Re: [ga] Re: iCANN's protection

[Dave Crocker <dhc2@dcrocker.net>]

At 03:07 AM 4/17/2001, DPF wrote:
>It would have been more useful to have pointed out the flaws in
>Michael's reasoning IMO that merely saying not all lawyers agree (a
>truism if I have heard one).

You were given the single most important flaw yet you are dismissing it 
cavalierly.

It is not merely that some lawyers disagree with another lawyer, but that 
lawyers practising in the relevant area and with a legal responsibility for 
getting the topic handled properly disagree with a lawyer who is 
essentially a lone voice.

That's not just a matter of some disagreement, but a matter of who is 
likely to be correct.


> >By the way, when something is difficult to understand, it is less likely
> >that it can be validated.
>
>Difficult to understand though is in the eye of the beholder.

In fact that is not correct.  There are plenty of objective and valid ways 
to assess comprehension difficult.  It is easy enough, in fact, that 
Microsoft Word has a tool for assessing readability.


> >>Being objective is to be "Uninfluenced by emotions or personal
> >>prejudices".  I am not aware Michael has any commercial interests
> >>which would lead to be not objective or that he has any personal
> >>prejudices.
> >
> >Prof. Froomkin's biases are clear and consistent.  He seeks to criticize
> >ICANN.  He seeks to do it vigorously and at every turn.  His motives might
> >be less clear, though the instant he starts getting public exposure for his
> >efforts, then it is clear that he is serving to promote his career.
>
>Well if this is not a personal attack I do not know what is.

In case you had not noticed, referencing personal matters has become the 
norm on this list.  Even outright slander has become acceptable.

Further you chose to assert that Prof. Froomkin IS objective, by citing a 
criterion of "commercial interest".  That invites a response that looks for 
other factors.


>You claim that because he is a constant and publicised critic his
>motivation is venal and self serving - namely promoting his career,

My language was rather stronger than what you describe.  Since you chose to 
miss the strength of it, I'll state it even more strongly:  Prof. Froomkin 
seeks ONLY to criticize and he manipulates facts towards his 
arguments.  That is called "not playing fair".


>Do you truly believe that every single critic of ICANN's is motivated

I said nothing like that.  Please do not overextend my statements.

However it is worth making the matter more clear:

1.  A constructive participant is not ONLY a critic.  A constructive 
participant shows behavior that is contingent.  The positions they take 
depends upon the matters under discussion.  If they only attack and never 
support, they have some agenda other that constructive participation.

2.  A constructive participant takes a tone of constructive 
negotiation.  There is flexibility in their participation, in recognition 
of the presence of more than one legitimate perspective and need.  Rigidity 
in a position ensures a failed outcome.

3.  A constructive participant refrains from inflammatory language, since 
such language only serves to entrench positions and make constructive 
negotiation impossible.

I'm sure there are more points, but three seems enough for now.


>I find the attack on Michael's motives curious especially as in NZ
>anyway Professors have no need to promote their career as they have
>tenure for life.

Human psychology is dramatically more complex than your statement 
suggests.  Job safety is one issue, yes.  Another is ego.  Ego leads to 
other issues, such as seeking to inflate one's sense of importance.  (And, 
by the way, such a path can also lead to inflated consulting fees; in the 
US professors often consult.)


> >1.  Prof. Froomkin's paper is interesting from an academic standpoint, but
> >has received no demonstration of legal force.  The best that can be said
> >about it is that graduate law student deemed it worthy of publication.
>
>One wonders if you try to be insulting.

Alas, no.  The paper is cited as if its mere existence in a law journal 
means that its contents are compelling legal positions.  It is therefore 
important to make clear what the document does and does not mean, in terms 
of its use in an ICANN discussion.

You continue to dismiss the significant point that multiple lawyers who had 
the formal and official job -- that is, they were obligated -- to get the 
issues correct have entirely different views about ICANN legitimacy than 
does this lone professor at a University.  That lone professor has no legal 
obligation to get matters right.  He is free to toss off any line of attack 
that sounds interesting.

This difference in obligation is not a guarantee that he is wrong.  It 
does, however, suggest very, very strong differences in the required effort 
to be correct.  Hence it is essential to take his work as "interesting" and 
no more, absent the assessment of a judge, as you note.  Folks cite his 
paper as if a judge has already ruled in its favor.

d/

----------
Dave Crocker   <mailto:dcrocker@brandenburg.com>
Brandenburg InternetWorking   <http://www.brandenburg.com>
tel: +1.408.246.8253;   fax: +1.408.273.6464

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