Microsoft and Reagan's Judges

[charles mueller <cmueller@metrolink.net>]

          I mentioned earlier that the appeals court that will hear the
  Microsoft case-- the D.C. Circuit Court of Appeals--was a special object of
  attention during the Reagan administration.  Given its jurisdiction to hear
  appeals from the policy decisions of the Washington agencies, the Reagan
  Justice Department (headed by Ed Meese, as attorney general) gave priority
  to making it a bastion of "conservative" jurisprudence--loading it with
  pro-monopoly judges.  And to assure that this key court didn't fall into
  "liberal" hands any time soon, Meese went out of his way to find right-wing
  judges for it who were also youthful--and thus likely to be around for
  decades to come.  (Robert Bork and Kenneth Starr have of course moved on.
  My less-than-current court directory shows 5 Reagan appointees still
  there--Sentelle, Williams, D.H. Ginsburg, Buckley, and Silberman.  Cases are
  decided by 3-judge panels--2 votes win.)
  
          Microsoft is of course fully aware of all this, which is to say that
  it knows it can get any decision or order--if it really cuts seriously into
  Bill's vast stream of monopoly revenue--reversed in quite short order, just
  for the asking.  Judge Jackson has appointed a Chicago-school special master
  to do some "fact-finding" for him and promises a 'final' decision in the
  summer of '98.  If it's costless to Microsoft to wait until then--if its
  monopoly power is undisturbed by the Jackson order--we would expect Bill's
  legal team to wait, holding its fire for the next 6 months or so.  But if
  there's real economic bite in the Jackson decision--if it's going to
  seriously slow down Bill's money machine--we should look for a quick appeal
  (and a quick setting aside of that inconvenient order).
  
          We thus have a handy gauge of the (economic) effectiveness of the
  Jackson order--whether it's immediately appealed.  No appeal, it's
  economically toothless.
  
          Charles Mueller, Editor
          ANTITRUST LAW & ECONOMICS REVIEW
          http://webpages.metrolink.net/~cmueller