Law Commons^™

Revitalizing Fourth Amendment Protections: A True Totality Of The Circumstances Test In § 1983 Probable Cause Determinations, Ryan Sullivan

Nebraska College of Law: Faculty Publications

The Article analyzes claims of police misconduct and false arrest, specifically addressing the issue of whether a police officer may ignore evidence of an affirmative defense, such as self-defense, when determining probable cause for an arrest. The inquiry most often arises in § 1983 civil claims for false arrest where the officer was aware of some evidence a crime had been committed, but was also aware of facts indicating the suspect had an affirmative defense to the crime observed. In extreme cases, the affirmative defense at issue is actually self-defense in response to the officer’s own unlawful conduct. As police …

Courts, Culture, And The Lethal Injection Stalemate, Eric Berger

Nebraska College of Law: Faculty Publications

The Supreme Court's 2019 decision in Bucklew v. Precythe reiterated the Court's great deference to states in Eighth Amendment lethal injection cases. The takeaway is that when it comes to execution protocols, states can do what they want. Events on the ground tell a very different story. Notwithstanding courts' deference, executions have ground to a halt in numerous states, often due to lethal injection problems. State officials and the Court's conservative Justices have blamed this development on "anti-death penalty activists" waging ''guerilla war" on capital punishment. In reality, though, a variety of mostly uncoordinated actors motivated by a range of …

A Piece Of Cake Or Religious Expression: Masterpiece Cakeshop And The First Amendment, Richard F. Duncan

Nebraska College of Law: Faculty Publications

Sadly, religious liberty has become a matter of great controversy and division in our society. Although not so many years ago there was a nearly unanimous, bi-partisan consensus supporting the legal protection of religious liberty from laws substantially burdening the free exercise of religion, irreconcilable differences among us over contraception, abortion, sexuality, and the nature of marriage have made religious liberty a divisive partisan issue. Although most religious liberty cases concern religious minorities whose religiously-motivated conduct has been disregarded “by an insensitive majority,” a handful of cases involving Christian-owned businesses and ministries claiming a religious liberty right to refuse to …

Of Law And Legacies, Eric Berger

Nebraska College of Law: Faculty Publications

This contribution to the symposium on President Obama’s constitutional legacy examines the relationship between constitutional law and presidential legacies. Americans respect or even revere many presidents despite their apparent constitutional violations. Some unconstitutional actions, though, appear more forgivable than others. The effect constitutional transgressions may have on a president’s more general legacy turns on a variety of contextual factors, including, among others, the president’s values and vision, the administration’s political successes and failures, political opponents’ principles and behavior, the challenges confronting the country, and the nature of the constitutional norms at issue. Constitutional law, as articulated by lawyers and judges, …

Law Professors Want Hearing, Vote On Garland, Eric Berger, Kristen M. Blankley, Brian H. Bornstein, Eve M. Brank, Robert C. Denicola, Alan H. Frank, Stephen S. Gealy, Justin Hurwitz, David Landis, Craig M. Lawson, Richard Leiter, William H. Lyons, Richard H. Lawson, Matt Novak, Allen Overcash, Stefanie S. Pearlman, Ross Pesek, Kevin Ruser, Robert F. Schopp, Anthony Schutz, Anna Williams Shavers, Brett C. Stohs, Ryan Sullivan, Richard L. Weiner, Steven L. Willborn, Sandra Zellmer

Nebraska College of Law: Faculty Publications

Dear Senator Fischer and Senator Sasse,

We write this as citizens, but we all teach at the University of Nebraska College of Law. We hold different political viewpoints and disagree frequentIy with each other on political and legal issues. As law professors, however, we share a deep commitment to the rule of law and an impartial judiciary. We therefore urge you to hold confirmation hearings and a vote on President Obama's Supreme Court nominee, Chief Judge Merrick B. Garland.

Youthful Offenders And The Eighth Amendment Right To Rehabilitation: Limitations On The Punishment Of Juveniles, Martin R. Gardner

Nebraska College of Law: Faculty Publications

To understand the potential scope of the Court's implicit conclusion that the punishment of adolescents is unconstitutional unless a meaningful opportunity for rehabilitation is afforded, it is necessary to carefully distinguish and clarify the distinction between the conflicting concepts of punishment and rehabilitation. I therefore begin Part I by analyzing this distinction. Since the logic of the Court's decisions impacts the punishment of adolescents in both the juvenile and criminal justice contexts, I contrast the two systems in Part II by tracing the development of the juvenile court movement from its original rehabilitative origins towards an increasingly punitive model, dispensing …

Justice Scalia And The Rule Of Law: Originalism Vs. The Living Constitution, Richard F. Duncan

Nebraska College of Law: Faculty Publications

Justice Antonin Scalia's sudden death in February, 2016, was a great loss for his family, a great loss for his friends, and a great loss for the "Written Constitution" of the United States of America. We will have no more of his brilliant, witty, and pugnacious judicial opinions. Instead, we will have to settle for the body of work he left behind as his legacy. But, as one commentator has said, his opinions are "so consistent, so powerful, and so penetrating in their devotion to the rule of law"—the real rule of law, not the political decrees of judges creating …

Kermit Gosnell’S Babies: Abortion, Infanticide And Looking Beyond The Masks Of The Law, Richard F. Duncan

Nebraska College of Law: Faculty Publications

If, as Laurence Tribe has observed, “all law tells a story,” this Article tells two stories occurring forty years apart—the story of Justice Harry Blackmun and the unborn human beings he covered with the legal mask of “potential” lives in Roe v. Wade in 1973, and the story of Doctor Kermit Gosnell and the unmasked babies he was convicted of murdering in his Philadelphia abortion clinic in 2013. As Professor Tribe also observes, these stories amount to “a clash of absolutes, of life against liberty,” and therefore they are stories that must be told time and again, until we get …

The Rhetoric Of Constitutional Absolutism, Eric Berger

Nebraska College of Law: Faculty Publications

Though constitutional doctrine is famously unpredictable, Supreme Court Justices often imbue their constitutional opinions with a sense of inevitability. Rather than concede that evidence is sometimes equivocal, Justices insist with great certainty that they have divined the correct answer. This Article examines this rhetoric of constitutional absolutism and its place in our broader popular constitutional discourse. After considering examples of the Justices’ rhetorical performances, this Article explores strategic, institutional, and psychological explanations for the phenomenon. It then turns to the rhetoric’s implications, weighing its costs and benefits. This Article ultimately argues that the costs outweigh the benefits and proposes a …

Lethal Injection Secrecy And Eighth Amendment Due Process, Eric Berger

Nebraska College of Law: Faculty Publications

The U.S. Supreme Court has held that death row inmates possess an Eighth Amendment right protecting them against execution methods posing a substantial risk of serious harm. Despite the clear existence of this liberty interest, lower federal courts have repeatedly denied inmates’ requests to know important details of the lethal injection procedure the state plans to use. This Article argues that the Eighth Amendment includes an implicit due process right to know such information about the state’s planned method of execution. Without this information, inmates cannot protect their Eighth Amendment right against an excruciating execution, because the state can conceal …

Just Another Brick In The Wall: The Establishment Clause As A Heckler's Veto, Richard F. Duncan

Nebraska College of Law: Faculty Publications

"When rights are incorporated against the States through the Fourteenth Amendment they should advance, not constrain, individual liberty."'

Although the First Amendment explicitly protects individuals against only laws made by "Congress," the Supreme Court has long held that, under the Due Process Clause of the Fourteenth Amendment, the states are forbidden from "depriving" persons of the fundamental individual liberties protected by the First Amendment.' Thus, under the so-called doctrine of incorporation, a particular provision of the First Amendment (as well as of the rest of the Bill of Rights) "is made applicable to the states [only] if the Justices are …

Originalism’S Pretenses, Eric Berger

Nebraska College of Law: Faculty Publications

When conservatives in the 1980s offered originalism as a constitutional methodology that could limit perceived judicial excesses, they touted its ability to constrain judges to follow the Constitution’s fixed, original meaning. Though originalism has changed many times since, its proponents still generally preach these related virtues of fixation and constraint. This symposium contribution reviews recent scholarly developments in originalism and contends that originalism’s capacity to fix constitutional meaning and constrain judicial decision making is overstated in both practice and theory. In practice, originalism’s many variants provide the ostensibly originalist justice great interpretive flexibility. Originalist justices are methodologically inconsistent, offering an …

The Supreme Court's Anti-Retaliation Principle, Richard E. Moberly

Nebraska College of Law: Faculty Publications

In five cases issued during the last five years, the Supreme Court interpreted statutory anti-retaliation provisions broadly to protect employees who report illegal employer conduct. These decisions conflict with the typical understanding of this Court as pro-employer and judicially conservative. In a sixth retaliation decision during this time, however, the Court interpreted constitutional anti-retaliation protection narrowly, which fits with the Court’s pro-employer image but diverges from the anti-retaliation stance it appeared to take in the other five retaliation cases. This Article explains these seemingly anomalous results by examining the last fifty years of the Supreme Court’s retaliation jurisprudence. In doing …

Mississippi River Stories: Lessons From A Century Of Unnatural Disasters, Sandi Zellmer, Christine Klein

Nebraska College of Law: Faculty Publications

In the wake of Hurricane Katrina, the nation pondered how a relatively weak Category 3 storm could have destroyed an entire region. Few appreciated the extent to which a flawed federal water development policy transformed this apparently natural disaster into a “man-made” disaster; fewer still appreciated how the disaster was the predictable, and indeed predicted, sequel to almost a century of similar disasters. This article focuses upon three such stories: the Great Flood of 1927, the Midwest Flood of 1993, and Hurricanes Katrina and Rita of 2005. Taken together, the stories reveal important lessons, including the inadequacy of engineered flood …