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No Dice For Microsoft

If Microsoft was looking to the Supreme Court to come to its rescue, it now can stop looking.

The Justices Monday declined to get involved at this particular juncture in the massive anti-trust case against the software company. The decision — or non-decision actually — means that the case proceeds to its second remedy phase in front of U.S. District Judge Colleen Kollar-Kotelly in Washington.

It means that Microsoft has run out of delaying tactics.

It means that the government — both the Justice Department and the states still involved in the fight — now have a decided tactical advantage during settlement negotiations.

It means, in other words, that the legal noose is tightening on the Redmond, Wash., company.

A few weeks ago, remember, Judge Kollar-Kotelly strongly urged the parties to settle. And a few weeks before that, the Justice Department took the "break-up" remedy off the table.

Then there is the state of the economy, which, of course, is wholly separate from the legal proceedings but which certainly can influence them.

Each of these developments puts pressure on Microsoft to step up, accept some sort of reasonable punishment, and allow everyone involved to move on to bigger and better things, like fighting terrorism (in the case of the Justice Department) and trying to avoid a recession in the computer market (in the case of Microsoft). Now we'll see if the company is willing and able to get the hint.

It's not a surprise that the High Court would take a pass on this case at this time. The Justices historically don't like to accept an appeal in a case that still is pending unless the appeal would promptly resolve the case. That would not have happened here, and it is easy to see why the Justices would have decided to wait, at a minimum, until the remedy phase is over before taking a serious look at getting involved.

I'm sure Microsoft's attorneys knew that their Supreme Court appeal was a long shot and I cannot imagine that they are terribly shocked by the news. The Supreme Court is not exactly known for finding more work for itself than is absolutely necessary.

Now the parties must prepare in earnest for that new round of remedy hearings which will take place next year. For Microsoft, this means an enormous expense of time and money preparing witnesses and arguments and the like. For the government, it means that the end of the case will come sooner rather than later.

Meanwhile, Judge Kollar-Kotelly now has great power and discretion to push and pull and nudge and noodge the sides closer and closer to a deal. Never underestimate the power of a federal judge to make life miserable for parties in a case he or she wants to see over.

On another front, the Court again displayed how it can affect the legal world even when it declines to hear a case. The Justices declined Monday to review a Louisiana law which precludes cities in that state (New Orleans in particular) from suing gun manuacturers for the cost of gun-related crime. As a practical matter, the Court's non-decision means that the Louisiana law stands, that the New Orleans' suit falls, and that similar lawsuits by other cities around the country may be in jeopardy, depending upon how their respective states view the issue.

This ruling is not the same as an affirmative ruling by the Court that these sorts of state prohibitions are constitutionally valid or that the lawsuits themselves are constitutionally suspect. Such a ruling may come down the road or not at all. Still, it's good news for gun manufacturers, who at least now can argue that the Supreme Court passed on an opportunity to expressly pave the way for dozens and dozens of gun lawsuits.

The Court also on Monday rejected a free speech argument made by a family that wanted to sunbathe nude together on a public beach and, in a profoundly more important case, let stand the death sentence of a Tennessee man whose appellate lawyers had argued forcefully that their client was not properly represented by his trial attorney.

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