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A L S O_ T O D A Y
T A B L E__T A L K What's the dream operating system for cruising the Internet? It's another Mac vs. Windows go-round in the 21st area of Table Talk
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TIPPING THE ANTITRUST SCALES | PAGE 1, 2, 3
"George Mason University Law School and its [law and economics center] aren't scholarly enterprises at all; they're hired propagandists, awash in corporate money awarded precisely for the purpose of making a contrived 'economic' case for laissez-faire monopoly," writes Charles Mueller, editor of the Antitrust Law and Economics Review, in an e-mail summarizing the history of the "economics institute" seminars. Attempting to assess the impact of the seminars, as well as the role of the concurrent funding of law and economics programs at law schools, is tricky. The Reagan administration explicitly directed the Department of Justice to relax antitrust enforcement; and in that era, foes of monopoly-busting needed little help from federal judges to win their battles. But the reinvigoration of the antitrust division of the DOJ during the Clinton administration has complicated the issue. While government prosecutors vigorously press some antitrust cases, like the one against Microsoft, the federal judiciary is still dominated by Reagan-Bush appointees -- many of whom are now well-armed with analytical tools that can be used to undermine the legal rationale that supports antitrust enforcement. "Federal court judges appointed in the Reagan era still cling to this law and economics approach," says Minda. "As a result, there has been a decline in confidence with respect to the federal judiciary in the case of antitrust." Although the judges themselves reject suggestions of a political division, legal scholars have tracked the phenomenon: Judges appointed by Republicans are less likely to support government regulation, while judges appointed by Democrats are more likely to support it. The Microsoft trial is the perfect venue to observe how the clash between the two antitrust ideologies -- one supporting enforcement and the other resisting it -- will play out. There is a direct, albeit slender, connection between the George Mason seminars and the Microsoft trial: The appeals court with jurisdiction for the Microsoft trial is the U.S. Court of Appeals for the District of Columbia. Two of the 12 judges on the D.C. Court of Appeals -- Stephen F. Williams and Douglas Ginsburg -- have attended the George Mason seminars. Both judges are considered closely identified with the law and economics movement. Williams is well-known for having written, in an opinion on a 1992 appeal, a detailed critique of government intervention in the economy. Ginsburg served as an antitrust attorney in the Department of Justice during the Reagan administration. And though two out of 12 is a slim percentage -- much lower than the overall two-thirds rate of seminar attendance among the federal judiciary -- both Ginsburg and Williams have already adjudicated Microsoft-related matters. Both have ruled favorably to the company. On June 23, 1998, a three-judge panel of the D.C. Court of Appeals overturned District Court Judge Thomas Penfield Jackson's injunction preventing Microsoft from requiring the sale of its Internet browser with its Windows 95 operating system. At the same time, the panel, which included judges Stephen F. Williams, A. Raymond Randolph and Patricia Wald, also agreed that Microsoft was justified in asking for the removal of Jackson's appointed "special master," Lawrence Lessig. In August, another three-judge panel, this time made up of Williams, Ginsburg and David B. Sentelle, also ruled in Microsoft's favor, acceding to the company's request to keep pretrial depositions private. Trial watchers observe that Microsoft has had a remarkable string of luck with regard to the assignment of appellate judges to the three-judge panels that have so far ruled on Microsoft-related matters. If one goes back as far as 1995 -- when a panel consisting of James Buckley, Lawrence Silberman and Harry Edwards reversed District Court Judge Stanley Sporkin's ruling that a consent decree agreed to between Microsoft and the Department of Justice was too favorable to Microsoft -- only two of nine total judges ruling on Microsoft-related issues have been appointed by a Democratic president. But panel assignments are made completely at random, says Tracey George, a law professor at the University of Missouri who specializes in the politics of appellate court decision making. Microsoft might not always be so lucky: The next three-judge panel could be all Carter-Clinton appointees. (In another possible scenario, the appeals court could decide to hear any appeal of Jackson's ruling "en banc" -- with the full court meeting together. Such a court would be split 7-5 between Republican and Democratic appointees.) Ideology does play a role, asserts George. There is "an assumption of ideology with regard to the D.C. Court of Appeals," she says, and in such a court, "panel makeup is determinative of outcome." In other words, judges appointed by Republicans would be likely to rule differently than judges appointed by Democrats. But any attempt to correlate antitrust views with attendance at particular seminars, says George, is "too simplistic an explanation." The George Mason law and economics seminars continue to this day, even though their founder, Henry Manne, took early retirement in 1996 in the midst of a faculty revolt at George Mason, sparked in part by revelations that Manne had been spending Law and Economics Center money on his own lavish lifestyle, according to 1996 articles in the Legal Times and the Richmond Times Dispatch. Manne at the time denied the allegation and said his departure was not related to a critical petition that had been circulated by the faculty. The current director of the center, Gordon Brady, declined to comment on what impact the judicial seminars may have had on federal judges. The judges themselves dispute any accusations of bias. In the October Virginia Law Review, Chief Judge Harry Edwards, a Carter appointee, attacked two other law review articles that had purported to show that judges on his court ruled according to ideology. Judge Ginsburg has a policy of not speaking to reporters. Judge Williams scathingly dismissed any suggestion that his own views on antitrust might have been influenced by his attendance at a law and economics seminar. Not only did Williams state that the one "institute" he has attended had been devoted to science, not antitrust, but he also chuckled mirthlessly at the idea that there was any impropriety inherent in attending an event funded by institutions with distinct political agendas. "Is the assumption here that we can be bought for a mess of pottage?" asked Williams. "I find that puzzling. Does this mean judges shouldn't attend a conference put on by the ACLU?" Williams' reaction is unsurprising, says Stephen Gillers, a legal ethics expert at New York University Law School. "It is quite common for people to be dismissive when it comes to their own motives," says Gillers, "because they know, as Judge Williams does, that they themselves would never succumb to any such suggestion. They understand their own strong independence. But that is not the test. It is the sensitivity to the possibility of reasonable skepticism that is the issue ... We have to expect judges to be cognizant of the risk of public skepticism." N E X T_P A G E .|. Olin and Scaife: "Vested interests"? |
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