Two years ago this week, John R. Lott Jr. filed a defamation suit against his fellow economist Steven D. Levitt and the publisher HarperCollins, charging that Mr. Levitt had defamed him in his bestselling Freakonomics: A Rogue Economist Explores the Hidden Side of Everything and in an e-mail message to a colleague. (Both in the book and in the e-mail message, Mr. Levitt had unkind things to say about Mr. Lott’s research on the relationship between gun laws and crime rates.)
The lawsuit has followed a long and winding path. In January 2007, a federal judge tossed out the Freakonomics-related claim, but allowed the e-mail-related claim to proceed toward trial. In July 2007, the two parties reached a settlement on the e-mail-related claim — but the same week, Mr. Lott filed two motions that attempted to resuscitate the Freakonomics count.
The district court rejected those two efforts and dismissed the case. (At a hearing last summer, the judge said, “This is the most inappropriate motion to reconsider I’ve seen in my 13 years on the bench.”)
But Mr. Lott has appealed to the U.S. Court of Appeals for the Seventh Circuit, and the two parties have traded arguments this month. Mr. Lott’s most recent brief can be found here. Mr. Levitt’s reply, which was filed earlier this week, is here.
Mr. Lott has added a claim of libel per quod — meaning that the Freakonomics passage is not necessarily defamatory on its face, but that it contains innuendo that has damaged Mr. Lott’s reputation among his professional peers. In order to sustain such a claim, Mr. Lott must demonstrate that he has suffered financial losses.
The appeal leans heavily on the argument that the district court ought to have applied the substantive libel law of the state of Virginia (where Mr. Lott lives) rather than the state of Illinois (where the case was filed). In a brief filed at an early stage of the case, Mr. Lott’s lawyers appeared to agree that Illinois law should be applied, but he has subsequently hired a new legal team.
The new briefs are loaded with technical arguments about “choice of law” doctrine and the Virginia-Illinois question, but they also contain their share of pungent language. Describing the settled claim over the e-mail message, Mr. Lott’s brief refers to a “pack of lies that Mr. Levitt made up to cover his tracks.”
Mr. Levitt’s brief, for its part, makes many cutting remarks about the apparent contradictions between Mr. Lott’s early legal arguments and his more recent ones. “Lott essentially alleges that he was snookered on choice of law,” the brief reads. Having lost under the terms of Illinois law, Mr. Lott is not entitled to a “mulligan” under the terms of Virginia law, the brief asserts. —David Glenn
