In the News

Daniel Farber in the news:

How should “administrative law” be taught today?

Daniel Farber interviewed by The Federalist Society, Oct. 13, 2016

“What we’re doing a really good job of, at least to the extent that it works, is preparing people to argue cases in the D.C. Circuit. …. One thing I think we’re doing particularly poorly is preparing people to argue and represent clients for participative government lawyers in administrative proceedings, where a lot of the action is.”

Article III and the future of the Supreme Court

Daniel Farber interviewed by Constitution Daily, Oct. 6, 2016

“I don’t think we’re going to see a drastically more liberal- or more activist-oriented judges than the current justices. And one of the reasons for that is the makeup of the Senate. … It’s going to be very hard for Clinton to really get confirmation on anybody much to the left of say, Ginsburg.”

State’s new climate law could resonate across nation — if Clinton wins

Dan Farber and Ethan Elkind quoted by E&E News, Sept. 12, 2016

“California’s take on climate change is directly at odds with [Republican nominee Donald] Trump’s view that it’s a hoax, so if he becomes president, California will be on its own,” said Dan Farber. … “However, it would provide support for [Democratic nominee Hillary] Clinton’s approach and for the Clean Power Plan.”

“I think it bolsters the Clean Power Plan by showing that one of our biggest states, economy wise, is set to achieve even more aggressive targets than what’s called for in the federal plan,” said Ethan Elkind,

UC Berkeley law professors view future of landmark Chevron deference

Eric Biber and Daniel A. Farber quoted by Northern California Record, August 3, 2016

The so-called “Chevron deference … is the concept that if a statute in unclear or ambiguous, courts might defer to an agency’s interpretation of the law,” Eric Biber … told the Northern California Record. … “The argument for deferring to agencies is that they have more expertise than courts. Agencies will have economists and scientists, as well as lawyers and engineers on staff, and judges are just lawyers.”
Farber echoed the opinions of others at the conference when he said the court’s lack of reliance on Chevron deference in King proved its justices are “far more removed” from being accountable within a democratic system.

Climate plan review looms

Daniel Farber writes for Daily Journal (registration required), July 11, 2016

The Obama administration’s most important effort to address climate change, the Clean Power Plan (CCP), comes before the U.S. Court of Appeals for the D.C. Circuit this fall and will almost inevitably go from there to the Supreme Court.

Scholars concerned about Chevron deference ‘retreat’

Daniel A. Farber quoted by Bloomberg BNA, June 9, 2016

The retreat is problematic because it shows justices have stepped away from an attitude of humility toward agencies’ expertise, Daniel A. Farber, a professor at the University of California, Berkeley law school said.

How Antonin Scalia changed America

Dan Farber interviewed by Politico Magazine, Feb. 14, 2016

Scalia’s prose can make for entertaining and sometimes invigorating reading. But Scalia’s tone was always calculated to deny any legitimacy to the opposing side.

Inaction on global warming is as reckless as drunken driving

Daniel Farber writes for The Washington Post, Jan. 5, 2016

You might question comparing carbon emissions to ordinary careless behavior. It’s certainly true that identifying who is the injured party in a car accident is easier than defining who is suffering from the additional boost our own actions are giving climate change. But how can we justify carelessly harming others simply because it is difficult to identify who will be hurt?

Supreme Court’s handling of visa case may be harbinger for EPA rule

Daniel Farber quoted in Greenwire, July 24, 2014

Dan Farber … said an argument seeking to undermine the regulations because of the two versions of Section 111(d) has a “gotcha quality” that he expects will fail. “Recent cases,” he said, “show that the court is willing to abandon that kind of formalism when it leads to outcomes that don’t seem sensible in terms of congressional purpose.”

How the Supreme Court changed America this year

Daniel Farber writes for Politico Magazine, July 1, 2014

Overall, there was a clear trend toward a country that looks a little less like Barack Obama’s America and a little more like Mitt Romney’s. This is an America where corporations have the right to religious freedom, public employee unions have fewer rights to collect dues, the EPA has a little less power to regulate greenhouse gases and wealthy donors are subject to fewer constraints on their political contributions.

Scalia gets his facts wrong in EPA dissent

Daniel Farber quoted in The Washington Post, May 1, 2014

Among those who first pointed out the problem were law professors Jonathan Adler of Case Western Reserve University and Dan Farber of the University of California at Berkeley. Adler called the mistake merely “noticeable.” Farber called it “a cringe-worthy blunder,” “hugely embarrassing” and doubly so because Scalia wrote the opinion he mistakenly cited for support.

Free to marry—but ruling’s basis raises worries

Amanda Tyler and Daniel Farber quoted in San Francisco Chronicle, July 5, 2013 (registration required)

“It was born of a concern about federal courts overreaching beyond the power given to them,” said Amanda Tyler, a UC Berkeley constitutional law professor. The courts, she said, are often reluctant to “interfere with the workings of the executive or legislative branch.”

The ruling hasn’t eliminated environmental suits but has made them harder to sustain. Courts have insisted that plaintiffs show they are suffering a definable harm that would be cured by a favorable ruling, said Daniel Farber…. “You have to have an injury that was caused by the (government), and the court has to be able to help you,” he said.

Berkeley law prof: EPA regulates blank, opposed by blank

Daniel Farber quoted in San Francisco Business Times, May 28, 2013

It’s always the same story when the EPA rolls out new regulations, says Dan Farber, a professor at the University of California, Berkeley, law school. “Just fill in the blanks, and you can save yourself the trouble of reading newspaper accounts about any new EPA action,” Farber says, providing readers with a template under the headline “New EPA Regulations Spark Controversy.”

Obama climate agenda faces Supreme Court reckoning

Daniel Farber quoted in Reuters, May 16, 2013

“It’s very convoluted,” said Daniel Farber, an environmental law professor at the University of California, Berkeley School of Law. “The court typically doesn’t like all this complicated stuff.”

Death by drone, and the sliding scale of presidential power

Daniel Farber and John Yoo cited in National Public Radio, It’s All Politics blog, February 8, 2013

In an interview, Farber said…. “Presidents, regardless of political party, or liberal versus conservative, they just don’t seem to have a lot of qualms about doing what they think is necessary for national security. So it doesn’t surprise me [that Obama has allowed Americans to be targeted in drone strikes overseas]. There have been very few exceptions.”

In his 2006 book, War by Other Means: An Insider’s Account of the War on Terror, Yoo argues that killings in the context of a war is what legitimizes the federal government’s actions: “When a nation goes to war, it seeks to defeat the enemy in order to prevent future harms on society inflicted by enemy attacks…. The military bombs a building when it estimates with varying degrees of certainty that enemy soldiers or munitions are there. It does not wait to attack until it has proof beyond a reasonable doubt or probably cause.”

California greenhouse gas rules face major court test

Daniel Farber quoted in San Jose Mercury News, October 14, 2012

“Any comprehensive plan is going to have to confront this issue,” said Daniel Farber, co-director of UC Berkeley’s environmental law [center]. “A negative decision in this case could pose a barrier to aggressive state efforts to address climate change.”

California greenhouse gas rules face major court test

Daniel Farber quoted in San Jose Mercury News, October 14, 2012

“Any comprehensive plan is going to have to confront this issue,” said Daniel Farber, co-director of UC Berkeley’s environmental law [center]. “A negative decision in this case could pose a barrier to aggressive state efforts to address climate change.”

Microsoft (legally) avoided $6.5B in taxes over 3 years

David Gamage and Eric Talley quoted in The Seattle Times, September 21, 2012

While it’s right to a certain extent to say that U.S. companies aren’t paying their fair share of taxes, Talley said, it’s also true that multinational corporations have substantial leeway in where they locate. “If policymakers decide to close up the loophole, a potential danger is that companies may start to move their physical operations overseas,” he said.

David Gamage, an assistant professor at UC Berkeley School of Law, said it’s impossible for him to know whether Microsoft or HP have done anything wrong without seeing privileged documents that he doesn’t have access to. “But my guess, based on what’s been publicly available, is that Microsoft is, at the very minimum, being extremely aggressive in its interpretation of U.S. tax laws,” he said.

Lawyers go west as climate litigation warms up

Daniel Farber quoted in Environmental and Energy Publishing, September 20, 2012

“These cases are always hard to predict in the Supreme Court,” said Daniel Farber, an environmental law professor at the University of California, Berkeley, School of Law. The fuel standard case is certainly “a possible case for Supreme Court review,” he added.

California’s water system can adapt to climate change, new study shows

Daniel Farber and Deborah Lambe quoted in The Daily Californian, August 7, 2012

“The growing California population will put additional stress on the water system,” said Berkeley School of Law Professor Dan Farber, another co-author of the study, in an email. “Some of our key recommendations include a new system for monitoring and recording water use, which is essential for better planning, and better methods for controlling the use of groundwater, which is rapidly being exhausted.”

“The information those kinds of rules will generate can help California adapt to climate change by establishing a baseline of how much water the state is using and by identifying changes in both supply and demand over time,” Lambe said.