Author: Laura Heymann

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Farewell and Thanks

Many thanks to Dan Solove and the Co-Op gang for graciously allowing me to dip my toe into the blogging waters (an unlovely word, “blog,” I think, but never mind). I’ve enjoyed my stay and have appreciated the thoughtful comments.

As an avid blog reader, I’ve been fascinated by the many forms blogs can take: personal diaries, op-ed pages, clipping services, breaking news alerts, scholarly journals, news magazines, debate clubs, literary salons, and on and on. It’s this fascination that draws me in, resulting in a seemingly never-ending accumulation of browser bookmarks and a daily round-robin of reading in an effort to keep up with the many voices speaking, often simultaneously.

So when history considers what blogging hath wrought, I think the new pace of discourse will be high on the list. It’s thrilling to see debate about a new Supreme Court opinion take place hours after it’s handed down, rather than months later in the law reviews. But I wonder if the expectation of instacommentary doesn’t impose at least a small burden both on writers and on readers. The form risks our feeling as if we must be engaged in a constant discussion with one another, writing blogs, linking to other blogs, reading blogs, commenting on blogs ad infinitum. I am quite sure that I am revealing my own tendencies toward introversion when I say that this proliferation of speech is at times as exhausting as it is exhilarating.

I’m not proposing any changes here or solutions — to each his own panacea (if indeed a remedy is needed). Rely on intermediaries (such as Larry Solum’s excellent blog and Michael Froomkin’s new venture); read more selectively and resign oneself to the fact that conversations don’t stop simply because one leaves the room; or simply enjoy the fact that the marketplace of ideas is sometimes a Turkish bazaar: full of life, color, and a good deal of noise, but offering great treasures if you know where to look.

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Metabranding

On Wednesday, I had the pleasure of participating in a conference sponsored by the Harvard Negotiation Law Review that considered two case studies: the Oracle-Peoplesoft deal and the forthcoming MasterCard IPO. Vic Fleischer presented his thoughts on, among other things, the branding effect of certain aspects of the MasterCard IPO structure, and I was part of a group of IP folks who offered comments.

In my comments (which will be published later this year in the HNLR along with the other papers), I referred to the “metabranding” by the media that necessarily takes place when the audience for the branding message is outside the stream of communication in which the message is delivered. (In the MasterCard example, I posited that if MasterCard is indeed trying to contribute to its brand image through its IPO structure, it needed to rely on the media to carry that message to consumers (i.e., cardholders) who were not among the audience for the IPO’s regulatory documents in which that structure was described.) Because the media is not beholden to the branding entity, it is free, like any consumer, to accept or critique the branding message; the process is both inherent in the branding effort and necessarily works the deconstruction of the brand. More broadly, I see “metabranding” as a type of discourse about the branding effect itself, a discussion in which the participants deliberately and openly contribute to brand meaning. (Given that trademark meaning is always ultimately created by consumers, metabranding brings that discussion out in the open.)

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Pseudonymity and Ethics

Last week, the Los Angeles Times suspended the blog of Michael Hiltzik, one of its columnists, when he admitted posting comments both on his blog (which was hosted by the paper) and on other blogs under pseudonyms. Apparently these efforts were a ham-handed attempt at creating an ego chamber by suggesting that there were other participants who agreed with Hiltzik’s views. The L.A. Times has posted a notice at Hiltzik’s blog, stating that Hiltzik’s actions were “a violation of The Times [sic] ethics guidelines, which requires editors and reporters to identify themselves when dealing with the public.”

Put to the side for the moment what Hiltzik actually did, which, if nothing else, was not a bright career move (and serves as yet another reminder to the public of the existence of IP addresses). What if Hiltzik had used a pseudonym to comment on another blog merely to engage in a discussion without revealing that he was a columnist for the L.A. Times? What if the resulting discussion then became interesting enough that Hiltzik or another reporter decided to write about the debate? Is there something improper or unethical about the fact that the hypothetical Hiltzik did not disclose his identity in the course of the discussion? Assume, even, that Hiltzik engaged in pseudonymous commentary precisely to spark a discussion on a given topic — which is, of course, what many blog authors do on a daily basis — to see if it would develop into any interesting column fodder. Would he have acted unethically? Given that the participants responding to such comments are engaging with a pseudonymous individual in an open forum in any event, does it matter whether that individual is the hypothetical Hiltzik or a CPA in Schenectady? Or whether the individual is a reporter for the L.A. Times rather than the author of AcmeBlog?

Presumably the L.A. Times does not enforce its policy to the extent of requiring its reporters to “identify themselves when dealing with the public” when they are, say, participating in an online dating service or ordering a burger at the local fast food joint. I would imagine that the point of the policy is to protect members of the public who would unwittingly say something in a conversation with a nonreporter that they would not say if they knew the comment could potentially be published in the paper. But when the hypothetical (i.e., nonlogrolling) Hiltzik comments pseudonymously on another’s blog and encourages comments that are intended for public consumption from the moment the “post” button is hit, is he “dealing with the public” in the way that the paper’s policy contemplates?

(To be clear: I am in no way defending Hiltzik’s actions. But I am curious about where the line between proper and improper is in a medium in which pseudonymity is not only accepted but often encouraged.)

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Wikipedia in the Courts

In an earlier post, I suggested that students may be competent searchers of information on the Internet but may need more guidance in assessing the relative worth of the information they find. Turns out students aren’t the only ones in need of guidance. In an opinion released in February, the U.S. Court of Federal Claims scolded a special master in a vaccine injury case for sua sponte supplementing the record with “medical ‘articles’ on afebrile seizures” that she located on the Internet.

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The 30(b)(6) Witness

Although I don’t teach or write in the area of civil procedure, my days as in-house counsel gave me a certain amount of exposure to how civil litigation affects corporate defendants. Which leads me to ask a small but nagging question: Should Rule 30(b)(6) be reconsidered?

As many readers may know, Rule 30(b)(6) of the Federal Rules of Civil Procedure provides that a party may notice a corporation as a deponent on one or more issues; the corporation must then designate one or more employees (described in the rule as “officers, directors, or managing agents, or other persons”) to testify on behalf of the corporation on each of those issues. Because the 30(b)(6) witness testifies on behalf of the corporation, and not on her own behalf, she is obligated to become educated on “matters known or reasonably available to the organization.” If the 30(b)(6) witness cannot answer the questions for which she has been designated, the corporation is deemed to have failed to comply with the rule and may be required to produce another witness or, in some cases, be subject to sanctions. “I don’t know,” it is argued, is not a proper answer for a 30(b)(6) witness to give.

Of course, even when the subject matter in a deposition notice is narrowly drawn and a witness is well chosen, no employee is going to possess all of the corporation’s knowledge on that topic. Accordingly, much time is spent loading up the 30(b)(6) witness in lawyer-driven preparation sessions with the information the legal team has been able to gather from documents, other employees, and so forth. The poor witness then has to hope that she recalls all of this recently acquired information and can respond intelligently to questions posed during the deposition as to what the corporation “knows” about the topic. It’s a bit like telling the actor who plays Rosencrantz that he’s going to be performing the entirety of Hamlet as a monologue come Friday evening.

The purpose behind the rule is to prevent a situation in which each of a corporation’s employee-deponents disclaim personal knowledge of facts that are known to someone in the organization, leaving the plaintiff stymied in his attempt to gain relevant evidence. But without conscientious implementation, the rule risks serving as a heavy-handed litigation tactic in which a skillful attorney can get the 30(b)(6) witness to make admissions on behalf of the corporation largely as a result of her own uncertainty about her role and the pressure of expected omniscience.

Given that so much of the information funneled through the 30(b)(6) witness is the result of the efforts of counsel, wouldn’t a series of written interrogatories (or requests for admissions) accomplish the same goal with much less trauma for the unlucky 30(b)(6) designee? Or is the nature of a live deposition — which allows for narrow, fact-specific questions and the ability to pose follow-ups that depend on the answers provided — something that simply cannot be duplicated in written form?

(For anyone who is interested, at least one article addresses this question head-on: Kent Sinclair & Roger P. Fendrich, Discovering Corporate Knowledge and Contentions: Rethinking Rule 30(B)(6) and Alternative Mechanisms, 50 Ala. L. Rev. 651 (1999).)

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Teaching Today’s Students

Many thanks to Dan and the crew for inviting me to join them for a couple of weeks.

From time to time here and at other law professor blogs, the subject of “teaching today’s generation of students” comes up — usually in the context of whether laptop use and/or wireless Internet access should be curtailed in the classroom. I’d be interested in hearing readers’ thoughts on this subject more generally.

Initially, of course, one should ask whether “today’s generation of students” has any meaning beyond the descriptive — in other words, whether students today are different in kind, rather than simply in degree, from our own classmates. I think they are, and in important ways. Students today are a more diverse group in terms of race, gender, religion, ethnicity, sexual orientation, financial status, political views, family situations, work experience, and life experience. (That’s not to say that earlier generations were exceedingly less diverse in each of these areas, but those students may have felt less able to engage in a public discourse about some of these facets of their identities.) Students today have been raised on a diet of popular culture and instant communication, resulting in shorter attention spans and higher demands on faculty to use technology in the classroom. They are fluent Internet users but do not always have a similarly developed ability to be intelligent consumers of information — to distinguish reliable sources of information from less reliable sources of information. Finally, some students today see themselves as consumers of an educational service, which manifests itself in the way they treat the classroom experience (choosing to attend class or not, expecting (and requesting) a certain type of classroom experience or procedure, and so forth).

Is this an accurate description? And, if so, how should faculty respond to these issues, if at all?

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