Volume 6 / Number 1 / Spring 2002

This page contains the abstracts, as well as links to the complete document on Westlaw.com, for the Articles of the Spring 2002 Issue, which was dedicated to the annual business law forum.

Introduction

Articles

Defending Commerce’s Contract Delegation of Power to ICANN
Edward Brunet
Westlaw
Professor Brunet characterizes the creation of ICANN as a conscious political judgment intended to privatize the policymaking and administration of the domain name system. This Article defends the delegation of power to ICANN as valid because of the statutory authority of government to contract with private entities. The joint venture contract, an ideal engine to monitor performance by the respective parties, represents the model efficiency tool needed to advance privatization policies set forth by the Executive and acquiesced to by Congress.

Matching Public Ends and Private Means: Insights from the New Institutional Economics
Sidney A. Shapiro
Westlaw
This Article addresses the public’s interest in the process by which the government matches public ends and private means. It proposes that the “new institutional economics” offers a useful way of analyzing the issue of accountability. This analysis confirms the potential of private groups, such as ICANN, to serve governmental interests, and supports the Supreme Court’s approval of involving private actors in policymaking roles. At the same time, new institutional economics indicates that claims that ICANN is not sufficiently accountable to the public for its actions are plausible and require serious evaluation.

A Response to Professor Froomkin: Why ICANN Does Not Violate the APA or the Constitution
Joe Sims and Cynthia L. Bauerly
Westlaw
This Article is a response to Professor Michael Froomkin’s article Wrong Turn in Cyberspace: Using ICANN to Route Around the APA and the Constitution. In particular, this Article responds to Professor Froomkin’s assertions that ICANN violates the Administrative Procedure Act (APA), and that the Department of Commerce (DOC) has violated the nondelegation doctrine of the Constitution. After giving an overview of ICANN’s creation, it’s relationship with the DOC, and it’s operations to date, the Article provides case law refuting Professor Froomkin’s key arguments. In furtherance of this rebuttal, the Article then counters the assertion that ICANN and the DOC have violated the APA by showing that ICANN is not a federal agency, and that the DOC does not engage in adjudication or rulemaking. The Article concludes that ICANN does not violate the Constitution because it is not a state actor, and as a private actor, ICANN’s actions do not violate the nondelegation doctrine because it has no authority on matters of the Internet and exercises no governmental power.

Form and Substance in Cyberspace
A. Michael Froomkin
Westlaw
In this Response to the preceding article by Joe Sims and Cynthia Bauerly, A. Michael Froomkin defends his earlier critique of ICANN. This Response first summarizes the arguments in Wrong Turn In Cyberspace, which explained why ICANN lacks procedural and substantive legitimacy. This Response focuses on how the U.S. government continues to assert control over the domain name system, and how this control violates the APA, the nondelegation doctrine as articulated by the Supreme Court in Carter Coal, and public policy. Professor Froomkin then proposes that ICANN’s role be more narrowly focused away from policy making towards true standard-making and technical coordination.

A Reply to Professor Froomkin’s Form and Substance in Cyberspace
Joe Sims and Cynthia L. Bauerly
Westlaw
Joe Sims and Cynthia Bauerly respond to Professor Froomkin by recognizing the complexity and international nature of the ICANN system. This Response to Froomkin’s response concludes by stating that ICANN is something novel that cannot fit into traditional legal norms.

Domain-Name Arbitration in the Arbitration-Law Context: Consent to, and Fairness in, the UDRP
Stephen J. Ware
Westlaw
In this Article, Professor Ware surveys many of the arbitration systems that have been attacked for lacking consent or fairness. The Article begins by introducing the domain-name arbitration system and summarizing the charges that it lacks consent or fairness. This Article asserts, however, that research reveals no sustained critique that domain-name arbitration lacks consent. The Article next provides what may be the first sustained analysis of consent issues in domain-name arbitration. The Article concludes by placing domain-name arbitration in the context of arbitration generally, and, within that context, assesses the fairness of domain-name arbitration.

ICANN Domain Name Dispute Resolution, the Revised Uniform Arbitration Act, and the Limitations of Modern Arbitration Law
Richard E. Speidel
Westlaw
In this Article, Professor Speidel provides an overview of the UDRP procedure, addressing in particular the limitations associated with the procedure in regards to “good faith” domain name holders. He determines that the UDRP is not arbitration law and is not subject to the Federal Arbitration Act or the Revised Uniform Arbitration Act. According to Professor Speidel, while the UDRP has some elements of arbitration, the process is not arbitration because of several important procedural differences. Nevertheless, even if the arbitration laws were applicable, Professor Speidel concludes that “good faith” domain name holders would not necessarily be better protected under the arbitration acts because the laws were not drafted to resolve all the broader problems that exist under the UDRP.

Fast, Cheap, and Out of Control: Lessons from the ICANN Dispute Resolution Process
Elizabeth G. Thornburg
Westlaw
In this Article, Professor Thornburg addresses certain multijurisdictional dispute resolution issues arising out of the expansion of the Internet. She notes that national court systems are ill equipped to handle some of these international quandaries because of differences in substantive and procedural law. Significant enforcement problems also arise in multijurisdictional disputes. Privatized Online Dispute Resolution (ODR) provides an alternative to national court systems. Professor Thornburg analyzes whether the Uniform Dispute Resolution Policy (UDRP) of the Internet Corporation for Assigned Names and Numbers (ICANN) provides a good model of global ODR. She begins by describing the development of the UDRP. She then discusses the system’s qualities and the problems revealed by the operation of the ICANN process. Professor Thornburg asserts that the UDRP makes a few good procedural choices, but is nevertheless a flawed system that does not operate fairly even within its own limited sphere. Finally, Professor Thornburg explores the lessons of the UDRP, and concludes that a just and equitable system would share few qualities with the UDRP.

The UDRP - A Model for Dispute Resolution in E-Commerce?
Edward C. Anderson and Timothy S. Cole
Westlaw
Less than two years ago, the Internet Corporation for Assigned Names and Numbers (ICANN) adopted the Uniform Dispute Resolution Policy (UDRP) to resolve promptly and efficiently trademark disputes of domain name registrations. This Article explores whether it is possible to adopt the same or a similar system for all electronic commerce disputes. First, the authors explore the systemic weaknesses of traditional litigation that led to the UDRP. Second, the authors discuss the advantages of initiating a UDRP proceeding over traditional litigation. Third, the authors highlight future challenges electronic commerce will bring to dispute resolution. Finally, the authors conclude by examining the applicability of the UDRP model to electronic commerce dispute resolution, particularly in the areas of cost and enforcement.