Did Judge Jackson goof?

By forcing Microsoft to comply with conduct remedies in 90 days, Jackson may have put the case exactly where he doesn't want it -- in the Court of Appeals.

By Damien Cave

Published June 16, 2000 7:07PM (EDT)

Judge Thomas Penfield Jackson has made no secret of his deep distrust of Microsoft, nor of his intention to keep the company from getting away with any monopolistic business practices. To that end the judge ordered the company broken up and demanded that it follow strict rules of behavior, called conduct remedies, even as it appeals his break-up decision. He also made it known that he would like the case to move straight to the Supreme Court, bypassing an appellate court that decided in Microsoft's favor in an earlier case.

But did Judge Jackson hinder his own goals when he ordered that Microsoft's conduct remedies take effect 90 days after his ruling in the antitrust case?

At least a few experts in legal procedure seem to think so. "Neither Jackson nor the government focused on the timeline problem," says Andrew Gavil, a law professor at Howard University. "Microsoft is supposed to deal with the remedies in 90 days, which means around the beginning of September. Meanwhile, the Supreme Court won't decide whether to take the case until October. So what is Microsoft supposed to do? Where can Microsoft go to get relief? The court of appeals is the only option."

In other words, the court of appeals -- which stepped forward this week and agreed to hear the case, even before the judge had a chance to request that the Supreme Court accept the case on a "fast-track" basis -- has a darn good excuse to take action, before the Supreme Court even considers what it wants to do.

The appellate court judges could do this because jurisdiction in this case is unclear. "The expediting act [the law that provides for antitrust cases to be fast-tracked] doesn't specifically tell you that the mere filing of a case before the Supreme Court divests the court of appeal from jurisdiction," says Gavil.

The Justice Department filed its request to expedite Microsoft's appeal to the Supreme Court this week. Now Microsoft is due to file a response on Monday, although it seems unlikely that Jackson will be persuaded against sending the case for Supreme Court review.

"This is new terrain," says William Kovacic, a law professor at George Washington University. "We've never had an intersection of the appellate rules of procedure, the expediting act and an order that has deadlines, mandating that Microsoft radically alter its behavior before the Supreme Court has a chance to take or refuse the case."

Of course, both sides have been working furiously to get the case heard in their court of preference since last week when Jackson issued his order to break-up Microsoft. First, Microsoft filed a stay, asking the court to postpone the remedies ordered by Jackson until the appeal was heard. But it failed to file the appeal. This kept the Justice Department at bay: procedural rules dictate that a motion for expedited appeal to the Supreme Court can't be filed before the notice of appeal.

But Judge Jackson, taking the advice detailed in a Justice Department motion, hasn't yet ruled on the stay. Instead he replied that "consideration of an order of a stay pending appeal is premature in that no notice of appeal has yet been filed."

In the meantime, Microsoft has, of course, filed its notice of appeal; it also went over Jackson's head to file a motion in the appellate court, asking the judges to postpone the initiation of the conduct remedies, which are due to start September 6. The appellate court agreed to hear the case, even as a flurry of motions from both Microsoft and the Justice Department tried to sway the court toward their side.

So what happens next? The appeals court could begin to act, testing the law and thwarting the government's hope of an expedited appeal. Or "Judge Jackson could extend the stay until such time as they know whether or not the Supreme Court will take the case," says Gavil.

But that's pretty tough to imagine. If there's one thing that Jackson has learned during this case it's that the software business moves at light speed, and that if his rulings are to alter the way Microsoft does business, he'll have to find a way to make judicial process match that pace.

Damien Cave

Damien Cave is an associate editor at Rolling Stone and a contributing writer at Salon.

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