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Sunday, February 13, 2022

SSRN fallout? (Udpated Twice)

Are schools discussing or planning responses to SSRN on the Ann Lipton debacle-stopping their legal studies series (permanently or temporarily), stopping posting new papers (permanently or temporarily), something else?

Leaving comments open for real responses. I will delete unrelated comments.

Update: Several people say that HLR did not withdraw Lipton's publication offer and did receive a C&D letter (resolving a question raised in the comments). I regret the suggestion that faculty could, might, or should impose negative consequences on the review and have deleted that reference from the first paragraph.

Update, Update: Ann updated her post to report that SSRN restored the paper and posted an explanation to Twitter announcing that it had changed its policy of pulling papers while investigating defamation complaints.

Posted by Howard Wasserman on February 13, 2022 at 11:20 AM in Howard Wasserman, Teaching Law | Permalink


The University of Houston is a Texas state university with sovereign immunity. So, no legal liability, except perhaps under the Tort Claims Act, not defamation.

I tested that doctrine myself some time ago, to no avail.

See Hirczy de Mino v. University of Hous., No. 03-03-00311-CV, 2004 WL 2296131, at *7 (Tex. App.-Austin Oct. 14, 2004, pet. denied) (mem. op.)(breach-of-contract claim not actionable except with prior authorization by the Texas Legislature)

Posted by: Wolfgang P. Hirczy de Mino | Feb 14, 2022 6:28:27 PM

“I'd just make sure you get the HLR facts right.”

First and foremost, to “make sure you get the HLR facts right”, those facts you would need to consider, must include the facts from HLR that support their argument that Ann Lipton’s article included “a false statement purporting to be fact”, and that in fact, their publication of said “false statement purporting to be fact”, as if it were fact, would be “fault amounting to at least negligence“ on their part, which is not, in essence, the same thing as refusing to publish a factual article because the facts may serve to undermine an argument they wish to put forward based upon an opinion they hold, devoid of the facts.

“To prove prima facie defamation, a plaintiff must show four things: 1) a false statement purporting to be fact; 2) publication or communication of that statement to a third person; 3) fault amounting to at least negligence; and 4) damages, or some harm caused to the person or entity who is the subject of the statement.”
https://www.law.cornell.edu › wex
Defamation | Wex | US Law | LII / Legal Information Institute

Posted by: N.D. | Feb 14, 2022 10:00:53 AM

It is significant that Tulane's general counsel has backed up Prof. Lipton. Many universities, I fear, would not get involved. I closely followed the case of a sociology professor who got sympathy but no help from his university's legal department. (It wasn't defamation, but he got dragged into litigation about a publication for which he had to retain private counsel.)

Posted by: Steven Lubet | Feb 14, 2022 9:45:08 AM

Is it clear the review received a cease-and-desist letter; the reports I have seen have described a letter to SSRN. Either way, I hope/presume the editors consulted with a faculty advisor, dean, and/or general counsel. If they did that and reached the decision they did, then perhaps the criticism must be directed at UH more broadly, but the Review bears the brunt, righly or wrongly.

Posted by: Howard Wasserman | Feb 14, 2022 8:34:18 AM

I think we should accord the students at the law review some measure of sympathy. Managing a law review is a learning experience, in how to be an editor, in how to manage a staff, in how to deal with controversial, difficult, issues on the fly. Getting a cease-and-desist letter was undoubtedly alarming, and the proper way to deal with it was, probably, to stall for time so that the claims could be evaluated and a strategy of response planned out. Demanding bold, immediate action from them, in the face of a threatened lawsuit that would surely deplete all of their meager resources, seems to me a bit cruel. If you want to criticize anyone, maybe you should criticize the law review's faculty adviser, or the law school's administration. What role did they play in helping the law review students respond to the situation?

Posted by: Jason Yackee | Feb 14, 2022 8:23:41 AM

I'd just make sure you get the HLR facts right. Ann said, "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." That is slightly different than Orly's summary: "What did Houston Law Review do? Told Ann to look for another home for her article." Maybe that does not affect people's views, but to me it seems different.

Posted by: anon | Feb 13, 2022 5:20:50 PM

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