Though Mary Rosh was indeed pitiful, Levitt's superiority complex just got brought back down to a normal level.

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 . . ."

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.

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.

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).

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.

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!

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."

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.

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!

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?