Two thoughts from your last missive:
First, you said:
Any rule adopted with respect to Microsoft must be a rule of general application: that is, a rule equally appropriate as applied to any U.S. firm. Our system of laws is one that at least aspires to guarantee equality to all citizens, including business firms. Our country does not accept one rule for the rich; another for the poor; or, one for the successful; another, for those who wish they were.
I agree that laws should apply generally and equally, but at the same time I worry about taking this principle further than it was meant to be taken. For while the legal system does and should treat similar entities similarly, it makes no pretense of treating everyone the same. Consider: We demand disclosures from government officials that we don’t require of private citizens in their personal lives; we regulate big businesses differently than small ones; we tax different levels of incomes at different rates. Whatever we might think of these policy decisions, they reflect the reality of our legal system that rules often apply only to particular classes of people and organizations.
In this context, I think it’s fair to ask monopolists to refrain from certain behavior that, in the absence of market power, wouldn’t trouble us. We certainly wouldn’t want to set a precedent with Microsoft that wouldn’t make sense for other companies in similar situations, but the rule resulting from the case at hand could be of the form “Companies with monopoly power are prohibited from doing X” rather than “All companies are prohibited from doing X,” as I read your analysis to suggest.
You subsequently comment:
The question is whether [a practice] benefits Microsoft because it promotes Microsoft’s products, thus enhancing competition, or whether it provides no particular benefit to the promotion of a Microsoft product to consumers, but chiefly harms Microsoft’s competitors. Only a practice that has this last effect is illegal under the antitrust laws.
Again, I wonder whether you don’t set a test too favorable to the established firm. I’m brought back to the question of multiple causations, for so many of the practices in question can be said both to benefit Microsoft’s actual product (and consumers) and hinder competitors. Facing such a trade-off, the question before the court is not an easy one, but I suggest that it would be unwise to decide all such questions in Microsoft’s favor, as I take you to suggest. An alternative: Ask whether the practices in question are ones that only a party with as strong a market position as Microsoft’s could pull off, or whether they are practices that any firm can freely try with a relatively equal shot of acceptance. I’m suspicious of the former but less so of the latter, and while there may remain disputes about those practices that are possible only as result of Microsoft’s market power, this test seems at least a reasonable baseline to me.
Fast-forwarding past the upcoming findings of law, my mind naturally turns to the purpose of the suit, the remedy. I’ve been struck by the widely varying remedies proposed by the Department of Justice, the state attorneys general, executives at certain of Microsoft’s competitors such as Sun and AOL, and analysts like us. What’s your take on the remedy? How do we assure that the punishment fits the crime, so to speak, assuming the sort of findings of law that you think best follow from Jackson’s findings of fact? Should we look for a remedy of general applicability that makes sense outside the software industry or choose a remedy that reflects the peculiarities of Microsoft’s business?