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MS ‘due process’ denial claim called hogwash

Only O J Simpson had as much

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MS on Trial When Judge Thomas Penfield Jackson demanded that Microsoft reply to the revised DoJ break-up proposal within a matter of days, the company Dream Team began putting it about that this amounted to a denial of due process. They had heaps more evidence to present explaining why a break-up would spell catastrophe for Western Civilisation - maybe a good six months' worth - and by cutting them short the judge was denying them their right to a fair hearing, they claimed.

Utter rubbish, anti-trust lawyer and Penn State University assistant professor of economics Richard Hawkins snorts. "The only defendant who got as much 'process' was O J Simpson."

Judge Jackson's willingness to entertain any further company 'input' is a courtesy, not a requirement, Hawkins says. Jackson's findings of fact are more than adequate to support ordering a structural remedy.

"I could teach an entire course on anti-trust law from the findings of fact alone," Hawkins says. "I can't think of a single anti-trust violation not mentioned in it."

While his conclusions of law are subject to challenge in the appellate process to come, his findings of fact are not. For an appellate court to overturn him, they would have to find that no rational person would have ruled the same.

"I put the chance of that happening between slim and none," Hawkins says. It's virtually inconceivable that Microsoft will be rescued from the stigma of being found a monopoly according to the Sherman Act.

Thus Judge Jackson already has a more than adequate foundation on which to stand in ordering a structural remedy, and is under no obligation to take, or read, or be at all influenced by anything the company might offer.

Or, as it happens, by anything the DoJ might offer, though for numerous practical reasons he would be unlikely to order a three-way split over the Department's objections.

It is the DoJ which will have to prosecute the government's case in the appeals courts. It only makes sense that they be ordered to prosecute a case they support. DoJ lawyer David Boies' official line on preferring the two-way split is convenience of implementation; but the true reason is likely to be convenience of prosecution.

Appellate courts might construe trisection as an excessive remedy. Prosecution could be delayed, or even undermined, as the judges (or Justices) hash out the comparative merits of creating two or three Beasts.

The appeals process is a good deal more fluid in terms of tinkering with conclusions of law. Appellate courts are far from reluctant to put their own stamp on landmark cases. So while it's all but certain that Jackson's findings of fact and subsequent order of a structural remedy will withstand appellate review quite well, a two-way split looks least likely to encounter obstacles as the case moves inevitably up the legal food chain.

This is not to say that Jackson cannot, or will not, order the three-way remedy he so clearly favours. It is to say that in doing so he would greatly multiply DoJ's labours in the appellate courts; but as to whether or not he cares about that, we would not dare to guess. And besides, later this week we're likely to find out. ®

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