Daniel Farber

Courts should kill Trump’s pricey ‘2-for-1’ deregulation order

Dan Farber writes for The Hill, Feb. 9, 2017

The regulatory process is very elaborate, and adopting a new regulation is a very expensive, time-consuming process. This executive order effectively triples the costs, because agencies not only have to enact new regulations, but also go through equally complex proceedings to eliminate two old ones. Basically, agencies will be able to propose about a third as many new rules as before.

UC Berkeley School of Law professors hold panel on Trump’s U.S. Supreme Court nominee

John Yoo, Jesse Choper and Dan Farber quoted by The Daily Californian, Feb. 8. 2017

Yoo said Gorsuch’s past stances on religious liberty, such as in the Burwell v. Hobby Lobby Stores, Inc. case in 2014, are most likely the reason he was considered for the nomination.

“Yes, (Gorsuch) is qualified, perhaps better than any other nomination (Trump) has made to cabinet seats,” Choper said.

Gorsuch is someone who is open-minded and does not have a knee-jerk response, Farber said. He added he believes Gorsuch’s past opinions on the 10th Circuit have had a more “humane” tone than Scalia’s.

Barriers abound to Trump’s border wall

Holly Doremus, Daniel Farber, and Bill Falik quoted by California Magazine, Feb. 6, 2017

Doremus: “There’s not a lot of existing border fencing in Texas, so the wall would have to pass through a lot of private land where barriers haven’t been much of an issue until now,” she says. “And certainly, eminent domain seizures are not popular with Republicans in general and Texas Republicans in particular.”

Farber: “The wall would cost a lot, and its benefits are unclear, but the Secure Fence Act does give the administration pretty broad powers to dispense with legal requirements such as NEPA. I’d love to see it stopped, but it may be difficult.”

Falik: “It’s really expensive,” observes Bill Falik, a lecturer at Berkeley Law and a real estate developer, “and I’m not completely sure at this point that a Republican congress is going to be anxious to go along with that.” Nor is Falik convinced that federal statutes such as the Endangered Species Act and NEPA would suddenly turn the project into smoldering rubble; rather, they might inflict the death of a thousand torts.

Liberal UC Berkeley law professor Dan Farber on Neil Gorsuch

Daniel Farber quoted by The Washington Post, Feb. 2, 2017

“Based on what we know so far, trying to stall Neil Gorsuch’s nomination seems wrong on principle. I say that as someone who fervently supported Merrick Garland and found the GOP blockade of his nomination appalling. It’s understandable that many Democrats think it would be only fair to return the same treatment. But I think it would be wrong.”

In Calif., Gorsuch pick greeted with concern, pragmatism

Daniel Farber quoted by The Recorder (registration required), Feb. 1, 2017

UC Berkeley law professor Daniel Farber called the Gorsuch pick “a surprisingly reasonable choice for Trump.” Farber, who clerked at the U.S. Supreme Court for former Justice John Paul Stevens, said that Gorsuch looks “principled enough and like he’s got enough backbone to rule against Trump when he goes over the line.”

What could Gorsuch mean for the Supreme Court: A good option for Democrats

Daniel Farber writes for Politico Magazine, Feb. 1, 2017

The key thing about Gorsuch from my point of view is that he’s principled—and he seems to have enough backbone to stand up to Trump. We could use that on the court. The fact that Gorsuch has spoken against judicial deference to the executive branch in matters of statutory interpretation makes it more likely that he won’t rubber-stamp Trump’s actions.

What could Gorsuch mean for the Supreme Court?

Daniel Farber writes for Politico Magazine, Feb. 1, 2017

Gorsuch wrote a clear, persuasive opinion in favor of upholding the renewable energy law. What I have read about his other opinions—and what I have heard from colleagues who knew him at earlier points in his life—reinforces my view that he is a thoughtful, principled judge, albeit one who is more conservative than I would like.

Trump’s order on new regulations tightens reins on EPA

Daniel Farber quoted by Law360, Jan. 30, 2017

“I think what the order really does is make it nearly impossible to do new regulations. Or at least new regulations that aren’t mandated by law by a certain deadline. And the administration didn’t want to do any new regulations anyway,” said Dan Farber.

Milo’s college tour and the First Amendment: An explainer

Ian Haney López, Jesse Choper, Daniel Farber, and Robert Cole quoted by California Magazine, Jan. 26, 2017

López: “When universities invite someone to speak, they communicate that that person’s ideas are within the broad range of important public [discourse],” Haney-Lopez states. “Disinviting someone from speaking likewise communicates something—in this case, that the universities have come to realize that this speaker intentionally degrades people to draw attention, while offering little of any real intellectual substance. His poisonous invective is being drowned out by more and louder speech affirming humane values and inclusion. That’s precisely the ideal of free speech in action.”

Choper: “On the one hand, you have to have a content-neutral basis for [any] regulation [that might impinge on free speech],” says Jesse Choper, a professor emeritus at Berkeley Law, “and on the other, your assessment must be based on the perceived danger of such speech. So in a way, you’re forbidden to make a judgment, and you’re also required to make a judgment.”

Farber: “The Supreme Court has emphasized that the First Amendment is intended to protect ‘uninhibited, robust, and wide-open,’ public debate,” Farber stated in an email, “so in terms of general principles, it seems to me that universities should be very hesitant to exclude a speaker or viewpoint simply because it is offensive or disruptive.”

Cole: In the case of Cal, says Cole, “Berkeley College Republicans is a university-sanctioned organization, and if, as it seems, it issued an invitation and arranged an engagement in accordance with university rules, then the university must allow the event. The university’s role is to remain a neutral marketplace. It can’t cancel a speaking event simply because a speaker is considered controversial, or officials are worried that it could result in bad publicity, or things could get raucous.”