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To: Bearded One who wrote (20204)	6/24/1998 10:53:00 PM
From: Gerald R. Lampton	Respond to of 24154

I see how a loose integration of Windows 95 and DOS seemingly helps Microsoft in that it loosens the Appeal's court definition of integrated. It helps them in connection with the Consent Decree, not in connection with the straight Sherman 2 action. In going over this opinion more carefully, I am having a harder and harder time understanding why all three judges chose to engage in a long exegesis on the meaning of the Consent Decree. The opinion goes along fine until it reaches this point: We do not believe that a reviewing court must entertain such a request [to "allow[] a procedurally flawed injunction to remain in place pending a proper hearing on remand"]; if the record the record were so deficient as to make effective evaluation of the equities impossible, a court might do better simply to vacate the injunction as a matter of course -- especially where, as here, the injunction was sought only rather obliquely. As this point, were I the one writing the opinion, I would have gone on to discuss Lessig and left all the discussion about the meaning of the Consent Decree for another day. The court raises a number of reasons for discussing it in this opinion which, quite frankly, I do not find very convincing: 1. Silence at this stage would risk considerable waste of litigative resources. No it would not, at least not in the Consent Decree case itself. As Judge Wald seemed to recognize, the case is now in legal limbo, since the release of Windows 98 and the Sherman Act case are making it irrelevant and moot. Had the court not said anything, the case would have been remanded and the two sides might then have agreed to dismiss it, or Microsoft might have moved to dismiss it as moot, and it would have died a quiet death. Now that the court has trashed the DOJ's case, the DOJ cannot back down without making itself look bad. The only way it makes sense is if the Consent Decree provides a stronger restraint on Microsoft's tying activities than does naked antitrust law -- a possibility that also does not bode well for DOJ's browser integration case. In any event, if the Consent Decree is more prohibitive than general antitrust law, then that's another reason for DOJ not to back down. 2. The lower court's "estimate of the probability of success on the merits depends on an incorrect or mistakenly applied legal premise so that the court is serving the interests of justice by setting matters right. But the appellate court's legal premise might just as easily depend on a mistaken understanding of the facts, in which case justice is not served by issuing a premature, advisory opinion. Furthermore, there are good reasons not to have interpreted the Consent Decree now. First, as the court itself said, the court's "factual conclusion is, of course, subject to reexamination on a more complete record," meaning that the District Court has the ability to undo the factual premises of the case. In particular, if it turns out that the IE/Win 95 combination is, as a factual matter, more closely analogous to the Win 3.1/DOS bundling than to the actual, as opposed to the court's perhaps mistaken view of, Win 95 integration, then the District Court, I think would still have the power to rule it illegal under the Consent Decree -- in which case, most of the appeals court's comments are a confusing waste of time. If the case were dismissed, then the waste of time would also have been unnecessary. Second, the court harps over and over about how the judiciary is not competent to engage in regulating product design. But that is exactly what they are doing, albeit applying a deferential standard of what product designs pass muster under the Consent Decree. If the judiciary is not competent to engage in regulating product design, then maybe the court of appeals should not have done so here. Williams and Randoph did not get to where they are now because they are stupid. So, why did these two men, whose judicial philosophies would otherwise counsel restraint, reach out to issue their advisory opinion about the meaning of the Consent Decree?