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RE: 11) They Own the Courthouse
Let's assume that Microsoft owns the Courthouse, from the Supremes to
the Justice of the Peace in Redmond. Does this guarantee an easy
victory? Let's assume that Microsoft appeals to the Supreme Court, and
that the Court rules in favor of Microsoft.
This will set the stage for further conflict, not end the issues, as we
really are in a global environment where Court decisions in one
jurisdiction influence but do not bind other jurisdictions.
Let's assume that Microsoft is omnipotent (they're not), omniscient
(another obstacle delusion), and divine.
They cannot dictate innovation, nor can they stop the coming "wetware
technology" that will render bloatware obsolete, and penalize sloppy
In my Christmas fantasy, I imagine Microsoft having an epiphony: We are
the Worlds' greatests marketing organization, so we should concentrate
on marketing for the myriad businesses that want Microsoft style
marketing. Forget operating systems, that was the first market, the
MARKET is the OPERATING SYSTEM.
They may have the judiciary bribed from the top to the bottom, but like
illegal cocaine and systemic corruption, there comes a time when prior
acts and other legal shortcuts end up causing the Justices to split the
Once on the docket, public scrutiny can drive the Court's decisions. If
Justice Scalia likes the thesaurus on his clerk's computer, he may not
want that thesaurus to become the exclusive property of Microsoft. He
may be a monopolist with his fellow Justices, but at the end of the day
his laissez-faire (lazy fare) approach could throw Microsoft to the Free
Market Zealots, where the idealogy of competition takes on a
quasi-religious tone, separate from the science of economics.
Microsoft could win the court wars, and still be blindsided by the anger
of an aware and aroused public. Most people still fear computers, as a
threat to their jobs. I assume this bias lives in Congress and the
courts. This fear can symbolically bell the cat, before it eats the
mice. The mice fear the cat, after all.
> Topic No. 11
> Date: Fri, 19 Dec 1997 17:59:14 -0500
> From: charles mueller <email@example.com>
> To: firstname.lastname@example.org
> Subject: They Own the Courthouse
> Message-ID: <19971219225906890.AAA137@psl2015.metrolink.net>
> The theory has been offered that only Microsoft's two certifiable
> megolamaniacs, Bill Gates and his second in command, could have given the
> regal directive for the corporation to, in effect, ignore the order of the
> trial court (to offer Windows without the browser appendage). Why? Because
> 'prudent counsel' would never counsel such disdain for the order of a
> federal judge. I disagree. I believe it reflects a quite sensible
> strategy, one that will in all probability prevail.
> I've mentioned before that the appeals court involved here (U.S.
> Circuit Court of Appeals, D.C. Circuit) is dominated by Reagan appointees
> who've never met a monopoly they didn't like. During the Ginsburg
> confirmation hearings, for example, I reviewed all of the antitrust
> decisions of that circuit for a 5-year period, some 27 cases, and found none
> that could be considered a victory for the antitrust plaintiff. (See
> Antitrust Law & Economics Review, Vol. 24, No. 4, pp. 15-26.) Triumphs for
> the monopolies were the routine fare. That court, in other words, is
> consistently pro-monopoly--and of course Microsoft's lawyers know it as well
> as I do. (They're already gotten the trial judge slapped down once here,
> when he tried to put some real teeth in the 1995 consent decree against the
> Microsoft's 'prudent counsel' have already filed their appeal with
> these Reagan judges, asking them to set aside Judge Jackson's OS/browser
> 'separation' order--and to do it on an 'expedited' basis.
> A likely scenario, then, goes something like this: Even if Jackson
> is incensed enough at the flouting of his recent injunction to hold
> Microsoft in contempt, he won't get a chance to do it or make it stick.
> The appeals court is almost certainly going to find the firm innocent of all
> charges, probably before the lower court has ruled on the contempt
> charge--which means those appellate judges will then set aside the
> underlying injunction. No injunction, no contempt. Case closed.
> Justice could ask the Supreme Court to hear the case but, with 8 of
> the 9 justices being similarly pro-monopoly, that would just get it more bad
> And it could go back to square 1 and file a new antimonopoly case
> against Microsoft, one that would probably take at least a decade to
> litigate--only to crash once more on the pro-monopoly judicial rocks of the
> D.C. Circuit appeals court.
> Cheer for the trust-busters--but put your money on Bill's legal
> team. They've got an ace in the hole--they own the courthouse.
> Charles Mueller, Editor
> ANTITRUST LAW & ECONOMICS REVIEW