Lott v. Levitt: More litigation to come, less at stake

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in an email to another economist by saying that Lott had bought an issue of the Journal of Law and Economics that was not peer-reviewed and put in only studies supporting him.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.

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13 Responses

  1. Bruce Boyden says:

    Agreed, the legal system doesn’t handle this issue well. But I think that’s because such behavior — pursuing legally valid claims over trivial slights — are handled in part by social norms. Lott is (I’m speculating) wounding himself further by even pursuing this suit, particularly if he wins low or even worse nominal damages.

    As with all such issues, though, some people are just “norm-proof.” Possibly, that has to simply be accepted as a cost of a system of regulating some behavior through informal means.

  2. Matt says:

    “maybe it’s just that Lott thinks that Levitt and others have been disrespectful to him in general”

    But not without good cause, man, not without good cause! (The description of Lott as “norm-proof” also seems right though perhaps a bit too kindly put.

  3. Interestingly, the second allegedly defamatory statement has probably caused more damage having been put into a complaint and then a court order. I, for example, knew nothing about it, and now I do.

    Also, with respect to Lott being entitled to a jury, we aren’t there yet – there’s still a summary judgment hurdle, where Lott isn’t entitled to the benefits of the complaint.

  4. brett says:

    social norms?? Ha! I wish that people (clients and lawyers alike) were ashamed of bringing frivolous claims. But I can tell you with great confidence that frivolous (and “vexatious”) claims are commonly pursued where there are attorney’s fees clauses in place; i.e. Title VII, 1983, etc. Why? For the lawyer, fees. For the client, typically, revenge. Social norms will not stop this behavior. Only fundamental changes to the FRCP and state rules will — the summary judgment standard must be lowered. Even if it takes a constitutional amendment.

  5. Jason says:

    Why would you file a frivolous suit simply because the statute entitles you to attorney’s fees if you win? If it is frivolous, you are not going to win so the statute does you no good.

  6. Carol_Herman says:

    First off, the whole Civil Court “thing” is a hoax.

    Because 97% of the cases are “settled.” And, that’s probably part of Lott’s reasoning. He’d bring suit. NOBODY would ever take this case to jurors. And, perhaps he could get Leavitt to “shell out some dough.” Given that FREAKONOMICS is a SPECTACULAR READ. (I enjoyed reading it very much!)

    But, indeed ALL of the cases, now, that are “civil,” are nothing but warring parties, looking at a court court in a STAND STILL.

    And, LEAVITT is a terrific WRITER! So, I hope this case produces another LEAVITT BOOK! Which would make all of the garbage “worth it.”

  7. Carl Pham says:

    Uh…have we forgotten the value of deterrence? If Lott wins his case, even if he gets damages much smaller than his legal fees, even if the decision rests on highly narrow, technical legalistic grounds, he’s nevertheless going to have put the fear of God into future critics.

    In fact, arguably he’s done so merely by filing suit. He can lose and still folks will think twice about what they say in print about his work, because they know he’s crazed enough to drag them into Court over it.

    He’s apparently decided that benefit is worth the legal cost. It would be a good economics decision for Levitt to analyze in a future edition of Freakanomics, ironically.

  8. Eli Rabett says:

    It occurs to me that given the judge’s opinion Levitt now has to prove that the charges were true, or he had good cause to believe so and THAT exposes Lott AND AEI to some potentially damaging discovery.

    PS. The judge is clueless about the meaning of replication in science. It is much closer to the general meaning he assigned to it for practical reasons.

  9. Why would you file a frivolous suit simply because the statute entitles you to attorney’s fees if you win? If it is frivolous, you are not going to win so the statute does you no good.

    Unless, of course, you do win. Ask Stella Liebeck.

    Or the other side settles because of fear you might win, or just to avoid litigation costs.

  10. PS. The judge is clueless about the meaning of replication in science. It is much closer to the general meaning he assigned to it for practical reasons.

    I wouldn’t assume cluelessness. It’s far more probable that he resolved this disputed factual question in Lott’s favor in order to make the order more bulletproof on appeal – it’s one less issue Lott can gripe about to the 7th Circuit.

  11. After litigating commercial cases for 25 years and mediating them for nearly three, my viewpoint on frivolous claims has radically altered.

    “Thinking like a lawyer” requires us to strip away from the human-relationship-gone-awry all that makes it particular, idiosyncratic, ambiguous, and textured (and yes, corporate relations are and will continue to be human relationships until we invent find robots who can think like CEO’s — at which point the robots are likely to be, well, human).

    Is this a bad thing? No. Because it allows us to have a system of laws rather than of men, to apply rules of law in a more or less color- gender- and status-blind manner. The rule applicable to Mrs. Palsgraf’s case will, in the best of all legal worlds, apply to Mr. Palsgraf, Senor Palsgraf, P-Diddy Palsgraf, etc.

    So what about frivolous claims? It doesn’t take very much mediation practice to realize that frivolous claims are simply personally felt injustices that do not “fit” into one or more of the forms of action that the law recognizes as redressable injustices.

    The solution? Locate the genuinely felt injustice, address it and voila, case settled and (sometimes) human relationships restored.

    For a very brief discussion of this, see


  12. Drew says:

    Frivolous claims: Wouldn’t it be easier to just bring back dueling?

  13. N. Joseph Potts says:

    Well, the subtitle to Lott’s new book, “Freedomnomics,” read like this in the first catalog I saw it in:


    Sounds a bit like an echo to me – possibly a wishful one in view of Freako’s sales (I haven’t bought one). By the time I looked it up (same day) in Amazon, however, the subtitle read:


    Which would you rather read? I’ll just read whichever one I happen to buy.