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Author

Thomas W. Merrill

Other affiliations: Northwestern University, Yale University, Marquette University  ...read more
Bio: Thomas W. Merrill is an academic researcher from Columbia University. The author has contributed to research in topics: Property (philosophy) & Common law. The author has an hindex of 24, co-authored 99 publications receiving 2338 citations. Previous affiliations of Thomas W. Merrill include Northwestern University & Yale University.


Papers
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Journal ArticleDOI
TL;DR: The numerus clausus principle has been used in the common law to reduce third-party information costs as discussed by the authors, and it has been argued that the principle serves throughout the law of property to reduce the costs of frustrating parties' objectives.
Abstract: 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 the numerus clausus. This Article adopts this term for the corresponding understanding in the common law, and advances an information-cost theory that explains the ubiquity and durability of the doctrine. The numerus clausus can be seen at work in a variety of areas, including estates in land, concurrent interests, nonpossessory interests, interests in personal property, and intellectual property. The Article argues that the principle serves throughout the law of property to reduce third-party information costs. Because of their in rem nature, property rights give rise to third-party information costs in a way that contract rights do not. Individuals trying to avoid violating property rights or investigating whether to acquire them need to gather information. Those creating property rights will in some situations have too little incentive to conform to the most popular forms, requiring a degree of mandatory standardization. As it operates in practice, the numerus clausus strikes a rough balance between the costs of frustrating parties' objectives on the one hand and third-party information costs on the other. The Article demonstrates that this information-cost theory provides a better account for the numerus clausus than do alternative positive and normative views, including those based on the sufficiency of notice, network effects, private standards, anti-fragmentation concerns, and the increasing importance of contract-based rights. Finally, the Article shows that, because it tends to preclude judicial innovation in the basic forms of property rights, the numerus clausus acts as an institutional-choice mechanism that channels innovation in the menu of property rights to legislatures. In keeping with the basic information-cost theory, legislative creation and abolition of property rights is likely to lead to lower information costs than would judicial entrepreneurship in this area.

298 citations

Journal ArticleDOI
TL;DR: In this article, the authors describe how the in-rem nature of property has been largely ignored in the law and economics literature and argue that this omission leads to an incomplete view of property.
Abstract: 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 as a baseline for contracting or for collectively imposed resolutions of use conflicts. Like the Legal Realists, Coase's article tends to view entitlements as arbitrary lists of use-rights that result from the resolution of use conflicts by courts or contracting parties. Three broad post-Coasean approaches - the contractarian, the tort, and the entitlement perspectives - are identified, in each of which the in rem nature of property is likewise suppressed. Finally, we briefly examine how four areas - the numerus clausus of property forms, the prevalence of certain in rem social norms, the direction of legal causation in resource conflicts, and the trespass-nuisance distinction - could be better explained by appealing to this in rem nature of property and the information costs to which it gives rise.

248 citations

Journal Article

179 citations

Journal ArticleDOI
TL;DR: The aim of this review was to assess the impact of the publication of Amicus Curiae Brief Quality on the success rates of Institutional Litigants and Cited Briefs, as well as three models ofJudgement, which were used in this study.
Abstract: INTRODUCTION AND OVERVIEW ............................................................ 744 I. THE RISING TiDE OFAMICUS CuRIAE BRIEFS .................................. 751 A. The Level ofAmicus Curiae Activity, 1946-1995 ........................... 751 B. Citation and Quotation of Amicus Briefs, 1946-1995 .................... 757 II. THE OPEN DOOR POLiCYTOWARD AMICUS BRIEFS ........................ 761 III. PREVIOUS STUDIES OF THE INFLUENCE OF AMICUS BRIEFS ON SUPREME COURT OUTCOMES ........................................ 767 IV. THREE MODELS OFJUDGING AND THEIR IMPLICATIONS FOR AMICUS BRIEFS ......................................................................... 774 A. The Legal M odel .......................................................................... 775 B. The Attitudinal Model ................................................................. 779 C. The Interest Group Model ............................................................. 782 V. AN EMPIRICAL STUDY OF THE INFLUENCE OFAMICUS BRIEFS ......... 787 A. The Overall Success Rates ofAmicus Filers ..................................... 789 B. Disparities in Amicus Support ....................................................... 793 C. The Impact of Amicus Brief Quality .............................................. 801 1. Success Rates of Institutional Litigants ............................... 801 2. Success Rates of Cited Briefs ............................................... 811

162 citations

Posted Content
TL;DR: In this article, the authors present a functional justification for why the legal system utilizes these two modalities in fixing use rights in particular resources, grounded in differences in the pattern of information costs associated with each type of right.
Abstract: The boundary between contract and property is often disputed, but one important difference inheres in the underlying nature of the structure of rights. Contract rights are in personam, meaning that they apply to persons directly and impose prescribed obligations on a small number of specifically identified dutyholders; property rights are in rem, meaning that they apply to persons insofar as they own particular things and impose generalized duties of noninterference on a large and indefinite number of dutyholders ("the world"). This article presents a functional justification for why the legal system utilizes these two modalities in fixing use rights in particular resources, grounded in differences in the pattern of information costs associated with each type: In personam rights impose a relatively large informational burden on a small number of parties; in rem rights impose a relatively small informational burden on a large number of parties. Given these differences in information costs, we can also make certain predictions about the nature of the legal doctrine that will be associated with each type of right. The article tests these predictions by examining four legal institutions that have long been regarded as falling along the property/contract interface: bailments, landlord-tenant law, security interests, and trusts. With respect to each institution, we find that the predicted doctrinal pattern generally holds. In personam relations are governed by flexible default rules designed to minimize the costs of delineating prescribed duties imposed on particular parties. In rem relations are governed by bright-line rules that impose immutable and standardized obligations on a large and indefinite class. Relations intermediate between in personam and in rem feature a degree of standardization beyond the in personam designed to provide notice or protection to informationally disadvantaged parties, but do not approach the full standardization associated with in rem relations. Moreover, these intermediate relations become more standardized as the informational problems become more widespread. We interpret these results to confirm that third-party information costs are critical in understanding the underlying distinction between property and contract.

87 citations


Cited by
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Posted Content
TL;DR: In this article, the authors introduce the concept of ''search'' where a buyer wanting to get a better price, is forced to question sellers, and deal with various aspects of finding the necessary information.
Abstract: The author systematically examines one of the important issues of information — establishing the market price. He introduces the concept of «search» — where a buyer wanting to get a better price, is forced to question sellers. The article deals with various aspects of finding the necessary information.

3,790 citations

Journal ArticleDOI
TL;DR: It is impossible that the rulers now on earth should make any benefit, or derive any the least shadow of authority from that, which is held to be the fountain of all power, Adam's private dominion and paternal jurisdiction.
Abstract: All these premises having, as I think, been clearly made out, it is impossible that the rulers now on earth should make any benefit, or derive any the least shadow of authority from that, which is held to be the fountain of all power, Adam's private dominion and paternal jurisdiction; so that he that will not give just occasion to think that all government in the world is the product only of force and violence, and that men live together by no other rules but that of beasts, where the strongest carries it, and so lay a foundation for perpetual disorder and mischief, tumult, sedition and rebellion, (things that the followers of that hypothesis so loudly cry out against) must of necessity find out another rise of government, another original of political power, and another way of designing and knowing the persons that have it, than what Sir Robert Filmer hath taught us.

3,076 citations

Journal ArticleDOI
G. W. Smith1

1,991 citations

Book
29 Aug 2016
TL;DR: The Black Box Society argues that we all need to be able to do so and to set limits on how big data affects our lives as mentioned in this paper. But who connects the dots about what firms are doing with this information?
Abstract: Every day, corporations are connecting the dots about our personal behaviorsilently scrutinizing clues left behind by our work habits and Internet use. The data compiled and portraits created are incredibly detailed, to the point of being invasive. But who connects the dots about what firms are doing with this information? The Black Box Society argues that we all need to be able to do soand to set limits on how big data affects our lives. Hidden algorithms can make (or ruin) reputations, decide the destiny of entrepreneurs, or even devastate an entire economy. Shrouded in secrecy and complexity, decisions at major Silicon Valley and Wall Street firms were long assumed to be neutral and technical. But leaks, whistleblowers, and legal disputes have shed new light on automated judgment. Self-serving and reckless behavior is surprisingly common, and easy to hide in code protected by legal and real secrecy. Even after billions of dollars of fines have been levied, underfunded regulators may have only scratched the surface of this troubling behavior. Frank Pasquale exposes how powerful interests abuse secrecy for profit and explains ways to rein them in. Demanding transparency is only the first step. An intelligible society would assure that key decisions of its most important firms are fair, nondiscriminatory, and open to criticism. Silicon Valley and Wall Street need to accept as much accountability as they impose on others.

1,342 citations

01 Jan 2014
TL;DR: In this paper, Cardozo et al. proposed a model for conflict resolution in the context of bankruptcy resolution, which is based on the work of the Cardozo Institute of Conflict Resolution.
Abstract: American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

1,336 citations