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SUPREME COURT: Former Clerks Explore Pending Case in Classroom

By Brian McNeill

Daniel Epps and Katherine TwomeyTwo former U.S. Supreme Court clerks recently taught a short course that offered students an in-depth study of a case being argued this term at the Supreme Court.

The two-week course, Supreme Court Decision-Making: A Case Study, explored all aspects of Bailey v. United States, a case involving the question of whether police officers are allowed to detain someone while searching the person's home, even though the individual has left the premises.

"We thought we could give the students a unique lens into the Supreme Court based on our experience of having clerked there," said co-instructor Katherine Twomey ’08, who clerked for Justice Antonin Scalia during the 2009-10 term. Twomey now does appellate work at Latham and Watkins in Washington, D.C.

Twomey and the course's other instructor, Daniel Epps — who clerked for Justice Anthony M. Kennedy and now works at King & Spalding's national appellate litigation group in Washington — said that by studying Bailey, the students will better understand how the Court operates.

"The idea of the class is to use Bailey as a way to look at how the Supreme Court works in general. Part of that involves digging into Bailey itself, but the idea is to not just learn about Bailey, but also to learn about the Court," Epps said. "We chose Bailey because although it's not the most high-profile case in the world, it's a neat case. It involves a discrete issue that is pretty easy to understand without a whole lot of background."

The course on Bailey is one of two dozen short courses being offered this year that delve into an array of topics, including wrongful convictions, the financial crisis, Islamic law, negotiations, startup biotechnology, and trade secrets.

"Our short courses offer students the opportunity to study a distinct topic in an extraordinary level of detail," said Vice Dean George Geis. "They are perfect capstone classes for a student who wants to focus on a specific legal issue or application. We are fortunate to attract many renowned judges, lawyers, executives, and scholars to teach many of them."

In their short course on Bailey, Twomey and Epps started by giving the students a crash course in Fourth Amendment law, followed by a discussion of the precedent at issue in Bailey, and the theoretical backdrop for the case.

The students then dug into Bailey itself, reading a number of key documents, including the district court's motion and opinion, the court of appeals' opinion and the petition for certiorari and opposition filed with the Supreme Court.

"The cert process is something that we're very familiar with," Twomey said. "One of your main jobs as a [Supreme Court] clerk is to read cert petitions and write cert memos. We can ask the students their views about whether Bailey was a good candidate for cert. What are the considerations that the Court uses? What arguments would you make on both sides?"

After discussing the cert process, the course focused on the merits briefs, oral arguments, and the procedures by which the Court votes and assigns opinions. Ultimately, the students were assigned the task of drafting their own opinion in Bailey.

"It'll be useful for students who are going to go on to clerk for judges because they'll have to draft opinions," Epps said. "But even for students who aren't, hopefully the experience will be useful because it forces you to stake out a position and respond to counterarguments."

Eight of the students who took the short course attended oral arguments in the case at the Supreme Court.

Second-year Caroline Schmidt said she is interested in appellate advocacy and was excited for the chance to follow Bailey from the initial police reports and the warrant, all the way up to oral arguments before the Court.

"I know I will be eagerly anticipating the Court's decision in a few months now that I have learned so much about the case and feel I have a real stake in its outcome," she said. "It has been fascinating to study a case, and the Supreme Court decision-making process, with two practicing attorneys who have first-hand experience clerking on the Court and, now, practicing as appellate attorneys in D.C."

Schmidt added that the course provided a chance to hear the instructors' insider perspectives and to ask them honest questions about how the Court functions. Second-year Saverio Romeo said the course allowed him to put himself in the shoes of Supreme Court clerks and justices.

"In other classes you typically read cases and try to learn what the 'rule' is; in this course, we get to determine what that 'rule' should be," he said. "This is a complex consideration that requires an understanding and balancing of many conflicting interests."

Third-year Jordan Miller said he took the course because he is interested in clerking, as well as Fourth Amendment law.

"Although UVA has a wonderful set of professors with significant practice background, the opportunity to take classes from lawyers currently engaged in legal practice who are passionate about a more-focused topic is something that we all should take advantage of," he said. "This is my fourth semester of taking a short course and so far I have been able to take a class from a JAG officer, two federal judges, and now two former Supreme Court clerks."