Professor Berger's scholarship focuses on constitutional law. His recent work has explored judicial decision making in constitutional cases, with special attention to deference and other under-theorized factors driving constitutional outcomes. His article Individual Rights, Judicial Deference, and Administrative Law Norms in Constitutional Decision Making, 91 B.U. L. REV. 2029 (2011), was named the 2011 winner of the American Constitution Society's Richard D. Cudahy Writing Competition on Regulatory and Administrative Law.
Professor Berger has also written extensively about lethal injection and in January 2009, he testified before the Judiciary Committee of the Nebraska legislature about a bill to institute lethal injection in Nebraska. He is also the faculty advisor to the Law College's chapter of the American Constitution Society.
Professor Berger became the Associate Dean for Faculty in 2016.
Constitutional Law I Law 609/G (EDAD *870) (1-4 cr hr)
An introduction to American constitutional law with attention to both governmental structure and individual rights. Among other topics, we will explore the history and judicial interpretation of the Constitution, the scope of the judicial power, federalism, separation of powers, due process, and equal protection.
Constitutional Law II Law 732/G (EDAD *871) (1-4 cr hr)
Emphasizes protected individual civil liberties with a focus on the First Amendment and related issues in constitutional litigation.
Constitutional History Law 619/G (EDAD 977) (1-4 cr hr)
American constitutional history with a focus on "transformative" moments at which the Constitution and the nature of American politics and government changed. We will also explore how courts use history when they interpret the Constitution.
Federal Courts Law 754/G (3 cr hr)
This course is an advanced study of constitutional law and constitutional litigation. It focuses on the federal judicial system and the distribution of power between the federal and state systems and between the judiciary and the other branches of government.
Statutory Interpretation: Practice and Policy Law 728 (3 cr hr)
An introduction to the legislative process, with particular attention to issues that inform statutory interpretation.
Gross Error, Wash. L. Rev. - (forthcoming 2016)
The Executioners' Dilemmas, 49 Rich. L. Rev. 731 (2015) (invited symposium contribution)
The Rhetoric of Constitutional Absolutism, 56 Wm. & Mary L. Rev. 667 (2015)
Lethal Injection Secrecy and Eighth Amendment Due Process, 55 B.C. L. Rev. 1367 (2014)
Originalism's Pretenses, 15 U. Pa. J. Const. L. 329 (2013) (invited symposium contribution)
Lawrence's Stealth Constitutionalism and Same-Sex Marriage Litigation, 21 Wm. & Mary Bill Rts. J. 765 (2013)
Deference Determinations and Stealth Constitutional Decision Making, 98 Iowa L. Rev. 465 (2013)
Individual Rights, Judicial Deference, and Administrative Law Norms in Constitutional Decision Making, 91 B.U. L. Rev. 2029 (2011)
On Saving the Death Penalty: A Comment on Adam Gershowitz's Statewide Capital Punishment, 64 Vand. L. Rev. En Banc. 1 (2011) (solicited)
In Search of a Theory of Deference: The Eighth Amendment, Democratic Pedigree, and Constitutional Decision Making, 88 Wash. U. L. Rev. 1 (2010)
Lethal Injection and the Problem of Constitutional Remedies, 27 Yale L. & Pol'y Rev. 259 (2009)
Thoughts on LB 36: Problems with the Proposed Bill to Institute Lethal Injection in Nebraska, 1 Neb. L. Rev. Bull. 14 (2009) (solicited)
The Collision of the Takings and State Sovereign Immunity Doctrines, 63 Wash. & Lee L. Rev. 493 (2006)
Note: The Right to Education Under the South African Constitution, 103 Colum. L. Rev. 614 (2003)
"Professor of the Year" Award (voted by Upperclass Law Students) (2016)
"Professor of the Year" Award (voted by Upperclass Law Students) (2015)
"Professor of the Year" Award (voted by Upperclass Law Students) (2012)
Winner of American Constitution Society's Richard D. Cudahy Writing Competition on Regulatory and Administrative Law (2011)
College Distinguished Teaching Award (2010)
C.A. Sorensen Award (awarded by Nebraskans Against the Death Penalty) (2010)
"Professor of the Year" Award (voted by Upperclass Law Students) (2010)
"Professor of the Year" Award (voted by Upperclass Law Students) (2008)
Midlands Voice: Death Penalty Is Expensive Failure, Omaha World Herald (2015) (co-authored with Richard F. Duncan)
How States Hide Brutal Incompetence in Lethal Injection, CNN.com (2015)
Same-Sex Marriage, Heightened Scrutiny and the Problem of "Animus", JURIST - Academic Commentary (2015)
Botched Executions & the Problem of Lethal Injection Secrecy, American Constitution Society (2015)
Time Has Come to Repeal Death Penalty in Nebraska, Lincoln Journal Star (2013)
Unfit to Execute, L.A. Times (2007)