in my first year and I have Kurt Hanslowe as my professor during his first year of teaching and he devises a paper assignment which brings together labor and civil rights law. This excited me very much. I did a great job on the paper and I came to his attention and, subsequently, took other courses with him and others at Cornell’s Industrial and Labor Relations School as well as at the law school, focusing on labor issues and constitutional law. Anyway, he took a liking to me and recommended me to the UAW legal staff for a summer clerkship. As I look back on my life, I think, professionally, that was the luckiest break in a series of very good breaks for me.
FISHER: Was that inspiration from this professor part of your motivation for going into teaching, as opposed to being a full-time labor practitioner?
GOULD: I had no interest in teaching at that juncture at all. But I had a great interest in the subject matter. After I had worked with the UAW for a few years, I did a research program for a year at the London School of Economics under the tutorship of Otto Kahn-Freund—the doyen of comparative labor law professors. Then I returned and worked for the NLRB in Washington and for a law firm in New York City, which was headed by a distinguished Cornell graduate, Theodore Kheel, and which brought me into a lot of arbitration. At this time I had published seven or eight journal articles and I was writing numerous book reviews and short articles for weekly publications like Commonweal and The Nation. I was very lucky to live in a time when some doors were opening up that had been closed to blacks. My father, the greatest man I ever met in my life, suffered terrible racial discrimination. Suddenly in the late 60s, not only did we have comprehensive anti-discrimination laws, but I actually became involved too as a consultant for the U.S. Equal Employment Opportunity Commission. I traveled to Alabama and South Carolina for conciliation of employment discrimination cases.
And so here I am in the late 60s, working and writing and suddenly I get a call out of the blue from the associate dean at a small law school, Wayne State University Law School. I was familiar with Wayne State—I’d lived near it when I was in Detroit with the United Auto Workers. Anyway, I was invited to come out and meet them. And I said to my wife, well, I don’t think I’ll ever be interested in accepting any position that they have to offer me, but it’ll be a good chance for me to see a lot of my old pals from the Detroit days. But then they explained that I would be able to teach labor law and constitutional law courses and I would have sufficient time to write and develop some of the work that I was doing at that time. And they had no objection to my continuing to arbitrate, as I was beginning to do in New York City.
FISHER: After just a few years you moved from Wayne State, then following a visiting stint at Harvard Law School, on to Stanford. You joined as the first faculty member of color in the same year as Barbara Babcock, the first woman. What kind of change do you think Barbara’s and your arrival at Stanford made in the faculty?
GOULD: I think there have been enormous changes since that period of time. We were both the first, and there was a relatively small but growing cadre of black law students whom I came to know very quickly. The group soon expanded into many distinguished practitioners of law,
Regina Petty, JD ’82; academics, Gary Williams, JD ’76, my research assistant; and judges, Tony Richardson, JD ’85, who was in all of my classes. Women, well, you know that situation has changed dramatically since my time in law school when there was one woman in the entire class. I think only in the 80s and the 90s did we begin to get some parity in numbers between men and women. And it was not until the 80s that a second black professor came to the faculty. And, of course, a very important development for me was in 1977 when a guy who turned out to be my best friend on the faculty was hired: Miguel Méndez, the first Latino member of the faculty. And he was just a wonderful, fabulous human being and discussant and we had so many good times together.
My father used to say to me when I was a kid, “You know, a lot of people are going to be against you as you go through life, on the basis of color, but there are going to be some people who are for you and who are deliberately for you.” And I think that there were a few people around who were like that: Paul Brest facilitated my research on South Africa’s constitutional negotiations, my research having begun in the 70s, culminating in meetings with Nelson Mandela and a friendship with Cyril Ramaphosa; Tom Ehrlich, who was the dean responsible for my hiring; Keith Mann, who was a character in his own right, a very interesting guy. I remember one time my father came here and met Keith, and they had lunch together and my father said to me, “I think that he’s on our side.” And so there were these people here and then Miguel came, and so the atmosphere, the environment, became more congenial as the years went on.
FISHER: When you first arrived, did you feel welcomed by the faculty?
GOULD: Well, yes and no. On the one hand, there was an atmosphere where there was some opposition. I was in an environment where I had a dean who stood with me, but you really had to watch your p’s and q’s. There were some good people, but there were also more subtle things. A guy on the faculty once pulled me aside and said, “You know how you were hired here, don’t you.” And I said, I didn’t know. I didn’t know one single person on the Stanford Law faculty before I arrived. I told him that apparently they thought that I had something to contribute in my field and he said, no, he said, we have this special list. I’ve been a proponent of affirmative action, but also uneasy about affirmative action primarily because of that kind of attitude. You see, he wanted me to know about that factor, so that I would know where I stood and where he stood.
Another time, I was at an alumni dinner when one of the leading alumni said, just as a matter of fact and apparently not recognizing that I was black, that Indo-European Caucasian people are fundamentally superior to blacks. Well, you know, I’ve heard a number of things like this over the years, and sometimes I fight and sometimes I don’t. But on this occasion I chose to create a great uproar, and Dean Ehrlich jumped in and made some kind of public speech about it. Ironically, at that time I was involved in a number of employment discrimination class actions as lead counsel—one involving the Detroit Edison company where we opened up hundreds of skilled jobs for blacks where they had been previously excluded and obtained the first punitive damage award in the country as well as “front pay” for loss of future earnings and the largest per capita back pay award of the 70s and perhaps beyond. As a result, the Wall Street Journal did a feature story on me—but in it the Journal referenced that alumni incident.
I look back and see what my father and countless people that I knew experienced. Racism is a cancer in our society. But what I went through is not comparable to what existed for those earlier generations.
FISHER: Nonetheless, I’m sorry to hear about it. Is that what drew you and Miguel together? Miguel, I should say, was a great evidence scholar and the first Latinx member of the faculty.
GOULD: I think so. Both of us had unconventional backgrounds for Stanford Law’s faculty or any major law faculty at that time. But there was something just very compelling about his personality and we had a lot of good fun together.
I taught not only labor law when I first came to Stanford but I taught a seminar on employment discrimination law, which had never been taught before. When I first started teaching the seminar in 1968, there was virtually no case law, because the major statutes were just coming into being. We were rediscovering some of the old statutes from the Reconstruction era. So when I got to Stanford, there was very little material and gradually, year by year, I put all my own materials together. I remember that Miguel and I would discuss some of these cases involving language—like English-only requirements in the workplace. And it was Miguel who, for the first time, made me understand that the situation involving Mexican-American workers in the West and the Southwest was in many respects akin to what I had seen involving race where I was growing up. I even invited him to come in and talk to my seminar about some of these early cases involving language. I miss him a lot.
FISHER: So you constructed the materials for your seminar in employment discrimination. And what drew you to a specialty or sub-specialty in sports law?
GOULD: I had a great interest in sports, going back to childhood. When I was nine years old, I fell in with a group of guys and we played baseball every day—morning and afternoon. Nobody measured the distance between the bases and, of course, with no umpires, you began to have exaggerated ideas about your abilities. And so sports got into my bones as a child and except for short periods in my life stayed with me.
FISHER: Did you see a natural connection between labor law and sports law?
GOULD: That came in the 1960s and the development of unions in major sports, but they call themselves associations. So I was a baseball fanatic and I liked basketball. A good friend of mine named Bob Berry came to teach at Wayne State the same time I was there, and we shared an interest in sports. We saw the relevance of labor law, anti-trust law, and contract law to sports. We’d go to games all over the place and we worked on articles, including one in the New York Times and then ultimately we published a book together. One of our research assistants was Ken Shropshire, who is now a leading sports law professor. And then, I became a salary arbitrator with this new system of arbitration in baseball and that was very exciting.
FISHER: And that preceded your appointment by Clinton.
GOULD: Yes. I served in Washington as chairman of the NLRB. One of the things that raised the profile of the National Labor Relations Board to the public was the mother of all baseball strikes in 1994-95. We were able to intervene in that strike and bring it to what most people regarded as a successful conclusion and create a new era of peace and prosperity for a quarter of a century.
FISHER: Is that pay increase due to unions? Or to some ground you laid in helping to resolve the strike?
GOULD: We were not directly involved in the substance of the agreement, but we helped the players keep gains they had won in the 70s and 80s: the right for salary arbitration to resolve differences and free agency. The players fought for free agency for years. Free agency was brought in by an arbitrator, Peter Seitz, in a very famous case in December 1975. But the owners in the 80s and the 90s were trying to take these rights away. And so I would say our intervention had the effect of negating the attempt by the owners to repudiate everything that had been gained earlier, though the issue was whether they had bargained in good faith.
FISHER: After 60 years as a labor arbitrator, what do you think makes you or anyone a good arbitrator?
GOULD: I’m not sure whether I can provide an answer to this. I guess I’m a reasonably good arbitrator—otherwise, people wouldn’t select me from time to time. But it’s very important, I think, to be able to hear both sides and to hear the parties out. Initially, because I worked as a young man with a pick and shovel and stocking shelves in the grocery stores, lifting things over my head when the boss said, ‘If that drops your week’s wages are going down the drain,’ I had some empathy for many of the people these procedures affected most.
FISHER: When a man with your outlook on life and your feeling toward labor becomes head of an agency like the National Labor Relations Board, it has an effect on that agency. Don’t you think?
GOULD: Yes, I remember a friend of mine named Jack Sheinkman from New York City, who was the president of what used to be the Amalgamated Clothing and Textile Workers Union. He was the one who brought me to the attention of President Clinton. He flew out here and we had breakfast at a hotel in downtown San Francisco. He told me to go down into the bowels of the law school and bring up all the arbitration opinions. And he said that those opinions should reflect an understanding of both sides, including the little guy—the ordinary guy. And that’s what I’ve tried to do. The decision you reach is not necessarily the most important thing, although sometimes people will never have you back if you reach a decision that really upsets them. But I do my best to take into account the competing considerations that are involved.
FISHER: You are an academic. My sense is that many scholars who go to Washington find the atmosphere pretty uncongenial, with politics being such a different game. Did you find being in Washington a good experience?
GOULD: I wouldn’t call it a happy experience. First, it took some time to get there, which surprised me. There was a great deal of opposition. For at least a year, I got the most number of no votes of any Clinton nominee. Only five of the Republicans would vote for me. One of them, who turned out to be the best pal I had in Washington, was Senator Mark Hatfield of Oregon. And within a few months of my arrival, the so-called
Gingrich revolution began. That, of course, is in my book, Labored Relations: Law, Politics, and the NLRB (2000) where I wrote about my experiences there. I called my relationships with everybody “labored.” I was on Capitol Hill more than I was in my office at the NLRB, which I suppose was the idea—to keep me up there answering questions. But I don’t regret going to Washington for one single moment. We were able to move the needle somewhat and I learned an awful lot, and I brought those lessons back to my classes at Stanford.
FISHER: And that brings us back to the present and maybe looking a little bit into the future. How do you see labor law developing—for instance with the “gig” economy? Do you see labor law figuring in the well-being of gig workers?
GOULD: The gig economy has really undercut the traditional employment relationship and poses some of the biggest challenges to labor law. Here the California Supreme Court has been quite forthright in its establishment of rules that make it difficult for employers to misclassify workers and to characterize them as independent contractors, who when so characterized have nothing: no right to workers compensation, no anti-discrimination law protections, no protection against sexual harassment, no minimum wage, no right to join a union and engage in collective bargaining—zip-zero. The legislature also implemented some protections. But it’s hard to know how this particular area will play out because, in part, I think it depends on how politically things play out here in the United States in the coming months and in coming years.
But I do see, particularly with these cataclysmic events that have emerged just over these past months with the advent of the coronavirus, the potential for real change, which can enhance the position of workers that have been excluded from the traditional relationship. The very fact that, finally, at last through the health crisis legislation, though on a temporary basis, paid sick leave for most workers including gig workers and unemployment pay for gig workers have been established. Can you imagine? We’re the only industrialized country in the world without even basic paid sick leave; the OECD, the rich man’s club which we’re a part of, ranks the United States 24 out of 25 in the world and yet we are, by most accounts, the richest country in the world. Yet we have such growing inequality, some of which is attributable to the way in which labor rights have diminished.
FISHER: Do you foresee a resurgence in labor unions?
GOULD: I don’t know. One of the major challenges facing the labor movement is the diminished amount of monies collected from dues which are used for organizing workers who are unorganized. Now it may be that labor will attempt to reinvent itself or invigorate itself, particularly in the midst of this health and economic crisis, which has shown us how workers in America are so poorly compensated. Perhaps along with changes in the law, even if some are temporary, we will see progress. But the law has real limits. In 2014 Governor Brown named me chairman of the Agricultural Labor Relations Board. The law which that board administers is strong. But the union, the United Farm Workers, is moribund and the workers are in desperate circumstances and will be as long as a majority of them are undocumented.
FISHER: You’ll soon celebrate a half-century teaching at Stanford Law School. What mark do you hope you’ve made on the law school?
GOULD: I hope that I’ve made the examination of some of these issues that we’ve been speaking about a continued focus in the years to come, and in the years after I depart this planet. And I hope this subject of inequality, of which the labor market is such a critical part, will get more attention. And I hope that at the end of the day, I can be seen to have made some contribution to that.
FISHER: I think you absolutely have. What advice would you like to give the law school to carry forward from here?
GOULD: I would like the law school to be increasingly focused upon the plight of those who are despised and oppressed. I think what’s been most important about the labor issue to me is the idea of dignity. That’s why I got involved in so many of these class action employment discrimination cases. Strong labor laws permit people to aspire for their families’ future, to put food on the table, and to know where their next paycheck is going to come from.
I would like to see a congregation of scholars focused upon these issues, both in the areas that we’ve discussed and those that are closely associated with them.
FISHER: Well, thank you. You’ve been very enlightening—really, terrifically thoughtful and forthcoming.
GOULD: Thank you, George, for taking the time to do this.