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States MS brief: Bork aims to undermine appeal court ruling

'No shelter for illegal conduct,' he says

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MS on Trial Judge Robert Bork has been prominent on the sidelines of the Microsoft case. He's a former US solicitor general, federal appeals judge, a believer in "constitutional originalism", and the author of a much-cited antitrust tome. He's also a pal of Judge Posner, the Chicago-based mediator. Microsoft tried to recruit him to advise on its defence but he decided to accept an invitation to do this for Netscape instead, as well as to be an adviser to the anti-Microsoft ACT analogue, the Project to Promote Competition and Innovation (Procomp). Bork ended up with the consolation prize of writing the Amicus brief for the Plaintiff States. His workmanlike brief does not regurgitate the Finding of Fact, or the Joint Proposed Conclusions of Law. He decided that his job was to address three legal principles: that Microsoft has monopolised and violated section two of the Sherman Act; that Microsoft's antitrust violations have harmed consumers; and, most importantly, that "the Court of Appeals consent decree decision provides no shelter for Microsoft's illegal conduct". Bork is in no doubt that: "In fact, if this case is unusual, it is that there is so much direct evidence, much of it in explicit Microsoft internal communications, to buttress the legal assumption of consumer harm: higher prices for operating systems, suppression of innovation, and the exclusion from the marketplace of already existing technologies." Bork reserves his scorn for the appellate judges in the DC circuit, noting that the divided panel reversed Judge Jackson, and that the preliminary injunction was vacated on procedural grounds concerning notice. That procedural ruling, he says, obviously has no implications for the substance of the separate Sherman Act suit filed by the government. Bork considered that Microsoft jumped to the wrong conclusion, and that the appellate decision "has less impact upon the government's separate Sherman Act suit than Microsoft and its allies suppose. In the first place, the discussion of this subject by the Court of Appeals' majority was wholly unnecessary to its decision about the preliminary injunction. The procedural ground was sufficient, and all three members of the panel agreed on that point. "Furthermore, the District Court had not held hearings on or decided the bundling issue. Thus, there were no findings of fact, no record, and no briefing of the question. The panel majority's observations are, in the strictest sense, dicta." That's plain speaking, and there's more to come: "The non-binding character of the panel majority's remarks is clear for a much more important reason: the decree litigation did not bring before the Court the many predatory contracts required by Microsoft or the internal documents that make clear the predatory intent underlying both those contracts and the bundling of the browser and the operating system. That evidence was central to the Sherman Act litigation and to this Court's Findings of Fact." Having demolished the appellate court findings, Bork concludes that the Findings of Fact "leave no doubt that Microsoft has monopolised and attempted to monopolise in violation of Section 2 of the Sherman Act". ®

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