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The Microsoft Trial Sept. 21, 1999

Dahlia Lithwick worked for two years in a family law firm in Reno, Nev. She is writing a novel about how divorce affects children. She writes a weekly column for the Ottawa Citizen.

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Such is the rhythm of our legal system: Something quite simple ("I want a divorce") is made exceedingly complex ("What percentage of your income goes to the phone bills?") only to be made too simple again ("Father gets Easter; Mother, Thanksgiving.")

One learns this phenomenon within minutes of entering law school. Simple facts ("Angus refused to sing 'In-a-Gadda-Da-Vida' at the Goldstein bar mitzvah") generate pages of abstract legal theory ("Was there a meeting of the minds about whose version he was to sing?"). Your job as law student is to distill all this down to a two-paragraph summary in case you are called upon in class. You will later boil it down to a one-sentence summary for an outline you'll use to study for finals. The point may or may not appear in the exam.

Such expansion and contraction mean that lawyers are never quite certain how big or important things are. This is why we yell about paperclips and sleep through death-penalty cases.

The Microsoft trial has been called the antitrust trial of the latter half of this century. As have the last three antitrust trials this century. It began as a few disputed sentences in a 1994 consent decree limiting some alleged anti-competitive jiggery-pokery by Microsoft. The "six-to-eight-week trial" metastasized into a 76-day ordeal spanning 11 months with dozens of witnesses and thousands of exhibits. It might have grown even bigger, but Federal District Judge Thomas Penfield Jackson deliberately limited the number of witnesses and kinds of testimony to prevent the legal entropy that produces an O.J. trial.

When testimony ended last June, it looked for a moment as though Computing as We Know It was on the line. But things got quiet, we tried instant messaging, we maybe upgraded, and we bought orange Gap vests online.

Bill Gates gave money away.

Through August and September the case contracted even more, with each side submitting proposed findings of fact, then revised versions of same, each of which told a condensed version of their story from trial. The government said Microsoft used its monopoly power in the operating systems market to bully and threaten its way into dominance over the browser market. Microsoft argued that it acted competitively in a competitive market, that distribution channels for competitors were never foreclosed, and that consumers have not been harmed.

"More paperclips!"

Today, with two and a half hours allocated to each side for closing arguments, the case contracts once again until it is virtually dancing on the head of the pin. Except for the venue--proceedings moved upstairs to a vast courtroom in the U.S. District Courthouse where we sit under the watchful statue eyes of Moses, Justinian, Hammurabi, and Solon--little has changed. Except the lawyers have traded their fine brushes for broad ones--paint rollers, perhaps--and the Microsoft case appears even smaller than it did before.

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