pageok
pageok
pageok
Lott v. Levitt Settles -- Somewhat:

The Chronicle of Higher Education reports on a partial settlement in John Lott's defamation settlement against Steven Levitt.

In documents filed today in federal court, the two parties outlined a settlement that requires Mr. Levitt, who is a professor of economics at the University of Chicago and a co-author of the best-selling book Freakonomics: A Rogue Economist Explains the Hidden Side of Everything, to send a letter of clarification to John B. McCall, a retired economist in Texas.

Mr. Lott's lawsuit alleges that Mr. Levitt defamed him in a 2005 e-mail message to Mr. McCall . . .

The letter of clarification, which was included in today's filing, offers a doozy of a concession. In his 2005 message, Mr. Levitt told Mr. McCall that "it was not a peer-refereed edition of the Journal." But in his letter of clarification, Mr. Levitt writes: "I acknowledge that the articles that were published in the conference issue were reviewed by referees engaged by the editors of the JLE. In fact, I was one of the peer referees."

Mr. Levitt's letter also concedes that he had been invited to present a paper at the 1999 conference. (He did not do so.) That admission undermines his e-mail message's statement that Mr. Lott had "put in only work that supported him."

The provisional settlement is simple: Beyond the letter of clarification, the agreement does not require any formal apology from Mr. Levitt, and no money will change hands.

But the settlement also explicitly allows Mr. Lott to appeal the court's January dismissal of a major portion of his lawsuit.

uh_clem (mail):
Why hasn't John "Mary Rosh" Lott simply slinked off the public stage? Has he no shame, at long last?
7.29.2007 11:10pm
Filthy Mcnasty (mail):
Though Mary Rosh was indeed pitiful, Levitt's superiority complex just got brought back down to a normal level.
7.30.2007 12:08am
Anon Y. Mous (mail):
Levitt's pretty clearly in the wrong, and the first commenter attacks Lott. Is that you, Tim Lambert?
7.30.2007 12:28am
TerrencePhilip:
They settled the email portion of the case but not the book-defamation charge which will be appealed. The article says "Mr. Lott's new appeal argues that the judge erred in that dismissal because he ought to have applied the defamation law of Virginia (where Mr. Lott lives) rather than Illinois (where the lawsuit was filed)."

Plaintiff has a rocky road on appeal: Lott's opposition to the motion to dismiss, which he helpfully posts on his website here, says in Footnote 5, "We agree with Defendants that Illinois law governs this dispute"!!!!!

As an insufferable geek I then went to PACER to find out how they are now contesting the application of Illinois law; and see that they have filed a motion to reconsider, Rec. Doc. 57, which tries to finesse this issue by admitting they agreed the "substantive law" of Illinois must be applied but now say for the first time that this "substantive law" includes Illinois's choice-of-law rules, making Virginia the governing law! Their original opposition to the dismissal of this count did NOT make any arguments based on Virginia law. Their only discussion of state-law rules of defamation drew on Illinois caselaw.

Illinois's choice of law rules may be "substantive" but when the plaintiff's opposition failed to call to the court's attention any arguments based on Virginia law, or any choice-of-law issue- and indeed made its only state-law arguments based explicitly on Illinois law-- their chances of a do-over do not look promising. So far as I know any circuit court would regard this choice-of-law argument as being waived.

How would you like to be picked to go argue this one in front of a panel including Easterbrook? "Well, yes, we didn't bring this up until after the judgment, BUT . . ."
7.30.2007 1:14am
Henri Le Compte (mail):
I'm kind of disappointed by the fact that the article really made no effort to explain what the defamation suit was all about. Would that have been so hard? Because, given what was said, it seems pretty clear that John Lott has a decent case. He won on the e-mail dispute, and it seems likely that he would have won on the Freakonomics dispute if his State's laws had been applied.

It just seems odd that in an article of this length there was no effort put into describing the basis of the suit. Now, I'm gonna have to Google the Freakin' thing to find out the rest of the story. It's just not right.
7.30.2007 2:09am
happy lee (mail):
John Lott reminds me of Charles Murray. A decent human being blessed with immense talent and cursed with an unwavering desire to speak the truth. Poor is he who seeks to profit from truth.
7.30.2007 2:43am
James Lindgren (mail):
Henri:

Here was my earlier post on the alleged defamation in the book:

earlier post

Jim Lindgren
7.30.2007 2:47am
Tim Lambert (mail) (www):
Henri, the Chronicle article links to an earlier story that provides a very good explanation of the lawsuit. I don't see how Lott could possibly win on the Freakonomics lawsuit even if it was moved to a different jurisdiction.

Anon Y Mouse, unlike you and Lott, I post my comments under my own name.
7.30.2007 3:49am
neurodoc:
As someone in one of the Circuit Courts now with a similar matter, I am well aware that the choice of state law can make the difference in who prevails. I don't know the particulars of VA libel law versus IL libel law, though, and what it is about the former that might be more helpful to Lott than the latter. Does anyone here know what it is, and how it would play in this case?

If it would be better for Lott to have his case decided on the basis of VA law rather than IL law, why did he agree wit the D that IL law governed, only to try to reverse course later? Bad lawyering on his behalf, or some other explanation?
7.30.2007 5:17am
Thales (mail) (www):
It's a safe bet that if Lott is now belatedly seeking to have the case decided under VA law, it is better for libel plaintiffs. Probably more liberal (in the sense of broadly construing the tort) case law--IL is fairly protective of expressive activity. Without reference to the facts of the case, the terms of the settlement may not preclude Lott from making his choice of law argument on appeal. Maybe he did raise it earlier and then had it smacked down, such that in later filings he conceded the issue but initially preserved it for appeal. In any case, it's an issue of pure law. Choice of law and defamation, where the allegedly tortious act is simultaneously committed in many jurisdictions can be a tricky intersection. There's a pretty decent argument that defendants should not be subject to the most speech-restrictive regime of all possible ones.

Also, I think Levitt may have the "you can't defame Hitler" card to play on appeal, that is, you can't damage a reputation that's already in tatters (especially here, where Lott has concededly committed academic misconduct in another context and been caught for it, as exposed by Lambert and others).
7.30.2007 9:16am
uh clem (mail):
Is that you, Tim Lambert?

Nope.
7.30.2007 10:45am
TerrencePhilip:
If it would be better for Lott to have his case decided on the basis of VA law rather than IL law, why did he agree wit the D that IL law governed, only to try to reverse course later? Bad lawyering on his behalf, or some other explanation?

Lott has changed lawyers and the new argument comes from the new lawyer. The old lawyer opposed the motion to dismiss based on Illinois law, and the new lawyer, who enrolled early this month, has filed the motion to reconsider arguing that Virginia law applies.

According to their recent motion Virginia does not apply the "innocent construction" rule which Illinois does, along with the choice-of-law principles of Illinois which suggest Virginia law should apply, and they seem to think this will make a difference in their case.
7.30.2007 10:49am
frankcross (mail):
I think the overlooked fact is how absurdly overlitigious it is to sue someone for an email message. Think of how many potential cases there are out there.
7.30.2007 11:56am
M (mail):
On Lott: "cursed with an unwavering desire to speak the truth."

That's the funniest thing I've read all day. Thanks for it. I suppose it doesn't count when he's pretending to a be a student in his own class, just to take an obvious example. It must be a big frustration to be cursed with a desire to do something and then be continually unable to do it!
7.30.2007 12:00pm
uh clem (mail):
M,

I just figured that "happy lee" was another Lott sockpuppet. "A decent human being blessed with immense talent and cursed with an unwavering desire to speak the truth." That's pretty rich.

Not sure if he reads this blog, but it'd be easy enough to check the IP of the "happy lee" contributor.
7.30.2007 12:31pm
neurodoc:
TerencePhilip, thanks for the response. It sounds like you know something about how libel law may vary from one state to another and the details of this case, so would you expand a bit more.

I presume that "innocent construction" means that what the P alleges to be libelous is not unequivocally defamatory, but could be seen either way, then the P will lose because the non-defamatory possibility will defeat the defamation claim. Am I correct about that? Can all the circumstances be taken into account (VA, IL, or elsewhere), so that other evidence showing an intent on D's part to injure P's reputation? How would the choice of VA over IL law matter in this particular case with its particular facts, if you know?

I know a little bit about Lott, guns, and sock puppetry, but not much, and still less about the details of Lott v. Levitt. This assertion that Lott is "non-defamable" sounds like hyperbole by those who don't like what he has maintained. Surely, the sock puppetry nonsense wouldn't do it. Without going into great detail about this and arguing the partisans' case for/against Lott, can you tell me if I am right that he may lose on the law and/or facts, but not because he is so damaged that he is "non-defamable."
7.30.2007 2:29pm
byomtov (mail):
I think the overlooked fact is how absurdly overlitigious it is to sue someone for an email message. Think of how many potential cases there are out there.

A lawsuit is never frivolous if you're a fan of the plaintiff.
7.30.2007 4:58pm
TerrencePhilip:
neurodoc,

I know little about Ill. defamation law but out of thanks for your own sharing of info on medical-related threads I will give this one a go: there is a pretty good explanation of the innocent construction doctrine on this site. It seems to mean pretty much what you reasoned it might.

There is a recent Va. defamation case (Government Micro Resources, Inc. v. Jackson, 624 S.E.2d 63 (2006)) that poops out their law on defamation. It does not mention an "innocent construction" rule but I don't know that that really matters, as this question is probably collapsed into the main issue of whether the statement is defamatory at all; you have to interpret any statement to find out what it means. It would be a pretty embarrassing state of law, and constitutionally problematic, if a state's courts would actually affix "defamation" liability when the most reasonable construction of a statement is non-defamatory.

There appears to be plenty of room in questions like qualified privilege for Levitt to beat up on the plaintiff's claim. And proof of "actual malice" is required for punitives in Virginia- it seems that without punitives Lott's lawsuit is not likely to be worth bringing, for he has probably suffered very little harm he can definitively trace to this "defamation."

Lott's new lawyers are wasting their time trying to get Virginia law applied by the court, at this late date. The argument is defaulted. Besides the basic elements of defamation are similar in every state, especially now with the influence of NYT v. Sullivan. IMHO, Lott's new lawyers would be better off spending their energies figuring out how to show the basics- that Levitt made a false statement that harmed their client. If they are pinning their hopes on getting a court to apply a rule that (they think means) liability can attach even when the more reasonable construction of the statement is NOT defamatory, when the argument is defaulted to begin with, they are going to get sanctioned or laughed out of court in the Seventh Circuit.
7.30.2007 6:02pm
neurodoc:
TerrencePhilip, thanks, I appreciate your very helpful response. Now, I'll look for those cases, so I may better inform myself about nuances of libel law.

I wonder how much Lott is spending in pursuit of this case and whether he expects to come out ahead financially in the end or he has decided to go for it though his expectancy may be less than his costs. If there is one sort of case in which Ps may be willing to spend more than they are likely to recover, then I suppose it is libel lawsuits.
7.30.2007 11:59pm
Clayton E. Cramer (mail) (www):

Also, I think Levitt may have the "you can't defame Hitler" card to play on appeal, that is, you can't damage a reputation that's already in tatters (especially here, where Lott has concededly committed academic misconduct in another context and been caught for it, as exposed by Lambert and others).
Other than the Mary Rosh sockpuppetry, all that Lambert and friends have is suspicions and doubts. The survey that Lott lost? There's little to prove he did it, but there's nothing to prove he didn't do it. And the vast majority of Lott's work in this area has nothing to do with that survey.


I think the overlooked fact is how absurdly overlitigious it is to sue someone for an email message. Think of how many potential cases there are out there.
It depends whether that email impairs your reputation in a community while looking for a job. What's fascinating about the correction from Levitt is that many of the statements that Levitt put into that email weren't just wrong--they were statements that Levitt knew at the time were false. For example, claiming that the issue of the Journal of Law and Economics in which Lott's paper appeared wasn't referreed--when Levitt was one of the referrees on Lott's paper!
7.31.2007 1:32am
Clayton E. Cramer (mail) (www):

This assertion that Lott is "non-defamable" sounds like hyperbole by those who don't like what he has maintained.
Yup. There have been a lot of papers that have attempted to replicated Lott and Mustard's claim about increases in concealed carry issuance reducing crime. Most (that I have seen) confirm it; a few claim that there is no statistically significant advantage. I have not seen one that concluded that it increased crime rates (except by playing some embarrassingly bad games with changing the dates that the laws took effect).

Hence the need to defame Lott at every opportunity. The Mary Rosh sock puppetry was wrong and stupid. Without it, Lambert and friends would have gotten nowhere at all with their accusations about the lost survey data. Lott has a little evidence that he did the study (such as one person who appears to have been surveyed for it, interviewed by Professor Lindgren). There is no evidence that he didn't do it.

Lambert and friends are at a complete loss when it comes to the primary work that Lott has done in this area--and which others have successfully replicated. Significantly, Lambert and every other person involved in this campaign to discredit Lott's research are gun control fanatics.
7.31.2007 1:38am
Clayton E. Cramer (mail) (www):
By the way: here is a long list of emails from people who either remember Lott mentioning at the time the hard disk crash that destroyed his data, or who lost research data for projects that they were working with Lott on at the time because of the hard disk crash. The evidence that Lott did the 1997 survey (which he managed to repeat in 2002 with similar results) is pretty strong; the evidence that he did not is absolutely zero--just skepticism and character defamation by gun control fanatics who don't like what he found. And one of those fanatics, Levitt, has now admitted that he sent an email that contained statements that Levitt knew were false.

Who has the credibility problem here? Lott? Or his opponents?
7.31.2007 1:50pm
Steve Sailer (mail) (www):
I never took Lott's lawsuit against Levitt seriously, but I guess I was wrong. This looks like a moral victory for Lott.
7.31.2007 4:34pm