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Nebraska law professor: Lethal injection changing; Supreme Court could set new rules

Tuesday, January 27th, 2015

Eric Berger, a University of Nebraska law professor who has litigated and studied  lethal injection, says the U.S. Supreme Court may use a new case arising out of Oklahoma to clarify the legal standard governing challenges to lethal injection procedures.

Because of several botched executions and difficulties in obtaining drugs, many states, including Oklahoma, have changed execution protocols since 2008, when the Supreme Court in Baze v. Rees upheld lethal injection.   Some states have gone to only one or two drugs. Others are trying new drug combinations and refusing to identify their suppliers of execution chemicals.

“Several states, if not all have changed procedures since the Baze decision,” Berger  said. “The question presented in the new Supreme Court case is how the Baze standard should apply in procedures different than the one at issue in Baze.”

Further compounding the problem, many states conceal crucial details of their execution procedure. In a paper recently published in the Boston College Law Review, Berger discusses the due process implications of states’ secrecy over lethal injection protocols.

“Without this information, inmates cannot protect their Eighth Amendment right against an excruciating execution because the state can conceal crucial details of its execution procedure, effectively insulating it from judicial review.”

On Jan. 23, the U.S. Supreme Court agreed to hear Glossip v. Gross,  a case contending that  Oklahoma’s current lethal injection procedure violates the  Eighth Amendment ban on cruel and unusual punishment.

The case involves three inmates who argue that Oklahoma’s three-chemical procedure posed a significant risk of terrible suffering. One of the three was scheduled to be executed Thursday, but Oklahoma’s Attorney General has requested a delay while the U.S. Supreme Court reviews the case.

A fourth inmate involved in the case, Charles Warner, was executed Jan. 15.  The Supreme Court declined to delay his execution just days before announcing it was granting review in the case.  A case can be accepted with the vote of four justices, but it take five to delay an execution.

As a private practice attorney, Berger was involved in two death penalty cases, one of which was decided by the U.S. Supreme Court.  In Hill vs. McDonough, a Florida case decided in 2006, the Supreme Court confirmed that inmates may challenge the constitutionality of lethal injection using a civil rights statute. Berger also worked on Taylor vs. Crawford, which challenged the constitutionality of  Missouri’s lethal injection procedure. The court in that case became the first trial court to hold unconstitutional a state’s lethal injection procedure.  The 8th U.S. Circuit Court of Appeals subsequently reversed that decision and upheld Missouri’s procedure in 2007.

Berger has continued to study lethal injection since joining the UNL faculty in  2007. He can be contacted at eric.berger@unl.edu or 402-472-1251.

Expert alert: Would President Obama’s community college proposal accomplish its aims?

Friday, January 16th, 2015

The success of President Obama’s proposal to provide two free years at community college depends upon whether it will truly eliminate the barriers that keep students from attending, says Brent Cejda, a former community college administrator who serves as chairman of the Department of Educational Administration at the University of Nebraska-Lincoln.

“It all boils down to one thing: What can the money be used to pay for?”  Cejda said.

Cejda (pronounced Shay-duh) developed and implemented UNL’s community college leadership certificate program and served for nine years as executive director of the National Council of Instructional Administrators, an affiliate council of the American Association of Community Colleges.

He is a past president of the Council for the Study of Community Colleges, which recognized him in 2002 with an emerging scholar award and in 2014 with a senior scholar award. He is principal investigator of a National Science Foundation grant, “Developing Undergraduate Research at Community Colleges: Tapping the Potential of All Students,” which has involved more than 100 community colleges in designing research experiences for community college students.

He is available to discuss the implications of President Obama’s proposal, part of the State of the Union address to be delivered Tuesday.

“Education, everyone understands, is the key for success for our kids in the 21st century,” President Obama said when he announced the proposal earlier this month. “It’s not just for kids. We also have to make sure everybody has the opportunity to constantly train themselves for better pay, better jobs, better benefits.”

The proposal calls for the federal government to pay 75 percent of the average cost of community college, with states providing the remainder . The cost to the federal government is projected to be more than $60 billion over 10 years.

Obama said his proposal, if implemented in all 50 states, would save full-time community college students an average of $3,800 per year in tuition. IT would benefit about 9 million students per year.

Cejda said that for most low-income students, federal Pell grants pay for most or all of community college tuition.

Transportation and child care expenses are the two major barriers that prevent students from being able to go to community college, he said.

“Unless it helps in that regard, the program may not provide additional benefit to low-income students,”  he said.

Cejda said other challenges arise because of the differing financing systems for community colleges. In about half the states, including Nebraska, property taxes or other local taxes help support community colleges, thus lowering tuition costs.

Legislatures in those states may be more willing to sign up for Obama’s program because the price tag for the required 25 percent state match would be smaller.

However, states where community colleges rely more heavily on tuition would have to pay more to participate.

Cejda’s community college experience began as an instructor at Butler Community College in Kansas. He later became an administrator at Butler and held administrative appointments at Edison State Community College in Ohio and Highland Community College in Kansas.

He can be reached for interviews at 402-472-0989 or 402-525-3352 (cell).  His email is bcejda2@unl.edu.

Historic comet landing highlights Space Law mission

Thursday, November 13th, 2014

The Philae probe’s touchdown Nov. 12 on the surface of a comet more than 300 million miles away gives heightened purpose to the mission of the University of Nebraska’s space law experts.

“It is the first time a space agency has successfully landed on a small asteroid or comet-type of celestial body,” said Frans von der Dunk, an internationally recognized space law expert and faculty member in the University of Nebraska’s Space, Cyber and Telecommunications Law program.

With the landing, long-debated questions about the legal status and property rights for celestial bodies move from hypothetical to reality.

After 10 years of travel across the solar system, the 220-pound Philae lander separated from its Rosetta mother ship at about 2:30 a.m. central time to begin a seven-hour descent to Comet 67P. It landed at about 10:05 a.m. central time. The probe is to photograph and test the comet’s surface, measuring its density and thermal properties, as well as identifying any complex organic chemicals that might be present. Other tests will measure the comet’s magnetic field and its interaction with solar wind.

Von der Dunk, who divides his time between his native Netherlands and Lincoln, was to appear Nov. 12 on the Dutch public radio program De Kennis van Nu (Knowledge Now) to discuss the Philae landing.

As an intergovernmental organization, the European Space Agency is a public body. Yet the successful landing on a comet makes it more imperative that the international community resolve how to handle commercial mining of materials found on comets and asteroids, as well as the potential for near-Earth objects to threaten the Earth, he said.

Both questions have been the subject of in-depth study by von der Dunk and other space law experts at UNL. The ASTEROIDS act, a current bill before the U.S. Congress, is a unilateral initiative to address asteroid resource exploration and utilization. In addition, there are largely U.S.-led activities of the Association of Space Explorers to address potential threats by near-Earth objects. The United Nations has become involved in those efforts.

Contact von der Dunk at (402) 472-1240 or fvonderdunk2@unl.edu

For general legal analysis on space property rights and Near Earth Objects, visit:

http://digitalcommons.unl.edu/spacelaw/25/

http://digitalcommons.unl.edu/spacelaw/15/

http://digitalcommons.unl.edu/spacelaw/57/

http://digitalcommons.unl.edu/spacelaw/49/

Poker players: American heroes for the 21st Century?

Thursday, November 6th, 2014

Nine players players from six countries are to battle over a $28 million pot in the Main Event of the Word Series of Poker beginning Monday Nov. 10 in Las Vegas.

The University of Nebraska-Lincoln’s  Aaron Duncan, a communication studies lecturer and the director of the speech and debate program, can offer insights about why the World Series of Poker resonates so deeply with Americans.  The author of an upcoming book, tentatively titled “Gambling with the Myth of the American Dream,”  Duncan has studied the imagery and mythology of poker and how it fits with the American ideal of the “self-made man.”

He has analyzed in-depth how ESPN’s sports-style coverage of the 2003 World Series of Poker transformed the image of the gambler and poker player to become an heroic figure for the 21st Century.

For a more detailed description of Duncan’s thoughts:

Poker: Gambling with the myth of the American Dream? | UNL Newsroom | University of Nebraska–Lincoln

Duncan is available for interviews at 402-450-7830 or at aduncan3@unl.edu

UNL experts can help media make sense of the 2014 midterms

Monday, November 3rd, 2014

What do the 2014 midterm elections bode for the future? These University of Nebraska-Lincoln experts are available to help reporters analyze the rhetoric, campaign tactics and issues of the 2014 congressional and statehouse races, both in Nebraska and nationally.

John Hibbing, Foundation Regents University Professor of Political Science: Nebraska’s U.S. Senate, House races, statewide campaigns and campaign trail developments.  Hibbing is a nationally known expert in political psychology, biology and politics, political behavior, public opinion and legislative politics. His research has shown how people’s biology can influence their political orientation, an important perspective in a campaign season when Ebola fears came to the forefront. Reach Hibbing at 402-472-3220 or jhibbing1@unl.edu.

-  Kevin B. Smith, professor of political science, department chair: Nebraska’s U.S. Senate, House races, other major races, political messaging. Smith focuses on public policy, public administration, American politics, and biology and politics. He can discuss the dynamics of this year’s U.S. Senate race and other major races. He can analyze broad aspects of these campaigns, including the effectiveness or lack thereof of political advertising. He also can discuss differences between liberals, conservatives and moderates in the context of the 2014 election, and how developments on the campaign trail may be interpreted by these different groups of voters.  Smith, who is available Wednesday morning only, can be reached at 402-472-0779 or ksmith1@unl.edu.

-  Elizabeth Theiss-Morse, Willa Cather Professor of Political Science: Public opinion, political behavior, political psychology. Theiss-Morse researches Americans’ attitudes about numerous aspects of the American political system and about their fellow Americans.  Her research analyzes politicians’ use of heated rhetoric and how it affects the effectiveness of democracy. Reach Theiss-Morse at 402-472-3221 or etheissmorse1@unl.edu.

- Dona-Gene Barton, associate professor of political science: Public opinion, effects of campaign information on voters over time. Mitchell’s expertise is in American political behavior, public opinion and political psychology. She researches and teaches in the areas of how opinions are formed via information, campaigns and time, and the lifespan of information effects. She can discuss the effectiveness over time of campaign messaging on voters or how long unfavorable information may affect politicians and elected officials. Reach Barton at 402-472-5994 or dbarton4@unl.edu.

-  Damien Smith Pfister, Assistant Professor of Communication Studies: Political rhetoric, culture, digital media in politics. Pfister researches the impact of digital media on public deliberation and culture, including how blogging and social networking has challenged traditional patterns of communication during political campaigns and controversies. His new book, “Networked Media, Networked Rhetorics: Attention and Deliberation in the Early Blogosphere,” examines how political battles are fought in the digital world. Reach Pfister at 402-472-0646 or dpfister2@unl.edu.

- Sergio Wals, Assistant Professor of Political Science and Ethnic Studies: Political attitudes and behaviors, immigration and politics, the Latino vote.  Wals’ research agenda is centered on American political behavior, with a focus on topics related to race and ethnicity both in the United States and Latin America. He has paid particular attention to the study of political attitudes and behaviors of Latino immigrants to the U.S. He can comment on how the immigration issue affected the election, as well as on the Latino vote. Wals is best contacted via email, at swals2@unl.edu. His office number is 402-472-5704.

_ Aaron Duncan, Director, Speech & Debate, Lecturer, Communication Studies: Election outcomes and communication strategies in statewide races.  Duncan’s research focuses on popular culture and political communication. Reach Duncan via his cell phone, 402-450-7830, or aduncan3@unl.edu.

Nebraska space law professor talks about legal fallout from rocket explosion

Wednesday, October 29th, 2014

Matthew Schaefer is director of the Space, Cyber and Telecommunications Law Program at the University of Nebraska College of Law.

He discusses the legal and political implications of Tuesday’s explosion of an unmanned commercial rocket headed for the International Space Station. The Antares rocket was suppled by contractor Orbital Sciences, which blew up six seconds after liftoff from NASA’s space launch facility on the Eastern Shore of Virginia.

To interview Professor Schaefer, dial 402-472-1238 or email mschaefer@unl.edu

Some of Schaefer’s observations:

“This incident emphasizes that rockets are tricky. We do have accidents, it’s not 100 percent fool-proof.  You’re dealing with technology that has 20 times more fuel versus the weight of the rocket itself. When something goes wrong, there’s likely to be an explosion. That’s why you have those fire-clouds.”

“Accidents do occur, albeit very infrequently. You have to have a liability and insurance regime in place to prepare for them, and the United States does.”

In the case of commercial cargo space flights, the regime includes cross-waivers of liability so that participants – NASA, its contractors and their subcontractors and even schools that provide materials and equipment for a space-station experiment – cannot sue one another. In addition, Congress requires insurance coverage up to a maximum possible loss (MPL) for damages and injuries for innocent bystanders.  The MPL amount is based on a massive catastrophic accident so rare that it would be exceeded only once in every ten million launches.  Though the dollar figure differs by launch, it averages about $82 million. The federal government has promised to indemnify commercial space operators in case of an incident with third-party damages exceeding the maximum possible loss amount.

“We’ve never had an MPL-exceeding event and have never even come close. We launch these rockets from areas close to the ocean, from launch pads that have significant buffer zones.  It’s highly, highly unlikely to have any third-party damage and if you did, it’s even more unlikely to have an MPL-exceeding event.”

Some expect Congress next year  to reconsider existing insurance requirements and indemnification provisions.  Schaefer maintains that Congress should not increase the maximum possible loss requirement. Rather, it should consider capping third-party liability at the MPL so that the U.S. commercial space industry is put on equal footing with competitors in several other nations, including France, Russia and China.

“The incident also demonstrates the importance of creating redundancy by encouraging the existence of multiple space operators. With Orbital Sciences out of commission while the incident is investigated, a second carrier, SpaceX, can handle cargo flights to the space station. We don’t want to lose a space operator in the exceedingly rare chance of massive, third-party damages and that is one reason in favor of third-party liability caps.”

University of Nebraska Press launches academic journal focusing on Midwestern history, identity

Tuesday, September 23rd, 2014

Midwesterners often bristle at their region being dismissed as “flyover country.”  Recently there’s been  increased scholarly interest in the region, its culture and history.  As part of that revival, in early September the University of Nebraska Press published the first issue of Middle West Review, said to be the only academic journal to focus on the region.

Here is an excerpt from the introduction by editor Paul Mokrzycki that explains the journal’s aims. It’s a sort of manifesto of what the endeavor should be:

A Revival and a Burial

Since about the midpoint of the twentieth century, the study of the American Midwest has steadily lost appeal, while the scholarly subfields of the US South and West have boomed. Today, no fewer than ten institutions of higher learning boast centers dedicated to the historical study of the American West and Southwest, and numerous universities in southern states support comparable institutes focused on the US South.

Conversely, only three such centers exist for the study of the Midwest, none of which have the esteem or the historiographical influence enjoyed by institutes for southern and western studies.  . . . Further, while colleges and universities in the western US, for instance, regularly offer courses in the history of the West, few— if any— academic institutions in the Midwest train their students to think critically about the region in which they live.

Recently scholars from various disciplines in the humanities and social sciences have endeavored to redress these discrepancies in regional treatment. Earlier this year, the Humanities Without Walls (hww) consortium, comprising fifteen major research universities throughout the Midwest, received a generous $3 million grant from the Andrew W. Mellon Foundation to fund inter-institutional research on the “global Midwest” and its economic and cultural salience. Scholars at the hww schools are now in the midst of developing projects about the region in which they reside—and its international impact.

Historian Jon K. Lauck has garnered attention from renowned historian Richard White and others for his new book “The Lost Region,” which seeks to stimulate a “revival” of midwestern history.

Further, the Obermann Center for Advanced Studies at the University of Iowa hosted a symposium in 2012 on the Latino Midwest, and faculty at the university are presently working to develop a Latino/a studies minor to reflect the population’s expanding imprint on the state of Iowa. To proffer just one more example, a recent special issue of GLQ: A Journal of Lesbian and Gay Studies, entitled “Queering the Middle,” interrogates the subjectivities of lgbtq individuals living in the American Midwest. Its diverse essays— which touch on everything from Chicana lesbian activism in Chicago to masculinity and gender nonconformity on the Great Lakes— seek to queer the Midwest and challenge pervasive conceptions of the region as “normative.”

The Middle West Review belongs within this broader project of reenergizing and reimagining the study of the American Midwest. But we must be wary of what we purport to be reviving.

A renewed emphasis on Midwestern studies should not replicate the silences and omissions that marred some earlier scholarship on the region. It should not privilege the privileged or depict a romantic past ostensibly disrupted by rabble rousers from below. It should not obscure the racial, class, gendered, and religious tensions within the Midwest or shy away from difficult questions about identity, historical memory, and oppression both past and present.

It should not treat the Midwest as a site of uncontested progress,a region invariably on the “right side of history.” It should not pretend that Jim Crow never reared his ugly head in Wisconsin or Iowa. It should not hesitate to interrogate what it means to be black, Latino/a, Muslim, queer, Asian American, Native, or white in the Midwest. It should not recapitulatethe myths that cast the Midwest as a yeoman’s dream, a blank rural canvas. It should not valorize conquest. It should not paper over the violent colonialism that gave the region its color and shape. But, at the same time, it should not ignore the region’s virtues— which have contributed to its unique character— or the “dailiness” of midwestern life.

We therefore seek a broad and inclusive field, one that serves as an open forum for scholarly and deliberative discussion from various points of view; one that focuses on the history and contemporary experience of the American Midwest as a region ; one that dares to innovate; and one that transcends the limitations of prior writing and thinking about the Midwest.

To learn more about the Middle West Review, visit http://uimiddle.wordpress.com/

To subscribe to the journal, visit  http://www.nebraskapress.unl.edu/product/Middle-West-Review,676024.aspx

For more information: contact Leslie Reed, national news editor, University Communications, University of Nebraska-Lincoln, lreed5@unl.edu or (402) 472-2059.

Chief Justice Roberts discusses Washington gridlock during visit to Nebraska College of Law

Monday, September 22nd, 2014

Chief Justice John Roberts visited the Nebraska College of Law Sept. 19 for a conversational-style talk that generated coverage in local and national media outlets.

Most reports led with Roberts’ remarks on partisan gridlock. Among other things, Roberts lamented that Elena Kagan was confirmed by the Senate in a near party-line vote — and he added that he doubted that fellow justices Antonin Scalia and Ruth Bader Ginsburg could survive a confirmation vote in today’s highly partisan environment.

Roberts spoke about the life of a Supreme Court chief justice with some humor — saying, for example, that justices ask “too many” questions of the lawyers appearing in court. Sometimes attorneys are prevented from making their own case when justices use questions to the lawyers as a way to argue legal points among themselves.  He said he sympathizes with the nervousness lawyers feel when they appear before the high court — he said he thinks the sides of the lectern probably have grooves from his fingernails from the days when he was a lawyer arguing before the nation’s highest court.

Roberts confided that the administrative duties of overseeing the court system probably are his least favorite aspects of his job. Shortly after he became chief justice, he said, a colleague came to him and complained that it was too hot in his chambers.  Roberts said he was commiserating with the other justice, when he suddenly realized “he expects me to do something about it!”

Here is a sampling of news articles published about Roberts’ appearance.

ABC news coverage:

http://go.unl.edu/39v7

WABC – New York:

http://go.unl.edu/wnvh

WLS-AM – Chicago:

http://go.unl.edu/jiuv

The Associated Press (Kansas City Star):

http://go.unl.edu/7rh7

Omaha World-Herald:

http://go.unl.edu/7rh7

Lincoln Journal-Star:

http://go.unl.edu/akzt

KETV:

http://go.unl.edu/0ujy

KOLN/KGIN:

http://go.unl.edu/j67w

Sensor with “human touch” could improve breast cancer detection

Wednesday, September 10th, 2014

UNL scientists Ravi Saraf and Chieu Van Nguyen have developed a nano particle-based device that emulates human touch.

It can detect tumors too small and deep to be felt with human fingers.  It’s a sort of electronic skin that can sense texture and relative stiffness.

Saraf, a professor of chemical and biomolecular engineering, thinks the thin-film could be used in a stethoscope-like device that family doctors could use to conduct quick and painless breast exams.  The beauty of the device is that it would be more sensitive than a manual breast exam, cheaper than a mammogram or MRI, and it would provide a visual record of the lump so the doc could more accurately monitor it during future visits.

Saraf says the next step is to find $1 million or so to develop a prototype.

This research was funded by a grant from the National Institute of Biomedical Imaging and Bioengineering (No. R21EB008520-01) in National Institutes of Health.

Nebraska Law Prof: Hobby Lobby ruling opens door to more companies using religion to avoid legal mandates

Monday, June 30th, 2014

The U.S. Supreme Court ruled 5-4 Monday in favor of Hobby Lobby, which had argued religious beliefs prevented it from providing certain birth control insurance coverage to its employees. The Affordable Care Act requires such coverage.

University of Nebraska law professor Eric Berger describes it as an important decision that will attract a good deal of attention.

Some quotes from Berger:

– “The Court held that the Affordable Care Act’s contraception mandate as applied to closely held corporations like Hobby Lobby violates the Religious Freedom and Restoration Act.”

–”Justice Alito, writing for a five-member majority, took paints to paint the decision narrowly but, as Justice Ginsburg argued in her dissent, the opinion can and will be used to say that corporations (and others) can cite religious beliefs to try to exempt themselves from all kinds of legal requirements.”

– “Only time will tell whether those efforts will succeed, but there probably will be a good amount of litigation of this sort, with corporations citing religion to try to avoid legal obligations with which they would otherwise have to comply.”