Darren Bush (Houston; Google Scholar), Why the FTC Needs to Intervene in Law School Rankings:
Since the boycott of the U.S. News and World Report Rankings (“U.S. News Rankings”) by a group of law schools, the U.S. News Rankings have gone a bit haywire. The top law schools, all highly ranked, refused to submit data to U.S. News. Other schools followed their lead. As a result, U.S. News changed its rankings, perhaps focusing a bit more on publicly available data.
But that has led to speculation of potentially wild results. Spivey Consulting projects that some law schools (like Buffalo Law) will drop by over 80 points, while others (like Maine) are expected to climb precipitously. In the past, such dramatic ranking shifts were somewhat limited, but with the changing rankings, and the apparent new norm of frequent changes to methodologies, such radical changes might be in our future. It is striking, though, how the fluctuations rarely seem to affect the higher ranked schools. …
In this essay, I list five problems with the U.S. News Rankings, and I offer a few concrete solutions. …
Solution: An FTC Unfair or Deceptive Act or Practice (UDAP) Rule
Section 5 of the FTC Act states that “unfair or deceptive acts or practices in or affecting commerce . . . are . . . declared unlawful.” Deceptive acts or practices require a “material representation, omission or practice that is likely to mislead a consumer acting reasonably in the circumstances.” An act or practice is “unfair” if it “causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition.”
The FTC UDAP rules cover common consumer experiences, such as wash-and-dry labels, octane ratings for gasoline, funeral prices, eyeglasses, auto fuel ratings, used cars, energy ratings, door-to-door sales, identity theft, free credit report, contact lenses and eyeglasses, and child protection. In each of these instances, informational and other barriers barred consumers from realizing important information or availing themselves of alternatives.
Why not apply the same principles to rankings? An FTC UDAP rule related to law school rankings could involve three components.
First, the FTC should require U.S. News to disclose the algorithm it uses or to explain in greater detail the amount of weight it puts on each factor that goes into its overall rankings. … The FTC should mandate that any alteration of methodology should provide law schools with at least two year’s notice. At present, much of the methodology could be ex-post, surprising schools attempting to climb the rankings.
Second, the rule should eliminate conflict of interest voting and should mandate disclosure of other data. …
Third, the FTC’s rule should impose penalties on schools and U.S. News for violations of the rule.
