e-Bill, I'll let Ralph speak for himself...Part 2
votenader.com
Microsoft Mediation
By Ralph Nader
November 22, 1999
The historic Microsoft monopoly trial took an odd twist on
November 19th when federal Judge Thomas Penfield
Jackson secured the agreement of the Justice
Department and Microsoft to accept mediation by 7th
Circuit chief Judge Richard Posner.
For most jurists, being a chief judge of a busy federal
circuit court of appeals would be a full time job. But
Judge Posner, often called a brilliant workaholic who
grinds out a book a year on different subjects, thinks he
can stimulate a settlement between the two warring
factions.
The stock market believes in Judge Posner's conservative
reputation and his numerous writings scathingly critical of
most past antitrust doctrines to jump Microsoft's stock
nearly 5 points in after-hour trading Friday (adding
another $5 billion to Bill Gates' fortune).
Are the boys on Wall Street being precipitous? After all,
Posner's colleagues and several law professors consider
him unpredictable and his own man. They point out that
as a mediator, he cannot force a settlement nor can he
divulge any of the discussions to Judge Jackson or
anyone else.
But then Judge Posner is not like any other prominent
judge. He seems never to have had an opinion that he
did not want to publish. His 30th book was a sharp
denunciation of President Clinton's lying in the Monica
Lewinsky scandal and a general defense of Special
Prosecutor Kenneth Starr's handling of the case. No one
would accuse him of having the conciliatory temperament
that a mediator should possess.
One of his law students tells the story of Judge Posner,
as a part-time professor at the University of Chicago Law
School, coming into the first day of class and writing the
word "Justice" on the blackboard. He then turned and
said to his class that he did not want to hear that word
in his course.
As one of the founders of the "law and economics" school
of monetized thought, what Judge/Professor Posner
meant was that quantitative economic reasoning could
explain legal issues such as by a cost-benefit analysis.
For example, in one of his books he argued for parents'
rights to sell their children for adoption to the highest
bidder.
Throughout his career, Judge Posner, businessman Posner
and law professor Posner have challenged many a
conventional attitude, and antitrust law has been no
exception. He has written that "The evils of natural
monopoly are exaggerated, the effectiveness of
regulation in controlling them is highly questionable, and
regulation costs a great deal."
It takes a deliberate price-fixing scheme between
competitors or a tight cartel to get his antitrust dander
up. Years before he became a judge, Posner started a
consulting firm, called Lexecon, that advised corporations
how to defeat antitrust law enforcement and undermine
regulatory actions.
Given his voluminous antagonism to government
regulation, it is not likely that Judge Posner will nudge his
sparring parties toward "conduct" changes by Microsoft
that need regulatory oversight. But then, would he
encourage "structural" changes such as Microsoft's
breakup into two or more companies that separate its
operating systems business from its applications
business?
Certainly Judge Jackson's findings of fact would support a
breakup remedy. But it is difficult to envision Judge
Posner recommending such a move. He would probably
prefer some self-executing remedies upon Microsoft that
would presumably unleash competitors against the giant
software company's anti-competitive monopolies.
In his book on Antitrust Law (1976) Posner doubted
whether any company could have enough persistent
market power over time to actually impose predatory
pricing.
Since Judge Posner, as mediator, has no decisional
power and cannot publicize his views, what is Judge
Jackson's exercise here all about? There is about a 90
day window for the mediation to conclude before Judge
Jackson issues his long-awaited findings of law.
It appears that Judge Posner's function is to move the
government and Microsoft to a settlement by the force of
his intellect and his probabilistic assessment of either
parties' chances on appeal. All in private, subject to his
influence.
How much better it would be to continue the open
judicial process, now that the trial phase is over, to an
open judicial conclusion under the public's watchful eye.
A full record and precedent would contribute to the
development of antitrust law in these new fields of
monopolistic technology networks. |
