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They Own the Courthouse
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