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, Constitutional Law II, Constitutional History, Federal Courts, and Statutory Interpretation. He also teaches a class for undergraduates on Legislation and Regulation. In 2008, 2010, 2012, 2015, 2016, and 2019 he was voted Professor of the Year by the upperclass law students. 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.
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.
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.
Courts, Culture, and the Lethal Injection Stalemate, 61 Wm. & Mary L. Rev. -- (forthcoming 2020)
Capacity, Competence, and Candor, 2020 Wis. L. Rev. – (forthcoming 2020) (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)
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)
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., forthcoming 2020)
John H. Binning Award for Excellence (2019)
“Professor of the Year” Award (voted by the Upperclass Law Students) (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)
Delegate Selection, Representation Problems, and the Difficulties of an Article V Convention, Scholars Strategy Network, Dec. 10, 2019
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: The Dangers of a Constitutional Convention, Omaha World Herald, April 4, 2018
Midlands Voice: The Dangers of Nebraska’s New Execution Protocol, Omaha World Herald, Jan 28, 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)
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)