As a professor and associate dean for faculty research at Tulane Law School, Ann Lipton brought some legit bona fides to her scholarship. Like all prawfs, her law review article, Capital Discrimination, was posted to SSRN, short for social science research network, and accepted for publication in the Houston Law Review. The article presented an interesting spin on business disputes when one party was male and the other female.
The law of business associations does not recognize gender. The rights and responsibilities imposed by states on business owners, directors, and officers do not vary based on whether the actors are male or female, and there is no explicit recognition of the influence of gender in the doctrine.
It’s unclear to me that this thesis would have seen the light of day at any other cultural time. Business associations involve all manner of connections, one of which is male and female. But the relevance of gender is a dubious proposition, and the relationship is guided by the same rights and responsibilities as any other business relationship. But it’s the age of #MeToo and so anything involving men and women has the potential to be spun into sex discrimination, as if women aren’t capable of entering into business with men as equals. But I digress.
Then came the letter.
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. SSRN responded by pulling the paper and, as Professor Lipton recounts, the Houston Law Review informed her that it could not assure her that it would publish the article.
The cease and desist letter from Martin Russo was generally banal, but for its characterization of the defamation. The claim wasn’t that any facts about Shawe were false, notably because they were taken from the finding of the Delaware Chancery Court. Rather, the argument was that they disputed the conclusions reached from the facts because they made Shawe look like crap, concluding that his conduct was a reflection of sex discrimination as opposed to myriad other conclusions, none of which would make Shawe look any less like crap.
That Shawe didn’t want his conduct put on display in Lipton’s article is understandable, as no one wants their worst conduct memorialized in perpetuity in a law review. But that’s not what makes for defamation, even if the conclusions may be a bit pop culturish in nature. Whether Shawe was sexist was a matter of opinion. What he did was a matter of court findings.
But SSRN, upon receiving the letter did what any fine, upstanding, repository of scholarship would do. It pulled Lipton’s article and caved like a whimpering coward. Not exactly what one would want or expect from SSRN. If a mere C&D letter caused them to run and hide in fear, would any controversial scholarship be safe?
And then there’s the Houston Law Review, committed to publication until it wasn’t.
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.
Regardless of whether this article was the most brilliant ever or an attempt to manufacture sex discrimination out of ordinary business disputes merely because they involved a man and woman, if SSRN doesn’t have the fortitude to stand up for scholarship against nothing more than a pretty damn specious lawyer letter, no scholarship is safe from attack.
To its credit, Tulane’s lawyers took up the cause and sent a letter to SSRN.
Tulane University is supporting Professor Lipton, and its lawyers have sent their own letter to SSRN seeking that the paper be reposted. As the letter notes, sources for all of the relevant factual claims are cited, largely to the relevant legal proceedings, and Professor Lipton’s opinions about those facts and their significance constitute constitutionally protected expressions of opinion.
The Tulane letter oddly ends “we have confidence in SSRN’s commitment to the public display and distribution of scholarly research,” since nothing about pulling the article upon the first threat of action suggests anything to be confident about. The letter doesn’t quite ask for, no less demand, anything of SSRN. It may intend to seek reposting of the letter, but it never actually says so.
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.
Update 9/22/2022: The paper has been restored to SSRN and the Houston Law Review has committed to publishing the paper. Prof. Lipton appears satisfied that all is right again. H/T Tom Kirkendall for letting me know.