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As the appeal in the Microsoft case finds its way, sooner or later, to the United States Supreme Court, there is much to contemplate about the future course of judicial events. By now, most Americans (and many others around the world) know that the trial judge has held Microsoft in violation of the federal antitrust laws. According to that jurist, the software company attempted to monopolize the market for internet browsers and abused its existing monopoly in “Intel-compatible PC operating systems” by a variety of activities intended to eliminate the competitive threat posed primarily by Netscape Navigator and Sun Microsystems’ Java class libraries. Some of these conclusions seem almost certain to survive appeal. The court’s finding that Microsoft proposed to divide the browser market with Netscape, and the subsequent conclusion that the proposal violated the proscription in Section 2 of the Sherman Act against attempted monopolization, seem both unassailable and sufficient to support the imposition of liability; and, indeed, they receive very little mention in either the popular press or Microsoft’s post-trial briefs. Nevertheless, the opinion of the trial court (its Conclusions of Law), the Remedy which it chose to adopt, and the highly unusual procedures deployed at the various stages of the case will all no doubt provide much grist for appellate courts and academic commentators everywhere, including Illinois. Large and important questions issues of antitrust law are at stake. What is the proper analytic approach to “technological” tying arrangements? What are the proper limits of a monopolist’s behavior in responding to a challenge to its monopoly position? Lost perhaps amidst these more particular and pressing questions is an equally important issue involving the relationship between corporate personality and judicially imposed remedies in civil antitrust trials. I use the term “corporate personality” for lack of a better phrase. But in this context, I have in mind something very specific. Throughout the trial (and even prior to its commencement) and continuing through the failed mediation effort and the abbreviated remedy phase, Microsoft ardently maintained its innocence, or more precisely its lack of any wrongdoing. Indeed, its chief executives, Bill Gates and Steve Ballmer, criticized the government during the trial and loudly proclaimed their intention to appeal the case almost as soon as the judge’s opinion had been issued. And following the trial, no Microsoft official expressed any remorse or contrition for any of the unlawful conduct found to have been committed by the company. Nor did anyone apologize for having broken the law. Nor did anyone even acknowledge that the company’s conduct did indeed violate the law. The unrepentant attitude of the company and its officers was very disturbing to the trial judge. In a Memorandum and Order accompanying his Final Judgment in the case, among other things, the judge rejected Microsoft’s request for additional hearings on the remedy issue, observing in the process that “[f]ollowing a full trial Microsoft has been found guilty of antitrust violations, notwithstanding its protests to this day that it has committed none.” The judge also observed, a bit later in that Memorandum, that he had “reluctantly” decided that a structural remedy (the forced divestiture that the court ordered) for Microsoft’s violations was imperative because “Microsoft as it is presently organized and led is unwilling to accept the notion that it broke the law or accede to an order amending its conduct.” The implications of the judge’s tone and language are clear. If Microsoft had been willing to admit its wrongdoing and stop proclaiming its innocence, he appears to suggest, the court-ordered remedy might well have been different and less drastic. There is something wrong, he seems to be saying, with Microsoft’s recalcitrance, with its unwillingness to admit that the court’s decision was correct and its conduct was unlawful. He seems to regard Microsoft as a convicted felon who shows no remorse for his crime, and appears at least in part to penalize the company for its attitude, its recalcitrance and temerity in disagreeing loudly and publicly with his ruling. No matter how one may view the merits of the case — and I for one believe that Microsoft has violated the law — the judge’s response to Microsoft’s attitude is deeply disturbing. Microsoft has every right to express its disagreement with the ruling. Its immediate appeal is one sure, and socially acceptable, sign of that disagreement; but its public expressions of disagreement are also an acceptable response to an adverse judicial decision. In the second place, Microsoft is hardly alone in disagreeing with the court. Many citizens, members of the private bar, and academics share its belief that the case has been wrongly decided. It is not unreasonable to disagree. In the third place, even if it were somehow “unreasonable”, why should Microsoft be muzzled? As long as its disagreement does not take the form of disobeying a court order, why should the court care what it says? Moreover, much of Microsoft’s business behavior is controversial in the sense that its legality is difficult to judge. The trial court characterized it as unlawful, but the appeals court or courts may see some or all of it in a different light. In addition, Microsoft’s disagreement on the merits of the case, even if somehow “unreasonable”, does not necessarily mean that it would fail to obey whatever conduct restraints might be imposed on it at the case’s conclusion. And finally, it arguably seems to violate general notions of due process and fair play, to impinge on Microsoft’s freedom of speech, and to chill the free speech of future litigants for the court to punish Microsoft — even in some small measure — for having dared to criticize its ruling. Microsoft’s corporate personality is not genial. It plays hardball, speaks loudly, acts defiantly, and seems convinced of its infallibility. For many, these characteristics may go some way towards explaining the company’s phenomenal success. But for others, Judge Jackson no doubt included, they must be abrasive and unattractive. When they result, however, in nothing more than a losing side’s strenuous disagreement with a trial court’s legal conclusions, the court should ignore the outburst of pique and refrain from mixing its views about the defendant’s personality with factors properly considered in assessing the appropriate remedy. In my view, and in that respect, Judge Jackson failed in his role. Michael S. Jacobs is a professor at DePaul University College of Law, where he has taught courses on antitrust, contracts and health law. He is a graduate of Yale Law School and a former clerk to Judge James E. Doyle of the U.S. District Court for the Western District of Wisconsin.

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