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Reversal Of Fortune

Here's the latest take on the world of law from Legal Analyst Andrew Cohen:
It turns out that the same trial judge who gave the government virtually everything it wanted in the Microsoft anti-trust case also gave the feds and states involved one giant headache when it came to defending his order requiring a break-up of the software company. What one federal judge giveth, apparently, other federal judges may be prepared to take away.

Government attorneys Tuesday found themselves in the unenviable position of having to defend U.S. District Judge Thomas Penfield Jackson's rulings in the Microsoft case without being willing or able to defend the judge himself. That's because the appellate judges reviewing Jackson's factual findings and legal conclusions seemed downright irate, in an extraordinarily public way, about Jackson's post-trial, pre-appeal statements made to various reporters. I never before have heard or seen appellate judges be so publicly critical of a trial judge whose decision they are required to review.

Anger and criticism, alone, may not be enough to convince this appellate panel that they need to come to Microsoft's rescue and void Jackson's harsh remedy in its entirety. I still think that this case is more likely to be decided on the merits of federal anti-trust law as these particular judges interpret it. And it would be an extraordinary thing indeed if a decision as monumental as this one hinged upon out-of-court comments made by the judge after his job at trial was completed.

But it certainly doesn't help the government's position that several of the judges on the U.S. Court of Appeals for the District of Columbia appeared to be toying with the idea that Jackson's comments -- likening Microsoft Chairman Bill Gates to Napoleon, criticizing the appeals court itself, claiming that company executives didn't act like "grown-ups"-- constituted an "actual" bias on Jackson's part which would give the higher court grounds to reverse.

Meanwhile, from the other party's perspective, you can just imagine how delighted Microsoft's attorneys are that several of the appellate judges seemed to agree with the company's perspective that Jackson simply had it in for them before, during and after the trial. We'll see how this particular issue plays out but clearly it represents an unwanted complication for government attorneys who already faced a tough task of getting this particular conservative court to go along with a very un-conservative ruling.

For example, from a purely legal standpoint, the argument Tuesday over the remedy chosen by Jackson -- a break-up of Microsoft into two smaller companies -- poses a much greater risk of reversal than does any personality conflict between the trial court and its appellate cousin. Indeed, the very scope and breadth of Jackson's ordered remedy makes it a prime target for those judges on the appellate bench who believe thathe evidence of wrongdoing by Microsoft was nowhere near as convincing as Jackson believed it was.

Prior to taking pot shots at Jackson for his post-trial comments, Microsoft had argued that the trial judge's break-up order wasn't supported by the evidence and wasn't otherwise warranted. The government argued that Jackson had found ample support at trial for such an extreme remedy, both because he had become convinced that Microsoft was trying to destroy "a nascent competitor," and because the judge didn't believe that Microsoft would comply with some sort of conduct remedy.

The appellate judges seemed to be at a minimum sympathetic to Microsoft's contentions that nothing in the record of the case justified a break-up. Judge David Sentelle pointedly suggested that there may not have been enough of a record below to establish the need for such a remedy.

"If there isn't a proper finding," he asked, "then we would have to at least send this back for some trial judge to weigh the facts, wouldn't we?" That's perhaps another bad sign for the feds and the states who are trying desperately to defend Jackson's order against what seems to be a rising tide against it by a group of folks whose opinions now matter most.

By Andrew Cohen
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