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 [...]]]> 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.

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 [...]]]> 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.)

Recently, there seems to be something of a trend among companies in embracing this kind of metabranding. MasterCard itself is running a contest that invites users to create their own “Priceless” ad by writing ad copy for a couple of existing videos; the winner will have her commercial aired live. While we can safely predict that the winner selected by MasterCard will not be engaging in any significant critique of consumer culture, there is nothing to stop others from finding other means of distribution for their semiotic disobedience (as Sonia Katyal has described it), such as through YouTube or virally.

Grant McCracken has pointed toward another great example of this trend, in which Chevy has invited users to create their own ad for the Chevy Tahoe; again, Chevy supplies the video and the soundtrack, but consumers write the ad copy. And apparently many have used that opportunity to implicate the Chevy brand message in its own demise: McCracken reports that there are about four dozen such ads now on YouTube. In response to critics who said that Chevy was engaging in an “ill-advised experiment” that allowed consumers to destroy the brand, Chevy wisely said, “We adopted a position of openness and transparency, and decided that we would welcome the debate,” quite correctly recognizing that its ability to control the brand ends the moment any of its own advertising communications begin.

McCracken concludes that “many consumers have [made] it clear that the only brands that they will really care about are the ones they help cocreate.” Trademark law, however, seems to fight this notion, giving owners of famous brands, for example, the right to stop dilution of the brand and thereby control the types of associations consumers can create. But examples like MasterCard and Chevy show us that such control isn’t possible and shouldn’t be possible. McCracken further notes, “The question is whether and when we will come to see the brand as something big enough and resilient enough to withstand the ‘rough air’ created by new cocreation strategies.” I think the answer might be when trademark law stops assuming it isn’t.

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 [...]]]> 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.)

In light of the requirement that a finding of causation (or lack thereof) in such cases must be supported by “reliable medical or scientific evidence,” the Court of Federal Claims concluded that the articles that the special master introduced into the record [...]]]> 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.

In light of the requirement that a finding of causation (or lack thereof) in such cases must be supported by “reliable medical or scientific evidence,” the Court of Federal Claims concluded that the articles that the special master introduced into the record “[did] not — at least on their face — remotely meet this reliability requirement”:

Consider the item on “febrile seizures” that she added from the Dictionary of Neurology, www.explore-medicine.com. Although that website no longer exists, the exhibit introduced by the Special Master indicates that its information was drawn from Wikipedia.com, a website that allows virtually anyone to upload an article into what is essentially a free, online encyclopedia. A review of the Wikipedia website reveals a pervasive and, for our purposes, disturbing series of disclaimers, among them, that: (i) any given Wikipedia article “may be, at any given moment, in a bad state: for example it could be in the middle of a large edit or it could have been recently vandalized;” (ii) Wikipedia articles are “also subject to remarkable oversights and omissions;” (iii) “Wikipedia articles (or series of related articles) are liable to be incomplete in ways that would be less usual in a more tightly controlled reference work;” (iv) “another problem with a lot of content on Wikipedia is that many contributors do not cite their sources, something that makes it hard for the reader to judge the credibility of what is written;” and (v) “many articles commence their lives as partisan drafts” and may be “caught up in a heavily unbalanced viewpoint.” The websites from which other articles introduced by the Special Master are drawn likewise warn that “the information provided herein should not be used . . . for the diagnosis or treatment of any medical condition,” www.iowahealth.org; that the sponsor “does not recommend or endorse any specific . . . opinions, or other information that may be mentioned on the Site,” www.webmd.com; or “makes no representation or warranty regarding the accuracy, reliability, completeness, currentness, or timeliness of the content, text or graphics” in its articles, www.nlm.nih.gov/medlineplus. And several of these websites caution that reliance on any information provided by the website is “solely at your risk,” see, e.g., www.webmd.com.

Without an evidentiary hearing that “would have provided an opportunity for expert witnesses to corroborate or refute the information contained in the articles,” the court concluded, “ . . . reliance on these web materials involved an extraordinary risk that cannot be squared with the Special Master’s responsibility for conducting a proceeding consistent with the principles of fundamental fairness.”

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 [...]]]> 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).)

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 [...]]]> 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?

Some responses are more easily considered because, to my mind, they don’t raise any major pedagogical issues: being sensitive to the diverse backgrounds of our students in the kinds of cases we teach or discussions we lead, for example. Some responses are a bit more difficult because, while often pedagogically sound, they may require some of us to modify the way we teach. I tend to incorporate technology into my classes (PowerPoint, Blackboard, and so forth) both because I enjoy doing so and because (I hope) it appeals to visual learners; others may be resistant for reasons relating to a belief that such things are merely “bells and whistles” that distract more than they assist. Finally, some responses are even more difficult because, to some of us, they result in a head-on conflict with our sense of what a law school class should be. Students may want (or think they want) heavy doses of black-letter law, frequent viewings of TV and movie clips, and the ability to attend class when they choose, but to what extent should professors accommodate those desires?

I’ve been thinking about these questions recently because I’ve just had a chance to watch a rebroadcast of the HBO special “Assume the Position with Mr. Wuhl”, in which actor/comedian Robert Wuhl teaches a 30-minute history class in front of a group of NYU undergraduates. The theme of the class is fairly uncontroversial: History is essentially narrative, and not all narrators are reliable. Wuhl presents this as “how pop culture becomes history,” by which he means “whoever the most popular person is at that point in time.” (I don’t think he actually means “popular” in the way he says he does, but that’s beside the point.) But what brought out the curmudgeon in me (and me alone, judging from the laudatory reviews the show has received) is the way in which Wuhl taught the class: a nonstop barrage of Monty Python-esque cartoons, gratuitous pop culture references, mindless call-and-response exercises, wacky stand-up–like patter, a heavy dose of scatological language — and, in the end, not much substance for thirty minutes of work.

I recognize that the class was being televised (and was based on an earlier stage performance), so entertainment value is the primary metric here. But many of the reviews, so far as I could tell, said something along the lines of “This is college as it should be,” or “He’s the teacher everyone wishes they had in college.” And all I could think was: Really? Is this now the way to teach college (or law) students today? Don’t they deserve a bit more — indeed, shouldn’t they expect a bit more? I’m by no means suggesting that the classroom experience shouldn’t be enjoyable or even entertaining from time to time — I hope that my classroom is both. But if Wuhl is now the model, aren’t we risking putting style over substance in trying to reach “today’s generation of students”?