To: Dan3 who wrote (45569 ) 5/31/2000 2:55:00 AM From: Gerald R. Lampton Respond to of 74651
You may be right about the "poor defense" being no accident. By pushing the judge to the breakup option instead of behavior restrictions, Microsoft may have been using a "don't throw me in that brier patch" defense - and it seems to have worked. I think you make some good points. Although in-house lawyers have been known to do things like what Microsoft did, it's hard to believe a firm like Sullivan & Cromwell would let pass the kind of things that went on in that trial. And Schmalensee, who would be possibly the single most important witness in the whole trial if it was legit, was an absolute disaster. Where I disagree with you is that I do think MSFT is trying extremely hard to thwart a breakup. But that difference of opinion is minor compared to the main point, on which I think you and I agree. As I see it, as a result of MSFT's incompetent defense, DOJ and Judge PJ now find that, having achieved a "great victory" by proving that MSFT is a natural monopoly, they are completely flummoxed by this case. As I read the tea-leaves, despite the superficial bravado, neither DOJ nor PJ seem to know quite what to do with their victory. So DOJ comes up with a half-hearted breakup proposal that implicitly acknowledges that nothing can be done to "restore competition" to the OS market, and Judge PJ, so it seems, just signs off on whatever the DOJ wants. (The exception that proves the rule might be the three-way breakup -- so we can have three companies not competing in the OS market instead of just two! ;) ) This reminds me of those cases one sees from time to time where the trial judge gives the plaintiffs everything they want, with the expectation that it will all get sorted out on appeal. I seem to recall from the Vietnam era some of the draft cases that fit that mold. Maybe I'm wrong, but Judge PJ's overall behavior really does seem to suggest to me that he doesn't really know what to do. So, he just gives the DOJ everything it wants and kicks the whole mess upstairs to let the Court of Appeals or Supremes sort it out.