It seems odd that despite the torrent of writing on emergencies and the law after 9/11, no one has systematically examined the view of emergencies held by our greatest judge. Perhaps the problem is that Holmes has so often been subdivided along doctrinal lines. There is the Holmes of free speech law, represented by the majority opinion in Schenck v. United States and by the dissents in Abrams v. United States and Gitlow v. New York. There is the Holmes of property and takings law, represented by the majority opinion in Pennsylvania Coal Co. v. McMahon. There is the Holmes of due process law, represented by the dissents in Lochner v. New York and Tyson & Bro. v. Banton. And no one much talks about the Holmes opinions first upholding and then invalidating emergency rent control, Block v. Hirsh and Chastleton Corp. v. Sinclair, or the opinion upholding emergency executive detention in Moyer v. Peabody. In what follows, part of my aim is to suggest that what doctrine has put asunder, a focus on emergencies can reunite. Emergencies are a central theme of Holmes’s jurisprudence, one that cuts across doctrinal categories and clarifies theoretical puzzles.
Date of Authorship for this Version
Vermeule, Adrian, "Holmes on Emergencies" (2007). Harvard Law School Faculty Scholarship Series. Paper 3.