Lott v. Levitt: More litigation to come, less at stake
posted by Michael Abramowicz
One of economist John Lott’s two claims against Freakonomics author Steven Levitt has survived a motion to dismiss. (Hat Tip to Deltoid and Marginal Revolution.) The decision, posted on John Lott’s website, is here.
This is a good example of why it’s sometimes useful to seek out claims for which the potential damages are almost certainly low, but that provide a better chance of getting to a jury. Lott’s real beef may have been Levitt’s statement in the widely read Freakonomics that other scholars were unable to “replicate” Lott’s results. (Or maybe it’s just that Lott thinks that Levitt and others have been disrespectful to him in general.) Given the common scholarly definition of “replicate,” it is perhaps understandable that Lott took offense. The court, however, cogently dismisses the claim under an “innocent construction” rule, noting that general readers might interpret the Freakonomics statement to indicate merely that other scholars arrived at a different conclusion about the relationship between guns and crime. Surviving is Lott’s complaint that Levitt defamed him in an email to another economist by saying that Lott had bought an issue of the Journal of Law and Economics that was not peer-reviewed and put in only studies supporting him. That statement couldn’t be seen as innocent. But it’s hard to see how damages could be very high from a communication to just one person.
The case is of a type that our legal system does not handle well. It is not technically frivolous; Lott even had plausible arguments that he should be entitled to a jury on the Freakonomics claim. But it seems to be a vexatious use of the legal system, because the cost of bringing the claim seems much larger than any plausible reputational damage to Lott. Anyone would be annoyed to be badmouthed in similar ways, but annoyance is no big deal. And given the vast criticism that Lott has received (much of it unfair, in my view, especially about his work outside the gun context), this additional criticism wouldn’t amount to anything at all. (Admittedly, had the criticism been an accusation of adultery, it would have been sufficiently different in kind to provide potentially significant damages. Note to lawyers: I am not accusing Lott of adultery.) But it’s not easy for the legal system to develop mechanisms that avoid trial on the ground that damages will be relatively small.
Ideally, our legal system would scale better than it does, ensuring that only small amounts are spent litigating claims where not much is at stake. There are many reasons, however, that keeping litigation spending at reasonable levels considering the stakes is a difficult problem. More on some possible answers to that problem some other time.