How often have you seen that as the title of an article on SSRN? But Morgan Cloud and George Shepherd, both professors at Emory Law, have perhaps risked career-ending injuries by publishing just such an article. Here’s the abstract:
A most unlikely collection of suspects – law schools, their deans, U.S. News
& World Report and its employees – may have committed felonies by publishing
false information as part of U.S. News’ ranking of law schools. The possible
federal felonies include mail and wire fraud, conspiracy, racketeering, and
making false statements. Employees of law schools and U.S. News who
committed these crimes can be punished as individuals, and under federal law
the schools and U.S. News would likely be criminally liable for their agents’
crimes. Some law schools and their deans submitted false information about the
schools’ expenditures and their students’ undergraduate grades and LSAT
scores. Others submitted information that may have been literally true but was
misleading. Examples include misleading statistics about recent graduates’
employment rates and students’ undergraduate grades and LSAT scores. U.S.
News itself may have committed mail and wire fraud. It has republished, and
sold for profit, data submitted by law schools without verifying the data’s
accuracy, despite being aware that at least some schools were submitting false
and misleading data. U.S. News refused to correct incorrect data and rankings
errors and continued to sell that information even after individual schools
confessed that they had submitted false information. In addition, U.S. News
marketed its surveys and rankings as valid although they were riddled with
fundamental methodological errors.
The always reliable Paul Campos has the indispensable reaction to this: “You cannot be serious!” But of course Profs. Cloud and Shepherd are altogether serious, and here in summary form are a few of the particulars of their indictment:
- Possible felonies under federal law include mail and wire fraud, conspiracy, racketeering, and false statements.
- Under respondeat superior, not just individuals but their employers (USN&WR, and many law schools) are also potentially liable.
- These aren’t victimless crimes.
- Some schools have publicly confessed to falsifying data and others to constructing conscious schemes to give the impression of something that’s not the case (even if literally true).
- USN&WR itself has known for years that it has been fed, and has republished for profit, false or materially misleading information.
- They conclude that even though”some readers will find the idea that American law schools and their
deans, together with U.S. News and its relevant employees, could be guilty of these
serious felonies is implausible, perhaps even preposterous. We also expect, however, that
after reading this paper even these skeptics will acknowledge the possibility that these
organizations and individuals have committed crimes affecting the lives and careers of
thousands of people.”
Among the reporting topics where numbers have been falsified or purposely manipulated are LSAT scores and undergraduate GPAs, participants in part-time and eveningprograms, and post-graduate employment rates.
Nor, they assert, are the methodological and statistical errors engaged in by USN&WR arcane or esoteric: They are errors which could be uncovered with an “introductory college textbook [and] this is an i mportant distinction. If it turns out that the USN&WR methodology does not satisfy even the most rudimentary standards of empirical research taught to students in undergraduate courses, … if the flaws are so basic and obvious that no reasonable professional research could claim they provide ‘prospective students the best analysis available,’ we can imagine that civil liability under both tort and contract law might exist.”
They conclude in al most ringing tones:
Decades of complaints lodged from within and from outside of the legal education
world have failed to halt deceptive manipulation of data by schools. Decades of
complaints about the flaws in the U.S. News rankings methodology have failed to induce
the magazine to correct many of the most serious flaws in its ranking formulas. For
decades, prospective law students have been deceived into thinking that the U.S. News
rankings are valid, and that the data supplied by the schools can be trusted. For decades,
none of the participants seem to have realized that their conduct might be criminal. […]Despite being aware that at least some schools were
submitting false and misleading data, the magazine has continued to sell that data and
rankings based upon them without verifying the data’s accuracy. Even when schools
have openly confessed to submitting false information, U.S. News has refused to correct
these known defects in its rankings, and has continued to sell the invalid data. Moreover,
the fundamental invalidity of the surveys that make up 40% of the U.S. News overall
rankings may itself create criminal liability.It could be that none of these acts are crimes. But the evidence of possible crimes is
sufficiently compelling, the relevant federal statutes have been applied so expansively,
and the harm done for many years to thousands of people has been so severe, it should
not be hard to recognize the need for investigations by federal authorities to determine
whether crimes have been committed. This is not a game.
Who will be the first to take up the challenge?
It’s an interesting theory. Years ago, I worked on a case where a business purported to “fire” employees for short periods of time in order to manipulate its employment levels and thereby remain eligible for SBA set-asides.
There was no business reason for the employment actions except for their impact on the stats. It seems that the same could be true for law schools that “hire” scores of students for short periods of time to juke their stats.
The defendant in my case claimed that it was simply following a formula set forth in the Code of Federal Regulation, but the court drew a distinction between using the regulatory methods and *abusing* them. This seems pertinent to any argument by the schools that they were simply following the ABA regs, if in fact they were really abusing the regs.
As you will see from the case cites, the plaintiffs in my case not only survived summary judgment but were actually awarded partial summary judgment in their favor on the issue of wire and mail fraud — some of the theories that your post mentions. Although my case involved pretextual short-term “firings” to juke the stats, it seems to me that pretextual short-term “hirings” to juke the stats should fare no better.
http://scholar.google.com/scholar_case?case=12774124457644721050&hl=en&as_sdt=2&as_vis=1&oi=scholarr
Service Engineering Co. v. Southwest Marine, Inc., 719 F. Supp. 1500 – Dist. Court, ND California 1989
http://scholar.google.com/scholar_case?case=17934119378437969723&hl=en&as_sdt=2&as_vis=1&oi=scholarr
Service Engineering Co. v. Southwest Marine, Inc., 661 F. Supp. 48 – Dist. Court, ND California 1987