SSRN Restores Academic Publication Despite Threat of Defamation Claim

Professor Lipton's article, "Capital Discrimination" is back up on SSRN, despite the efforts of Philip Shawe's attorneys.

Last week, I reported on SSRN's decision to remove a draft paper by Professor Ann Lipton, "Capital Discrimination," after receiving a cease-and-desist letter from attorneys representing Philip R. Shawe, who alleged the article defames him by recounting his role in a high profile business dispute.

Good news! As Professor Lipton noted yesterday on Twitter, SSRN has now restored the article. Even better, SSRN announced that  is reviewing its internal practices on how to respond to threats of defamation suits and other actions designed to deplatform or cancel academic manuscripts.

The Houston Law Review, which had previously accepted the article for publication, issued its own statement, clarifying that it had not withdrawn its offer of publication, and that it is working through the traditional cite-checking and substantiation process that is typically part of legal academic publishing.

Meanwhile, as a consequence of his lawyers' actions, many more people are familiar with Philip R. Shawe and his alleged behavior. The Streisand Effect in action!

 

Comments

[David Nieporent]

Meanwhile, as a consequence of his lawyers' actions, many more people are familiar with Philip R. Shawe and his alleged behavior. The Streisand Effect in action!

Yep. I pulled him up on Westlaw and read about his shenanigans. Based on the court decisions against him — opinion based on disclosed facts! — he sounds like a terrible person.

[Stephen Lathrop]

Nieporent, for those of us who do not have Westlaw, what shenanigans did you find?

[Noscitur a sociis]

The article itself gives a pretty good introduction.

[Life of Brian]

There's a good sampling in the published opinions available here.

One excerpt, from Shawe v. Elting:

Philip Shawe appeals an order of the Court of Chancery sanctioning him for misconduct throughout litigation with his current business partner and former romantic partner, Elizabeth Elting. After an evidentiary hearing, the Court of Chancery found that Shawe deleted documents from his computer, recklessly failed to safeguard his cell phone, improperly gained access to Elting's e-mails, and lied multiple times under oath. The court also found that Shawe's improper conduct impeded the administration of justice, unduly complicated the proceedings, and caused the court to make false factual findings.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Slight correction:

I pulled Philip R. Shawe up on Westlaw and read about Philip R. Shawe's shenanigans. Based on the court decisions against Philip R. Shawe — opinion based on disclosed facts! — Philip R. Shawe sounds like a terrible person.

[taqmcg]

Unless there is a very unusual fallout from this event, I suspect that the Houston law review is undertaking '[traditional] cite-checking and ...'

[loki13]

Here's a good place to start-

https://www.sidley.com/-/media/publications/attempted-spoliation-translates-into-feeshifting.pdf

[David Nieporent]

First, he tried to argue that because his spoliation attempts failed — there were backup copies of the things he deleted on his hard drive — that it shouldn't count as spoliation. The judge — various judges, actually — were not amused by this "Do they give Nobel Prizes for Attempted Chemistry?" argument.

And the "destroyed his iphone" part was particularly something. According to the courts, he claimed the following: that his niece (conveniently) accidentally dropped his phone into a cup of soda during the course of the litigation. And what did he do when that happened? Did he hand the phone off to someone at the forensic technology company he owned,¹ to try to recover the data? Nope. He handed it to an assistant, based on the fact that this assistant had once dropped his own phone into some water and had gotten his own phone to work again. The assistant couldn't get Shawe's iphone to work, so he… did nothing; he just shoved it in a drawer. And then several months later, the assistant happened to look in the drawer, saw rat droppings in the drawer, and, horrified, dumped out all the contents into the trash, including the iphone. And then neither the assistant nor Shawe mentioned this for like another year.

¹That's the company he used to surreptitiously copy his partner's hard drive.

[Krayt]

Phone guts are encased in goop or otherwise well sealed, to stop millions of people from getting furious online when they actually run their phone through the washer every year, leaving the company with the option of replacment for stupid people, or bad megapress. So why bother with either?

Anyone thinking to lie about this (generic anyone) should keep this in mind before they complain about dropping it in a cup.

It survives the washing machine. And dryer follow on.

[Dilan Esper]

Tom Brady should have tried that.

[AtR]

It's beautiful to see the Streisand effect in action ... because every mention of the effect, is a secondary Streisand on the original perpetrator, as everyone associates the misguided effort with Babs.

[Scribe]

"First, he tried to argue that because his spoliation attempts failed — there were backup copies of the things he deleted on his hard drive — that it shouldn't count as spoliation."

Heh. Transperfect is one of the larger companies that employ attorneys to do something called "document review". That is the procedure whereby all the company emails get fed through computers for some level of sorting, then are read by actual attorneys to determine whether they have to be produced in discovery or not. (The pay is ... low, BTW.) But to say Transperfect is expert at finding stuff the client has squirreled away, resurrecting hard drives and all the other computer forensics that go into making sure there's full and complete and accurate and honest responses to the document production requests is like saying ... Babe Ruth was a pretty good baseball player.
Fortunately, the judge wasn't buying this joker's bullsh*t story.

[Chip Watkins]

Before it was the Streisand effect, it was the Sharon effect, Sharon v. Time, Inc., in which a jury found that Time magazine did not libel former Israeli Defense Minister Ariel Sharon, and the Westmoreland effect, Westmoreland v. CBS, which was settled just before the case would have gone to the jury, without any payment by CBS to former Army Chief of Staff Gen. William Westmoreland. In both cases, I believe more people learned of the allegedly libelous statements because of the lawsuits than ever heard or read the original statements.

[Stacy Travis]

Nice article