Law deans in jail.

• Author: Cloud, Morgan
• Position: P. 931-958

1. INTRODUCTION II. CRIMINAL LIABILITY FOR INDIVIDUALS AND ORGANIZATIONS A. The Federal Respondeat Superior Rule B. Federal Guidelines for Prosecuting Organizations III. FEDERAL CRIMES A. Mail and Wire Fraud 1. Federal Jurisdiction 2. Substantive Elements a. The Expansion Definition of Fraud b. True Lies c. Property Rights 3. Law Schools and U.S. News May Have Committed Federal Crimes a. The Importance of the U.S. News Rankings b. LSAT Scores and Undergraduate Grade Point Averages c. Part-Time Programs d. Post-Graduate Employment B. Conspiracy C. Racketeering D. False Statements IV. THE U.S. NEWS METHODOLOGY A. The Absence of Probability Sampling 1. Sampling Bias 2. Unknown Imprecision B. Coverage Error and Defective Sampling Frames C. Nonresponse Bias D. Missing Values E. Inadequate or Unknown Sample Size F. Methodological Flaws and Material Inaccuracies V. CONCLUSION 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 o/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; for example, misleading statistics about recent graduates ' employment rates. 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.

1. INTRODUCTION

   I hereby certify that the information provided within is a complete and accurate representation of this law school. (1) [I]t is our responsibility to provide accurate information to our readers, (2) A most unlikely collection of suspects--law schools, their deans, U.S. News and World Report (U.S. News) and its employees--may have committed felonies by publishing false information as part of U.S. News' annual ranking of law schools. The possible felonies under federal law include mail and wire fraud, conspiracy, racketeering, and false statements. Employees of law schools and U.S. News who committed any of these crimes can be punished as individuals, and under federal law their employers likely will be guilty of the crimes as well. (3)

   For more than a decade, reports published in the news media, legal journals, and blogs have detailed the tactics law schools have employed to improve their positions in the annual U.S. News rankings, sometimes by manipulating or even falsifying data that the magazine has solicited from them. (4) These reports of the law school rankings scandals often link these acts to the schools' deans, and on occasion, individual schools or deans have publicly acknowledged their involvement. (5) U.S. News has admitted that it has continued to publish these rankings despite its knowledge of these schemes. (6)

   These facts are neither new nor unknown. Lawyers, judges, legal academics, and law students have complained about the rankings "fraud" for so long that even members of Congress have begun to intercede. (7) The current crisis in legal hiring has contributed to the outcry, and civil litigation against specific schools has begun to trickle into the courts. However, the profession has seemed blind to the possibility that some law schools, U.S. News, and their respective employees may have committed crimes for profit.

   These are not victimless crimes. Hundreds of thousands of students have attended law schools since U.S. News began publishing its rankings. No one disputes that for many years the U.S. News rankings have influenced many students' decisions about which schools to attend and convinced them to pay dearly for the privilege. If the rankings are based in part upon false data, then those who are responsible may be guilty of federal crimes.

   We know that some schools have submitted false data because they have confessed publicly. In 2011, for example, Villanova University and the University of Illinois both admitted that for several years they had produced and submitted false information about their law students' median undergraduate grade point averages (GPAs) and Law School Admission Test (LSAT) scores, both important components of the U.S. News formula. (8) Six years earlier, the Dean of the University of Illinois College of Law confessed publicly that the school had lied about the school's expenditures. (9) These all appear to be examples of falsehoods that could constitute mail and wire fraud.

   Rather than simply falsifying data, other schools appear to have constructed schemes designed to "game" the U.S. News methodology by submitting information that arguably was "true," but was so partial or incomplete that it created a deceptive picture of the institution, its students, and their job prospects after graduation. (10) Statements that are literally true can be criminally fraudulent if they are designed to deceive. (11) We place "game" in quotes to emphasize that providing misleading data to U.S. News is not a game, but instead may be a federal crime.

   Law schools' misleading claims about their students' success at gaining post-graduate employment after graduation are the best known, and most widely criticized, example of the publication of "facts" that are deceptive even if they are arguably literally true. Since 2008, the legal profession has been mired in the worst employment recession--many would argue it is a depression--in at least a generation. (12) Yet schools continue to report, and U.S. News continues to publish, employment data that would make any reasonable reader conclude that attending some law schools is almost a guarantee of highly paid professional employment after graduation.

   Consider these "facts" published in the 2012 U.S. News rankings (first sold in March 2011) in the important category "Graduates Known to Be Employed Nine Months after Graduation." (13) The magazine gave a numerical (ordinal) ranking to 143 law schools, and more than 40% of these schools (59) reported an employment rate of 90% or greater at the 9 month date. (14) Twenty-five of these schools reported employment rates exceeding 94%, and eight actually claimed rates above 97%. (15)

   A reasonable person not conversant with the vagaries of the U.S. News methodology (and how it permits schools to manipulate data) could easily be deceived by these data. To a reasonable consumer, the claim of postgraduate employment for more than 90% of new law school graduates likely indicates that graduates had secured fulltime permanent employment in the legal profession or at least jobs requiring a law degree. But the U.S. News methodology has allowed schools to employ very different criteria when compiling employment rates for recent graduates. (16) Schools have been able to count as employed graduates with part-time, minimum wage jobs, even those jobs not requiring legal training or a law degree. (17) Some schools have gone even further, creating temporary jobs programs for hiring their own unemployed recent graduates. (18) The jobs typically end shortly after the U.S. News reporting dates. (19) We doubt that many people reading the U.S. News rankings imagine that when a school reports that more than 90% of its graduates are employed this statistic includes lawyers who are waiting tables or working at temporary jobs created by the law school to coincide with the U.S. News reporting dates. By creating a deceptively optimistic picture of the job prospects for a school's graduates, these temporary, part-time jobs programs could, in fact, create liability for schools under the mail and wire fraud statutes.

   For people conversant with the actual job opportunities for law school graduates since 2007, the employment numbers published by law schools and U.S. News might seem laughable if they did not influence fundamental life decisions made by prospective law students. Perhaps claims that more than 90% of a school's graduates are employed contributed to a rise in law school enrollment during the recent recession in legal employment. (20) These claims are not mere commercial "puffing." Many prospective students consider the professional job opportunities of a school's graduates as important information. We believe that few students would expend years of effort, in the process accumulating $100,000 or more in non-dischargeable debt, in order to secure unskilled or minimum wage jobs after graduation. Most people pursue a professional education to become professionals. Deceiving consumers about post-graduate employment opportunities could be fraud. (21)

   Under federal law, if a school's deans and other employees committed crimes, the schools also face liability under the doctrine of respondeat superior, (22) This doctrine would apply to U.S. News and its employees as well. The magazine's public statements confirm that it is aware that some...