Eric Berger

Eric Berger Earl Dunlap Distinguished Professor of Law

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Biography

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, same-sex marriage, the detention of foreign nationals at Guantanamo Bay, and internet obscenity.

Professor Berger teaches Constitutional Law I (structure), Constitutional Law II (rights), Constitutional History, Federal Courts, First Amendment, and Statutory Interpretation. He also teaches a class for undergraduates on Legislation and Regulation. He has been voted Professor of the Year by the upperclass law students six times. He has also received the College Distinguished Teaching Award (in 2010), the Law Alumni Council Distinguished Faculty Award (in 2018), and the John H. Binning Award for Excellence (in 2019). 

Professor Berger's scholarship focuses on constitutional law.  Much of his work explores judicial decision making in constitutional cases, with special attention to deference, fact finding, rhetorical strategies, and other under-theorized factors that help shape judicial opinions in constitutional cases.  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 litigation.   

Professor Berger has testified in the Nebraska legislature about a variety of constitutional issues, including free speech, lethal injection, and the process for amending the U.S. Constitution.  He is also the faculty advisor to the Law College's chapter of the American Constitution Society and to the Community Legal Education Project, which sends law students into Lincoln public schools to teach about the Constitution.

Professor Berger served as Associate Dean for Faculty from 2016 to 2020.

Courses

Constitutional Law I Law 609/G (EDAD *870) (3 cr hr)
This course provides an introduction to the constitutional structure of American government, focusing on justiciability, federalism, and separation of powers, including the scope of the legislative, executive, and judicial powers.

Constitutional Law II Law 732/G (EDAD *871) (3 cr hr)
This course provides an introduction to the Fourteenth Amendment, focusing on equal protection, substantive due process, procedural due process, the incorporation of the Bill of Rights, state action doctrine, Congressional enforcement of the Fourteenth Amendment, and other individual rights issues.

Constitutional History Law 619/G (EDAD 977) (3 cr hr)
This course examines American constitutional history with a focus on "transformative" moments at which the Constitution and the nature of American government changed. We will give special attention to the American Revolution and the framing of the Constitution and Bill of Rights, the Civil War and Reconstruction, the New Deal, and the Civil Rights Movement. We will also explore the role of history in constitutional interpretation.

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.

First Amendment Law Law 649/G (3 cr hr)
This course examines the First Amendment with particular attention to freedom of speech, the free exercise of religion, and the Establishment Clause. As time permits, the course may also cover freedom of the press and free association.

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.

Legislation and Regulation BLAW 378 (3 cr hr) (for undergraduates)
This course provides an introduction to legislation and regulation so that students can understand the basic structures of the institutions that set the rules by which we all live. This course will help students better understand the structure of the U.S. government, the sources of governmental policy, and the various factors that help shape that policy.

Articles

Death Penalty Administration: A Response to Alexandra Klein’s Nondelegating Death,  82 Ohio St. L.J. Online 9 (2021) (invited contribution)

Courts, Culture, and the Lethal Injection Stalemate,   62 Wm. & Mary L. REV. 1 (2020)

Comparative Capacity and Competence,  2020 Wis. L. Rev. 215 (invited symposium contribution)

When Facts Don’t Matter,  2017 BYU L. Rev. 525

Of Law and Legacies,  65 Drake L. Rev. 949 (2017) (invited symposium contribution)

Gross Error,  91 Wash. L. Rev. 929 (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)

Originalism's Pretenses,  15 U. Pa. J. Const. L. 329 (2013) (invited symposium contribution)

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)

Book Chapters

Evolving Standards of Lethal Injection, in The Eighth Amendment and Its Future in a New Age of Punishment, (Cambridge Univ. Press) (eds. W. Berry & M. Ryan eds., 2020)

Awards

Professor of the Year Award (voted by Upperclass Law Students)  (2019)

U. Nebraska College of Law John H. Binning Award for Excellence  (2019)

Law Alumni Council Distinguished Faculty Award   (2018)

"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)

Media

Law School for Everyone: Constitutional Law,  The Great Courses (2019) (twelve-lecture series)

Treasure Constitution; Oppose Convention,  Lincoln Journal Star, Sept. 15, 2018

Midlands Voice: No to a Constitutional Convention,  Omaha World Herald, March 24, 2017

Local View: Law Professors Want Hearing, Vote on Garland,  Lincoln Journal Star, April 13, 2016 (co-authored with numerous colleagues)

Midlands Voice: Death Penalty Is Expensive Failure,  Omaha World Herald (2015) (co-authored with Richard F. Duncan)

Unfit to Execute,  L.A. Times (2007)

Education

J.D., Columbia University School of Law (2003)
B.A., with Honors, Brown University (1995)

Areas of Expertise

Appointments

Associate Dean for Faculty, 2016
Professor of Law, 2015
Associate Professor of Law, 2012
Assistant Professor of Law, 2007