I think Posner's appointment is good for Microsoft, with two caveats.
First, if Microsoft can't convince Posner that the DOJ's case is weak, then I don't think they will be able to convince anyone. He really is by far the most sympathetic audience they've ever had to address in this entire mess. Posner is a first rate classical liberal (a.k.a. libertarian) jurist. He has said many times that his is the philosophy of the John Stuart Mill who wrote "On Liberty." If Microsoft puts on a principled defense based firmly on classical liberal principles, it should get a sympathetic hearing from Posner.
As you probably know, the Wall Street Journal wrote a very interesting editorial in which the paper basically said it thinks Judge Jackson appointed Posner so he could provide Microsoft with the defense its own lawyers could not -- a stinging but well-deserved indictment of Microsoft's lawyers.
Second, Posner is only a mediator. He cannot force a party that does not want to settle to do so. So if either the DOJ or Microsoft feels screwed, all they have to do is walk. That means Posner's Chicago School views will not prevail at this stage if the DOJ and the AGs are bound and determined to take a more interventionist approach, which I think they are.
My own admittedly crazy theory is that Posner will negotiate Microsoft's break-up. When all is said and done, I still think that's the best way to resolve the case for the long-term benefit (though not short-term benefit) of consumers, and the one thing the DOJ lawsuit won't do but that will most flatter the egos of the lawyers and politicians who brought it.
Finally, on Bork: Don't lump the two of them together. In one published article, called "Bork and Beethoven," Posner says Bork's social conservatism is "the philosophy of On Liberty with a negative sign placed before it." To me, that says it all. |
