Attorney Scott Ballenger, a 1996 graduate of the University of Virginia School of Law whose work has been pivotal in a number of high-profile appellate cases, including several heard by the U.S. Supreme Court, has joined the faculty as director of the Appellate Litigation Clinic.
A former clerk for Justice Antonin Scalia, Ballenger has argued before the Supreme Court twice.
His experience will serve as a guide to the 12 students who will participate in the yearlong appeals clinic. The course builds their skills in all aspects of appellate practice, including courtroom advocacy. Prior students have traveled as far as Cincinnati, Philadelphia and St. Croix to argue cases before federal appellate courts.
Ballenger was most recently a partner in the Supreme Court and appellate practice at the Washington, D.C., office of Latham & Watkins. He also taught two classes at the Law School last year as a lecturer.
Working with lead counsel Maureen Mahoney, Ballenger was the principal author of the winning brief for the University of Michigan Law School in Grutter v. Bollinger, which helped protect affirmative action as a factor in college admissions.
Ballenger and Mahoney also assisted attorney Greg Garre and others in Latham & Watkin’s successful defense of the University of Texas in the more recent Fisher v. University of Texas.
In addition, Ballenger helped Hastings Law School win Christian Legal Society v. Martinez, which had First Amendment implications.
The two cases Ballenger personally argued at the U.S. Supreme Court were both for Union Pacific Railroad Co. One, Kawasaki Kisen Kaisha v. Regal-Beloit Corp., involved liability for goods broken during a train wreck after being shipped in a container from China. The other, Union Pacific R. Co. v. Brotherhood of Locomotive Engineers and Trainmen, was a labor arbitration case.
But Ballenger calls a case that never made it to the Supreme Court perhaps the highlight of his career. He represented the Abigail Alliance for Better Access to Developmental Drugs in the case, Abigail Alliance v. von Eschenbach, which inspired “right to try” legislation in states across the country — and more recently, in the U.S. Congress.
“As a young lawyer, I briefly convinced a panel at the D.C. Circuit that there was a constitutional right for terminally ill patients to access investigational drugs when they have no approved treatment options,” he said. “The D.C. Circuit took it away en banc, and reversed. [But] the president signed the federal Right to Try Act last year, and it accomplishes, more or less, what we were asking for in that litigation.”
His contributions as a corporate lawyer, however, have been the more extensive thread.
Ballenger represented one of the defendants in what the Second Circuit has called “the largest criminal tax case in American history,” the prosecutions arising from KPMG’s tax practice in the 1990s.
He wrote the successful brief for Arthur Andersen in Arthur Andersen v. United States. (The accounting firm’s conviction for obstruction of justice arising out of Enron’s collapse was overturned unanimously by the Supreme Court, but the firm went out of business nonetheless.)
He has represented the Humane Society of the United States in cases involving depictions of animal cruelty (United States v. Stevens), preemption (National Meat Association v. Harris) and the ability of states to prohibit the sale of the products of cruelty such as foie gras, shark fins and eggs from hens confined in battery cages.
And he has represented parties, including Apple Inc., in several important intellectual property cases.
Early in his career, Ballenger served as senior counsel to the assistant attorney general in the antitrust division of the Department of Justice, where he worked on the trial and briefing team for United States v. Microsoft, although he refers to his contribution as a “minor” role. The government successfully showed that Microsoft unfairly propped up its Internet Explorer browser through legal and technical restrictions that discouraged competitors’ browsers being utilized.
“Microsoft had tremendous lawyers at Sullivan & Cromwell,” he said. “But you won’t out-resource the federal government.”
Following law school, Ballenger served as a law clerk for Judge J. Clifford Wallace of the Ninth Circuit Court of Appeals before clerking for Scalia, a former UVA Law professor.
Ballenger, who earned his bachelor’s from UVA in 1993, is one of the sons of Martha Ballenger ’69, the former assistant dean of student affairs. She also taught at UVA Law and had a successful career in private practice. He said his mother is very much the reason he chose to be a lawyer.
“She used to try out her lesson plans on me over the dinner table while I was in elementary school,” he said. “It’s been a gigantic advantage [having her as a mom] in all areas of life, because she’s everybody’s favorite person.”
His wife, Catherine McCall, is a 1993 graduate of the College. His brother, Matthew T. Ballenger, and Matthew’s wife, Kit, are 2002 graduates of the Law School.
Ballenger replaces Stephen Braga, who previously served as the clinic’s instructor and greatly expanded student opportunities to argue in appellate courts. Braga has returned to private practice.
“While we are sad to see Steve go, we are delighted to welcome Scott on board, and we look forward to the energy, intelligence and ideas he will bring to the clinic,” Dean Risa Goluboff said.
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.
