About

Thomas W. Merrill is the Charles Evans Hughes Professor of Law at Columbia Law School. He is one of the most cited legal scholars in the United States, with expertise in administrative law, constitutional law, and property law. Merrill's research and teaching focus on issues such as administrative interpretation of law, the role of courts and agencies in lawmaking, and property rights, including the public trust doctrine and property theory. His experience in both the public sector, including clerking for Chief Judge David L. Bazelon and Justice Harry A. Blackmun, and the private sector, notably as a deputy solicitor general of the U.S. Department of Justice and counsel at Sidley & Austin, informs his scholarly work. Merrill has authored influential articles, co-authored casebooks, and contributed to the development of legal doctrine through his role as a co-reporter for the American Law Institute’s Restatement (Fourth) of Property. He has also delivered notable lectures, including the annual Hands Lecture on Learned Hand and statutory interpretation, and authored books such as 'Lakefront: Public Trust and Private Rights in Chicago.' Merrill is a member of the American Law Institute and the American Academy of Arts and Sciences, and has served on faculties at Northwestern and Yale Law Schools.

Research topics

• Computer Science
• Sociology
• Political Science
• Law
• Philosophy
• Law and economics
• Computer Security
• Epistemology
• Finance
• Business

Selected publications

• The Demise of Deference — And the Rise of Delegation to Interpret?

  SSRN Electronic Journal · 2025-01-01 · 6 citations

  articleOpen access1st authorCorresponding
  PublisherDOI

• <i>Briggs v. Southwestern Energy Production</i>: Hydraulic Fracturing and Subsurface Trespass

  Journal of Tort Law · 2023-03-01 · 2 citations

  article1st authorCorresponding

  Abstract The tort of trespass to land has proven to be controversial as applied to airplane overflights (and more recently to drones) as well as to oil and gas production using hydraulic fracking technology. The key to applying trespass to intrusions above and below the surface of land is to distinguish between possession of land and the right to possess land. Surface owners have the right to possess the column of space above and below the surface (a kind of option value), but only to the extent that this space is subject to possible effective possession. The Pennsylvania Supreme Court in Briggs v. Southwestern Energy Production concluded that fracking can result in physical intrusions that can be detected using available monitoring technology. The court further concluded that such physical intrusions should be subject to trespass liability. We argue that these conclusions are correct insofar as such intrusions interfere with a surface owner’s possible effective possession – the action of the intruder necessarily means that the surface owner could also find it economically advantageous to engage in production activity in this portion of subsurface space itself. The decision confirms the utility of the law of trespass to the architecture of property, in that it establishes an indispensable baseline against which exchanges of rights and regulatory modifications of rights can occur.

  PublisherDOI

• Antitrust Rulemaking: The FTC’s Delegation Deficit

  SSRN Electronic Journal · 2023-01-01 · 2 citations

  articleOpen access1st authorCorresponding
  PublisherDOI

• The Major Questions Doctrine: Right Diagnosis, Wrong Remedy

  SSRN Electronic Journal · 2023-01-01 · 4 citations

  articleOpen access1st authorCorresponding
  PublisherDOI

• The Restatement of Property

  2023-04-20

  book-chapterOpen access1st authorCorresponding

  Abstract The central feature of the American Law Institute’s Restatement of Property is that it remains incomplete after nearly seventeen volumes produced over nearly ninety years. The principal explanation for this is the proclivities of the Reporters who have been responsible for the first three iterations of this effort. Some of these proclivities, such as a commitment to meticulous research, have been commendable. But the incompleteness of the effort has reduced the influence of the property Restatement, relative to other Restatements like contracts and torts. The chapter concludes with a description of the Fourth Restatement of Property, now underway, and the organizational structure it has adopted in an effort to produce, at long last, a complete Restatement of Property.

  PublisherOA PDFDOI

• 3. The Chevron Decision

  Harvard University Press eBooks · 2022-05-13

  book-chapter1st authorCorresponding
  PublisherDOI

• 12. Improving the Quality of Agency Interpretations

  Harvard University Press eBooks · 2022-05-13

  book-chapter1st authorCorresponding
  PublisherDOI

• 1. Judicial Review of Agency Interpretation—Four Values

  Harvard University Press eBooks · 2022-05-13

  book-chapter1st authorCorresponding
  PublisherDOI

• 11. Discerning the Boundaries of Agency Authority to Interpret

  Harvard University Press eBooks · 2022-05-13

  book-chapter1st authorCorresponding
  PublisherDOI

• 2. Before Chevron

  Harvard University Press eBooks · 2022-05-13

  book-chapter1st authorCorresponding
  PublisherDOI

Frequent coauthors

• Joseph D. Kearney

  30 shared

• Henry E. Smith

  17 shared

• David D. Corey

  9 shared

• Jean Yarbrough

  9 shared

• Michelle Clarke

  9 shared

• Wilson Me

  9 shared

• Williams Tinder

  Bowdoin College

  9 shared

• Mary Nichols

  Southwest Watershed Research Center

  9 shared

Education

• B.A.

  Yale University

• Other

  Harvard Law School

Awards & honors

• Brigham-Kanner Award for Scholarship in Property Law 2013
• ABA Administrative Law Award for Distinguished Scholarship (…
• Honorary Doctor of Laws, Grinnell College 1995
• ABA Administrative Law Award for Distinguished Scholarship O…
• Legal Scholar in Residence, General Motors Corporation May –…