What is the antitrust record of the 3 U.S.judges who've been named
to hear the Microsoft appeal? In connection with the 1993 appointment of
Ruth Bader Ginsburg to the Supreme Court, I reviewed the antitrust decisions
of this court (D.C. Circuit Court of Appeals, in Washington) for the 5-year
period 1986-'91. See Antitrust Law & Economics Review, Vol. 24, No. 4, pp.
15-26.
Of those 31 antitrust decisions handed down by that court in those 5
years-- Reagan appointees Robert Bork, Clarence Thomas, and Kenneth Starr
were prominent members then--roughly half (15) were decided by a 3-judge
panel that included 1 or more of the 3 judges who will be deciding
Microsoft's pending appeal. Randolph, then recently appointed, participated
in only 1 of those 15 cases. Williams sat in 7 of them, Silberman in 9. The
latter two (both also appointed by Reagan) often sat together and both wrote
frequent opinions.
Of those 15 antitrust cases decided by panels that included
Microsoft's new judges, 3 were essentially procedural, e.g., enforcing
agency subpoenas. None of the other 12 were victories for the antitrust
plaintiff. When the FTC found violations of law (e.g., price fixing and
price discrimination), for example, Silberman and Williams routinely
overruled the agency.
Private plaintiffs fared no better. In a case involving former
employees of an airline (Laker Airways) put out of business by predatory
pricing, for example, the panel hearing it dismissed the matter in an
opinion by Williams that contained the bizarre economic proposition that
those 313 jobless workers would GAIN rather than lose by the market's
monopolization: "[C]artel participants' comparative laxity as to costs
suggest that [plaintiffs] may well ultimately secure more lucrative jobs
than those that would have been available in the more competitive industry
that would have resulted from the survival of [their employer] Laker." Id.,
p. 18.
None of the Silberman/Williams opinions speaks approvingly of the
country's antitrust laws. Virtually all make it plain that they oppose
those laws and will not permit their enforcement in their jurisdiction.
A similar pattern would presumably be found in the later antitrust
decisions of these 3 Microsoft judges.
Charles Mueller, Editor
ANTITRUST LAW & ECONOMICS REVIEW
http://webpages.metrolink.net/~cmueller
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