I mentioned earlier that the appeals court that will hear the
Microsoft case-- the D.C. Circuit Court of Appeals--was a special object of
attention during the Reagan administration. Given its jurisdiction to hear
appeals from the policy decisions of the Washington agencies, the Reagan
Justice Department (headed by Ed Meese, as attorney general) gave priority
to making it a bastion of "conservative" jurisprudence--loading it with
pro-monopoly judges. And to assure that this key court didn't fall into
"liberal" hands any time soon, Meese went out of his way to find right-wing
judges for it who were also youthful--and thus likely to be around for
decades to come. (Robert Bork and Kenneth Starr have of course moved on.
My less-than-current court directory shows 5 Reagan appointees still
there--Sentelle, Williams, D.H. Ginsburg, Buckley, and Silberman. Cases are
decided by 3-judge panels--2 votes win.)
Microsoft is of course fully aware of all this, which is to say that
it knows it can get any decision or order--if it really cuts seriously into
Bill's vast stream of monopoly revenue--reversed in quite short order, just
for the asking. Judge Jackson has appointed a Chicago-school special master
to do some "fact-finding" for him and promises a 'final' decision in the
summer of '98. If it's costless to Microsoft to wait until then--if its
monopoly power is undisturbed by the Jackson order--we would expect Bill's
legal team to wait, holding its fire for the next 6 months or so. But if
there's real economic bite in the Jackson decision--if it's going to
seriously slow down Bill's money machine--we should look for a quick appeal
(and a quick setting aside of that inconvenient order).
We thus have a handy gauge of the (economic) effectiveness of the
Jackson order--whether it's immediately appealed. No appeal, it's
economically toothless.
Charles Mueller, Editor
ANTITRUST LAW & ECONOMICS REVIEW
http://webpages.metrolink.net/~cmueller
