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Thomas W. Merrill

  • Charles Evans Hughes Professor of Law
Education

J.D., University of Chicago Law School, 1977
B.A., University of Oxford, 1973
B.A., Grinnell College, 1971

Areas of Specialty

Administrative Law, Legislation, and Public Policy
Regulatory Takings
Property Law and Property Theory
Preemption
Judicial Review of Agency Action
U.S. Supreme Court

 

One of the most cited legal scholars in the United States, Thomas Merrill teaches and writes about administrative, constitutional, and property law, among other topics.

Merrill’s experience in the public and private sectors informs his pedagogy and research. After clerking for Chief Judge David L. Bazelon on the U.S. Court of Appeals for the D.C. Circuit and for Justice Harry A. Blackmun on the U.S. Supreme Court, Merrill was a deputy solicitor general of the U.S. Department of Justice and an associate at the firm of Sidley & Austin LLP, where he also served as counsel for more than 20 years.

He has written scholarly articles and several Supreme Court amicus briefs on when and how much weight courts should give administrative interpretations of law in different contexts. 

He has co-authored (with Henry E. Smith) the casebooks Property: Principles and Policies and The Oxford Introductions to U.S. Law: Property. His seminal journal articles include “Optimal Standardization in the Law of Property: The Numerus Clausus Principle” on the role of  information costs in the structure of property law and “The Origins of the American Public Trust Doctrine: What Really Happened in Illinois Central” about the role of public property rights in the development of the Chicago lakefront. For the 125th anniversary celebration of the 2nd U.S. Circuit Court of Appeals, Merrill delivered the annual Hands Lecture, and he spoke on “Learned Hand and Statutory Interpretation: Theory and Practice.” He is currently serving as a co-reporter for the American Law Institute’s Restatement (Fourth) of Property and is finishing a book (with Joseph Kearney) on the history of the Chicago Lakefront, tentatively titled Lakefront: Public Trust and Private Right in Chicago (Cornell U. Press). 

In addition to Columbia, Merrill has served on the faculties of Northwestern Law School and Yale Law School. He is a member of the American Law Institute and the American Academy of Arts and Sciences.

Publications

  • “Fair and Impartial Adjudication,” 26 George Mason L. Rev. 897, 2019
  • “Choice of Law in Takings Cases,” 8 Brigham-Kanner Prop. Rgts. J. 45, 2019
  • “Interpreting an Unamendable Text,” 71 Vand. L. Rev. 547, 2018
  • “Learned Hand on Statutory Interpretation: Theory and
  • Practice,” 87 Fordham L. Rev. 1, 2018.
  • “The Public Trust Doctrine: Some Jurisprudential Variations and Their Implications,” 38 U. of Haw. L. Rev. 261, 2016
  • “Anticipatory Remedies for Takings,” 128 Harv. L. Rev. 1630, 2015
  • “Presidential Administration and the Traditions of Administrative Law,” 115 Colum. L. Rev. 1953, 2015 
  • “Step Zero After City of Arlington,” 83 Ford. L. Rev. 753, 2014
  • “Dodd-Frank Orderly Liquidation Authority: Too Big for the Constitution?, (with Margaret L. Merrill), 163 U. Pa. L. Rev. 165, 2014
  • “The Shale Oil and Gas Revolution, Hydraulic Fracturing, and Water Contamination: A Regulatory Strategy,” (with David M. Schizer), 98 Minn. L. Rev. 145, 2013
  • “The Property Strategy,” 160 U. Pa. L. Rev. 2061, 2012
  • “Is Public Nuisance a Tort?”, 4 J. Tort L. No. 2, Art. 4, 2011
  • “Article III, Agency Adjudication, and the Origins of the Appellate Review Model of Administrative Law,” 111 Colum. L. Rev. 939, 2011
  • “Accession and Original Ownership,” 1 J. Legal Anal. 459, 2009
  • “Preemption and Institutional Choice,” 102 Nw. U. L. Rev. 727, 2008
  • “The Accardi Principle,” 74 Geo. Wash. L. Rev. 569, 2006
  • “Rethinking Article I, Section 1: From Nondelegation to Exclusive Delegation,” 104 Columbia Law Review 2097, 2004
  • “The Origins of the American Public Trust Doctrine: What Really Happened in Illinois Central,” (with Joseph Kearney), 71 University of Chicago Law Review, 2004
  • “Agency Rules with the Force of Law: The Original Convention,” (with Kathryn Tongue Watts), 116 Harv. L. Rev. 467, 2002 
  • Property: Takings (Foundation Press Turning Point Series), (with David Dana), 2002 
  • “The Mead Doctrine: Rules and Standards, Meta-Rules and Meta-Standards,” 54 Administrative Law Review 807, 2002
  • “What Happened to Property in Law and Economics?” (with Henry Smith), 111 Yale Law Review 357, 2001 
  • “Chevron's Domain,” (with Kristin Hickman), 89 Georgetown Law Journal 833, 2001
  • “The Property/Contract Interface,” (with Henry Smith), 101 Columbia Law Review 773, 2001
  • “The Landscape of Constitutional Property,” 86 Virginia Law Review 885, 2000
  • “Optimal Standardization in the Law of Property: The Numerus Clausus Principle,” (with Henry Smith), 110 Yale Law Journal 1, 2000
  • “The Influence of Amicus Curiae Briefs on the Supreme Court,” (with Joseph Kearney), 148 University of Pennsylvania Law Review 743, 2000

View an extended list of Thomas W. Merrill’s publications.

Honors and Awards

Brigham-Kanner Award for Scholarship in Property Law

2013

ABA Administrative Law Award for Distinguished Scholarship (with Kathryn Watts)

November 2003

Honorary Doctor of Laws, Grinnell College

1995

ABA Administrative Law Award for Distinguished Scholarship

October 1993

Legal Scholar in Residence, General Motors Corporation

May – August 1990

Order of the Coif

1977

Rhodes Scholarship

1971–1973

Danforth Fellowship

1971–1977

Phi Beta Kappa

1971

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