>His writing is gobbledygook!
Maybe so, but he's got the future of Microsoft in his hands.
Let me clue you in on a few things.
If he does what most magistrates and federal masters do, he will prepare a report to the judge. In that report, he will go over all the evidence and resolve any disputed facts (where, for example, Microsoft says, "The light was red," and DOJ says, "The light was green" -- this guy who writes gobbledygook will decide who is right).
Now, what you decide the facts are will determine in large measure how the law gets applied to your case. For example, the issue of whether Microsoft has a monopoly of the OS market is a legal issue, but its actual market share numbers, and, most likely, the relevant market to be measured, are factual issues. So, this guy who writes what you call gobbledygook will decide what Microsoft's marketshare is in the OS market and will, in fact, decide what the relevant market is.
After he makes the factual determinations, the guy who writes gobbledygook will then make findings of law. Is Microsoft's share of the OS market a monopoly? Is their marketing of Windows and IE a tying arrangement? Does it violate the Sherman Act? These are the issues that will decide the case.
Now, the district judge will review these issues of fact and law de novo, meaning he will look at all the evidence and decide whether he agrees or disagrees with the special master. The district judge can alter or reject any of the special master's findings. But, more than likely (I would guess), he will accept most of them.
Of course, Microsoft has the right of appeal. Problem for Microsoft: on appeal, legal findings are reviewed de novo, but factual findings are subject to what is called the "clearly erroneous" standard. That means in simple terms that it is very hard to get them overturned once they are made.
Now, to throw an even bigger monkey wrench into this already confusing mix, here's what Lessig has to say about facts:
There's a confusion in this common view that goes to the core of
constitutional thought. It is a conflation of "fact" with the idea of the uncontestable, and of "value" with the idea of "up for grabs." "Facts," this view implies, "are the sorts of things we all must acknowledge; if the Constitution was wrong about a fact, then judges can change it to fix that mistake." "But values," it continues, "are the sorts of things that are chosen. They are up for grabs. So if the Constitution was wrong about a value, we must amend it to change it."
This view is mistaken, though there is something real here that it is trying to track. Facts are not all uncontested, and neither are all values contested. There are facts that are up for grabs, as well as values that are, as it were, off the table. Thus, rather than a rhetoric that tracks ontological categories, like fact and value, and that allows changes in constitutional law when we can identify a view grounded on facts, we should follow a rhetoric that tracks "up for grab-ness," or "off the table-ness," and recognize changes based on them. There are changes that a court must recognize, fidelity notwithstanding; these changes are changes in this category of the
uncontestable.
Lessig, Response THE PUZZLING PERSISTENCE OF BELLBOTTOM THEORY: WHAT A CONSTITUTIONAL THEORY SHOULD BE, 85 Geo. L.J. 1837 (1997).
This, then, is the view that will inform Lessig's understanding of what is a "fact" and what is an issue of "law" and how Lessig should go about deciding those issues.
And, if you don't like it, if Microsoft doesn't like it, tough. Tell it to the Court of Appeals.
BTW, Lessig apparently clerked for Justice Scalia. So he's not quite as pointy--headed as you might think. |
