July 27, 2007

Unusual Agreement Means Settlement May Be Near in 'Lott v. Levitt'

John R. Lott Jr.’s defamation lawsuit against his fellow economist Steven D. Levitt has provisionally been settled — but it may yet roar back to life.

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 (who, contrary to what was reported in an earlier version of this blog item, is not the same John McCall who once taught Mr. Lott at the University of California at Los Angeles). In that message, Mr. Levitt criticized Mr. Lott’s work as guest editor of a special 2001 issue of The Journal of Law and Economics that stemmed from a conference on gun issues held in 1999.

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. Mr. Lott filed such an appeal today. If that appeal is successful, the two scholars’ lawyers will have plenty of additional chances to meet in court.

Mr. Lott’s lawsuit, which grew from a series of fierce arguments between the two scholars over studies of abortion and gun policies, was filed in April 2006. The lawsuit originally contained two counts: First, Mr. Lott asserted that Mr. Levitt had defamed him in a passage in Freakonomics that discusses Mr. Lott’s gun research. Second, Mr. Lott said that Mr. Levitt had defamed him in the e-mail message to Mr. McCall.

In January a federal judge dismissed the Freakonomics-related count. 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).

That is a plausible argument, according to James R. Pielemeier, a professor of law at Hamline University who has written about “choice of law” in interstate defamation cases. “I think they’re probably correct that under Illinois conflicts law, the law of the plaintiff’s domicile governs on this issue,” Mr. Pielemeier wrote in an e-mail message today to The Chronicle.

Mr. Pielemeier added, however, that it might be too late for Mr. Lott to plow that field. “I think it’s possible that they waived the choice-of-law argument,” he wrote, “for failure to give reasonable notice of their contention that Virginia law applies.” The court’s January dismissal, Mr. Pielemeier pointed out, stipulated that “the parties do not dispute that Illinois law applies here.”

The settlement will take effect when Mr. Lott files a signed copy with the court, which he has promised to do within five days after he and Mr. McCall receive a signed copy of Mr. Levitt’s letter of clarification.

Reached by telephone today, Mr. McCall declined to say whether he had received Mr. Levitt’s letter. Mr. Levitt declined to comment today, as did Mr. Lott’s lawyers. —David Glenn

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