Paul L. Caron

Monday, November 21, 2022

Antitrust Implications Of The U.S. News Law School Rankings Boycott

Daniel A. Crane (Michigan), Antitrust Concerns on Firing U.S. News & World Report:

Yale Notice & CommentMy view on the merits is that the USNWR rankings scheme is bad for legal education, for many of the reasons articulated by Deans Gerken, Manning, and Chemerinksy. It’s not that rankings are necessarily bad—giving students, employers, and others information on law schools is important. The problem is that USNWR places weight on arbitrary and manipulable factors, which in turn pressure schools to allocate resources in ways that are detrimental to legal education, equity, and ultimately society at large. So sign me up for the project of breaking USNWR’s spell.

Ever since yesterday’s announcements, folks have been asking me whether there is a potential antitrust problem with any of this. ...

First observation, which could be dispositive of everything: Any school that wants to make a unilateral decision not to cooperate with USNWR is free to do so. The antitrust laws impose no duty to cooperate with a third-party (or third-rate) media outlet or ratings organization. So any school that wants to walk away on its own, more power to ya.

The problem, of course, is that very few schools have the, uhm, fortitude to do this on their own. Even hegemonic YLS and HLS seemed to gain courage from one another’s resolve. Do we seriously think that there were no prior conversations and that John Manning happened to see Heather Gerken’s announcement come across the transom and instantly decided “oh, let’s do that too?” Whether or not HLS and YLS “agreed” in antitrust sense I don’t purport to say, but it’s hard to believe that there was no interdependence to their decisions. ...

And that raises the threshold antitrust question: is there agreement within the meaning of Section 1 of the Sherman Act? That, in turn, has a substantive (what is agreement?) and procedural (how can you prove it?) component. ...

One strategic observation for law school deans still on the fence: You’re safest if you wait a while before joining the parade. If you announce two weeks from now, it’s much less likely that a plaintiff can plausibly interpret your move as the evident consequence of agreement. On the other hand, precisely because interdependence is key to this working, the longer individual schools wait, the less likely it is that the snowball effect will occur. There’s a moment right now where a bunch of deans may be waiting to see what happens. If everyone seems to be doing it, they would be happy to join, but if it sputters, they don’t want to be left out in the cold. So precisely the impetus that can make this work—a cascade of schools doing it all at once—is also the pattern most likely to suggest the plausibility of horizontal agreement. ...

To sum up, if all of the law schools act unilaterally, no problem. If they coordinate but through a formal “self-regulatory” process, there’s antitrust risk, but they have good defenses. If they simply agree informally not to supply data to USNWR…. Have I mentioned that I know some good antitrust lawyers?

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