Re: [ga] The Administrative Procedures Act

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

It's a nice idea, and shows thinking out of the box.  But what makes the
APA more than a piece of paper is that people can go to court to enforce
it.  Although agencies win more than they lose in court, they don't always
win, and the *threat* of review is thought by many to keep them honest.

Leaving aside myriad problems with just adopting the APA whole (how would
ICANN publish its proposed rules in the federal register (an APA
requirement)? why should an international advisory/standards body such as
ICANN claims to be use US rules?), let me ask just the hardest one: how
would one replicate the critical feature of judicial review?

If, on the other hand, you mean to write rules that replicate the
notice-and-comment provisions of the APA, and the rules agains ex parte
contacts and conflicts of interests, yes, I agree that this would be a
great start - no more last-minute surprises!

On Wed, 28 Mar 2001, babybows.com wrote:

[...]
> 
> In light of these resolutions, it may be prudent for members of the DNSO to
> recommend to the ICANN Board that it agree to abide by the language of the
> APA as a first step toward improving operations of the DNSO, and as a first
> step in restoring public confidence.  The language of the APA clearly
> addresses the need for due process, for ample time for public comment, and
> speaks to consensus-based decision-making mechanisms as well.
> 
> If Washington can be convinced that the Board is taking action to properly
> manage its affairs, then the Senator's request to the Department of Commerce
> might well be withdrawn:  "In the meantime, I urge you to refrain from
> taking any major steps to further empower or delegate authority to ICANN."
> In that the Senator's formal request can effectively serve to inhibit the
> rapid DoC approval of the new registry agreements, the ICANN Board needs to
> be able to take immediate action to fight to safeguard the interests of its
> stakeholders.    A resolution from the DNSO to adopt the language of the APA
> might well be the one single action needed to reassure oversight committees
> that ICANN can indeed correct its deficiencies, and that the DNSO is the one
> body best equipped to formulate Internet domain name policy recommendations.
> 
> We can come together as a group and adopt the language of the APA.  It is
> workable even in the unique bottoms-up consensus-driven world of the DNSO
> (an application of the APA to the working group environment may be noted in
> the following document:
> http://www.dnso.org/wgroups/wg-review/Arc02/msg01952.html ).     The Board
> has asked for our help to improve operations.   It would be nice to hear
> members of the General Assembly offering up some substantive
> recommendations.
> 
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A. Michael Froomkin   |    Professor of Law    |   froomkin@law.tm
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