They seemed skeptical about Microsoft's contention that the trial judge got the facts and the law completely wrong when he ordered a break-up of the giant software company. And they seemed downright hostile toward the government's position, embraced by the court below, that Microsoft was a legal monopoly that it harmed its competitors and consumers.
If the seven federal appellate judges who now hold Microsoft's fate in their hands were tipping those hands, it certainly wasn't apparent to me. As judges are uncannily want to do, they focused over and over again upon the weakest parts of the respective cases brought before them. And I suspect that neither side came away from Monday's court session -- there is another one scheduled for Tuesday -- feeling absolutely great about the state of the appeal.
It cannot make Microsoft giddy, for example, that the judges seemed to ask company attorneys so many questions about what part of the record below, if any, or existing case law, if any, supported the contention that Microsoft did nothing to warrant the type of extreme remedy chosen last year by U.S. District Judge Thomas Penfield Jackson.
Were the judges hoping that the company would help them find a factual or legal justification for overturning the trial judge's ruling? Remember, these judges several years ago in a Microsoft anti-trust case overturned a relevant ruling by Judge Jackson. Or were the judges simply confirming to themselves and the world that Microsoft is on shaky ground as it tries to convince them that they should step in and save its bacon. Remember that Judge Jackson's findings were unequivocal that Microsoft was a harmful monopoly that needs to be broken up.
Responding to this line of questioning, Microsoft made an interesting strategic concession early in the argument. Company attorney Richard Uroksky told the judges that Microsoft only was challenging a few of Judge Jackson's factual findings but that even if the appellate court were to affirm all of those findings it still would have to reverse the break-up order because the judge got the law wrong.
In some ways, the concession paints Microsoft into a smaller corner than it was in before oral arguments began because the company certainly doesn't want to encourage the judges to accept Jackson's findings in whole. That of course would make it harder for the judges to reverse his break-up order. On the other hand, the concession makes some sense since appellate courts generally must give fact-finders (usually a jury, here Jackson) great deference and Microsoft long ago decided that its best line of defense was to argue the law, not the facts. We'll see whether this tack made sense when we see the court's order.
But enough about Microsoft and its headaches. If the judges were tough on the company, thewere even tougher on the feds and their state colleagues. For example, it certainly must make the government uneasy, even a little disheartened, that the appellate judges spent so much time Monday challenging Judge Jackson's conclusions that Microsoft is engaging in monopolistic conduct and that only a break-up of the company would solve the problems raised by that conduct. If the judges truly are as concerned about the effects of a Microsoft break-up as they appeared to be Monday, then surely they are going to think twice, thrice and then again before affirming that break-up.
Were the judges simply covering their bases before signing on to such a monumental decision made by the trial judge? Remember, by all accounts Microsoft presented a weak defense of its conduct during the trial. Or were the judges signalling that they simply don't buy the government's contentions-- or Judge Jackson's rulings-- about how Microsoft and the way it operates fits into federal anti-trust law? Remember, these appellate judges generally are much more conservative in nature than is Judge Jackson and thus are much more likely to take a restrictive view of the nation's monopoly laws.
It's usually impossible to tell whether or to what extent an oral argument reflects how the judges intend to vote on a particular case. This is certainly the case here. Which means that the lawyers and principals in the case probably won't sleep much over the next few days and weeks while they wait for the appellate court to sort things out.
By Andrew Cohen
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