Ron/All I think you have it basically right: the IRP is the analogue of the Supreme Court (though I'm hoping it ends up being defined a little more narrowly, more closely analogous to a Europoean "Constitutional Court," so that it doesn't get tangled up in appeals of ordinary Board decision-making but only in 'constitutional' (violation of the Bylaws or Charter) claims ) It is definitely correct to say that up to now there's been no effective mechanism to appeal Board action, either externally or internally - you ask: "So how does the IRP enforce its finding, and does the IRP have the ultimate power to impose a (possibly temporary) dictate to ameliorate an emergency?" the question of ultimate power is a tricky one, to say the least. Take the US constitutional example - the Constitution does not say which branch has "ultimate power" to decide whether action is or is not constitutional, and there have been a number of crises around that question, where the executive refuses to enforce the judiciary's determination of unconstitutionality. [As Pres. Jackson put it when the Court declared that his relocation of Native Americans from GA was unconstitutional: "The Court's issued its decision; now let them go and enforce it."] Ultimately, this is the "balance" part of the checks and balances - the three parts (executive [ICANN Board], legislative [stakeholder community], and judicial [IRP]) - are co-equal. No one is given "ultimate power." That's a good thing - if one branch/component has ultimate power, all I need to do to corrupt the entire institution is to capture that branch, whichever one it is. So back to your question: what happens in the "emergency" situation you posit, where the IRP says "Board Action X is invalid" and the Board says: "It is inconsistent with our fiduciary obligations to the corporation to comply with the IRP order"? The answer has to be: there need to be mechanisms whereby the other branch [the stakeholders] can resolve the impasse (at least if there's a strong consensus that one or the other position is the "correct" one]. In ICANN's case, that could/should include (a) the power to remove individual Board members or the Board as a whole, and (b) the same power with respect to IRP members, or perhaps a separate "veto" power that allows the community to "choose sides" in the dispute. David At 06:24 PM 8/31/2015, Ron Wickersham wrote: >This thread has been very well argued and informative on a complicated >area that will have great and long lasting consequences. > >Do I have it correct that the IRP is ICANN's Independent Judiciary >with the authority to determine if/when the Board has acted outside >the power and >reverse (at presumeably any unlimited future time) the action...thus >the IRP is the concensus stakeholders' mechanism to appeal to a >"Supreme Court"? > >Is it correct to state that up till now the Boards actions have been >final without appeal due to respect for this ultimae power of the Board? > >If the IRP declares a Board action invalid, ICANN still remains a >corporation so can the Board declare an emergency and take "marshall >law" power on the >basis that ivalidating a critical (in the Board's eyes) operational >directive would cause irreprable harm/damage to the Internet? > >So how does the IRP enforce it's finding, and does the IRP have the >ultimate power to impose a (possibly temporary) dictate to >ameliorate an emergency? > >-ron ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************