Empirical Legal Studies

Lott v. Levitt - The End

The Seventh Circuit has affirmed the dismissal of John Lott's defamation claim, the one tied to the meaning of the word "replication."

The court reasoned as follows:

Lott contends that Levitt's refutation of his more-guns/less-crime hypothesis can be read only as a smear of his professional reputation and is therefore defamatory per se. Using an academic definition of “replicate,” Lott maintains that the passage means that others repeated, to a tee, his technical analysis but were unable to duplicate his results, suggesting that he either faked his data or performed his analysis incompetently.

But this technical reading is not the only reasonable interpretation of the passage. After all, Freakonomics didn't become a bestseller by targeting just academics. The book takes into account the lay reader, breaking down technical terms into easily understandable, if imprecise, ideas. For example, the technicalities of regression analysis are explained by an analogy to a golfer's handicap, since both even the playing field so that variables (or golfers) can be compared on all fours. The book relies on anecdotal evidence and describes with only the broadest strokes the statistical methodologies used. In this context, it is reasonable to read “replicate” in more generic terms. That is, the sentence could mean that scholars tried to reach the same conclusion as Lott, using different models, data, and assumptions, but could not do so. This reading does not imply that Lott falsified his results or was incompetent; instead, it suggests only that scholars have disagreed with Lott's findings about the controversial relationship between guns and crime. By concluding that this more generic definition of “replicate” is reasonable, we are not assuming that the reader is a simpleton. After all, econometrics is far from conventional wisdom. We are, however, taking into account the context of the statement and acknowledging that the natural and obvious meaning of “replicate” can lie outside the realm of academia for this broadly appealing book.

The court is wrong to think the "generic definition" of replication is "outside the realm of academia," but the ultimate outcome -- affirming the district court's dismissal -- is the right one.

The opinion is here.

H/T - Volokh

Lott v. Levitt: Oral Argument Today

The Seventh Circuit heard the oral argument this morning in Lott v. Levitt. The panel includes Judges Ripple, Evans, and Sykes. Professor Jeffrey Parker of George Mason Law School argued for Lott. Slade Metcalf of Hogan & Hartson argued for Levitt.

Evans and Sykes asked all the questions. Ripple remained silent. I have only glanced at the briefs, but based on the questions and comments during the oral argument, Lott’s chances do not look very good. The audio file of the argument should be available on the Seventh Circuit’s website later today.

UPDATE: An mp3 of the oral argument is now available here.

Lott v. Levitt - Oral Argument Approaches

The oral argument before the Seventh Circuit is currently scheduled for Tuesday, October 21st at 9:30 a.m.

Lott v. Levitt - 7th Circuit Brief Now Available

Lott's brief is now available from the Seventh Circuit's website. The brief is here. The appendix is here.

Lott v. Levitt: Revised, Revised, Revised Briefing Schedule

Still no briefs filed. Here is the latest briefing schedule.

    Appellant's brief due 3/4/08 for John R. Lott.

    Appellees' brief due 4/3/08 for HarperCollins Publ, for Steven D. Levitt.

    Appellant's reply brief due 4/17/08 for John R. Lott.

Lott v. Levitt: Revised-Revised 7th Circuit Briefing Schedule

The briefing schedule with the Seventh Circuit has changed again, and Lott has not yet filed his opening brief. The previous deadline was yesterday, February 1st. Here is the updated briefing schedule from the docket sheet:   

    Appellant's brief due 2/12/08 for John R. Lott

    Appellees' brief due 3/13/08 for HarperCollins Publ, for Steven D. Levitt

    Appellant's reply brief due 3/27/08 for John R. Lott

Lott v. Levitt: Revised 7th Circuit Briefing Schedule

Lott's brief was originally due on Monday the 17th. The docket sheet now reports this new briefing  schedule:

Appellant's brief due 2/1/08 for John R. Lott.

Appellees' brief due 3/3/08 for HarperCollins Publ, for Steven D. Levitt.

Appellant's reply brief due 3/17/08 for John R. Lott.

Lott v. Levitt: 50% Settled, 50% Appealed

Lott v. Levitt is not yet fully resolved. Here are two belated updates: 

First, the dismissal of Count I, the one involving the meaning of replication, is now on appeal before the Seventh Circuit. According to the most recent docket entry (October 3, 2007), Lott’s opening brief is due on December 17th. The notice of appeal is here. I haven't found any discussion elsewhere about Lott having filed this appeal.

Second, Lott discussed the settlement of Count II on his website some time ago. His post includes a copy of Levitt’s clarification/correction letter to John McCall and also links to coverage of the settlement on various blogs. A thorough discussion can be found on the Chronicle of Higher Education blog.

UPDATE: In another Chronicle of Higher Education blog entry, David Glenn said Lott filed an appeal on July 27th of this year. Glenn must have been referring to Lott’s motion for reconsideration, which Lott filed on the 27th. (Judge Castillo denied the motion on July 31st.) Lott filed the appeal on August 30th, not July 27th.

Lott v. Levitt: A Partial, Implied Vindication for Lott?

The court dismissed Count I because the sentence on page 134 of Freakonomics is capable of an innocent construction. The relevant construction is based on the reasonable reader, and the court determined that the reasonable reader is based on the general population, not the academic population (though I don’t think it matters). The court did NOT say that it would have come to a different conclusion had it applied a standard based on the academic population, but one might draw this implication from the opinion.

The following excerpt comes from Robert’s Rationale, a non-academic blog I just discovered through Google (and one I don’t know much of anything about beyond this post):

The judge ruled against the first allegation. The word “replicate” does have a specific meaning in science: repeating an experiment precisely. However, the book was in large part marketed to the general public, which would take the sentence to mean that other scientists, using different methods and statistics, have come to different conclusions.

In defamation law, there’s a practice of “innocent reading,” that is, if a statement can be taken two ways and one of them is not libelous, the non-libelous one should prevail. What’s interesting here is that there are two audiences; one could read it two ways, but the other could only read it in the libelous way. The judge ruled that the general public’s reading was the one that counted, even though many academics also read the book (it is, after all, an application of econometric methods).

Lott himself makes a related point on his own blog about the popularity of Freakonomics with academics: “I think that the market for the book was also aimed at academics. The book is apparently marketed to a large number of economics classes and is read by academics.”

So, will the popular view of this case be that Levitt defamed Lott to his smaller, academic audience, but that he was not liable because he wrote the book primarily for a larger, general audience?       

Lott v. Levitt - Count I Dismissed

Yesterday, Judge Ruben Castillo dismissed Count I of Lott’s defamation lawsuit against Levitt but not Count II. Count I is based on the sentence on page 134 of Freakonomics; Count II is based on Levitt’s e-mail to economist John McCall.

In the discussion of Count I, Judge Castillo determined the sentence is not defamatory because it is capable of an “innocent construction.” He said:

Lott claims that the following sentence in Freakonomics is defamatory per se: “When other scholars have tried to replicate [Lott’s] results, they found that right-to-carry laws simply don’t bring down crime.” Lott argues that the only reasonable meaning of the last sentence is that he falsified his results because “the term ‘replicate’ has an objective and factual meaning in the world of academic research and scholarship.” Specifically, Lott claims that the “clear and unambiguous meaning” of “replicate” is that “other scholars have analyzed the identical data that Lott analyzed and analyzed it the way Lott did in order to determine whether they can reach the same result.” By claiming that other scholars have tried to “replicate” his research and results, but come to a different conclusion than Lott, Lott claims that the sentence in Freakonomics alleges that “Lott falsified his results.”

The applicable standard, however, is not that of the “world of academic research and scholarship” that Lott describes. Rather, the critical question is how a “reasonable reader” would interpret the phrase. The reasonable reader in this case is the general population, who helped make Freakonomics an “extraordinary successful,” “best-selling book.” In everyday language, replicating “results” does not necessarily mean analyzing identical data in identical ways, and thus it is reasonable to read the sentence at issue as not accusing Lott of falsifying his results. In fact, it is more reasonable to read the sentence as stating that other scholars testing the same hypothesis have done separate research, with possibly different data and statistical analyses, and come to different conclusions, thus disproving Lott’s theory; or simply, that other scholars attempted to arrive at the same conclusions as Lott had, but were unable to do so.

Lott v. Levitt, No. 09 C 2007, slip. op. at 6-7 (N.D. Ill. filed Jan. 11, 2007) (internal citations omitted).

The court referred to Levitt’s e-mail to McCall as “unfortunate and ill-considered” and refused to dismiss Count II.

John Lott has a copy of the decision on his website. Lott’s response: “I think that the market for the book was also aimed at academics. The book is apparently marketed to a large number of economics classes and is read by academics.”

H/T to Tim Lambert