This Posner appointment is extremely interesting. It's the first real evidence that Microsoft is serious about the latest settlement round.
It could be that the government and judge want Posner, a conservative Microsoft should trust, to be the one that delivers to Microsoft the bad news, the knockout blow, that the government's case is airtight, Microsoft's situation is hopeless, and he is the best shot Microsoft has of coming out of this alive. And if the theory that Microsoft is a natural monopoly is B.S., Posner is certainly the man to deliver that message.
However, I don't think Posner would do that. Based on what he has written about both the competitive process and about natural monopoly, I think Posner would more likely say that the competitive process in the software industry is imperfectly understood and constantly evolving, that a lot of the conduct that the judge has found to be anticompetitive really isn't and that the government is not going to be able to fashion a very effective remedy in this case because it is trying to apply laws intended for competitive markets to a natural monopoly situation. So, a lot of those "serious competitive issues" the government says the case is about may go away after Posner looks at them. I would guess that Microsoft probably hopes Posner will deliver that message to the government.
On the other hand, I don't think the government agreed to him just so it could throw away a major victory. Posner will be uniquely qualified to separate the wheat from the chaff of the government's case and tell the parties what will stand up on appeal and what won't. He can also suggest to the government what kind of remedy is appropriate. His appointment suggests that the government is genuinely in a quandry over what remedies to propose, as it should be.
I also think this appointment increases the chances of a stipulated divestiture, i.e., a breakup. |
