SSRN Removes Paper By Ann Lipton (Tulane) Due To Defamation Claim; Law Review May Rescind Publication Offer

Jonathan Adler (Case Western), SSRN Removes Academic Paper Due to Defamation Claim:

Professor Ann Lipton, a noted corporate law scholar at Tulane, has a new paper, "Capital Discrimination", discussing gender discrimination in business disputes. When she completed her draft she posted the article on SSRN and submitted it law reviews, as one does, and received an offer of publication from the Houston Law Review. Then the paper attracted some unfavorable attention.

In December, attorneys for Philip R. Shawe sent a cease-and-desist letter to SSRN, demanding that the paper be removed, alleging that the paper's characterization of and commentary on Shawe's conduct in a nasty business dispute were defamatory.

Ann Lipton (Tulane), An Update on My Paper, Capital Discrimination:

On New Year’s Day, SSRN removed the paper in response to Shawe’s letter.  After that, Houston Law Review could no longer assure me that the article would run in its journal, and stated that they would not preclude me from submitting the paper for publication elsewhere. 

Tulane’s counsel has sent a response letter to SSRN in hopes of having the paper restored but for now, to ensure that the paper is not kept out of sight indefinitely, I have made a copy available at this link.  This draft of the paper includes a reference to Mr. Shawe’s defamation claims.

Scott H. Greenfield (Simple Justice), When SSRN Caved:

Ironically, neither this article nor Shawe’s escapades would likely be of much concern to anyone outside of a small circle of friends but for this effort to memory hole it, and SSRN’s  and Houston Law Review’s capitulation to the demand. Now that Russo forced the issue by trying to conceal Shawe’s conduct, and SSRN’s whimpering resounded across the legal academy, the issue is no longer about whether business associations between men and women should be reimagined through the lens of sex discrimination. Now, the Streisand Effect (hi, Mike Masnick!) kicks in and a lot of people will learn about how Shawe engaged in some very embarrassing conduct and how SSRN can’t be trusted not to run scared at the first mention of a threat.

And not for nothing, but even if Russo’s threat, and Shawe’s humiliation, had any meat to it, it’s not as if SSRN wasn’t protected by Section 230 of the Communications Decency Act anyway as merely the repository of the article. Was there no one at SSRN who either knew the law or had the guts to respond to Russo, “bite me”? As for the Houston Law Review, it’s put out by the “smart” kids at a law school so expectations of wisdom and courage are significantly lower.

Tulane prawf Ann Lipton wrote a law review article. Like it or not, post it on SSRN and in the Houston Law Review. Show some free speech fortitude, scholars.

• Kim Krawiec (Virginia), Read Ann Lipton’s Canceled Paper
• Orly Lobel (San Diego), SSRN and Houston Law Review Succumb to a Cease and Desist Letter
• Howard Wasserman (Florida International), SSRN Fallout?