Empirical Legal Studies

Lott v. Levitt: Shermer in Scientific American

Michael Shermer comments on the case in the September issue of Scientific American. His conclusion: "Mr. Lott, tear down this legal wall and let us return to doing science without lawyers. Replicating results means testing hypotheses--not merely duplicating methodologies--and this central tenet of science can only flourish in an atmosphere of open peer review."

(via Tim Lambert)

Lott v. Levitt: Coverage in Chicago Magazine

James Meriner has an article on the relationship between Lott and Levitt in the August issue of Chicago Magazine.

Via Tim Lambert

Lott v. Levitt: Reply Filed

The defendants filed their reply memorandum today. A passage relevant to the blogosphere's discussion of the case:

While scholars and academics may certainly have read Freakonomics, the Excerpt appears in the context of a book whose audience consists of mainstream readers and consumers, as demonstrated by the fact that Freakonomics has been on the New York Times bestseller list for over a year. Therefore, while Plaintiff goes on at length to explain [the Excerpt's meaning] in the eyes of an academic  ... a reasonable reader in the general population would not necessarily attribute Plaintiff's academic-specific meaning to the term "replicate."

(Reply Memorandum at 5-6.) The defendants did not really fight over the academic meaning of replication, either here or in the earlier filings. That battle was confined to the blogs.

Now, it's the court's turn.

Lott v. Levitt: Replication Revisited

Last week, Lott filed his opposition to Levitt’s and HarperCollins’ motions to dismiss and explained his argument about the meaning of replication. Recall that Lott claims as follows: “‘replicate’ has an objective and factual meaning in the world of academic research and scholarship.... the clear and unambiguous meaning 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.” (Complaint ¶ 12.) The key point here is that replication means only one thing, using the identical data and analyzing it in the same way as the original analysis. It’s replication in the sense of verifying the original results. It does not involve a new sample. It does not involve a new model.

Although Lott could have made a strong case for the application of Virginia law if he is domiciled there, he agrees with the defendants that Illinois law applies. (Lott’s Opposition at 7 n.5.) Presumably, the court will be happy to skip the choice of law issue if the parties aren’t fighting over it. Under Illinois law, there are two types of defamation, defamation per se and defamation per quod. Thomas v. Fuerst, 345 Ill. App. 3d 929, 934 (Ill. App. Ct. 2004). For a statement to be defamatory per se, it must be “so obviously and materially harmful” to the victim’s reputation that injury can be presumed. Id. See Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 10 (Ill. 1992). Additionally, it must fall into at least one of five specific categories of statements, one of which is “words that prejudice a party, or impute lack of ability, in his or her trade, profession or business.” Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 88 (Ill. 1996). A statement not falling into the limited category of defamation per se may still constitute defamation per quod. Id. at 102-04. Defamation per quod includes a statement that is not in one of the five categories but is still defamatory on its face or a statement that is defamatory after considering additional facts extrinsic to the statement itself. Id. at 103. A claim of defamation per quod requires the plaintiff to plead special damages. Id.

Lott v. Levitt: Lott's Response Filed

John Lott has posted his response to the motions to dismiss filed by Levitt and HarperCollins. The response was filed yesterday. It can be found in pdf form on Lott's website.

Tim Lambert appears to have the first (though brief) take on Lott's arguments. Or maybe it was Ted Frank at Overlawyered. Frank's reaction: "Lott seems to have the better of this exchange as a matter of positive (if not normative) law because of the liberal pleading rules that make it nearly impossible to dismiss a case on the pleadings."

Lott v. Levitt: Quick Update III

I went to Vancouver last week for the AALS workshop on intellectual property and fell behind on the latest developments in the dispute between Lott and Levitt. Nothing has happened in court since my last update -- I just checked the docket report on Pacer -- but here is the news from outside of court:

1. Last Monday, the Los Angeles Times published a response by John Lott to Jon Weiner’s op-ed piece. As far as I know, this letter contains Lott’s first public comment on the lawsuit.

2. The next day, James Lindgren (Northwestern) weighed in on the lawsuit on the Volokh Conspiracy. Unlike Lott’s complaint, Lindgren focuses on the context of the allegedly defamatory statement in Freakonomics, emphasizing that it is made right after raising questions about another one of Lott’s studies, a 1997 telephone survey. The question about the telephone survey is whether Lott actually conducted it. The statement about the failure to replicate Lott’s results involves a different study, and no one doubts that Lott conducted this one. Lindgren worries, however, that the juxtaposition of the comments about the two studies is misleading, perhaps suggesting that Lott did not conduct either one of them. But he still predicts the lawsuit will be unsuccessful.

3. Tim Lambert responded to Lindgren’s comments here. Lambert also discusses Lott’s evidence that he conducted the 1997 telephone survey.

Lott v. Levitt: Quick Update II

On Wednesday, June 7th, Levitt and HarperCollins filed their memoranda of law in support of the motions to dismiss filed on June 2nd. HarperCollins’ memorandum deals with Count One, which is based on the passage in Freakonomics. Levitt’s memorandum adopts HarperCollins’ argument regarding Count One and then moves on to address in detail Count Two, which is based on the allegedly defamatory e-mail.

Lott’s response is due by Monday, July 10th. Levitt’s and HarperCollins’ replies are then due by Monday, July 24th. 

Lott v. Levitt - Motions to Dismiss Filed

Yesterday, Levitt and HarperCollins both filed motions to dismiss. The only significant difference between the two motions is that Levitt’s must deal not only with the statement in Freakonomics, but also with the statement in the e-mail to John McCall about Lott’s arrangement with The Journal of Law & Economics. Levitt’s motion to dismiss can be found here.

The arguments for dismissing both counts are essentially the same, that the statements in the book and the e-mail are non-actionable statements of opinion protected by the First Amendment and that neither statement is capable of a defamatory per se meaning under Illinois or Virginia law.

The topic of primary interest around here, the meaning of replication in academic research, is not discussed in the motions to dismiss. However, its meaning is mentioned as a major factual issue in the Joint Initial Status Report filed yesterday, though the defendants dispute the legal materiality of the word’s meaning. The motions do say that the statement in Freakonomics “is capable of a reasonable, non-defamatory per se construction under Illinois law,” which would seem to make the meaning of replication material, but I will leave such things to the defamation experts.

Wiener on Lott v. Levitt

Today's issue of the L.A. Times includes an op-ed piece on Lott v. Levitt by Professor Jon Wiener of U.C. Irvine's history department. (Credit to Deltoid and Kevin Drum for earlier postings.)

Lott v. Levitt: A Quick Update

HarperCollins and Steven Levitt were served on May 2, 2006 and May 5, 2006, respectively. HarperCollins’ response was originally due today; Levitt’s response was originally due this Thursday. However, the court granted the defendants’ motion for an extension to Monday, June 5th, and neither defendant filed a response today.