On Villanova’s “Censure” By the ABA
As has been widely reported, the ABA censured Villanova for its intentional misreporting of data, requiring it to post this document on its webpage. This censure is symbolic — it’s about a weak a punishment for wrongdoing as one could imagine. It’s also badly misguided in its substantive particulars. Though there’s an admirable demand that the school now internally audit its data, the Bar also has created a byzantine data collection review process. Villanova’s Dean now will – on top of raising money, dealing with tenured professors, and worrying about the horrendous job market – “survey the data for completeness”, “review the list of individuals [doing data collection]“, and “review for completeness and appropriateness the control confirmation report [which shall be signed by each "Data Owner"].” Talk about evidence-free bureaucratic mission creep! Perhaps the ABA should have mandated that Villanova hire someone to watch the Dean while s/he watches the people who are watching someone input data. And stream the data collection process to ABA mission control.
What a uniquely lawyerly and psychologically naive way to think about fraud. I’m tempted to say that the tagline for this censure could have been “From the people who brought you the job killing and time wasting CEO certifications in Sarbanes-Oxley comes a new way to increase the costs of Law School…” It is as if a bad process was at fault in the original reporting scandal, as opposed to perverse incentives and terrible ethical judgment. Additionally, the Law School is mandated to employ a law firm (Freeh Sporkin) to serve as an additional watchdog — one can see how the ABA might have liked that solution!
So to get this straight. Villanova Law did a really bad thing. To punish the Law School, the ABA has required it to spend a ton of money on process (taking money from the pockets of current and future law students, in the form of higher tuition and lost scholarships). There is zero evidence that this process will deter, specifically or generally. Other schools will look at this case and see that ABA is more interested in the atmospherics of disclosure than in actually engaging in thoughtful and principled regulation. All in a good day’s work!