Very generally speaking.
Law makers, and I include regulators and revenuers, do not make up facts and science and commercial use. They idealy gather facts as they exist and the best science and they get stakeholder input and they fashion a concept of rules designed to best serve those effected. They then pass a law and give it off to the practical bodies to enforce it.
ICANN is not a regulator. However they are charged with coordinating those stakeholders and scientists and commercial interests and being an authority on how best regulations may help the effected class of the Internet. They are basically the acadamia branch of the policies which should be developed to exploit a resource in a manner in keeping with the best interests of society. It should be a symphony playing to an audience. ICANN should merely be the conductor to fit the sections together so that it comes out as music that (and this is most important) the audience wants to hear.
Should ICANN be the conductor? Spam is the perfect platform to evaluate and logically approach the efficacy of the conductor or coordinator. There was a time when the working groups (call them the wind or percussion sections) would go off and come up with ideas and the scientists in their boards would come back (call them the strings and brass) with their ideas and the making of music would begin. But then the corporate sponsors would come along (call them the DNSO and the different Orgs or interest groups that paid for their seat) and would kill the ideas of melody, rythm and beat. Even though the corporate sponsors lost their money they were pleased because they never wanted the audience to hear music that might cut into their record sales. The conductor seeing who would pay the bill decided it was better to have a paycheck than music.
This is the day, the chevy got driven to the levy and the Music died.
I looked out of couriosity, no corporation ever won a nobel peace prize. I did not look into the rules or criteria, maybe they are excluded. But I did look into the profiles and found to a person they were driven by what they thought was right. And then others followed.
No ICANN is no regulator and not even a conductor, but they should provide a forum. A forum where the populace should be heard and leaders can lead and music can be made and spam can be battled through education of not only the users but the dotcommoner and their legislative representatives.
The regulators now look to the music makers and see division and discord and no conductor. A simple notion of what is a domain name cannot be agreed upon so how can a court look to the facts or science that seem to exist without defintion. It takes one hell of a leader to get the orchestra to follow the beat of a flute to set the tempo.