Preprint on discrimination against women reinstated by Elsevier server after removal for legal threats

Ann Lipton

A leading repository of social science which is owned by Elsevier has reposted an article it removed on New Year’s Day after the author was accused of defamation and the site was threatened with legal action if it didn’t remove the paper. 

The article in question was written by Ann Lipton, the associate dean for faculty research at Tulane University Law School and appeared on the Social Science Research Network (SSRN). 

Titled “Capital Discrimination,” the paper – which has been accepted by the Houston Law Review – explores:

how courts address – or fail to address – the problem of discrimination against women as owners and investors.

The article examines four cases, one of which was the acrimonious dispute between Philip Shawe and Liz Elting, who co-founded a company called TransPerfect, became affianced, became un-engaged but still worked together, then finally severed ties. 

Elting and Shawe sued each other in 2014, a case that resolved with Elting receiving $287 million for her half-share of the business. (Lipton’s article includes several bizarre details about Shawe’s behavior, which we won’t reprint here but you can read for yourself.)

As The Volokh Conspiracy reported in Reason Saturday

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.

But Lipton told us the paper popped back up on Monday: 

This morning the paper was restored while I was in class; after an hour or so (I’m not really sure, because I was in class when it went back up), I received an email that was signed by “SSRN Management,” and said: “Dear Ann Lipton, We appreciate your patience. After Legal review, your paper has been restored.”

I can’t really comment beyond what I’ve said publicly, however, because there remains the potential for litigation.

SSRN tweeted about the controversy, claiming that although it “has always had the policy of taking down any paper related to a defamation or other legal claim while the claim was being investigated” it would be “amending” its approach in future cases. 

It’s impossible to know how frequent legal threats are in scholarly publishing, but they are clearly more common than the handful that end up becoming public – like the lawsuit against an anesthesiology journal that was dismissed last week. And Elsevier has taken a more, well, permanently conciliatory approach at least once, apologizing and paying the legal fees of a researcher who upset at them for retracting his paper

Also worth noting: At least until somewhat recently, SSRN’s policy was to make withdrawn articles disappear without a trace or a retraction notice.

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