The Yale Law Journal

Thomas W. Merrill


The New Public Nuisance: Illegitimate and Dysfunctional

Thomas W. Merrill

The new public nuisance is illegitimate because it violates the rule of law and is inconsistent with norms of democratic accountability. It also ignores the dangers of over- and under-deterrence associated with joint ventures between prosecutors and  personal-injury lawyers seeking massive damages f…


What Happened to Property in Law and Economics?

Thomas W. Merrill & Henry E. Smith

111 Yale L.J. 357 (2001)

Property has fallen out of fashion. Although people are as concerned as ever with acquiring and defending their material possessions, in the academic world there is little interest in understanding property. To some extent, this indifference reflects a more general skepticism…


Optimal Standardization in the Law of Property: The Numerus Clausus Principle

Thomas W. Merrill & Henry E. Smith

110 Yale L.J. 1 (2000)

In all postfeudal legal systems, the basic ways of owning property are limited in number and 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 invok…