‘Is Systemic Risk Special?’

Aaron James, The Distinctive Significance of Systemic Risk, 30 Ratio Juris 239 (2017), available at SSRN. In one of his more famous aphorisms, Oliver Wendell Holmes remarked that ‘[o]ur law of torts comes from the old days of isolated, ungeneralized wrongs, assaults, slanders, and the like’, whereas “the torts with which our courts are kept busy to-day are mainly the incidents of certain well known businesses … railroads, factories, and the like’. In the 120 years since Holmes penned his remark, our social world has become ever more organized. Holmes wrote before the mass production of consumer products and before environmental harms on a global scale existed. Indeed, Holmes seems to have had in mind just one kind of systemic risk, namely, the repeat imposition of the same risk by an institution that repeats the same action over and over again. Railroads, for instance, run trains past the same intersections on a regular basis … (more)

[Gregory Keating, JOTWELL, 5 October]

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