Thomas Merrill

Columbia University | CU · Ira M. Millstein Center for Global Markets and Corporate Ownership

Though increasingly disfavored by the Supreme Court, Chevron remains central to administrative law doctrine. This Article suggests a way for the Court to reformulate the Chevron doctrine without overruling the Chevron decision. Through careful attention to the language of Chevron itself, the Court can honor the decision’s underlying value of harnes...

Leasing may be the most important legal institution that has received virtually no systematic scholarly attention. Real property leasing is familiar in the context of residential tenancies. But it is also widely used in commercial contexts, including office buildings and shopping centers. Personal property leasing, which was rarely encountered befo...

Many of the most important legal texts in the United States are highly unamendable. This applies not only to the Constitution, which has not been amended in over forty years, but also to many framework statutes, like the Administrative Procedure Act and the Sherman Antitrust Act. The problem is becoming increasingly severe, as political polarizatio...

Morris Cohen’s classic essay, Property and Sovereignty, correctly discerned that political sovereignty and private property are alternative forms of government. Where it failed was in suggesting that the choice between these modes of governance is a matter of dialing one up and the other down. The relationship between political sovereignty and prop...

For a generation, Jerry Mashaw, the most boundary-pushing scholar in the field of administrative law, has argued that bureaucrats can and should self-generate the norms that give us a government of laws. American Administrative Law from the Inside Out brings together a collection of twenty-one essays from leading scholars that interrogate, debate,...

American administrative law has long been characterized by two distinct traditions: the positivist and the process traditions. The positivist tradition emphasizes that administrative bodies are created by law and must act in accordance with the requirements of the law. The process tradition emphasizes that agencies must act in accordance with norms...

The Supreme Court has rendered two lines of decisions about the remedies available for a violation of the Takings Clause. One line holds that courts have no authority to enter anticipatory decrees in takings cases if the claimant can obtain compensation elsewhere. The other line, which includes three of the Court’s most recent takings cases, result...

Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 establishes a new specialized insolvency regime, known as orderly liquidation, for systemically significant nonbank financial companies. While well intended, Title II unfortunately raises a number of serious constitutional questions. To vest authority in an Article II...

Chevron U.S.A. Inc. v. NRDC is one of the most famous cases in administrative law, but it was not regarded that way when it was decided. To the justices who heard the case, Chevron was a controversy about the validity of the "bubble" concept under the Clean Air Act, not about the standard of review of agency interpretations of statutes. Drawing on...

Land reclaimed from navigable waters is a resource uniquely susceptible to conflict. The multiple reasons for this include traditional hostility to interference with navigable waterways and the weakness of rights in submerged land. In Illinois, title to land reclaimed from Lake Michigan was further clouded by a shift in judicial understanding in th...

The United States is expected to become the world’s largest oil producer by 2020, overtaking Saudi Arabia, and the world’s top natural gas producer by 2015, surpassing Russia. In the past decade, energy companies have learned to tap previously inaccessible oil and gas in shale with “hydraulic fracturing” (“fracturing” or “fracking”), pumping fluid...

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Justice Stevens's most famous decision—Chevron U.S.A. Inc. v. NRDC—has come to stand for an institutional choice approach to agency interpretation. But there is no evidence that Justice Stevens shared this understanding. Instead, he followed an equilibrium-preserving approach, which sought to nudge agencies to reconsider decisions the Justice regar...

The "bundle of rights" metaphor has framed several important questions about property, including questions in constitutional law, conceptual analysis, and institutional understanding. But the bundle metaphor is notably unsuccessful in answering any of these questions. A better metaphor is that of a prism. Property is an institution that takes on a...

The Chicago Lakefront, along Grant Park, is internationally regarded as an urban gem. Its development - or, perhaps more accurately, lack of development - has been the result of a series of legal challenges and court rulings, most famously involving the landmark U.S. Supreme Court decision, Illinois Central R.R. v. Illinois (1892), and four decisio...

American administrative law is grounded in a conception of the relationship between reviewing courts and agencies modeled on the relationship between appeals courts and trial courts in civil litigation. This appellate review model was not an inevitable foundation of administrative law, but it has had far-reaching consequences, and its origins are p...

Public nuisance law has recently been invoked in social reform litigation addressing tobacco use, handgun distribution, lead paint removal, MTBE contamination, and global warming. The premise this litigation is that public nuisance is a tort, and that courts have inherent authority as common law tribunals to determine what conditions qualify as a p...

In his pioneering work on transaction costs, Ronald Coase presupposed a picture of property as a bundle of government-prescribed use rights. This picture is not only not essential to what Coase was trying to do, but its limitations emerge when we apply Coase’s central insights to analyze the structure of property itself. This leads to what we term...

Direct voting by property owners is a widespread but controversial tool for resolving disputes over local collective goods. Direct voting has powerful advantages, in that it can harness the superior knowledge of many local minds, resolve controversies in a way that is perceived to be legitimate, and eliminate corrupt dealmaking. But it also has ser...

The Constitution as we understand it includes principles that have emerged over time in a common law fashion. One such principle is the disposing power of the legislature—the understanding that only the legislature has the power to arrange, order, and distribute the power to act with the force of law among the different institutions of society. Thi...

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Although first possession is generally assumed to be the dominant means of establishing original ownership of property, there is a second but less studied principle for initiating ownership, called accession, which awards new resources to the owner of existing property most prominently connected to the new resource. Accession applies across a wide...

The high level of petroleum consumption in the United States contributes to environmental harms, burdens national security, and increases urban sprawl and traffic congestion. In response, the Obama administration has proposed targeted subsidies and regulatory mandates. We do not believe this will be an effective strategy because Congress has no com...

This Essay offers some reasons why conservatives should fa-vor giving great weight to precedent in constitutional adjudica-tion. Let me start with some preliminary observations about the debate between originalism and precedent more generally. First, the debate has been dominated to far too great an extent by specific cases, Roe v. Wade 1 in partic...

The first substantive clause of the Constitution-providing that "[a]ll legislative Powers herein granted shall be vested in a Congress"-is associated with two postulates about the allocation of legislative power. The first is the nondelegation doctrine, which says that Congress may not delegate legislative power. The second is the exclusive delegat...

The Supreme Court recently held in United States v. Mead Corp. that agency interpretations should receive Chevron deference only when Congress has delegated power to the agency to make rules with the force of law and the agency has rendered its interpretation in the exercise of that power. The first step of this inquiry is difficult to apply to int...

In United States v. Mead Corp. the Supreme Court sought to prescribe a test for determining when the Chevron doctrine applies to agency interpretations of law. The Court got off to a good start, announcing that Chevron applies when Congress has delegated authority to an agency to make rules having the force of law, and the agency has adopted an int...

This essay describes how the in rem nature of property has been largely ignored in the law-and-economics literature and argues that this omission leads to an incomplete view of property. We trace how, in this as in other respects, Coase's famous article on social cost fundamentally altered the prevailing notion of property by focusing on property a...

This Article explores the distinction between in personam contract rights and in rem property rights. It presents a functional explanation for why the legal system utilizes these two modalities of rights, grounded in the pattern of information costs associated with each modality. To test this theory, the Article examines four legal institutions tha...

As the two-step Chevron approach to determining when courts should defer to agency interpretations of statutes has expanded in influence, questions about when the Chevron doctrine applies have proliferated. This article identifies fourteen questions about Chevron's domain that remain unresolved. The article argues that two background principles are...

In all post-feudal legal systems, the basic ways of owning property are limited in number and are standardized, in the sense that courts will enforce as property only interests that are built from a list of recognized forms. In the common law, this principle has no name and is invoked only semi-consciously; it is known in the civil-law tradition as...

In recent years, environmental regulation has seen a debate between supporters of traditional command-and-control regulation - a system of uniform pollution control standards - and proponents of a system of fees or permits for individual polluters known as market mechanisms. In this article, Professor Merrill considers two theories, wealth-maximiza...

Civil service lawyers have rights similar to tenured professors and are utilized to identify and evaluate the most plausible justifications for using tenured lawyers to perform high-level tasks within the executive branch.

The nation's approach to regulating its transportation, telecommunications, and energy industries has undergone a great transformation in the last quarter-century. The original paradigm of regulation, which was established with the Interstate Commerce Act's regulation of railroads beginning in 1887, was characterized by legislative creation of an a...

I. Introduction II. The Right to Exclude and the Concept of Property ... A. Points of Consensus ... B. Three Schools of Thought Regarding the Right to Exclude III. The Primacy of the Right to Exclude ... A. The Logical Primacy of the Right to Exclude ... B. The Historical Primacy of the Right to Exclude ... C. The Ubiquity of the Right to Exclude I...

The most remarkable period since the adoption of the APA was that from about 1967 to 1983. During these years, the courts dramatically revised administrative common law in order to open up agency processes to new groups and perspectives, and transferred significant authority from agencies to reviewing courts. Since 1983, the tenor of judicial doctr...

"Environmental law is becoming ever more centralized. In the United States, state and local pollution laws have been eclipsed by federal regulation. In the European Community, and to a lesser degree under the North American Free Trade Agreement (NAFTA), national controls have been supplemented by regional regulation. And the growing importance of t...

This Essay offers a preliminary assessment of how textualism and the Chevron doctrine are faring together in the Supreme Court. Part II tracks the progress of these two tenets in recent terms of the Supreme Court. In Part III, I consider some possible explanations for these trends.

The Supreme Court's 1984 decision in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. contains a revolutionary analysis of the role of agencies and courts in interpreting statutes. Professor Merrill's Article surveys the actual practice of the Supreme Court since Chevron and shows that the Court does not in fact follow the framework...