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Saturday, February 12, 2022

SSRN succumbs to a cease and desist letter

Tulane law professor Ann Lipton wrote an important article called Capital Discrimination, and it was accepted by the Houston Law Review and posted on SSRN.  The article identifies an important problem of gender discrimination against women as business owners, partners, and capital providers, not covered by employment law discrimination, and proposes changes to both statutory law and common law fiduciary duties in order to address this kind of discrimination. The article identifies several business law cases and analyzes them as part of the research. One of them is Shawe v. Elting -- when the article was placed online, an attorney representing Shawe sent a cease and desist letter to SSRN, demanding that the paper be removed from that site as defamatory. What did SSRN do? You guessed it - removed the paper. Wow! Tulane's counsel sent a response letter to SSRN, and you can read with links about this whole saga here. Madness! I teach defamation and this is not something that would fall within an actionable defamation claim. It reminded me of the ironies of having written a book about how litigious Mattel is, and then seeing my publisher be super worried, beyond anything the law would allow, about whether Mattel would send a cease and desist.

The silver lining -- Ann's article is now getting more views and reads than law reviews articles normally get - which is great, because, again, it is an important issue!

 

 

Posted by Orly Lobel on February 12, 2022 at 08:25 PM | Permalink

Comments

thanks Dave - I made an edit to reflect your input. I the post I link to Ann describes the law review telling her they can no longer assure her they will publish the article and that she can choose to resubmit elsewhere. Is this correct? I hope they do publish it - I loved publishing with Houston Law Review!

Posted by: Orly Lobel | Feb 14, 2022 11:43:57 AM

Hi folks,

I'm familiar with this situation and can say with confidence it's not true that Houston L Rev withdrew Ann's offer. Please consider revising this post to reflect that.

DF

Posted by: DF | Feb 14, 2022 10:03:55 AM

Thanks for the good information.

Posted by: ทางเข้าเล่น joker | Feb 14, 2022 2:41:37 AM

One wonders if the counsel who drafted the C&D letter had pondered the requirements of Fed. R. Civ. Proc. 11(b)(2) and/or R. Prof. Cond. 3.1 and 3.4, let alone the Preamble. Or is this just irony that the substance of the described-but-contested conduct is that certain aspects of the court proceedings analyzed as a small part of an article made the client look like an oblivious jerk, complained about by a C&D letter that makes the lawyer look like an oblivious jerk?

Posted by: C.E. Petit | Feb 13, 2022 12:21:22 PM

I am not advocating that lawsuits against academics is appropriate and I certainly deplore the idea that could be. I wonder though, if we will not be seeing other attempts at suing for libel/slander based off of our law review articles. I recently wrote an article on the political conduct of retired generals and armed forces reservists and retirees who had some role in the January 6 assault on Congress. I made sure to place into the article that no reader should conclude that I had proclaimed the guilt of anyone. But I am not even sure that such a disclaimer is enough to shield an author from a cease and desist letter. I cannot address the merits of Professor Lipton's work (I assume that it is a cutting edge argument that is backed by data and logic). Yet, these things have a tendency to catch on

Posted by: Anonymous | Feb 13, 2022 11:31:33 AM

Its good that Tulane's counsel sent a response letter to SSRN, but what about the publication? Did he send another one to Houston Law Review? If not, will Ann resubmit in the next cycle? These cycles are already stressful enough that having to go through them twice because someone got offended and turned litigious seems like a really cruel and unnecessary punishment.

Posted by: ButWhatAboutThePublication | Feb 13, 2022 8:02:35 AM

Interesting one.

Not to forget, in the American jurisprudence, private entity is not bound by the first amendment. Private entity may be bound, only if it is functioning or discharging traditional state duty.

So, to my best knowledge or understanding SSRN, surly don't fulfil or carry out, and traditional state functioning.

Hereby a ruling for example in the Northern district of California(Prager university v. Google LLC):

https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2688&context=historical

Thanks

Posted by: El roam | Feb 13, 2022 5:34:03 AM

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