Law Deans in Jail

“Law Deans in Jail” is a new paper by two Emory law professors. 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.

(It will be fascinating to discover 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.