William O. Douglas

The Court years, 1939-1975 : the autobiography of William O. Douglas

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INSULATION FROM LIABILITY THROUGH SUBSIDIARY CORPORATIONS

While the desire for limited liability has played its part in increasing the use of the corporate device among the smaller industrial units, it alone is not responsible for such extensive use of the corporation arpong the larger industrial units. A primary factor there has been absentee ownership, attendant on the wide distribution of securities. The corporate device has lent itself peculiarly well to the public marketing of securities and to the evolution of a management structure in which the so-called owners play insignificant roles. The factor of limited liability has not been unimportant. It merely has not been paramount.1 The same can be said for the evolution that has taken place within the business units using the corporate form. Recent years especially have seen an increasing use of the subsidiaryparent structure. The farthest point along this line of evolution has been reached in the public utility field. But other businesses have adopted it and used it extensively. The reasons for the use of this structure are manifold. The increased facility in financing; the desire to escape the difficulty, if not the impossibility, of qualifying the parent company as a foreign corporation in a particular state; the avoidance of complications involved in the purchase of physical assets: the retention of the good will of an established business unit; the avoidance of taxation; the avoidance of cumbersome management structures; the desire for limited liability, are among the primary motives.2 The desire for limited liability has been merely one among many factors. And at times it has appeared to recede. Yet in spite of this apparent recession no one would claim that the availability of limited liability played an insignificant part in the expansion of industry and in the growth of trade and commerce. It has had a potent influence. Limited liability is now accepted in theory and in practice. It is ingrained in our economic and legal systems. The social and economic order is arranged accordingly. Our philosophy accepts it. It is legiti-

VICARIOUS LIABILITY AND ADMINISTRATION OF RISK II

In an earlier part of this article 1 a translation of the rules of frolic and detour and independent contractor into administration of risk concepts was attempted. The case of the person to whom the loss was allocated was considered to ascertain what his capacity was to administer it. The analysis undertaken there will be extended here to some of the partnership and business trust problems. The capacity of the persons being held liable to administer the risks allocated to them will be studied. Contract as well as tort liability will be included. But only those problems will be analyzed which involve the determination of what persons are vicariously liable for contracts and torts admittedly within the scope of the business being undertaken. Questions of the scope of the authority or power of the so-called agent will not be included.

Some Functional Aspects of Bankruptcy

THE case studies of the fifteen hundred New Jersey and Boston bankrupts which were made during the last two years 1 throw * Visiting Professor of Law, Yale School of Law; co-author of Cases on the Law of Management of Business Units (1931), Cases and Materials on the Law of Financing of Business Units (1931) and Cases and Materials on Corporate Reorganization (1931). The author wishes to express his indebtedness to Dr. Dorothy S. Thomas and Miss Emma Corstvet for many helpful suggestions and criticisms regarding the analysis of cases and presentation of data in this article. 1 The study in New Jersey, made from November, 1929-June, 1930, covered 597 of the 1275 petitions filed during the fiscal year ended June 30, 1930. The cases studied were taken from all parts of the District of New Jersey-rural as well as urban, small towns as well as larger cities and included approximately two-thirds of all those who filed their petitions during the period of the study. The study in Massachusetts included 910 of the 2900 (unofficial) petitions filed in the entire District of Massachusetts for the fiscal year ended June 30, 1931. No attempt was made to cover the entire state. Only cases arising in the metropolitan area of Boston, i.e., the counties of Suffolk, Norfolk, and Middlesex, were covered. About 70% of all those cases between October, 1930, and June, 1931, were taken. The study in New Jersey was carried on with the generous supervision and collaboration of Hon. William Clark of the United States District Court for the District of New Jersey. The Boston study was made possible only because of genuine and whole-hearted cooperation on the part of the three distinguished Boston referees-Hon. Arthur Black, Hon. B. Loring Young, and Hon. Charles C. Cabot. Both the New Jersey and Boston projects were conducted jointly by the Department of Commerce, the Yale Law School, and the Institute of Human Relations of Yale University. Dr. W. C. Plummer of the Wharton School of Commerce represented the Department of Commerce in the New Jersey study; Mr. Victor Sadd in the Boston study. A report on the New Jersey study has been made by Dr. Plummer. See Causes of Business Failures and Bankruptcies of Individuals in New Jersey in 1929-1930, DOMESTIC COMMERCE SERIES No. 54, Publication of the Department of Commerce (Gov. Print. Off. 1931). For similar publications by the Department of Commerce see Credit Extension and Causes of Failure Among Philadelphia Grocers, TRADE INF. BULL. No. 700 (Gov. Print. Off. 1930); Credit Extensions and Business Failures, TRADE INF. BULL. No. 627 (Gov. Print. Off.

Dear Teacher: The Correspondence of William O. Douglas and Thomas Reed Powell

Recalling his years as a student at the Columbia Law School, William O. Douglas (1898–1980) wrote that one of his teachers, Thomas Reed Powell (1880–1955), was “then an iconoclast. He was the offbeat intellectual who could cut the Supreme Court into ribbons in any field of constitutional law.” Although the two men later drifted apart, they remained good friends for more than two decades, and their correspondence is a remarkable window not only into their agile and creative minds, but into the constitutional and academic issues of their times as well.