Let's thank Margie for the following synopsis, and her impressions:
Message 15750180
"Anyone know when the appeals court decision will be out.
The average time from oral argument to disposition of the case in the DC District Court of Appeals is 63 days, in 2000, an improvement from 1999 when the average length was 76 days, according to a report from the Chief Justice of the Appeals Court.
cadc.uscourts.gov (Table on Page 2)
cadc.uscourts.gov (Table Page 7)
b>Counting 63 days from the Oral Arguments on February 26th and 27th is May 1st or May 2nd. So any day or week...IMO, the reason there has been no decision yet is related to this Notice on the website of the US District Court of Appeals, dated April 23rd, 2001 cadc.uscourts.gov
”Notice of Proposed Amendment to the D.C. Circuit's Judicial Misconduct Rules and Opportunity for Comment” cadc.uscourts.gov
The Judicial Council from the DC Circuit and under certain circumstances, the Judicial Conference of the United States (JCUS) investigate complaints about Judicial Misconduct and Judicial Disability. They are both governed by sets of rules and any discrepancies or omissions between the two sets of rules can be modified by proposing amendments and giving appropriate notice and allowing time for public comment, as is being done. In some cases, rules can become effective immediately, if considered urgent, but notice and an opportunity for public comment must follow promptly.
I assume that at least some of these proposed amendments pertain to the Microsoft case and Judge Jackson’s handling of it, which may be an incorrect assumption. Maybe it just a coincidence. We will find out soon enough.
From the proposed amendments, and using those assumptions, I get the impression that:
1. The Judicial Council or the Judicial Conference of the United States may ask Judge Jackson to retire “voluntarily” which is one course of action available for judicial misconduct in Rule 14: Action by the Judicial Council.
(14(f)(5) In the case of a circuit or district judge, requesting the judge to retire voluntarily with the provision (if necessary) that ordinary length-of service requirements be waived. If a judge does not retire "voluntarily" the judicial council can certify the disability of the judge, so that an additional judge can be appointed. (14(f)(6)
Another indication in the proposed amendments that suggests they will ask Jackson to retire are these proposed additions to the rules: If a complaint is dismissed, after being heard by a special committee, not on the merits, but "because the complaint is now moot or because intervening events have made action on the complaint unnecessary, it is up to the judicial council to decide if the judge will be identified." Then they comment that : ”It may be in the public interest particularly if a judicial officer resigns in the course of an investigation - to make the identity of the judge known."
The proposed amendments say an important action was omitted from actions available after the final report of a special committee: "that the investigation of judicial misconduct can be ended, without a finding of misconduct or disability, if corrective action has been taken, and because action on the complaint is no longer necessary because of intervening events.” Imo, the “intervening event” referred to many times may be Jackson’s ‘voluntary’ retirement.
2. The Judicial Council will probably chose to sanction or censure Judge Jackson privately to avoid a controversy and a public record.
3. I don't think the case will be remanded to a different judge. Part of their commentary says: “There may be some cases, however, in which a loose end can be tied up without remand.” Also remember Judge Sentelle's comments to Attorney Roberts " Well, I'm not sure that I see how you can with a straight face ask us if we remand, to send it to the same judge after these comments." Why would they want to subject anyone to the torture of having to listen to States Attorney John Roberts argue that Jackson’s outrageous comments all resulted from what he learned during the trial and should have no consequences at all.
The proposed amendments suggests extending the 30 day deadline to 60 days to petition the Judicial Conference of the US to review Judicial Council orders. In certain cases, the JCUS must review judicial complaints - 1. If the Judicial Council feels that a judge’s conduct constitutes grounds for impeachment 2. If the Judicial Council cannot agree on an appropriate course of action for remedy of the complaint.
Maybe the Judicial Council cannot agree on an appropriate remedy or course of action against Judge Jackson. That's possible.
Maybe they just want a higher authority who was never involved with Microsoft vs DOJ to endorse or approve their actions, which will help deflect criticism against what could be a controversial decision, and prevent charges that these judges always decide in Microsoft’s favor or that the Chief Justice just wants to get back at Judge Jackson. Some of the proposals deal with complaints against the Chief Justice, or complaints initiated by the Chief Justice.
Judge Tatel made some interesting comments during the Oral Arguments to Microsoft Attorney Urowsky that suggested a way for the Appeals Court to avoid having to deal (at least publicly) with Jackson’s conduct. They were discussing what statements Jackson made that conveyed an appearance of bias that became public; and if his comments became public during the trial or after. Since there was no formal investigation there was no record.
Judge Tatel:” So that if this court decides to set aside the remedy for other reasons, there's no reason to address this issue with respect to that, right?
MR. UROWSKY: If the court agrees to vacate the remedy in its entirety for other reasons, I agree with you.
Judge Tatel : "So then we go back to statements prior to the conclusion. Are you also asking that we would vacate the conclusions of law and the findings of facts also?"
MR. UROWSKY: "That's correct. "
During the oral arguments, a case was cited where recusal (disqualification) was ordered for a judge whose only offense was this comment made defending her handling of a case prior to sentencing: “I think this case is more complicated than another one.” The First District Judge thought her comment was way out of line, which is the standard for granting mandamus and granted an order for her recusal (removal). I can’t imagine what that judge would have thought about Jackson’s comments. Another legal case was discussed where a judge’s orders were vacated ‘retroactively’ AFTER the trial and AFTER the Appeal had ended; due to a violation of US code 28, 455a. (a) Any justice, judge, or magistrate of the United states shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” If the judge doesn’t disqualify himself; the Judicial Council is obliged to take action. That's the law. The Appeals Court judges do not have the option of ignoring it.
IMO, the judgement will be vacated, overruled, reversed, dismissed, whatever the appropriate legal term is, but the case will be over when the Appeals Court rules. I doubt if this will get to the Supreme Court. I hope that any vacature or reversal or whatever it’s called is made on the merits or lack of merits of the case, and not on Jackson’s misconduct or the government will claim they would have won otherwise. The DOJ case was flawed from the beginning and the Appeals Court judges destroyed all three arguments that the antitrust charges were based on and ridiculed their defense.
THE COURT: "To have a cross platform middleware, you envisioned having a competitive situation?"
DOJ lawyer MR. MINEAR: "No.
THE COURT: "Of course not. We are going to replace one monopoly with another if you're right; right? That's what this case ultimately is about is whether or not the Microsoft -- the alleged Microsoft monopoly should be replaced by what you say over and over in your brief should be the Netscape-Sun combination middleware monopoly. It would have to be a monopoly because you can't compete to offer that which you envision them offering; right?"
THE COURT: But the winner -- we are not disagreeing so far. The winner will be a monopoly; right?
THE COURT: If you are right.. if the middleware notion is a viable notion. I mean that's so funny reading this initially.
THE COURT: Why not? I mean isn't that really the government's theory .. I mean the government persuaded the District Court to make this finding of fact that essentially Netscape needed to become the standard. That's because it needed universality. It needed not to have competition, in effect.
We're all wondering about this curiosity in this case. It really looks like one monopoly replacing another. We all ask you the same question in different ways… Is that what we are really talking about, one monopolist replacing another? Are we fighting for monopoly --fighting for the newest, latest monopoly status?
MR. MINEAR: Your Honor, my answer again is we don't know.
"That's what Judge Williams is asking. Windows and Microsoft are allowed to compete for the next stage; right? If the next stage is a monopoly, they can’t all compete fairly. It's a monopoly."
Will you articulate for me the line between the permissible and the impermissible? It is pro competitive for Sun to use methods to get its technology out there and thereby induce applications writers to write to it. What methods are permissible for Microsoft to do the same, if any?
THE COURT: I understand there is a difference between a monopolist preserving his turf and the challenger trying to get its turf. (Netscape Navigator had 80% of the market and Explorer had 5% at this point.)
MR. MINEAR: Well, why don't we move on to some of the other methods so that ..
THE COURT: Well I don't want to move on….... Microsoft was trying to encourage software writers to write for it and that's why it was included in the browser. There is a lot of evidence on this.
THE COURT: we are are talking about consumer welfare or competitor welfare. …we should be looking at consumers' access to the units and not Netscape's revenues from the units.
MR. UROWSKY: That's my feeling.
THE COURT: May I ask one question. If, in fact, 60 million users were, or somewhat less than that, downloading Netscape’s Navigator in 1998, (and Netscape had arrangements with other companies, apparently 16,000 of them, which provided that those companies would distribute Navigator and one hundred million Netscape Navigator browsers were distributed through partners including OEM’s) ….. then how can it be that Netscape's market share dropped so precipitously?
MR. UROWSKY: In 1998 it would have been approximately 50 percent, ...The District Court says from '96 to '98, (Netscape's)usage increased from 15 million to 33 million. I think 38 million, from Goldman Sachs ..
THE COURT: When the record closed, what was Netscape's market share?
MR. UROWSKY: I think around 45 percent. But the ..
THE COURT: Excuse me. Is that measured as usage? (!!!)
MR. UROWSKY: That's correct.
THE COURT: So another explanation is people were downloading it but didn't use it because they didn't like it.
MR. UROWSKY: That's correct.
THE COURT: If it's a free download, and you've got both of them on your machine, and you can choose which one to use.
It’s too bad the US legal system does not have Loser Pays like the U.K has. There are too many frivolous lawsuits and nothing to discourage them. The only reason the Attorney Generals have leached onto this case is because they are after Microsoft’s deep pockets $$$$$
After the Tobacco Lawsuit was settled for the obscene amount of $250 billion dollars to be divided between the 50 states and the Private Trial Lawyers, the Attorney General from Rhode Island was quoted saying: “Let’s do latex gloves next.” Actually they are 'doing' lead paint instead; a class action lawsuit against the Lead Paint Industry was filed recently, with Rhode Island at the helm. It's not surprising that Rhode Island is one of the 19 states tagging along for the ride and the loot.
Judge Posner criticized the participation of the States in Antitrust actions, after the settlement talks fell apart, due to the excessive demands of the AGs. |
