Associate Professor of Law
265 LAW UNL 68583-0902
(402)472-1251 | Email
Areas of Expertise
- Constitutional Law
- Constitutional History
- Legislation: Public Policy & Statutory Interpretation
- B.A., with Honors, Brown University (1995)
- J.D., Columbia University School of Law (2003)
- Associate Professor of Law, 2012
- Assistant Professor of Law, 2007
Professor Eric Berger joined the faculty in 2007. He received his B.A. with Honors in History from Brown University, and his J.D. from Columbia Law School, where he was a Kent Scholar and an Articles Editor on the Columbia Law Review. After law school, Professor Berger clerked for the Honorable Merrick B. Garland on the United States Court of Appeals for the District of Columbia Circuit. He then practiced in Jenner & Block's Washington, D.C. office, where he worked on litigation in several state and federal trial and appellate courts, including the United States Supreme Court. Professor Berger's matters there included cases involving lethal injection, gay marriage, the detention of foreign nationals at Guantanamo Bay, and internet obscenity.
Professor Berger teaches Constitutional Law I, Constitutional Law II, Constitutional History, Federal Courts and Statutory Interpretation. In 2008, 2010, and 2012, he was voted Professor of the Year by the upperclass law students. In 2010, he also received the College Distinguished Teaching Award.
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.
Constitutional Law I
(Law 609/G) (EDAD *870) (1-4 cr) Structure of the federal government, including the history and judicial interpretation of the Constitution, federalism, interstate commerce, due process, equal protection, and separation of powers.
Constitutional Law II
(Law 732/G) (EDAD *871) (1-4 cr) Emphasizes protected individual civil liberties with a focus on the First Amendment and related issues in constitutional litigation.
(Law 619/619/G) (EDAD 977) (1-4 cr) Lec 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.
(Law 754/G) (3 credit hours) 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 credit hours) An introduction to the legislative process, with particular attention to issues that inform statutory interpretation.
- The Rhetoric of Constitutional Absolutism, 56 Wm. & Mary L. Rev. -- (forthcoming 2014-15)
- Lethal Injection Secrecy and Eighth Amendment Due Process, 55 B.C.L. Rev. -- (forthcoming 2014-15)
- Originalism's Pretenses, 15 U.Pa. J. Const. L. 329 (2013)
- 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)
* 2011 Winner of the American Constitution Society's Richard D. Cudahy Writing Competition on Regulatory
and Administrative Law
- 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)