ABSTRACT
It may be questioned, however, whether some of the problems which Mr. Berle treats as fiduciary problems-e.g., that relating to dividends on non-cumulative preferred stock-are not questions of contract rather than of fiduciary law. Cf. Wabash Ry. v. Barclay, 28o U. S. 197 (1930). A further controversy as to the fiduciary duties of management when management is vested not in directors but in a particular group of stockholders is beyond the scope of the present article. See BERLE, STUDIES IN THE LAw OF CoRPORATION FINANCE (1928) c. 3· But cf. Wood1 Tlze Status of Ma11ageme11t Stockholders (1928) 38 YALE L. J. 57·
7 It has been asserted that the medieval like the modern law drew a distinction between those businesses which were public and those which were private. See :r WYMAN, PuBLIC SERVICE CoRPORATIONS (I9II) 5· It is reasonably clear, however, that this view involves reading modern conceptions into the early cases and that what those cases really indicate is that all business publicly carried on was regarded as public in character. See Adler, Business Jurisprudence (1914) 28 HARv. L. REv. :r35. " The notion of a distinct category of business ' affected with a public interest,' employing property ' devoted to a public use,' rests upon historical error." Brandeis, J., dissenting, in New State Ice Co. v. Liebmann, 52 Sup. Ct. 371, 383 (!932).
