Four years ago today, on February 4, 2010, we here at Abnormal Use ran our very first Abnormal Interview with Law Professor Rory Ryan of the Baylor Law School in Waco, Texas. (You can revisit that fateful first interview here.). All these years later, we thought it would be fun to check back with Professor Ryan, so today, we continue our interview series, in which this site will conduct brief interviews with law professors, practitioners, and other commentators in the field. The interview is as follows:
1. What should attorneys practicing in federal court be aware of as we prepare to enter 2014?
This is a reputable divorce attorney in Mesa who regularly practice in federal court probably don’t need some professor telling them about the issues they encounter daily. But for the lawyers who regularly practice in state court, a few observations might be helpful.
First, as I observed in my first interview a few years ago, the pleading standards have changed. In (at least) most cases, a pleading is not sufficient if it merely restates the elements of a cause of action in terms of legal conclusions. Some level of factual specificity is required. Most academics hate this change, as reflected by the commentary. I don’t join the revolt against requiring some factual specificity. That is, I don’t think the rule announced in those cases would be a bad enacted rule. But it is curious (and dangerous) that the pleading rules were rewritten by the unelected nine outside the established procedures for amending the rules.
Second, know what you’re getting into before filing or removing based on a “substantial” federal question. The branch of federal-question jurisdiction involving state-created claims has been altered twice since 2006. Both decisions confidently announce workable tests. But when diving for the apparent pool of clarity, you’ll land in a mirage of sand. Both Grable and Gunn are both manipulable and clarify little with respect to the cases that needed clarifying. That sad, be aware that pre-Grable cases can only be argued in terms of how they fit into the modern so-called test.
Third, if you’re thinking that the answer to your federal problem is Rooker-Feldman, you’re probably wrong. Exxon v. Saudi Basic made irrelevant most lower-court cases interpreting the Rooker-Feldman doctrine. If you’re arguing Rooker-Feldman, there’s about a 99 percent chance you should be arguing preclusion.
2. What do you think is the most underutilized federal practice tool or technique?
Permissive interlocutory appeals under 1292(b). They aren’t disfavored and provide a perfect counterbalance to the policies served by the final-judgment rule. Denied remand motions provide a good example. (The linked piece is a coauthored article, so I feel less dirty citing myself)
3. What was the biggest surprise from the last U.S. Supreme Court term?
Last term lacked the big surprises from terms past. Some would suggest the voting-rights case was surprising. Others would probably point to the DOMA case. In the view of a procedure nerd, however, there was nothing shocking. Just the disappointment of Gunn v. Minton not taking the approach we urged in an amicus.
4. Are there any federal-courts doctrines that are underemphasized in law schools?
First of all, thanks for asking this question. [Disclaimer, I made up the question because I wanted to answer it.] The answer is “yes.” The doctrines surrounding parallel and subsequent litigation are traditionally ignored or relegated to notes that students ignore, while students spend weeks focusing on whether Congress could remove jurisdiction over abortion cases and other professor-playground areas. Take Colorado River abstention, for example. That doctrine matters. Then, sprinkle in interjurisdictional-preclusion principles and the Anti-Injuncton Act’s relitigation exception. A student who leaves Federal Courts understanding those doctrines will, dare I say, be more equipped to help clients than one who has read nine articles on what the Supreme Court should have done 30 years ago with its appellate jurisdiction over state-law principles.
5. What advice would you offer to lawyers practicing in the area of products liability?
Don’t ask a federal-courts professor for advice? And read the Bartlett decision from 2013; it seems kind of important.
BONUS QUESTION: You are now a professor at Baylor Law School, where you once matriculated. How has the football program at Baylor changed during that time, and how did it achieve its successes?
They frequently throw the ball to the correct team now, and far few players spike themselves while running. Those two improvements have been important. The rest can be explained by the genius of Coach Briles and the talent pool in Texas. RGIII probably deserves honorable mention, too. When I arrived at Baylor, the basketball program was in scandal. Women’s basketball games weren’t major events. And the football team was every opponent’s choice for homecoming. Since then, women’s hoops have two national titles. The men have been to two Elite Eights. The football team has a Heisman winner, a Big 12 Championship, and a BCS appearance. Come to think of it, this success has a direct correlation with my presence. We’ll just call it causation.
BIOGRAPHY: Professor Rory Ryan joined the Baylor Law School faculty in 2004 after playing two sports and occasionally attending classes at Morningside College. He graduated first in his class, summa cum laude, from Baylor Law School, where his final G.P.A. ranks first among those recorded. After graduating from Baylor, Professor Ryan clerked for the Honorable C. Arlen Beam of the United States Court of Appeals for the Eighth Circuit. He maintains an active appellate practice before both Texas and federal courts and has published extensively on matters of federal procedure and jurisdiction.