- “Texas Judge Orders 178 Anonymous ‘John Does’ Who Posted on Topix Be Revealed” [Citizen Media Law]
- $4 billion lawsuit over racially insensitive Miley Cyrus eye gestures [Michelle Malkin, TMZ.com]
- Update: “Tulsa World drops lawsuit after writer apologizes” [Romenesko/Tulsa World, earlier]
- Also update: “Seventh Circuit Affirms Dismissal of John Lott’s Libel Lawsuit Against Steven Levitt” [Volokh, earlier]
- “M-I-C — Cease and desist! K-E-Y — Why? Because we caught you! M-O-U-S-E” [Ron Coleman]
- California: “Another Step Toward Shielding Good Samaritans From Civil Damages” [Calif. Civil Justice Blog, more]
- Montana lawmakers consider bill saying hazardous recreation goes on at your own risk [PoL]
- Senior writer at Wired decides to go work for Wal-Mart, what he found departed from the Barbara Ehrenreich formula [BoingBoing]
As we discussed in Part IX, one of John Lott’s two claims was settled, when Steven Levitt apologized for e-mails he sent another economist. It’s questionable how much satisfaction Lott can get from this, since, as an economist, he surely realizes that, without a loser-pays rule or agreement, there is a pooling equilibrium whereby both the sincerely-apologizing Levitt and the insincerely-apologizing Levitt would take the same course of action to avoid spending tens of thousands of dollars defending a de minimis allegation of libel, regardless of the merits of the claim.
The more significant, if less meritorious, claim of libel in Freakonomics is on appeal; Lott is now claiming that the case should have been decided under the allegedly more friendly Virginia libel law than the Illinois law under which his claim fails, but that is generally an argument for (at best) a claim of legal malpractice, rather than for a do-over for an expressly waived argument in federal court. Lott has posted the briefs; David Glenn blogs about the 2-year mark in the case. Not that I think Lott has a valid legal malpractice claim, either, unless his attorneys told him he had a good shot at winning more than he would spend in legal fees.
Lott does interesting economic research, and it is unfortunate he is tarring his reputation with a lawsuit that has the potential to impinge upon academic freedom.
- Can’t possibly be true: Tampa man sentenced to 25 years for possession of pills for which he had a legal prescription [Balko, Hit and Run]
- Plaintiff’s lawyers “viewed [Sen. Fred Thompson] as someone we could work with” and gave to his campaigns, but they can’t be pleased by his kind words for Texas malpractice-suit curbs [Washington Post, Lattman; disclaimer]
- Pace U. student arrested on hate crime charges after desecrating Koran stolen from college [Newsday; Volokh, more; Hitchens]
- Little-used Rhode Island law allows married person to act as spouse’s attorney, which certainly has brought complications to the divorce of Daniel and Denise Chaput from Pawtucket [Providence Journal]
- Lott v. Levitt defamation suit kinda-sorta settles, it looks like [Adler @ Volokh]
- Trial lawyer Mikal Watts not bowling ’em over yet in expected challenge to Texas Sen. Cornyn [Rothenberg, Roll Call, sub-only via Lopez @ NRO]
- Frankly collusive: after Minnesota car crash, parents arrange to have their injured son sue them for negligence [OnPoint News]
- Canadian bar hot and bothered over Maclean’s cover story slamming profession’s ethics [Macleans blog]
- Five Democratic candidates (Clinton, Obama, Edwards, Biden, Richardson) auditioned at the trial lawyers’ convention earlier this month in Chicago [NYSun]
- Donald Boudreaux’s theory as to why Prohibition ended when it did [Pittsburgh Trib-Rev via Murray @ NRO]
- Speaker of Alaska house discusses recent strengthening of that state’s longstanding loser-pays law [new at Point of Law]
- Life in prison for adulterers, under Michigan law? [Freep]
- An Albany personal injury lawyer favors abolishing pain and suffering damages in negligence cases [Warren Redlich]
- Lott v. Levitt (Jan. 12, etc.) further discussed [Concurring Opinions]
- Call us kitten fish, cont’d: some trial lawyers re-brand as “civil justice attorneys” [Fulton County Daily Report]
- Smokers’ freedom defended, by Nobelist James Watson and Canadian columnist Jose Rodriguez [Reason, Calgary Sun]
- Dinesh D’Souza’s new book doesn’t sound like it’s going to do any favors for his reputation. [Slate, Eric Scheie]
- Also from Tim Noah: now that O.J.’s confessed, can the law really not lay a glove on him?[Slate]
The major claim of libel from the use of “replicates” in Freakonomics was thrown out because it could reasonably be constructed to have an innocent meaning; a smaller claim regarding Levitt’s accusations in an e-mail to a single person in response to a solicited query remain. John Lott’s link to the decision suggests a world where he isn’t going to give up even on the first claim, but that decision is soundly based on the recent precedent in Knafel v. Chicago Sun-Times, 413 F.3d 637 (7th Cir. 2005), a case of relevance to Overlawyered. In Knafel, columnist Richard Roeper criticized a woman suing Michael Jordan over an affair that they had:
In other words, you had sex with a famous, wealthy man, and you claim he promised to pay you $5 million to keep quiet about it, and now you want your money.
Knafel was once an aspiring singer. She’s now reportedly a hair designer. But, based on the money she’s been paid already and the additional funds she’s seeking in exchange for her affair with Jordan, she’s making herself sound like someone who once worked in a profession that’s a lot older than singing or hair designing.
Knafel sued over the column; the court noted that “Roeper almost certainly refers to prostitution when he talks about an ‘older’ profession,” but held that the possibility of an innocent construction permitted a motion to dismiss. (See also Media Law Prof blog from 2005.) And that passage was significantly less ambiguous than that in Lott’s case.
Since our initial coverage, William Ford and Tim Lambert have been following this case so closely that I’ve been focusing on other issues where I have more of a comparative advantage rather than doing posts that would end up being similar to theirs. It’s unlikely that I’m going to have anything new to say about the case that you haven’t seen in earlier posts, so, barring major developments, from hereon out I defer to their coverage; John Lott’s blog also has occasional coverage of the case, as does Levitt’s. One last roundup of links:
- Michael Shermer writes in Scientific American, channeling Ronald Reagan, “Mr. Lott, tear down this legal wall and let us return to doing science without lawyers.”
- Ford has given the case its own category on his blog, and has posts linking to Lott’s reply brief and a Chicago magazine profile of the case. In the latter article, GMU Law dean Daniel Polsby has a very perceptive comment on Lott that corresponds to my personal experience: “[Lott is] a man of almost unparalleled personal intensity… He is one of the most energetic, gifted econometricians of his generation, if not in history. But he seems incapable of distinguishing between large disagreements and small disagreements.”
Lott filed his response to the motion to dismiss Monday. 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. That has little predictive value for what happens afterwards. (Note, however, the Northern District of Illinois’ Local Rules’ 15-page limit, which make it nearly impossible to file a motion for summary judgment without the permission of the court.)
Steven Levitt and his publisher Harper Collins filed straightforward motions to dismiss Count 1 and Count 2 of Lott’s complaint, pdf files of which are available on Overlawyered. (Please don’t deep-link.) Elsewhere, Jon Weiner and John Lott battle in the LA Times op-ed pages.
Update: Jim Lindgren analyzes the case.
David Glenn, in the Chronicle of Higher Education, has the definitive MSM reporting on the affair. (Permanent link here after Apr. 24.) He finds a mixture of scholars who agree and disagree with Lott on the “replicate” question. And, most notably, he does the first incisive investigation into the “peer-refereed” claim in the second count of the complaint—and makes it seem that Lott might not win that dollar after all. To top it all of it, he’s found a prescient quote from the now-late Otis Dudley Duncan:
“There is no excuse,” he wrote, “for continuing the practice of labeling critics or defenders of Lott’s work with offensive epithets and imputing motives to them. This kind of rhetoric simply obscures or distorts the plain evidence of the public record. Maybe it would help if all parties would imagine themselves in a court, serving as witnesses or attorneys. They would quickly be called down for any ad hominem remarks.”