The University of Virginia School of Law is launching a new Supreme Court and Appellate Litigation Program that will expand the scope of the school’s appellate advocacy opportunities and build upon synergies between related clinics and their dockets, the Law School’s faculty and alumni in the appellate bar.
Under the leadership of Professors Xiao Wang and Scott Ballenger ’96, the Appellate Litigation and Supreme Court Litigation clinics have already begun working in tandem to find promising cases that are wending their way through the federal appeals process, giving students in both clinics — and the related En Banc Institute — potential involvement in multiple stages of a high-stakes case.
“Many of the oral argument skills that appellate clinic students use are also used by Supreme Court advocates,” Wang said. “And my students in the Supreme Court clinic will use our research, writing and organization skills in their appellate practices down the line. So we saw it as a natural way to give students a chance to work on a variety of subjects and see the whole appellate process play out.”
The new program builds upon the Law School’s traditional strengths in the field, including a strong slate of oral advocacy classes, related courses like federal courts and civil procedure; extracurricular moot court activities; the Supreme Court clinic, where third-year students research and write petitions and merit-briefs and prepare a principal for oral argument; and the Appellate clinic, where third-years may even argue their own case. Several other clinics, including the First Amendment Clinic, the Environmental Law and Community Engagement Clinic, and Innocence Project Clinic, also handle appellate matters at times.
Wang, who joined UVA in the fall from Northwestern University’s Pritzker School of Law, has been a high-profile leader in the clinical field, creating networks to connect appellate clinics across the nation to share resources and insights as they develop their cases.
Two of those creations — the National Appellate Clinic Network and the En Banc Institute — have also been folded into UVA Law’s Supreme Court and Appellate Litigation Program.
The National Appellate Clinic Network provides a searchable platform for appellate clinics to share briefs, workshop upcoming arguments and discuss classroom ideas.
Wang met Ballenger through the network while Ballenger was teaching the Appellate Litigation Clinic with Cate Stetson ’94, who in her private practice co-directs Hogan Lovells’ appellate group.
“We’ve been talking for a couple of years about potential synergies between an appellate clinic and a Supreme Court clinic, and ways to generate more cross-fertilization of cases and experiences for the students,” Ballenger said.
The En Banc Institute provides exactly that kind of opportunity, drawing on students and faculty from both clinics to work on a case that has the potential to make an appearance at both the circuit court level and the U.S. Supreme Court.
The institute provides a moot court on Grounds as a free service to advocates who are scheduled to appear before an en banc appellate court — the full panel of all judges on the circuit. These advocates get the opportunity to practice their arguments before a panel of “judges” comprised of UVA Law faculty, alumni and appellate practitioners, most of whom have clerked for at least one federal court. (See sidebar)
Cases argued before en banc panels are typically high-stakes affairs, Wang said.
“About 20% to 25% of cases that are heard en banc are eventually heard by the Supreme Court, compared to 2% of all appellate cases that seek Supreme Court review,” Wang said. “So I think this is a good way for students to see cases that are at that midway station before reaching the Supreme Court.”
Although other law schools have moot programs that focus on Supreme Court practice, UVA’s program is the only one in the country dedicated to en banc arguments.
“En banc arguments are, in some ways, just as difficult and maybe more difficult than Supreme Court arguments,” Ballenger said. “But there has never been a group that regarded it as their job to try and help people get ready for them.”
While students will focus on finding cases appropriate for mooting at the En Banc Institute, they also have the opportunity to gain their own courtroom skills through four student moot court offerings, including the William Minor Lile Moot Court competition, which is judged in the final round by sitting state and federal judges; the Philip C. Jessup International Moot Court Team; and the International and European Tax Moot Court Team.
In the fall, Wang worked with two of Ballenger’s students who argued on behalf of a Ukrainian immigrant facing deportation in the Ninth Circuit. This spring, another Appellate Clinic student has been working with Wang’s Supreme Court clinic on a petition for certiorari in a complex civil matter. The first case the En Banc Institute mooted was identified by an Appellate Clinic student while a Supreme Court Clinic student played the role of opposing counsel. (See sidebar)
Students in both clinics reviewed the briefs and fed the “judges” challenging questions.
More than 50 faculty members at UVA Law teach classes that cover appellate litigation skills, including those on federal courts, constitutional law, impact litigation, jurisprudence, and civil and criminal procedure. Three professors — D. Ruth Buck ’85, Joe Fore ’11 and Sarah Stewart Ware — lead the foundational Legal Writing and Research Program, teaching core skills in brief-writing and oral argument through a required 1L course and through its first-year oral arguments program, and by guiding the Lile Moot Court organizers. Professor Molly Bishop Shadel, a former Justice Department lawyer and off-Broadway director, teaches the suite of oral advocacy courses, which currently include Advanced Verbal Persuasion, Hallmarks of Distinguished Advocacy, Oral Presentations In and Out of the Courtroom, and Persuasion.
As co-instructor of the Appellate Litigation Clinic and instructor of the course Appellate Practice, Stetson brings significant experience to her classroom and clinic work. In her private practice, she has argued more than 100 appeals, including multiple arguments before the Supreme Court and every federal circuit court of appeals.
Dean Risa Goluboff said the new structure and collaboration — in connection with the robust course offerings — will offer an especially rich training ground for students.
“I’m thrilled to see Scott and Xiao build on the Law School’s longstanding strengths in appellate advocacy, and especially the national reputation Dan Ortiz created for our Supreme Court clinic over the past 17 years,” Goluboff said. “Bringing together the enormous expertise and experience of so many of our faculty and alumni, this new program will offer even more opportunities for our students to witness and participate in appellate advocacy at the highest level.”
New En Banc Institute Preps First Advocate-Client
“May it please the court,” the plaintiff’s advocate began. “The parties here agree that Farmer v. Brennan sets the deliberate indifference standard for criminal recklessness, and a prison official is liable under the Eighth Amendment if …”
Less than one minute into her oral argument, she was cut off by a question from Professor Xiao Wang, who directs the Supreme Court Litigation Clinic at the University of Virginia School of Law and runs its new En Banc Institute, which was making its debut this particular Friday in a Slaughter Hall classroom.
The plaintiff’s advocate, Rachel Brady, would be facing a panel of 12 or 13 judges on Tuesday in a real rehearing of a case she lost in May, Wade v. Georgia Correctional Health. Wang, UVA-affiliated alumni, and a few volunteer faculty members took on roles of judges, while a student played opposing counsel, to help her prepare.
“Just to be clear, in the panel opinion below, you lost on a form of a negligence test, correct?” Wang asked. “I’m sort of confused because you lost on an easier standard — negligence — and now you want us to let you win on a harder standard that you propose using, criminal recklessness. I guess I’m trying to figure out how that all works.”
Brady, a partner at Chicago-based Loevy & Loevy, got another 30 seconds to explain why negligence never should have been part of the original panel’s analysis of whether the prison’s health care providers could be liable for failing to give a prisoner his anti-seizure medication for four days. At that point, another “judge,” Robert Long — chair of Covington & Burling’s appellate and Supreme Court litigation group — looked up from his accordion folder of documents to interject his first query. Professor Sarah Shalf ’01, director of clinical programs at the Law School and a former appellate litigator herself, also served as a judge.
The tough questioning and occasional redirection were precisely what Wang had in mind when he created the En Banc Institute while supervising the appellate program at his previous school, Northwestern University’s Pritzker School of Law.
Most federal appeals are heard by a three-judge panel of circuit court judges. The circuit courts sometimes grant en banc hearings in front of the full court to reconsider a panel’s decision if the case is of exceptional public importance or the decision appears to conflict with a prior decision of the court.
The En Banc Institute offers lawyers who are scheduled to argue before these full panels a place to practice their arguments in a full dress-rehearsal before faculty, alumni and practitioners. In his last year at Northwestern, Wang hosted 10 online and in-person moots for the institute.
A student in the UVA Appellate Litigation Clinic, Ben Buell ’24, found this particular case while reviewing circuit court dockets and thought it would make a good candidate for mooting at the En Banc Institute.
“There’s an argument that the negligence standard used by the 11th Circuit in this case is actually contrary to what the Supreme Court has said should be the standard,” Buell said. “Depending on how this case comes out at the en banc rehearing, it could be a really suitable candidate for the Supreme Court.”
Buell will be clerking for the U.S. Court of Appeals for the Ninth Circuit after graduation.
The “judges” had also been fed questions from both clinics’ students who reviewed the record.
“Whether students go on to work in a law firm or a government shop, they’re going to have to help other people prepare their cases,” Wang said in an interview. “One of the best ways to help other people is to read through their briefs, figure out the tough questions and moot them.”
One student, Jamie Miller ’24 from the Supreme Court clinic, was tasked with preparing and delivering a mock oral argument as opposing counsel representing Georgia Correctional Health. She spoke for 38 seconds before the questions started. After arguments wrapped up, Miller earned kudos from the judges for her “advanced jujitsu” when she deftly turned evidence of one guard’s knowledge of risk into evidence that he acted with care.
Professor Thomas Frampton, portraying another judge, had asked: “There’s a guard saying, [after the fourth night of not receiving medication,] ‘Go seek medical care from a medical professional at your very first opportunity.’ Doesn’t that show that, unquestionably, that guard appreciated the seriousness of the risk?’”
“That just shows that the [guard] took it seriously that he wasn’t getting his medication and that he cared for him, but it does not necessarily show that he understood there was a substantial risk in him not getting his medication,” Miller had responded.
Wang noted that Miller, who is on the board of the Virginia Law Review, prepared her oral argument while battling the flu and helping to draft a Supreme Court petition in one of the clinic’s own cases.
Miller, who plans to join Gibson Dunn’s New York litigation practice, said she didn’t want to miss such a unique moment.
“While I was preparing for this on top of many other obligations, I knew I would not be able to advocate against a lawyer who is going before an en banc court until well into my career,” Miller said. “This was such a rewarding experience, and I am very grateful to Professor Wang for giving me the opportunity.”
Founded in 1819, the University of Virginia School of Law is the second-oldest continuously operating law school in the nation. Consistently ranked among the top law schools, Virginia is a world-renowned training ground for distinguished lawyers and public servants, instilling in them a commitment to leadership, integrity and community service.
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