Re: [discuss] Unofficial minutes June 11 1999 Names Council Meeting

["Michael Froomkin - U.Miami School of Law" <froomkin@law.miami.edu>]

On Fri, 18 Jun 1999, Randy Bush wrote:

> that you have the time and energy to respond to the provocation is
> admirable.  thanks.  [ and yes, i think 'provocation' is a kind phrasing
> when a lawyer suggests going against the stated will of the board ]
> 

If your superior (if that is in fact the relationship? I am told in anther
post that I have learning to do about the relationship between Mr.  Sola,
the Board, and the Names council...) tells you to act illegally, or in
violation of agreements, any good lawyer will tell you not to.  So would,
I hope, any friend.  [Yes, there are exceptions to this general rule, but
I don't think any of them apply here.]

I cannot say it often enough, but it appears I have not said it clearly
enough:  If "doing what the board says" is the operative rule that
everyone engaged in ICANN-related activities should follow at all relevant
times, then there are no structural constraints on what the board can do
at any moment.  It follows that all the paper guarantees about the limited
jurisdiction of this body are unreliable.  It follows that we have a
problem.  Especially as ICANN is to all intents and purposes unreviewable,
and the Names Council doubly so.

The very thing about this somewhat formalistic, even legalistic, process
that causes genuine and understandable frustration -- the delay it
introduces, delay that benefits some perhaps unworthy and hurts some
perhaps more worthy -- is the very thing that protects people who may
disagree with any given decision of any given board in that it gives them
time to protest, and makes the stakes at issue more manifest.  It is a
(not "the", but "a") foundation stone of legitimacy.  

The fallback position implicit in your comments and explicit in some
others', that the Board can always rewrite its rules in due course to do
what it wants so there is an academic cast to this debate, may be
accurate, but if accurate it is hardly comforting.  To the extent that the
major check on a hypothetical runaway Board will be the actions of the
membership, it underlines the importance of getting a membership in place
before tinkering too much with rules of procedure.

I do not know why you feel it necessary to make my good faith an issue
here, nor why it is relevant, but let me assure you that this is not a
"provocation".   Who would I be trying to provoke, and to what end?  

-- 
A. Michael Froomkin   |    Professor of Law    |   froomkin@law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
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