J.D., University of Chicago Law School, 1977
B.A., University of Oxford, 1973
B.A., Grinnell College, 1971
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.” Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press), his book (with Joseph Kearney) on the history of the Chicago Lakefront, was published in May 2021. Merrill is currently serving as a co-reporter for the American Law Institute’s Restatement (Fourth) of Property.
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.
The Constitution makes Congress the principal federal lawmaker. But for a variety of reasons, including partisan gridlock, Congress increasingly fails to keep up with the challenges facing our society. Power has inevitably shifted to the executive branch agencies that interpret laws already on the books and to the courts that review the agencies’ interpretations.
Since the Supreme Court’s 1984 decision in Chevron v. Natural Resources Defense Council, this judicial review has been highly deferential: courts must uphold agency interpretations of unclear laws as long as these interpretations are “reasonable.” But the Chevron doctrine faces backlash from constitutional scholars and, now, from Supreme Court justices who insist that courts, not administrative agencies, have the authority to say what the law is. Critics of the administrative state also charge that Chevron deference enables unaccountable bureaucratic power.