He writes:
The citation to the trial court opinion in Youngstown Sheet & Tube prompted this. As you know I am on a solitary mission to pull Ohio corporation law out of obscurity. I came across a surprising manuscript in which Dodd and Berle were on the same side (nominally) in arguing against an early 1931 proposed amendment to the appraisal section of the Ohio corporation code. The amendment was sponsored by Cyrus Eaton in connection with the Youngstown Sheet & Tube/Bethlehem Steel transaction that was the subject of the trial court opinion.
That said, the trial court opinion was reversed on every substantive issue on appeal. (As to being informed, the Board members were all steel industry players and Y S & T had been in merger discussions on and off since 1927, including with Eaton companies). As to Berle and Dodd, volume 44 of the Harvard Law Review had some interesting content. Berle’s powers in trust piece was sandwiched between Pound’s attack on the legal realists and Llewellyn’s response. Point 10 of Pound’s attack was on the legal realists’ so-called entrepreneur theory of the law, that business functions were the proper concern of the law and not broader social matters. Llewellyn rebutted that, noting that 7 of the 10 commercial lawyers in his sample (Berle was not in the sample group) were not guilty of that charge. Given that Pound was Dodd’s mentor (Pound got Dodd his first real academic job at Nebraska, where Pound had been dean and where he was shaping the faculty in the early 1920s), Harvard colleague and friend, it seems conceivable that Dodd’s response to powers in trust (coming out of Columbia, the hotbed of legal realism) was another version of Pound’s point 10. In his response to Dodd, Berle (like Llewellyn had) rebutted the notion that he didn’t take social concerns seriously. The piece Berle wrote in the Ohio appraisal statute context could also have been cited by Berle in rebuttal. More of this later (I still have a day job). Finally, I wonder whether Berle’s reaction to Eaton (who espoused a local control of industry philosophy but who was in fact a fairly cut-throat empire builder) added fuel to Berle’s response to Dodd about industrial princes feeling no obligation and not being accountable. That too awaits further development. Thanks for your provocative blog post. Best.