Jack Dawson, known to many at Michigan as Black Jack, taught at the Law School from 1927 to 1958. Much of his work was published in the Michigan Law Review, where he served as a student editor during the 1923-24 academic year. We revisit his work and provide a footnote to his elegant writing on mistake and supervening events.
In Part I, we talk a little about Jack the man. In Part II, we recite the nature and significance of his scholarly work. Part III deals briefly with the cases decided in the last twenty years by American courts on impracticability, impossibility, mistake and frustration of purpose. We focus particularly on the afterlife of the notorious Alcoa case that was the subject of Jack's last articles. Part IV concludes with some speculation on the reasons for the different responses of German and American courts to claims of mistake or supervening events.
A SPLENDID PIECE OF WORK
As a Contracts student, I (1) first met Jack Dawson vicariously in the fall of 1959. We studied contracts from Dawson and Harvey in mimeograph. That Contracts casebook first brought remedies to the front of contracts books and to the early weeks in contract courses. It so asserted that remedies were at least as important as any other part of contract doctrine and more important than most.
I did not meet Jack in the flesh until almost fifteen years later when I was a visiting Professor at Harvard. Having taught for well over a decade at Harvard, Jack was teaching at Boston University in 1973. On a snowy Sunday morning I was in my office at Harvard when Jack Dawson invited me next door and, with a sly grin, pulled out a bottle of whisky and two glasses. I think that was the most extraordinary offer of a drink that I have ever had. It confirmed my fantasies about Jack and made plausible all of the stories about his delightful eccentricities. What stories could not be true of one who offers Scotch neat at nine on Sunday morning?
Jack came to the faculty in 1927 and served on the faculty until 1958. Stories have it that he was offered a salary of something like 3,000 dollars when he was hired in 1927, but that the Dean shortly told him that the school could pay only 2,000 dollars. He came anyway. Jack's normal fare was Equity and Contracts, but he also taught Legal History and Comparative Law.
Many legends attend Jack's time on the faculty here. One can imagine that a Sunday morning offeror of whisky might have his notions about school rules. Evidently Jack's attire once deviated so far from the acceptable that the Dean spoke to him about it (he may have neglected to wear a suit coat to class on a warm day). In the next class Jack showed up in a white tie and tails. I suspect that this is merely representative of Jack's attitude toward rules he thought to be foolish.
As a Democrat on a staunchly Republican faculty Jack was even more deviant than a Republican is today. And Jack was not merely a Democrat; he was a candidate for the House of Representatives on the Democratic ticket in 1950 and 1952. It must have rankled him that some of his colleagues signed a newspaper advertisement opposing his election. Ann Arbor was then as Republican as it is now Democrat, and he was never elected to office.
His closest approach to elective office was by appointment. In the spring of 1951, Senator Arthur Vandenberg of Grand Rapids was on his deathbed. Governor G. Mennen "Soapy" Williams, a student and friend of Jack's, (2) allegedly proposed to appoint Jack as Vandenberg's replacement, but told Jack that it could be done only if it were done quickly and before the influential people in the Democratic party insisted otherwise. (3) Supposedly Jack told the Dean and bought a blue suit appropriate for a swearing in after speaking to Soapy. It never happened. Whether others intervened or Soapy changed his mind cannot be confirmed. (4)
He later declined an opportunity to be appointed to the Michigan Supreme Court. (5) Though Jack had served admirably as both Chief of the Middle East division of the Foreign Economic Administration during World War II and later as an advisor to the Greek government as a representative of the Foreign Trade Administration, "to him, there was nothing like the classroom." (6)
Jack was early and always a serious scholar. His first publication in the Review must have been the product of his research in England where he studied as a Rhodes scholar. Even in his post retirement service at Boston University, he continued to write. By today's standards, and even more by the standards of the time, he was prolific. By any standard his writing and thinking were powerful. Jack's writing was always felicitous and, as his writing about Alcoa shows, it was informed by a passion.
Jack Dawson was not only a fine and rigorous teacher and scholar, he was also a politician, a teaching innovator, a fine colleague, and, best of all, a judge of fine whisky.
JACK DAWSON THE SCHOLAR
As a scholar, Jack Dawson was a man ahead of his times. A Rhodes scholar after he graduated from Michigan Law School, he earned his D.Phil. from Oxford before returning to Michigan to teach. (7) These days, elite law faculties overflow with multiple degrees, but in 1931 a law professor with a doctorate was a rare bird. His interest in the law did not end at the water's edge, nor did he limit himself to the legal world of the English-speaking peoples; from the very first, his articles reflected a knowledge of both German and French law. (8) Dawson was also willing to travel into the past to explore the roots of modern doctrine and draw on history to provide lessons for contemporary law. (9) In an era when professors might publish only a few articles during a career, the quantity of Jack Dawson's publications is all the more impressive. (10) In many of these articles, with their historical depth and transnational breadth, an underlying question recurs: when and to what extent should judges do more than award damages in contract disputes?
Answering this question took Jack into a number of different areas in the law. In an early work, he explored estoppel and its relation to statutes of limitation. (11) He maintained that though the law could allow parties to contract away their rights under statutes of limitations, it should be willing to step in when one of the parties sought to abuse its rights under the contract. The courts should step in to help parties whose good faith attempts to resolve disputes amicably were repaid by knavery. (12) From estoppel he moved on to mistake, arguing that rescission or reform of a contract for mistake was the "enforcement of an intention defectively expressed." (13) He noted that while courts need not necessarily enforce statutes of limitations to bar remedies for mistake, the longer an agreement continues (or the longer the period since value changed hands), the more a claim of mistake begins to look like a case of buyer's remorse. (14)
Dawson's interest in remedies was a product of his focus on the various ways in which parties sought the upper hand in contracting through the exertion of economic power. The mid-1930s was not too far removed from the heyday of doctrinal freedom of contract made so infamous in Lochner. For Dawson (and many of his peers), the question became how best to move from a "world of fantasy, too orderly, too neatly contrived, and too harmonious to correspond to reality," (15) towards a realm of contract law that could control the worst abuses of economic power. As any first-year contract student learns, duress emerged from the Roman conception of laesio enormis, and Dawson followed the development of that idea from Rome through medieval Christendom to its fruition in modern French and German law in the early nineteenth century. (16) He rooted his understanding of modern duress in Christian condemnation of usury but noted that usury, with its blanket condemnation of interest, was an easier standard to apply than judicial investigation of the discrete circumstances of a single inequitable bargain. (17) His comparative study of French and German doctrine introduced not only the historical antecedents of the doctrine, but offered a comparative analysis of the pitfalls of too broad a vision of duress. (18)
Moving from the European to the American context, after World War II Dawson wrote a body of seminal work on duress in the United States, all published in the Michigan Law Review. In the first piece, he traced the historical evolution of the concept of duress, observing that what had come to be considered a full-fledged doctrine was in reality a reflection of, "the convergence of several lines of growth.... [The result of which] has certainly not been a coherent body of doctrine, unified around some central proposition; on the contrary, the conflict and confusion in results of decided cases seem greater than ever before." (19)
He sought to instill order into a morass of doctrine by distilling from it, in the style of American Legal Realism, some core notion open to broad application. Looking into the tort roots of duress, Dawson found that contemporary economic duress focused upon, "situations in which an unequal exchange of values has been coerced by taking advantage of a superior bargaining position." (20) This insight permitted him to assert that a more expansive notion of duress was consonant with the policing function of the courts, providing judges a legitimate way to intervene in private bargains to shore up the foundations of a market society. (21)
This vision of state as impartial policeman led him to discuss litigation as a form of duress. (22) Although Dawson recognized the right of parties to seek redress in court, he also observed that, "[t]he sanctions of civil procedure constitute a system of state-organized coercion, supplied to private individuals for the specific purpose of enabling them to effectuate their demands." (23) Though in mid-century America criminal law was no...