Tuesday, February 28, 2012

If you can't do the time . . .

. . . don't do the crime:

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.

This is the abstract of Law Deans in Jail, a new paper just uploaded to SSRN by Emory Law School professors Morgan Cloud, and George B. Shepard (It will be fascinating to observe what law review has the guts to publish this extraordinary article).

What Cloud and Shepard have done is quite simple: They have assembled a collection of by-now well known facts regarding the fraudulent practices -- ranging from deeply misleading reporting methods to outright lies -- employed by law schools, and have taken the radical step of assuming that these schools and their agents (deans and other employees) will be held accountable for their conduct under the law. Their conclusion is that, at a minimum, there's a very good argument that a lot of people ought to go to jail.  (The authors also make a strong argument that USNWR and its agents should also be subject to criminal liability for both encouraging and enabling these fraudulent practices).

Now on one level it's "obvious" that Cloud and Shepard are not making a "serious argument."  By a serious argument I mean an argument that seems plausible to Very Serious People.  But seriously, the conduct of law schools in general and law school deans in particular in recent years is an excellent example of the extent to which the American elites simply don't believe that the laws actually apply to them. Even though we have 2.4 million people in prison and jail in this country on any given day (if you're an African American male between the ages of 20 and 34 there's an 11% chance that you're behind bars this morning), the idea that Very Important People could go to jail for no better reason than that they broke the laws of this country is, from the perspective of those people, an almost literally unthinkable idea.

I mean we're talking about people who went to The Best Schools and clerked for the United States Supreme Court, and have the personal cell phone numbers of Extraordinarily Important People -- the next level up -- in their IPhones. Surely Cloud and Shepard cannot be serious.  Yes, it would appear that in a narrow "technical" sense, a bunch of felonies were committed (note the careful use of the passive voice), but surely there's a broader legal principle at stake here.

Surely.

67 comments:

  1. Why don't you hire one of your indebted law students to edit your posts before you put them up...the formatting of that cut-paste led to a real botch-job.

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  2. Virtually any business activity can be construed into a federal crime. Read Silverglates 3 Felonies A Day. DOJ will not prosecute this, though they easily could.

    That said, they will have their pants sued off. Its outrageous for law schools to committ such blatant fraud.

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  3. The authors seem to exempt their own school, Emory, which is not mentioned in the article. They list a lot of other schools that report over a 90% employment rate -- and Emory's website says their rate is 93% -- but somehow they omit their own school.

    The impression they are trying to give is that Emory dropped 8 places in US News last year because they did not calculate employment rates like other schools did -- counting non-JD required positions, for example.

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  4. The beginning of the end?

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  5. I am affiliated with the Emory community (though not the law school). Schools in Emory's tier need to take real action, and fast. There seems to be critical mass building. Abrams's submission, this article, and I know for a fact Pres. Wagner is watching these developments very closely. One of these quasi-elite schools needs to make a real splash. Drastically lower tuition, make a pay schedule commensurate with post-grad employment, shrink class sizes, etc... There is going to be one brave school that does this stuff and shames everyone else, while enjoying a mountain of public good will.

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  6. Of the "2.4 million people in prison and jail in this country on any given day (if you're an African American male between the ages of 20 and 34 there's an 11% chance that you're behind bars this morning)," I wonder how many are in prison and jail for "submit[ting] information that may have been literally true but was misleading" to a magazine?

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  7. At least it will make an interesting read. Perhaps, some senator's staff member will read up on this and pass this on. Then, there is an outside chance that there could be hearings, i.e. public theater, where the legislators "rip into" university president swine and legal "educators."

    At that point, we might see such Congress commission a study on the "issue." A committee could then issue a meaningless but voluminous 938 page report - filled with already-available data and "recommendations for reform." Do not expect much to come of this, guys.

    When I see university officials - especially "presidents" and board of trustees members testify in front of the state legislature - or in front of Congress - I notice that the "lawmakers" are eating out of their hands, such as a well-mannered dog or cat. Keep in mind that "higher education" is still considered a necessity and cure-all for a shrinking job market. Furthermore, these university officials know the owners - who can make some strong "suggestions" to their legislative pets, i.e. elected officials.

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  8. I pretty much agree with Nando's analysis above. At the very least, congressional hearings will make the public acutely aware of the problems in legal (and higher) education. If the public realizes how bad an investment law school is, perhaps far fewer individuals would apply. That would probably have a greater effect than anything else on the law school business model. One can hope, at least.

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  9. I agree with Nando that we cannot expect anybody in power to actually step in and discipline the law schools.  

    I've made this argument a few times before in these comment threads and I'll make it again now.  I believe that the thing that will ultimately bring down the law school scam is the same thing that allows it to exist in the first place, and that is the "conventional wisdom" about the value of a law degree.  This conventional wisdom manifests in the form of positive feedback received from adults and peers when the decision to apply to law school is announced.  When everybody you know is telling you that something is a great idea, and making you feel like a big shot for choosing it, nothing is going to stop you.  Hence we see the lemming-like behavior of 0Ls.

    But droves of people are not similarly marching to their doom in cooking school or acting school.  Announce your intention to spend $200,000 on one of those and you'll receive much different feedback: more skeptical, less inspiring.  They might even call you stupid.

    The law school scam will fall apart the day that conventional wisdom equates law school with a risky, pie-in-the-sky endeavor likely to cost a lot and yield very little.  As soon as "everybody knows" how bad a deal law school is, then the jig is up.  One of the nice things about the recent law suits, or this deans-in-jail paper, or this blog, is that they all contribute towards shifting that conventional wisdom, one person at a time.  The process is likely to take a while longer yet, but I think its made tremendous progress in the last year.  

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  10. 6:37: If only.

    7:55: If this happens we're all fucked. Because that same cultural and social capital also allows lawyers to operate as a modern guild with high rates and unauthorized practice lawyers. I wonder whether the divide between law professors/deans and practitioners is blinding them to the reality that the lawyer's stock in society is fading fast.

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  11. What about law schools and law professors that offer worthless courses that eat up law school tuition? Case in point-Hip Hop and the American Constitution currently being offered at Drexel. What law school would waste tuition money on such drivel? Could this course have any value to a future lawyer? What about the dean who approved this course? And what about the law schools that count hip hop and the law as research. No wonder law school tuition is so much. There used to be a course at Michigan on ancient Icelandic law. I bet that one really helps law students get a job.

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  12. If we lock up the law school faculty, then who will run the Innocence Project?

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  13. I can easily see this getting cited in one of the pending (or future) lawsuits against law schools. In a footnote at least.

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  14. @8:19,

    I certainly agree with you that Ancient Icelandic Law does not make one more employable - God knows my year of courses in Anglo-Saxon as an undergrad did little for me. However, I can see it as a somewhat legitimate topic for study as Iceland and its Althing were the first system of parlimentary government in the Western World, and also constitute the earliest ancestor of Anglo-American jurisprudence. All academic bloviation, sure, but I can see why it is offered - in the elite-law-school-as-humanities-grad-school, it makes perfect sense.

    Hip-hop and the Constitution? Not so much.

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  15. Drexel must have an incompetent academic dean to allow hip hop and the constitution.

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  16. I have been saying this online constantly since 2006. Joan King and Joan Wexler need to be frog marched into the federal courthouse in downtown Brooklyn to answer for their crimes. How many lives have they destroyed, suicides they have caused, marriages they have broken up, and alcoholics/drug addicts have they created with their lies over the years?

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  17. Marianna - I thought you were successful and making 6 figures now?

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  18. @ 10:09,

    Just because Marianna made lemonade out of lemons, doesn't mean that the person who gave her those lemons shouldn't forever burn in hell without being consumed.

    Thanks for the debt Wex.

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  19. The teflon mentality within this hierarchy is both amusing and repulsive because it is born from extravagance. The largess that they have become accustomed to is inseparably entwined with their own personal weaknesses. These are soft people, living cushy existences operating in a miasma of meaninglessness.

    They are entirely inured to the soul crushing angst that haunts those that succumbed to focused law school marketing campaigns and now must beg for scraps to stave off destitution. These clown princes are your deans, these Nuremberg defense wielding toadies are your administrators, and the remaining sycophants (who do know better), the professors, have retreated into a world of nonsense.

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  20. 8:21: Practitioners who actually know how to practice law. But I agree, your comment was FTW.

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  21. LawProf: Nice cult reference, by the way. (But don't call me Shirley.)

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  22. What I find perplexing about Joan Wexleris that she is earning three times as much as Chief Justice Roberts. Who ever said that (running) higher education doesn't pay off?

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  23. "Drexel must have an incompetent academic dean to allow hip hop and the constitution."

    Drexel is acutally blazing innovative trail here:

    1.) Rappers sometimes run into criminal trouble and need legal help. (see 87.9% of practicing rappers today)

    2.) Rappers make a lot of money (dollazs) and sometimes they need help managing it and dodging taxes.

    3.) Rappers have to deal with employment contracts, intellectual property issues, etc… (hip-hop is sample heavy music and someone has to get those samples cleared.)

    4.) In rap videos, rappers have to tread the fine line between the women they employ and creating a hostile work environment which could bring charges of sexual harassment. (how many dollar bills stashed into a g-string are too many???)

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  24. Do you think a rich rapper will hire someone from Drexel? Anyway, its hip hop and the constitution, not hip hop and criminal law.

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  25. The hip hop and the constitution course teach students how to THINK like a lawyer so that later they are able to uphold justice and do other lawyerly things…

    and yeah, a rapper would hire someone from Drexel if they had enough swagger.

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  26. Give me a shot. Just one!

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  27. This comment has been removed by the author.

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  28. Law Deans in Jail could then be turned into a novel, upon which a Broadway hit play will be based, and then a screenplay for an Academy Award winning blockbuster movie.

    I recommend Sean Penn for the role of the Bad Law Dean, and Johnny Depp as the Good Law dean.

    Bernadette Peters and Reba McIntyre can belt the songs out on Broadway.

    And all will be as merry as a wedding bell.

    (I reposted this due to a typo in the first try :)

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  29. Edward James Olmos can play LawProf, Kelsey Grammer can play the ABA President, and Steve Buscemi can play Nando.

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  30. The Cloud/Shepherd article is an excellent contribution. I don't know the underlying law (not my area of criminal law) but they make a very plausible case. And even if, as LawProf suggests, no one actually prosecutes law deans, law schools, or US News, this article adds to the very serious moral case against law schools.

    We could use this article, combined with all of the other activity in this area, to press schools to disclose 2011 employment stats immediately. Last Friday, I believe, was the deadline for law schools to report 2011 results to NALP. It will take NALP time to grind the data, produce its national report, and return processed statistics to each school. BUT every school already knows internally its own results for the class of 2011. With so much attention focused on employment outcomes, and with 0Ls currently making decisions, how can schools justifiably withhold those data?

    The deception is particularly clear because almost all schools have some type of 2010 data on their websites. Failing to update that information with 2011 numbers--and the most complete numbers possible--clearly is misleading. We've always known that was morally wrong; Cloud and Shepherd make a good case that it is criminally actionable as well.

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  31. I suppose an argument could also be made that a professor continuing to teach at a school knowing about various ongoing misrepresentations made by the school that is paying their salary could be prosecuted as part of the conspiracy.

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  32. You could make the argument, doesn't mean it would be very good.

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  33. LawProf, as much as I love you, I am doubtful that you are the most popular man in the CU faculty cafeteria.

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  34. What I'd like to know is why LawProf hasn't convinced anyone else in that faculty cafeteria to get on board enough to guest-write an entry once in a while...still the lone wolf after all of these many months?

    If so, that really isn't a good sign.

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  35. Paul,

    Reading over the draft paper, the authors appear to have overlooked the critical element needed to establish wire fraud or bank fraud: The purpose of the scheme must be to obtain money or property. It's one of the three basic elements of each of the offenses.

    Assuming a school misrepresented its numbers to get a higher U.S. News ranking, how is that a scheme to obtain money or property? Is the idea that a school has an intangible property interest in its U.S. News ranking? That seems like a stretch to me.

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  36. Oops, sorry -- that should be "wire fraud or mail fraud."

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  37. "Assuming a school misrepresented its numbers to get a higher U.S. News ranking, how is that a scheme to obtain money or property?"

    In the immortal words of John McEnroe, "You can't be serious!"

    I remember reading from either a casebook or hornbook written by Mr. Kerr my 1L year. About half way through the semester I realized I would learn nothing from Mr. Kerr or my professor and bought an Examples and Explanations. What a twist of fate that, years later, I would find myself responding to a painfully self evident question written by Mr. Kerr as a rhetorical question.

    Well, Mr. Kerr, here's how this works. 0L's unwittingly treat USNWR as not just credible, but as Gospel. Those rankings may as well have fallen from the lips of Jesus Christ or Buddha or Muhammad or Ron Paul (take your pick). With this divine revelation, 0L's then proceed to try and attend the very best or nearly best school they are accepted to. This creates a demand for higher ranked schools. Higher demand allows for higher prices. So yeah, it's all about the money.

    PS- Your crim law casebook/hornbook sucked and did absolutely nothing to imbue any kind of practical knowledge or skills. I may as well have been reading Wuthering Heights.

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  38. JDPainter, 3:05 p.m.: Verne Troyer as Brian Leiter.

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  39. With Deep Contempt,

    A Practicing Member of the Bar
    (8:50)

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  40. all you need to know, prof. kerr: what is the motivation to lie in such extraordinary (well.. sadly i guess ordinary) ways, if not the hope of financial gain? what would be the point of the whole thing?

    these liars lie because lying directly and proximally assists them in achieving their goal, which is status/prestige and, ultimately, fat wads of cash from people willing to pay ungodly sums for a piece of paper.

    the purpose of the scheme must be to obtain money... i dare say if a student, presented with substantially similar facts, made a comment like this in your classroom, you'd laugh him/her out of the building, and you'd be absolutely right to do it.

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  41. 8:56 p.m.:

    I am sure the particular caselaw or hornbook by Mr. Kerr was as awful as you say.

    However, it is apparently the case that some of Kerr's law review articles have been cited in reviewing court decisions. I give reluctant props to law professors whose work has had an impact on the profession.

    It is amazingly rare. Take the far more typical case of Professor Neil H Buchanan, who is Kerr's colleague at GWU. Buchanan has urged prospective students not to "pay any heed to the false claim that law professors are writing useless articles."

    Then you do a little Westlaw "All States and Federal" search of Neil Buchanan and learn that, of the 18 published journal articles listed in Buchanan's CV, a total of ZERO have been cited by a reviewing court somewhere in the nation. The picture does not brighten when you click on the "administrative decision and guidance" tab, which reveals that Buchanan's work has been cited a grand total of one time--one of his articles is mentioned in a footnote in a GAO report.

    dybbuk

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  42. Anonymous at 8:50, your legal analysis is poor. You argue that the schools are engaged in a scheme to obtain money or property because they want to raise prices for law school. But as you know, one of the major problems with legal education (which this blog has rightly criticized) is that every school has nearly the same tuition. That is, better schools *don't* charge more money. So the factual basis for your argument seems to be missing. Do you have another argument that might better match the facts?

    Also, while I'm at it, which chapter of the hornbook did you read? if you're referring to the Lafave Crim Pro hornbook, I only did one chapter -- the chapter on network surveillance law. If that chapter sucked, I hope you'll offer me some suggestions on how you think it could be improved. And if you have suggestions for the other chapters, I'd be happy to pass them on to my co-authors.

    @9:07: In my experience, one of the major motivations to have misleading stats has been to help current students and recent graduates get jobs. A lot of people think that the US News ranking of the school determines employers' perceptions of how good the school's graduates are. The better the numbers seem, the better the US News ranking; the better the U.S. News ranking, the more employers will want to hire the graduates; the more employers will want to hire the graduates, the more students and graduates are likely to get hired. So schools who want to help their students and graduates get jobs have an incentive to give U.S. News an overly flattering picture. I agree that schools should not give in to that temptation, though, even when they perceive that other competitor schools are engaging in the same games.


    Dybbuk@10:01pm, FWIW, I also filed a brief in the Supreme Court of Ohio last month, filed another brief in the 5th Circuit last week, did a BNA web seminar with a few judges two weeks ago, and gave some free advice to some lawyers who practice in my area earlier today. But obviously I am out of touch, as I'm a law professor. ;-)

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  43. @9:07: I should add, have you looked at the cases on the "money or property" requirement? The cases I have looked at seem to require a closer nexus than you suggest. If you know of cases that support your view, I'd be interested to read them. I plan to write a blog post on this over at the VC if I have time, so if you know of cases pointing your way, that would be helpful.

    Also, allow me to apologize to Anonymous at 8:50: I said your legal analysis is poor, when I should have said something more like "I don't find your analysis convincing." Whether the analysis was poor or not is a judgment that is up to the reader.

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  44. Orin Kerr,

    If you will notice, my post was a reluctant acknowledgement that your scholarship has had some value to the profession, in contrast to most of your colleagues.

    Kindly, though, don't brag about filing a couple of briefs. When I was with the appellate division of the public defender, I briefed two cases per month. Why was my starting salary, and that of my colleagues, around 1/3 of what an entry-level law professor makes?

    As for providing free advice to trial counsel, that is something that we offered every day--a totally routine part of the job. It would never even have crossed my mind, or that of my colleagues, to brag about it.

    I am sure your webinar was very very nice. If it is offered for free online, I will be sure to doze through it, as I am still a few CLE credits short.

    dybbuk

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  45. dybbuk,

    Fair enough -- sorry if that came off as obnoxious. And I agree you were horribly underpaid; the pay for public defenders and prosecutors in the state system is terrible. (Oh, and I also gave free advice to trial counsel every day when I was at DOJ; it was part of my job, too. I still do it routinely now, but I get fewer calls.) I just found the webinar online, and unfortunately BNA charges for it. Ridiculous, but so it goes.

    Just curious, why did do you leave the public defender's office?

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  46. Orin Kerr,

    That is okay. I prefer not to say any more about myself, though, at least now. A couple of threads ago, I learned that I have a cyber-stalker of my very own.

    Does GW have an appellate defender clinic? If not, it should. My office recruited entry-level assistant defenders from among the most promising students in the clinic.

    dybbuk

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  47. dybbuk, sure, of course.

    Yes, GW has such a clinic. It mostly focuses on appeals in the Maryland state court system, especially in the court of special appeals level.
    http://www.law.gwu.edu/Academics/EL/clinics/Pages/FCA.aspx

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  48. Orin Kerr might be right that some employers care about USNWR rankings. However I think the total influence those rankings have on employers pales in comparison to the influence it has on law school applicants, who almost universally take them seriously.

    Orin Kerr, you are an asshole. Ever since this blog launched, you have firmly placed yourself on the side of its detractors, trying to undermine its author and message. Meanwhile, your own school is the most expensive in the country and placing 17% in biglaw. You are part of the problem and I hope so badly that one day you are dealt with appropriately.

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  49. I will say this. Mr. Kerr is one of a handful of law professors that I could name, and that is as a result of his contributions to the field. So I have no bone to pick with him on that score.

    Having said that, his responses do show a bit of a blind spot, I'm afraid.

    How do the misreported facts show an intent to gain money?

    Simple. If they reported the true facts, many, if not most law schools would almost certainly see a drop in applications, which leads directly to a less qualified class, which leads to even worse employment outcomes.

    Eventually, it means people might be less likely to pay $40,000 per year in tutition alone if they realize how likely it is that they might wind up checking out customers at Target or pouring coffee at Starbucks.....or for that matter, being willing to trade their right arm for a legal job that pays $37,000, and then trying to make student loan payments of $2,000 a month on that salary.

    Perhaps you find that string too tenuous, but I would bet that many reasonable people will not. After all, there is a reason the problem is so widespread amongst the law schools.

    They know full well that the minute they publish something accurate, like that they have 56, or 67% of their class employed in actual, full-time legal employment, their applications are going to drop like a rock. GW may be fine for a year or two until reality sets in. The bottom 50-75 schools will not. They will likely have trouble filling seats immediately, if the true employment outcomes were made known, and made known in time for students to make a decision.

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  50. "@9:07: In my experience, one of the major motivations to have misleading stats has been to help current students and recent graduates get jobs."

    So they're lying to the students, but we just don't understand, they're doing it to benefit the students and help them get jobs. Riiiiiiiight.

    My guess is that the students rely far more on employment statistics in choosing a law school than employers rely on them to decide which schools to recruit. Firms know who the top 14, top 20 or top 25 schools are, and they don't need a magazine to tell them. Biglaw has been recruiting the same schools (and avoiding the same schools) for a century. That's the reason for the LSAT craze in the first place, to put one's self at least in the position to land one of these jobs.

    For the lowest 100, and perhaps the lowest 150 schools in the rankings, USNWR has one, and only one message that they want to make sure gets delivered: "Regardless of how low we rank, how poorly we place, or how outrageous our tuition, we're still a great investment. Why, virtually all of our students are employed, and our average salaries are so high, law school is worth the investment many times over. If you have any doubt about getting out that checkbook, just look at these stats, and you'll feel so much better about the investment you're about to make....in yourself!"

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  51. The case for law schools is not direct tit for tat, but the case against its agents – deans and senior administrators, is more so. The more prestigious the school, the higher the wages commanded by its administrators for running a “successful” school. (Also, the professors are more likely to be highly paid at “successful” schools, get good consulting gigs, and get to author extremely expensive textbooks). While the students are not being defrauded directly for their tuition (except where they went to a school without a scholarship when their stats could have gained a scholarship elsewhere), they’re lured into the school under false pretenses and then packaged as part of the “successful” school for the financial gain of law school agents.

    I don't think this is so different from financial fraud, where the agents of a firm induce fraudulent transactions and gain through end of the year performance bonuses.

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  52. Though current and recently graduated students are the primary victims in the scheme, the administrators are primarily defrauding other stakeholders such as the university board of trustees, alumni (I know my alma mater trumpets each upward motion on the US News ladder and hits me for donations), and potential future employers.

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  53. Orin,

    To fail to see how the perpetrators of the law school scam enrich themselves through fraudulent advertising requires mental gymnastics usually reserved for republican presidential candidates explaining how "freedom" means limiting the innocuous actions of consenting adults, or why corporations are people.

    I tell you if you buy my magic beans you'll grow rich beyond your wildest dreams. See, I have data from all the other bean buyers. Look at them, they are all baller rich. Now take out a non-dischargable loan for 150,000, and buy my magic beans.

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  54. "Reading over the draft paper, the authors appear to have overlooked the critical element needed to establish wire fraud or bank fraud: The purpose of the scheme must be to obtain money or property. It's one of the three basic elements of each of the offenses.

    Assuming a school misrepresented its numbers to get a higher U.S. News ranking, how is that a scheme to obtain money or property? Is the idea that a school has an intangible property interest in its U.S. News ranking? That seems like a stretch to me."

    I have not read the paper, but this comment seems...dumb, with all due respect.

    Law schools have initial, then ongoing accreditation standards. With accreditation comes a minimal level of prestige, such as allowing graduates to apply to sit for the bar in any state of the country.

    With prestige comes money, in the form of demand for student enrollment and alumni contributions, among other things.

    The US News stats provided by the law schools mirror those used to obtain, then maintain ABA accreditation. Maintaining accreditation by publishing false and/or misleading statistics allows schools to fundraise off of a list of things that mirror what they use to obtain, then maintain accreditation.

    Here:

    "Each law school is required to complete a comprehensive Annual Questionnaire, which inquires into facts relevant to continued compliance with accrediting Standards. The questionnaire elicits information and data regarding curriculum, faculty, facilities, fiscal and administrative capacity, technology resources, student profiles, bar passage rates, and student placement data."

    Source:

    http://www.americanbar.org/groups/legal_education/resources/accreditation.html

    The schools will also publish this false information in glossy brochures they use to entice students to enroll. Those students end up financing a large chunk of the school's operating budget and the cushy lifestyles of the elites who run them.

    Source:

    Every fucking law school brochure evarr

    When a hypothetical law school stated 3 years ago that 89% of grads were employed after 9 months of graduation" without specifying whether these grads were employed in a career that had anything to do with the law, then that "fact" (using the term loosely) was used as a package of information to show "prestige", which was then used to fundraise off of and to publish glossy brochures to entice enrollment. This information was also provided to US News and appears as part of a school's profile.

    The fact that the ABA gave ground on this gap in "what a school reports" vs. "what a reasonable prudent person reading what the school reports would conclude from reading it" supports this argument:

    http://taxprof.typepad.com/taxprof_blog/2011/12/aba-approves-new.html

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  55. "In my experience, one of the major motivations to have misleading stats has been to help current students and recent graduates get jobs."

    This is not credible. We can test this by asking and deposing the people who hold this "motivation."

    Further, if this were the case, one would expect that the law schools and USN&WR would engage in extensive marketing to prospective employers. And it would seem that they would have a different presentation or special report that highlights the employment data, as they are seeking to influence prospective employers. Much of the other information in the USN&WR magazine is less relevant to employers and if there are specific questions, employers can ask the schools directly.

    Clearly they market their best schools magazines to the general public and not to the employers who may be hiring graduates of the schools.

    It would seem that discovery would help us test whether Kerr's assertion is indeed the case.

    (Do schools really want to go through depositions or produce documents though? I doubt it.)

    Even if some school had good intentions in reporting misleading data, does that excuse them from legal responsibility when they "knew or should have known" that the public was relying on that data to a greater degree than potential employers?

    0Ls are not sophisticated consumers, they are just as gullible as any other member of the general public (they may have greater egos or think themselves smarter, but there are many who assume that what is reported in USN&WR is accurate and reliable).

    Potential employers are much more knowledgeable and sophisticated and can not be expected to give the same level of credence to information reported there by the schools.

    It is not convincing to simply state that the schools' reported false information with the students' best interest in mind. There were certainly better ways to influence potential employers than knowingly reporting misleading employment information to USN&WR.

    If "one of the major motivations to have misleading stats has been to help current students and recent graduates get jobs" is the case, it does not overshadow the many other MAJOR motivations the schools have to ensure that misleading stats are published.

    Clearly the schools will emphasize this "MAJOR" motivation and plaintiffs will emphasize the many others that exist, chief among them is financial gain.

    It is too early to say who will prevail, but it is not clear that the motivation ( to get more grads hired,claimed as major by Kerr)is correct.

    Kerr himself acknowledges that this is just one motivation. It's not hard to think of others that don't leave the law schools (or USN&WR) in such a favorable light.

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  56. I should add that I'm sure that law schools market to prospective employers. I don't understand however what value USN&WR gives them that their own efforts does not.

    In other words, if their motivation is what Kerr states, why do they need to do so through USN&WR?

    The clearly think that influencing the public assists them in getting their graduates hired, if his argument is to be believed.

    Well, they can't accept the good (getting students hired) without the bad (convincing students to enroll when they have no reasonable shot at getting a job post graduation) when they chose to report their deliberately misleading statistics to USN&WR.

    In fact, if they report misleading information, they may actually hurt their students' prospects for employment because the schools could properly question the credibility of any information the school provides.

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  57. Kerr's whole schtick is to show up and poke little holes in arguments. It's supposed to identify him as one of the reasonable people. It's bullshit. Kerr has never cared about saving unemployed law grads, absolutely nothing he has written in the 5 years I've been following VC indicates that he gives one shit about this. He is definitely one of the people who belongs in jail.

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  58. One weakness in the article that I did note - and it has a bearing on mail fraud and wire fraud. The law schools are also typically the arrangers of the student loans, that is to say that you apply for the loans through the law school's own financial aid office. This may raise issues of fiduciary duty to the student as a borrower in some states. More significantly, until a series of cases were brought in 2007 and 2008 it was not unusual for many private lenders to enter into revenue sharing deals with colleges and law schools - these were regarded as creating an incentive for schools to steer students towards often less competitive lenders.

    Even now, despite Mr. Kerr's rather asinine posting, it is apparent that if false information leads law students to overpay for services and worse allows the school to arrange loans whose proceeds (even without revenue sharing) the law school will promptly receive, this is a pretty significant issue. My recollection is that in one or two of the precedents cited in the article (the one relating to land sales near/far from a lake) the guilty party had also arranges loans to buy the land - and that arranging purchase loans may have been a factor in more Mail/Wire Fraud and RICO cases I reviewed in the past (time shares come to mind.)

    MacK

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  59. "Dybbuk@10:01pm, FWIW, I also filed a brief in the Supreme Court of Ohio last month, filed another brief in the 5th Circuit last week, did a BNA web seminar with a few judges two weeks ago, and gave some free advice to some lawyers who practice in my area earlier today. But obviously I am out of touch, as I'm a law professor. ;-)"

    Professor Kerr - pardon my sarcasm, but you are really stroking yourself.

    Lets be clear - I am a practicing lawyer - I have filed briefs in court after court, a few Supreme Courts as it happens in a number of countries and - just to be clear - in the last month I have given free legal advice to peers who sought it from the US, UK, Ireland, the Netherlands, Japan and a few more - and paid advice in the US, UK, Netherlands, Japan and a few more. Now, speaking from grim experience, professor's free advice is generally available at a cocktail party - and worth less than the cocktails (rail). My "free advice"is not really that free (except pro bono) but rather is a quid-pro-quo driven by the fact that I may need to ask a question later of my peer - and the fact that I really don't want to bother raising a bill for the time (and I bill at about $800) - oh yes - I also do that for clients quite a lot, especially when they call me late at night. And yes, I have written articles and books - one of my books oddly enough did not sell that well, but Thomson told me was one of their most stolen books from the counter at conferences (those lawyers, or is it professors) - it was apparently thin but useful and easily concealed. In any event I would not be too impressed with yourself - some of the audience here are law students you may think you can overawe - but a good few are senior practitioners - and I for one am most unimpressed with your preening - since I can preen so much better.

    MacK

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  60. "Assuming a school misrepresented its numbers to get a higher U.S. News ranking, how is that a scheme to obtain money or property?"

    This statement or question has got to be one of the most asinine I have ever seen. It should be plain as day that lying about student prospects would directly lead to "obtaining money" via enrollments and tuition dollars.

    If, say, a law school misrepresents is numbers tobe 99% employment at $160k median salary, then students will be induced to attend even if it costs them $200k total to do it and the school can then fill all its seats with suckers.

    But if a law school gave its REAL employment numbers (i.e. 50% employment at $30k median salary), then it will have a lot more trouble filling its seats meaning a lot LESS dollars.

    The misleading numbers aren't so much to improve in US News rankings per se but to simply mislead naive students in the value of going to their law school.

    Is Mr Kerr really this dumb not to understand something that is so plain on its face???

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  61. @1:53 Actually Kerr is that dumb and that clueless about practice. The defence that Kerr raises - as he explains himself:

    "Anonymous at 8:50, your legal analysis is poor. You argue that the schools are engaged in a scheme to obtain money or property because they want to raise prices for law school. But as you know, one of the major problems with legal education (which this blog has rightly criticized) is that every school has nearly the same tuition. That is, better schools *don't* charge more money. So the factual basis for your argument seems to be missing. Do you have another argument that might better match the facts?"

    What this comes down to is an argument that an individual indentified law school could not have gained because all of the law schools were also "cooking" their numbers - lying - and therefore the individual law school could not raise its prices anymore than its peers. What stuns me is that someone can be a law professor and make such an assinine and hopeless argument. It is a little like a drug dealer saying to the judge - "but your honor, it's not fair to punish me when ther other dealers did not get caught."

    The idea that any court is going to accept that a defendant who used material false statement to induce their victim to pay them hard cash can as a defence argue that "my material false statements don't matter because they left me no better off than my competitors because they too made material false statements and I therefore made no net gains vis-á-vis those competitors" is so unbelievably stupid that I actually find it hard to know where to start taking it apart. But let's start with the childhood "but everyone else was doing it" whine to your parents - guess what - its not a defence in court either. Next, lets consider the question of whether the action meant no net gain - this is entirely postulated on the idea that there was: (a) no net increase in the number of students going to law school overall from the collective behaviour; (b) no broad increase in the tuition chargeable as a result of the collective behaviour. That is an argument that is pretty impossible to sustain given the huge growth in law student numbers since the introduction of the USNWR Law School surveys and the massive supra-inflation growth in law school tuition, revenue per student and legal academic pay in real terms over the same period.

    Finally, I would also point out that I do not think that a judge would allow a defendant to introduce the evidence this (half-assed) defence would require of similar "bad acts" by other law-schools in any criminal action - it would fail on the first hurdle of relevance, and unless it was direct evidence from those other law-schools on grounds of hearsay - and I think any effort by one law-school defendant to secure it from another would fail - with a subpoena likely being quashed on a wide array of grounds.

    In short the sort of piffle I would expect a typical out of touch law professor to produce. PIFFLE & NONSENSE I SAY MR KERR.

    MacK

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  62. Where has Kerr gone? Did he get scared away by the rebuttals to his weak defense of the law school scam?

    I'd love to see him respond to the criticisms of his position. If not here, then hopefully he'll address them on his future VC post.

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  63. "What I'd like to know is why LawProf hasn't convinced anyone else in that faculty cafeteria to get on board enough to guest-write an entry once in a while...still the lone wolf after all of these many months?

    If so, that really isn't a good sign."

    Tell us, Prof. X, what would you write about if LawProf asked you to guest-write here?

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  64. He's not alone, there is also DJM. As an underemployed alum I like to give Ohio State a hard time in these comment threads, but DJM has won my respect. She should be applauded for being brave enough to endorse Campos' message. And to my knowledge, nobody has a single bad thing to say about her. Her endorsement is significant.

    She deserves a better platform to present her thoughts than these comment threads. Maybe Campos could offer her a spot as a guest blogger, I think that would be newsworthy and probably result in many links from other legal blogs, probably even Prof X's.

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  65. Very interesting post. Brilliantly stated.

    Questionnaire

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  66. The insular culture between the judiciary, law schools, etc... is the heart of the problem. Not dissimilar to the crony capitalism that has infected America. Until the disease of fraud and injustice is routed from the body politic, there will be no foundation upon which the profession can build. I predict that it will take 30-40 years to re-establish law as a profession. The damage done is beyond repair in most of our life times.

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