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Call it the appeals court’s homage to Brown v. Board of Education. When the U.S. Court of Appeals for the D.C. Circuit delivered its views on the Microsoft antitrust case last week, it did so in an unsigned, unanimous opinion issued by the court as a whole rather than written by a specific judge. Appellate specialists agree that this step marked a carefully considered effort by Chief Judge Harry Edwards to send a powerful message of unity to the parties, to the public, and to the Supreme Court. Some think Edwards views the Microsoft case as a capstone for his seven years as head of the court, a post he relinquishes in two weeks. And since United States v. Microsoft is one of the most important cases to reach the circuit in decades, many observers are comparing the way the opinion was crafted to the unanimous Supreme Court ruling in Brown, the landmark school desegregation case of 1954. The way in which the Microsoft opinion emerged, coupled with the court’s decision last year to bring the case immediately before seven judges and skip the usual three-judge panel, made the whole appeal very “Supreme Court-like,” says Paul Smith, the Washington, D.C.-based co-chair of the appellate practice at Chicago’s Jenner & Block. “Unanimity has great value in terms of granting legitimacy to the opinion and preserving it against Supreme Court review,” says Smith. “They clearly hope to be the court of last resort in this case.” A unanimous antitrust ruling by the full circuit court, which includes two acknowledged antitrust experts and judges of widely varying political views, is not likely to be reviewed by the Supreme Court, say Smith and others. “In many cases, a dissent is the best cert petition,” says Smith. “And here there was no dissent.” The June 28 ruling came down four months after a two-day oral argument. It cancelled Judge Thomas Penfield Jackson’s breakup order, took Jackson off the case because of an appearance that he was biased against the software company, and cut back on Microsoft’s antitrust liability. But it also upheld the trial judge’s finding that Microsoft had monopolized the market for personal computer operating systems and sent the case back to the District Court for possible further hearings. “It is very likely that the D.C. Circuit, and specifically its chief judge, made strenuous efforts to get a unanimous decision and to do it speedily,” says Smith, who also points out that the Supreme Court’s decision in United States v. Nixon, the landmark Watergate tapes case of 1974, was handed down quickly and without dissent. Alan Morrison, the appellate specialist at the Public Citizen Litigation Group, gives a different reason for the D.C. Circuit’s accord. “Chief Judge Edwards has always been quite vocally of the view that this court is not a political court. I am sure that he did not want this seen as a political decision. Had I been the chief judge, I, too, would have wanted to try to get everyone on board, precisely to prove that the court is not political,” Morrison says. Morrison points out that since the D.C. Circuit sees very few antitrust cases, agreement might have been easier to achieve because there is little circuit precedent and — even though Judges Douglas Ginsburg and Stephen Williams have strong antitrust backgrounds — few judges feel set in their positions. Some portions of the unsigned opinion seem to bear the stamp of a particular member of the court or to have been written to satisfy a judge’s specific concern. A highly scholarly section of the opinion, which cites cutting-edge economic literature on the issue of whether “current monopolization doctrine should be amended to account for competition in technologically dynamic markets characterized by network effects,” appears to reflect Ginsburg’s preoccupations. A lengthy section on the practice of “tying” or bundling products together was “almost certainly written by Judge Stephen Williams,” says James DeLong of the Competitive Enterprise Institute. Judge Williams, after all, wrote the 1998 opinion for a panel of the circuit in an earlier Microsoft go-round, rejecting the government’s claim of “technological tying.” Based on Edwards’ questioning at oral argument, it’s a safe bet that he took the lead role in the portion of the ruling that criticizes Judge Jackson’s comments to the press. Also during the argument, Judge David Tatel specifically pointed out that Jackson’s conversations with the media took place after he issued the findings of fact, but before he fashioned a remedy. That logic is consistent with the decision to remand on the remedy, but to preserve the finding of an antitrust violation. And at argument, Judge A. Raymond Randolph expressed concern that press reports of Jackson’s comments constituted inadmissible hearsay. The opinion specifically acknowledges this, but responds that the government essentially conceded at oral argument that Jackson did, in fact, talk too much to the press. George Cumming, an antitrust specialist with Brobeck, Phleger & Harrison in San Francisco, praises the opinion, while suggesting that it was undoubtedly the product of a little horsetrading. Cumming says efforts to achieve unanimity among strong-willed appeals judges inevitably leads to “some compromise” and runs a risk of ending up with an opinion “that reads as if it was designed by a committee.” “But this opinion doesn’t look like just a lot of stuff thrown together,” Cummings says. “It is well-crafted.” David Balto, an antitrust partner in the D.C. office of New York’s White & Case, does find a significant loose thread in the opinion that he thinks might well have resulted from some judicial give-and-take. That is, the court did not define exactly what business activities a dominant company can engage in without being branded a monopolist. “They never stated the standard for exclusionary conduct under Section 2 of the Sherman Act in the opinion,” says Balto. “To me, that’s clear evidence of compromise.” That is a crucial antitrust issue that has never been fully elucidated by the courts, says Balto, a former top policy planner at the Federal Trade Commission. The circuit skipped over that question here, he thinks, for fear of losing a crucial vote or two. Balto says the circuit ruling was a big win for the government, since four of the seven judges are conservative-leaning Republican appointees and the court still affirmed the finding that Microsoft was a monopolist. But he says the message of the unanimous court to both sides was clear: Go settle the case. Another lawyer points out a different advantage of achieving a unanimous per curiam result in the Microsoft case. “It was probably because of the issues related to the district judge,” says a well-known D.C. appellate specialist. “Removing a judge from a case is a very unusual step, and doing it per curiam makes it much less personal. After all, this is one of their own. They were scolding one of their own.”

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