Meanwhile, other sources are picking up on the conundrum of the case being "exceptionally important", but not that important. First, the NYT story of the day:
Justice Dept. Asks Appeals Judges to Let
Supreme Court Act First in Microsoft
Case nytimes.com
The Court of Appeals had the order ready even before Microsoft
presented its brief. When a Microsoft lawyer submitted the brief
Tuesday, a court clerk stopped him and then handed him the court order,
which had already been entered.
"The order issued yesterday by the Court of Appeals clearly shows that
the court is prepared to move expeditiously, which is in the best interests
of all parties," Microsoft said today.
That is to say, the appeals court wants to move expeditiously, but not that expeditiously, as in, say, the manner prescribed by the Expediting Act.
While asserting that it wants the case to move expeditiously, Microsoft
asked Judge Jackson this morning to give the company until Monday to
reply to the government's expedited appeal request. After that, the
Justice Department has the right to respond. So it seems unlikely that
Judge Jackson will certify the case for consideration by the Supreme
Court before the middle of next week.
This is all getting a little baroque, even for entertainment purposes. But then, there's always the Register:
DoJ files, while MS plays double game on delays 212.113.5.84
It became very clear that Microsoft had tried to be too clever in its desire to
get the appeal heard by the Court of Appeals, and that the Court's breathless
confirmation that the case was "of exceptional importance" was all but an
instruction to Judge Jackson to kick the case upstairs to the Supremes. The
reason for this is that the Expediting Act says that "an appeal from a final
judgment... shall lie directly to the Supreme Court, if... the district judge who
adjudicated the case enters an order stating that immediate consideration of
the appeal by the Supreme Court is of general public importance in the
administration of justice".
The rest of that piece is quite entertaining too, as is this one:
MS begs court for longer sentences 212.113.5.84
Microsoft's stay appeal is not at the moment in a form acceptable to the Court
of Appeals because it is too long. Microsoft knows this, because it has
submitted a separate "Motion for Leave to Submit an Overlength Motion for
Stay Pending Appeal" to the court asking it to accept its longer motion for a
stay.
The Federal Rules of Appellate Procedure require that a "A motion or a
response to a motion must not exceed 20 pages... unless the court permits or
directs otherwise" - and Microsoft's stay Motion runs to 39 pages. Microsoft
asked both the DoJ and the Plaintiff States to agree to a longer brief, as
required by the DC Circuit's rules on consultation, and to say whether it was
intended that they would file an opposition or other response. The Plaintiff
States refused to agree to the overlength stay motion, but evidently did not
say whether an opposition would be filed. For its part, the DoJ appears not to
have stated a view on either. . . .
There are other problems for Microsoft. The DC Circuit is not a bit keen on
overlength briefs, and says in its own rule 27(h)(3): "Pleadings in Excess of
Page Limits. The court disfavors motions to exceed page limits; such motions
will be granted only for extraordinarily compelling reasons." DC Circuit Chief
Judge Harry Edwards stressed this is in an interview last year: "Probably the
worst problem that the court faces, from both good and not-so-good
advocates, is overly long briefs! Almost every attorney writes to the page
limits and most cases do not require briefs as long as the page limits allow. It
is truly amazing that attorneys fail to understand that a tight argument is both
easier to read and much more impressive than a verbose offering." Maybe
Microsoft's thinking is that there's obfuscation in verbosity, and that a short
brief might expose a barren argument.
Of course, somehow I'd guess old Harry Edwards will find a way to make an exception for these exceptionally important, although not that exceptionally important case, since he didn't seem to feel it necessary to read the brief in order to respond. Talk about rubber stamping.
Cheers, Dan. |
