Evans and Sykes asked all the questions. Ripple remained silent. I have only glanced at the briefs, but based on the questions and comments during the oral argument, Lott’s chances do not look very good. … An mp3 of the oral argument is now available here.
I listened to the mp3, and I was rather struck by an “up is down” argument offered by Jeffrey Parker, who was arguing for Lott.
Here’s the relevant bit of the district court’s ruling:
By claiming that other scholars have tried to “replicate” his research and results, but come to different conclusions than Lott, Lott claims that the sentence in Freakonomics alleges that “Lott falsified his results.” … In everyday language, replicating “results” does not necessarily mean analyzing data in identical ways, and thus it is reasonable to read the sentence at issue as not accusing Lott of falsifying his results. In fact, it is more reasonable to read the sentence at issue as stating that other scholars testing the same hypothesis have done separate research, with possibly different data and statistical analyses, and come to different conclusions, thus disproving Lott’s theory
And Parker’s argument:
the district court’s construction of the challenged passage here was not even a construction, much less a reasonable one or an innocent one. The reason is that the district court took a construction of this passage that essentially said the words “tried to replicate” could be construed to mean “tried to differ”. And it seems to me that whatever you define as “replicate”, it can’t mean “differ”. Those are opposite concepts — they’re not the same. So it’s not even a construction.
At the risk of pointing out the obvious, the district court took “replicate” to mean “not differ”. Jeffrey Parker is a professor at George Mason School of Law.