February 11, 2009 5:35 PM

Hogan, Jenner Defend "Freakonomics" Authors in Defamation Case

Posted by Zach Lowe

The Am Law Daily was fascinated by the conclusion in Freakonomics that the huge drop in crime in the 1990s could be attributed to the legalization of abortion in Roe v. Wade. But there's a single paragraph in that discussion in which the book's co-author, Steven Levitt, an economist at the University of Chicago, discusses the possibility that laws allowing people to carry concealed weapons might be responsible, in part, for a drop in violent crime. 

The best-known proponent of that argument is a conservative scholar named John R. Lott, now at the University of Maryland, who wrote the book More Guns Less Crime. In Freakonomics, Levitt (and co-author Stephen Dubner) mention the "troubling allegation that Lott actually invented some of the survey data that supported his more-guns/less-crime theory." Levitt then says he has no idea if those allegations are true, but concludes that, "When other scholars have tried to replicate [Lott's] results, they found that right-to-carry laws simply don't bring down crime."

Lott hired Seyfarth Shaw and sued Levitt and the book's publisher, HarperCollins, for defamation. Levitt and Harper hired a team from Hogan & Hartson and Jenner & Block to fight the case, and they won a dismissal at the district level. Lott appealed to the U.S. Court of Appeals for the Seventh Circuit, which on Tuesday affirmed the lower court's dismissal of the case.

The lead attorney on Levitt's side, Slade Metcalf of Hogan, declined to comment, saying HarperCollins prefers its outside counsel to not speak to the press. David Sanders, the lead Jenner attorney on the case, says his firm has a long relationship with HarperCollins but deferred to comment further to Metcalf. 

Lott's argument is interesting. He focused on the word "replicate," a word that, according to Lott, means something very specific in academic circles--that someone uses the same data and methodology as another scholar. By suggesting other scholars had "replicated" his guns study and found different results, Lott alleged, Levitt was implying that Lott must have fudged the numbers somehow--that he was dishonest.

The three-judge panel disagreed, saying Freakonomics was meant for a general audience that wouldn't have interpreted Levitt's writing that way. "After all," Judge Terence Evans wrote, "Freakonomics didn't become a bestseller just by targeting just academics."

Mark Johnson, the lead Seyfarth attorney, was not immediately available for comment. Lott did not immediately respond to e-mail messages seeking comment.

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