A few guesses in answer to your questions regarding the future course of this case:
1. I'd have to check to see how many judges are on the D.C. Circuit, but the panel that decides the appeal, at least initially, will be three judges. Later, either side could ask for "en banc" review of the panel decision, which would require all or a substantial part of the entire court to, first, decide whether they want to review it en banc, and, second, review it. Bottom line: more time consmed and more delay if Microsoft were to try to go this route.
2. I'd have to check the local rules, but, generally, the panels are chosen by lot. In this case, though, it would not surprise me at all if the case got "low numbered" to the same panel that decided the Consent Decree case (which has a lower case number than the antitrust case). Low numbering sends all cases between the same litigants to the same panel that decided the first case between them and thereby is supposed to prevent a party from forum-shopping for a better appellate panel by filing multiple lawsuits or appeals. This is off the top of my head. I am not sure how the low numbering rules work in the D.C. Circuit, though, so I could be wrong on how I think they would apply here.
3. Regarding Supreme Court review, I don't see this case being taken by them in the first instance, but they've done some pretty surprising things in the past, so, to be honest, your guess is as good as mine. Furthermore, I am not so sure the Supreme Court would be more liberal than an appellate panel of the D.C. Circuit, especially if the case doesn't get low-numbered back to Randoph, Williams and Wald, the original panel in the Consent Decree case.
Here's the LA Times view on this issue
latimes.com
with the following "choice cut" from our good friend Robert Bork:
"I don't quite see the national emergency," said Robert Bork, an expert in antitrust law and a former U.S. appeals court judge and solicitor general at the U.S. Justice Department.
Bork, a consultant to an industry group that has generally taken positions against Microsoft in the case, said he thought it would be an "almost futile gesture" to try to go directly to the Supreme Court.
4. On your last question, I think there are some serious weaknesses in the DOJ case, but I have an idiosyncratic view of the matter.
I think the biggest problem for the DOJ is in the areas of causation and remedies. The DOJ's remedy, which the court rubberstamped, shows, I think, that the case has reached a sort of dead end.
As the court concedes, there is no evidence showing that Microsoft's predatory behavior is the cause of its market power, or that, "but for" Microsoft's predatory conduct, competition would exist in the OS market.
This state of the record presents some problems in the area of remedies. Conduct remedies will be ineffective because Microsoft is a natural monopoly, not one based on predatory conduct. Restraining conduct will do nothing to alter the market power created by the applications barrier to entry. I think the government and the court recognized this (along with the fact Microsoft can't be trusted) when they adopted a structural remedy.
The breakup will not "restore competition" to the OS market because the OS market is not naturally competitive. It's a natural monopoly. I think the DOJ and the court conceded this point when they went for the type of vertical breakup they did instead of the two horizontal breakup proposals the amici advocated.
If successful, the breakup the DOJ advocates will simply reduce consumer welfare, and it will make it easier for someone else to take over Microsoft's position as monopolist by eroding the "applications barrier to entry." That, of course, assumes the applications company and the OS company will actually compete against one-another, or at least act as potential contestants for the OS market, something that has yet to be empirically shown. After all, if Sun and Netscape couldn't overcome the applications barrier to entry, why would adding one more competitor to the mix make any difference?
However, in my view, the fundamental theoretical problem with all of this is that these kinds of discrimination against certain classes of competitors and in favor of others is not appropriate in antitrust law, especially when the competitor being discriminated against did nothing by way of conduct which caused the harm the suit was brought to redress (i.e., the loss of consumer welfare arising from its monopoly position).
But that's just my idiosyncratic view. |
