Pepperdine And U.S. News: A Problem Of Unregulated Monopoly?

Following up on my previous posts:

• Pepperdine’s Place In The 2019 U.S. News Rankings (Mar. 16, 2018)
• More On Pepperdine's Place In The 2019 Law School Rankings (Mar. 25, 2018)

Above the Law:  Pepperdine And U.S. News: A Problem Of Unregulated Monopoly?, by LawProfBlawg (anonymous prof at Top 100 school) & TempDean (anonymous prof and current or former interim dean at Top 100 school):

U.S. News ought to have a leniency program to report innocent violations.

Many law schools have been accused of what one of my symposium speakers has called “jukin’ the stats.”  That is, some schools in the past have taken to lying about their data in order to manipulate their position in the all-important law school rankings game.  That is not cool.

However, that isn’t what happened at Pepperdine.  Pepperdine made an innocent mistake, took immediate steps to correct it, and then faced a draconian penalty for its honestly.  That is the topic of today’s post: What should U.S. News have done? ...

There are two issues at stake.  Unless we want to grant U.S. News investigative powers akin to the FBI or B613 (see Scandal), there must be some incentives for law schools to correct their honest mistakes and self-report rather than deliberately cheat, bury the bodies, and hope no disgruntled ex-employees drop a dime on them to U.S. News and the ABA.  Second, there needs to be some way to distinguish the honest mistake from a deliberate obstruction of ranking justice. ...

Our concern is that U.S. News can do pretty much whatever it wants to a law school that supplies incorrect data, short of a libel suit.  It could remove Pepperdine from the rankings completely.  It could correct the rankings.  It could punish them for two years.  There is nothing that U.S. News can’t do, and therein lies the problem.

As numerous commentators have pointed out, U.S. News’ reaction creates a terrible precedent.  If you are punished for being honest, what’s the incentive to report an honest mistake?  Much like Steve Martin once said in “A Wild and Crazy Guy,” this is a “death penalty for parking violation.”  It deters people from reporting honest mistakes.  To the extent that people know of willful violations, prospective reporters might think twice if they think that U.S. News will nuke the school, which affects innocent people and the guilty alike.

For that reason, we believe that U.S. News ought to have a leniency program to report innocent violations.  A leniency program would assure that the data in U.S. News rankings maintains its accuracy.  A law school that demonstrates that: a) the error was not knowingly or intentionally made; b) the error was reported in a timely manner; and c) it has taken measures to assure the error will not happen again would be rewarded for its honestly by not facing any penalty apart from a true and correct adjustment to their ranking. ...

[T]he only option is for U.S. News to step up and make their penalties clear and put into place a leniency program such to preserve the integrity of the rankings, and provide the incentive to fix the innocent mistakes law schools sometimes make.