[governance] JPA

[Michael Froomkin - U.Miami School of Law]

The admnistrative law virtues are somewhat common in the common and civil 
law worlds, although the constutional structures in which they are 
embedded vary; the good news is that there has been convergence on human 
rigths norms, so the variance in administrative law is more along a 
sliding scale of willingness to question authority than it is as to what 
the nature of the rights are.

At the end of the day, yes, someone is privileged.  But that is better 
than everyone being a loser, which is what happens if you have a 
decracinated system.   Even the unprivileged are better off in a 
nationally-rooted system than in any of the non-rooted alternatives I have 
ever heard advanced.   Be a Rawlsian. Think of the position of the worst 
off person.  The nationally-rooted option wins hands down.

On Wed, 27 May 2009, Jeanette Hofmann wrote:

> You are not the only one who suggests administrative law as a frame of 
> reference. I understand the pragmatic reasons you mention. Yet, such a model 
> would privilege the legal and political tradition of one country over all 
> others and it would not really address the criticism of unilateral control in 
> Internet governance.
> jeanette
>
> Michael Froomkin - U.Miami School of Law wrote:
>>  No, it is not that difficult to craft a system to allow non-citizens to
>>  have an equal right of action.  But this does mean the non-citizen must go
>>  into the courts of that nation, which has linguistic, geographic and
>>  financial implications.  I submit that is still better than reinventing
>>  the wheel, with all the uncertainty (and expense) that implies.
>>
>>
>>  On Wed, 27 May 2009, Jeanette Hofmann wrote:
>> 
>> >  Hi Michael, this sounds nice but how do we translate national due 
>> >  process to transnatinal policy making? You are not suggesting to 
>> >  restrict the rights to appeal or to contest an action to the citizens of 
>> >  the country that hosts ICANN, are you?
>> > 
>> >  jeanette
>> > 
>> >  Michael Froomkin - U.Miami School of Law wrote:
>> > >  This is why tying to a nation's law (as opposed to 'international 
>> > >  law') of
>> > >  administrative makes sense: it's at the national level that we have 
>> > >  well
>> > >   worked-out ideas of due process and basic rights to be heard.
>> > > 
>> > >  International law, which is still primarily about states and 
>> > >  international
>> > >  organizations, does not have a body of jurisprudence that speaks to 
>> > >  those
>> > >   issues.
>> > > 
>> > >   The US APA is one model; Canada has a different on.  The UK's model 
>> > >   of
>> > >   administrative review, on the other hand, is relatively feeble.
>> > > 
>> > >   Several countries have a strong tradition, and well worked-out rules,
>> > >   about procedural regularity, that is rules which police fairness,
>> > >   conflicts of interest, the right to be heard, without being too
>> > >   heavy-handed in their substantive review.  Those are good models, 
>> > >   they
>> > >   took decades to develop, and one should be adopted rather than 
>> > >  reinvented
>> > >   from the ground up.
>> > > 
>> > >   On Wed, 27 May 2009, Milton L Mueller wrote:
>> > > 
>> > > > >   I also think that suggesting an 'international judidical body' 
>> > >  for > >  adjudication CIR/ related IG issues as a more urgent step 
>> > >  would be > >  useful, since a full treaty process could take long 
>> > >  time. The model > >  and legal basis for such a judicial or quasi- 
>> > >  judicial body can be > >  discussed. , > >  Same issue as my last 
>> > >  message.
>> > > >   What rules/law does this quasi-judicial body apply? Without that, 
>> > >  it's >  useless second-guess or a
>> > > >   dangerous political bypass mechanism.
>> > > >   We've tried to skip that stage for 10- years and it hasn't worked. 
>> > >  Let's >  get down to it. > > >
>> > > 
>> > 
>> >
>> 
>

-- 
http://www.icannwatch.org   Personal Blog: http://www.discourse.net
A. Michael Froomkin   |    Professor of Law    |   froomkin at 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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