Re: [ga] Re: iCANN's protection

[david@farrar.com]

On Tue, 17 Apr 2001 08:00:28 -0700, Dave Crocker <dhc2@dcrocker.net>
wrote:
>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.

I am not dismissing with it.  I am not debating it because I don't disagree 
with it.  It is a fact that the GAO has not agreed on this point.  I have never 
in fact even stated that I agree with Michael's position or paper.  I just took 
issue with the suggestion that because it was written by Michael and some 
people found it difficult to understand that it should be given little credence.

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

Well it is far from unknown for government lawyers to be wrong.  I seem to 
recall DOJ lawyers arguing the CDA was constitutional.

>
>> >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.

But a legal article is not designed for the public who IIRC has an average 
reading age of 12.  It may be directed to other legal professionals.

>> >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.

I agree that this is regrettable.  All I do for my part is try (and no doubt 
not always sucessfully) to refrain from doing so.

>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.

Commercial interest are fairly easy to verify.  An assertion that one is a 
critic to promote one's career is all but impossible to disprove so is really 
quite unfair to make IMO.

>>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".

I have made the point that in your public posts you have ONLY defended ICANN so 
this can be seen as merely the reverse.  I agree however one is more credible 
if one both criticises and praises.  As for manipulating facts towards an 
argument - well that is a crime every single person who has ever argued does.

>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.

I think there is a role for both.  Certainly I like to play the role of a 
constructive participant within organisations, even if fairly unhappy with what 
they are doing.  But there is a useful role for those who continually remind 
you that you could be doing things better, even if one does not agree with them.

As regards this particular case I haven't done eough research to verify if what 
you say is correct - that Michael has never praised any decisions of ICANN.

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

Many constructive participants do use inflammatory language from time to time.  
It is more a case of how often.  

>> >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.

I hadn't really seen anyone treating it as gospel.  I thought it was fairly 
obvious it is merely an opinion.

>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.

I used to think Michael was a lone voice also.  I note however that more than 
one Professor is a co-editor of icannwatch.

DPF

--
This message was passed to you via the ga@dnso.org list.
Send mail to majordomo@dnso.org to unsubscribe
("unsubscribe ga" in the body of the message).
Archives at http://www.dnso.org/archives.html