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Monday, April 02, 2012

Law Deans in Jail! or Law Deans in Jail?

Over the last few days, I had the pleasure of perusing a new draft, Law Deans in Jail, (co-authored by Morgan Cloud and George Shepherd, both of Emory). The paper is forthcoming, and I confess I'm curious what the indemnity clauses will look like in the author-publisher agreement...

My comments are really more requests than criticisms as such. Upon reading it earlier this weekend, my first reaction was a plea for punctuation. Given that the brief/paper makes the serious and plodding case for the criminal liability of some deans and institutions (as well as USNews) under various federal criminal statutes, I was puzzled why the title didn't have a ? mark in its title. The merely declarative title makes it seem as if the case is open and shut. In the introduction, the paper notes that the sources for making the federal case against various persons and entities are news stories, not sworn depositions, etc, and thus the claims about liability are contingent or tentative. By the end of the paper, however, it's hard to see much for the case for contingency. My sense at least is that Cloud and Shepherd think there's a basis for a federal case here and that it should be made.

I mention this in part because it reminds me of Paul's earlier post today referencing Fallon and amicus briefs, and the duties of scholars (a topic I find myself perennially interested in).  I think Cloud and Shepherd have made a very interesting argument in their paper. It's not entirely one-sided. After all, in  a few places, they consider why deans might respond to the USNews questions in "gaming" ways that are perhaps morally defensible. But the paper's not exactly balanced with much effort to discern what might be the other side's defenses, legal or moral. Of course, not every paper needs to be aggressively even-handed, and there is still a good case for some scholarship to be useful enough to lay the groundwork for actual litigation. (*Disclosure: Maybe I'm just saying that tendentiously because I have a project that's I hope will eventually serve that function too.)  

So, in addition to the plea for the question mark and, with it, the unreasonable request for more discussion in an already 70-page paper of the shortcomings of the evidence adduced against the legal education institutions and USNews (or the possibility of countervailing defenses), I also have a second question.

That is: among our readers who have read the paper and served as a prosecutor (preferably a federal one), or otherwise know a decent enough amount about criminal law, how many would actually exercise the discretion to bring the case, or at least investigate its claims further, etc.? (This goes to the usefulness of scholarship per Paul's discussion in his other shrewd post of the morning.) If you wouldn't bother from the outset, why not? If you would make at least preliminary investigations, what kind of specific factors would convince you that this is a federal case worth bringing as a criminal case as opposed to some other form of legal response (or perhaps no legal response, just social pressure/media, etc.). (Please don't just refer to the Petite or other USAM factors. Apply them!). Or, if you're a populist, like some friends of mine, would you want an equitable grand jury to decide whether to go forward apart from the legal accuracy question?)

I was definitely more persuaded after reading the paper than I was beforehand that a case could be made. I understand lots of people might like to see the criminal law used to this effect because of valid concerns they have about the misleading data that was circulated and left uncorrected about job prospects or LSAT scores by USNews.  But I have some qualms, none of which are vital to resolving the "federal case" issue but need to be kept in mind still. First, if law school deans now respond to the threat of criminal liability (or other legal recourse) by having to independently seek verification by Jones Day or other expensive law or accounting firms about the numbers produced by their employment and admissions offices, then that cost will be passed on to students and faculty because of a breakdown in the trust between Deans and those offices or because some Deans acted very poorly. Maybe that's a cost worth bearing but how much are people willing to pay for that?  Second, maybe Deans should simply ignore the social demands on them created by the rankings and then not worry about these issues. Here, though,  I think there's a colorable fiduciary claim that deans would violate duties to their stakeholders if they utterly ignored rankings; my view is they should pay them attention but not to the exclusion of acting ethically.  I say this in part because I value the information-forcing benefits that rankings provide to the public.

Finally, maybe USNews and law faculties around the country need better "warning labels." I.e., Law schools could say, for the public interest we have made reasonable efforts to gin up information that conforms to the requests made by USNews or others in allowing informed decision-making, but there is always the possibility of human error or malevolence that we couldn't control, and so, caveat emptor should apply to the consumption of these data...

So: a federal case? Is this an instance of academic overcriminalization/prosecutorial over-reach?  Or a much needed instance of social and legal responses to hold accountable through federal courts those who would train our legal overclass?

(Signed, verifiable, civil and substantive comments invited. Others will be removed and possibly banned.)

Posted by Dan Markel on April 2, 2012 at 03:46 PM in Criminal Law, Dan Markel, Life of Law Schools | Permalink

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