Profiles in Scholarship

Thomas W. Merrill

In Demand

Professor Thomas Merrill is one of the nation’s foremost administrative and property law scholars, making him a trusted adviser at the highest levels of government and industry

By Mary Johnson

Fall 2010

As a legal adviser to Senator John McCain during his 2008 bid to become the Republican Party’s presidential nominee, Professor Thomas W. Merrill was called on to analyze complex campaign finance issues that placed him at the center of a heated primary season.

In recounting the accomplishments that have defined his life, Merrill relegates that experience to the bottom of his résumé, calling it a quirky anecdote that, for several months, was “a lot of fun.” But in reality, his recruitment and service during the run-up to the election speak volumes: McCain’s top advisers entrusted thorny legal questions to Merrill, plucking him from a sea of accomplished experts.

With three decades in legal academia and a wealth of practical experience behind him, Merrill was the perfect man for the job.

In recent years alone, he has written multiple articles and briefs dealing with eminent domain and the public trust doctrine, among other topics. Merrill also drafted a policy proposal with Dean David M. Schizer advocating a novel approach to taxing gasoline, and he has contributed chapters to several books. His extensive experience has earned him wide renown as a preeminent property and administrative law scholar—one whose groundbreaking work marries practicality with historical analysis.

“Originally, I wanted to be a historian,” recalls Merrill, who studied at Oxford as a Rhodes Scholar. “But,” he adds with a smile, “I got cold feet about the job prospects.”

Instead of entering a Ph.D. program, Merrill enrolled at the University of Chicago Law School. After graduation, he served as an associate in the Chicago office of Sidley Austin for two years before joining the faculty at Northwestern University School of Law. During his time at Northwestern, Merrill spent several years, beginning in 1987, as the Justice Department’s deputy solicitor general, representing the government in high-profile Supreme Court litigation.

When Merrill, the Charles Evans Hughes Professor of Law, joined the Columbia Law School faculty in 2003, he continued building a robust body of legal scholarship. He published several articles that explore the roots of administrative law, and he wrote The Oxford Introductions to U.S. Law: Property (Oxford University Press: 2010) with Harvard Law School Professor Henry E. Smith. Recently, Merrill began work on a book analyzing how Chicago’s lakefront development was shaped by the public trust doctrine, which mandates that certain areas be reserved for public use.

In addition to his more academic endeavors, Merrill has written briefs for multiple Supreme Court cases, including an amicus brief submitted on behalf of the respondent in the 2009 case Wyeth v. Levine. There, the Court held that federal approval of drug warning labels does not preclude all state-law claims related to the sufficiency of such warnings. “In writing for the majority in that case, Justice Stevens was nice enough to echo my opinion,” Merrill says wryly.

In 2008, Merrill joined the Yale Law School faculty. But just one year later, he returned to the Law School and his familiar Morningside Heights surroundings. Now, Merrill and his wife, a registered nurse, are juggling work with hiking excursions and trips to visit their three daughters: The oldest is a graduate student specializing in Slavic studies at UC Berkeley. Their middle child graduated from Columbia Law School in May, and the youngest is pursuing a Ph.D. in art history at the University of Virginia. “I don’t know where they all get this academic bent,” says Merrill, an amused smile spread across his face.