Lipton: Capital Discrimination - was SSRN bullied?

Ann Lipton, an Associate Dean at Tulane Law School, has written a very interesting article which she posted pre-publication by Houston Law Review.  But SSRN - the Elsevier owned platform which exists for such purposes - removed her article and Houston withdrew its publication commitment - when lawyers for a target of the article's criticism threatened suit in a cease and desist letter.

Tulane's lawyers responded - in a letter that IMO is a concise and correct statement of the law of defamation.  The cease and desist letter does not demonstrate such competence. I'm disturbed that Elsevier caved.

But more importantly the article addresses an interesting issue: our anti-discrimination laws don't adequately address the issue of arbitrary discrimination by those whose power is due to capital, not an employer-employee relationship. 

Lipton:  Capital Discrimination - was SSRN bullied?

By Ann Lipton

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Previously, I announced that my paper, Capital Discrimination, would be forthcoming in the Houston Law Review, and had just been posted publicly to SSRN.  As I explained in that post, the paper explores the problem of gender discrimination against women as business owners and capital providers, and proposes changes to both statutory law and common law fiduciary duties in order to address gender-based oppression in business.

The paper itself describes several business law cases from different jurisdictions, including Shawe v. Elting, a matter very familiar to business lawyers, and which involved an acrimonious dispute in the Delaware courts.  Just before Christmas, an attorney representing Philip Shawe sent this cease and desist letter to SSRN, demanding that the paper be removed from that site as defamatory. 

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.