Dahlia Lithwick worked for two years in a family law firm in Reno, Nev. She is writing a novel about how divorce affects children, and she covers the Supreme Court for Slate.
There’s a whole lotta lovin’ going on in Judge Thomas Penfield Jackson’s U.S. District Court, where the lawyers have returned for oral argument on Conclusions of Law in the Microsoft antitrust case. Reporters greet one another with hugs, like survivors of a yearlong hostage-taking. The journalists exchange compliments with one another for the big takeouts they’ve written on the case, disclose the publication dates for their forthcoming Microsoft-trial books, heap praise on those who’ve appeared on Charlie Rose. Ken Auletta compliments my boss’s piece in today’s Washington Post. Someone compliments Auletta on his New Yorker piece. MSNBC’s Brock Meeks treads painfully on my foot. There’s David Lawsky with the blackberry cobbler! And there’s Dave Wilson with his famous cornbread!
As soon as the arguments begin, the family-reunion feeling is confirmed as we all settle down for yet another round of the story we’ve heard a dozen times. (Justice Department: “You’re-a-monopolist!” Microsoft: “We’re-scrappy-competitors.”)
Yes, we’ve watched the trial, and yes, we’ve listened to the closings, and yes, we read the judge’s Findings of Fact in November (the one in which Microsoft got, well, spanked). But we’re doing it one more time today, because the judge cunningly divided the conclusion of the trial into two phases: Findings of Fact and Conclusions of Law. And so, although he found in November that as a matter of fact Microsoft was a monopolist that used its market dominance in the operating-systems arena to stifle innovation and competition, thus harming the consumer, Microsoft is here today to persuade us that such conduct doesn’t violate the Sherman Antitrust Act.
So picture Microsoft, standing by the body, smoking gun in hand. The judge has already ruled that they pulled the trigger, and we’re having oral argument today on whether it was murder. “Because,” says Microsoft, “maybe it was Good Clean Fun! Or Self-Defense! Or the American Way!” (They go mainly with the American Way Defense today, and I’ve got to tell you, it really does get me every time.)
DOJ’s outside counsel David Boies, going by the playbook, gets up and lays down the law–literally. In an almost algebraic performance, he layers excerpts from the court’s Findings of Fact against the language of virtually every Supreme Court antitrust case that’s on point. “The court already found boom, and Kodak held bam; the court has already found flim, and Aspen Skiing held flam …” Boies makes some effort to respond to the new analysis raised in Microsoft’s latest briefs: No, the tying claim cannot be justified as a design decision. No, Microsoft cannot claim that there was no net effect of their conduct, and no, Microsoft’s newest defense–predicated on copyright law–is not going to save them at the 11th hour.
But the truth is, the show does not belong to David Boies today, although it’s safe to say that he more or less owns this trial. The show belongs to Judge Jackson, who is definitely the new, improved Judge Jackson. He’s sassy! He’s assertive! With the Findings of Fact behind him, and Lawrence Lessig and Richard Posner beneath him, he’s positively feisty. Only a few minutes into his argument, Jackson tells John Warden–Microsoft’s attorney–that he cannot distinguish Microsoft’s control over the Windows operating system from 19th-century oil monopolist John D. Rockefeller’s “free simple control over his oil.”
Uh oh. The Sherman Act was enacted largely in response to Rockefeller’s excesses at the helm of Standard Oil. So the analogy does not really bode well for Microsoft. And so it goes: As Warden stands at the podium, pen in hand, booming out his arguments in his delicious drawl (“Ah’m not SHU-ah what Mis-tah Boies was tal-kin’ about. … Ah ass-UME …”) Judge Jackson seems to have already made up his mind. And this time, he’s keeping it.
“What evidence have you given me as to what exactly you’ve protected under copyright law?” Jackson asks. “What if the New York Times wouldn’t give you their daily edition without taking the Sunday edition?” “Are you arguing that copyright law gives you absolute immunity from antitrust law?” (Warden: “That is not our position.”) Then later: “Are you arguing that copyright law gives you immunity from antitrust law?” (Warden: “That is a fair characterization.”)
In F. Scott Fitzgerald’s short story “The Ice Palace,” the young heroine–Miss Sally Carrol Happer–observes that everyone is either “feline or canine, irrespective of sex.” It’s been my experience that the same holds true for most parties to lawsuits. The Microsoft trial is no exception. The Justice Department is decidedly canine: They’re friendly, snuffly, loyal, and wildly protective of their humans (the American consumer). Both Microsoft and the Microsoft lawyers, on the other hand, are most emphatically feline: sleek and aloof, unabashedly self-interested, clever, secretive.
Sure, there are exceptions on both sides (DOJ antitrust chief Joel Klein is absolutely a cat, Microsoft’s Michael Lacovara is indisputably canine), but for the most part, the DOJ and David Boies have gone after Microsoft’s witnesses, evidence, and theories with a dogged, earnest single-mindedness that is cute in a border collie and a little worrisome in humans. Meanwhile, Bill Gates–reduced to hissing and spitting at his deposition, has reinvented himself at least twice in the past year and shows no sign of fear or flagging.
Microsoft is creating a record for its appeal. Microsoft is preparing for its hearings in Congress. Microsoft is reinventing itself as a lobbying force in Washington. Gates steps down; Ballmer steps up. Windows 2000 is upon us, and it sometimes appears that the Justice Department will be chasing ghosts and shadows for a long, long time. It’s no wonder Judge Posner couldn’t get these parties to the same table to talk settlement. They are different species.
But there will be more talking. Judge Jackson is expected to issue his Conclusions of Law in the next few weeks. Assuming he finds for the government, there will be more oral arguments scheduled on the issue of possible remedies.
Today, Judge Jackson shows himself to be a dog person. Not that there was ever much doubt. But there’s a reason you don’t send cats to obedience school and there’s a reason you only think you own your cat. They are sneaky and careful; they rub up against you when they want something. And they always have eight more lives where this one came from.
Click here for dispatches from the last session of the Microsoft trial during the summer of 1999.
