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MS to court: why it's OK to string up judges

Not Being Nice About Jackson After All Week continues...

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Microsoft's legal team has helpfully sent the appeals court a letter pointing to a precedent for kicking a judge off a case. But it turns out that the judge referred to is not the one you're most likely to think of. Back in 1995 Microsoft got Judge Stanley Sporkin kicked off its case, but the precedent cited now is that of Judge Nancy Gertner of Boston, who seems to have accidentally immolated herself last year.

There is of course a difference between the circumstances the two judges found themselves in. Gertner seems to have become sucked into commenting to the press on a case she was conducting, while Sporkin was sacked for - we use highly technical legalese here - being an out of control maniac who was screwing it up for all of the parties involved. But the parties then involved are involved again, and as they're not bosom buddies any more, it's a pity Stanley doesn't get recalled more often.

Microsoft had, you'll remember, cut a consent decree deal with the DoJ, and both of them wanted it signed off. This was the very consent decree that provided the wording that allowed the appeals court (the one MS is now writing to) with a reason to permit Microsoft to innovate and integrate, and hence to overturn the injunction telling Microsoft to unbundle IE from Windows. That injunction had been issued by one Judge Thomas Penfied Jackson, the very same judge that Microsoft now wants kicked off the case.

The DoJ twigged that the consent decree was a crock somewhat before Jackson issued his injunction, but considerably after Judge Stanley Sporkin decided it was one, and refused to sign it. The DoJ and Microsoft therefore both agreed on kicking Sporkin out, and getting somebody else to sign. That somebody was Judge Thomas Penfield Jackson.

No, you're right, it's a good enough tale to form a script for a TV soap, but it's pretty obvious why it would be a good idea to find another judge as a precedent. The precedent cited, however, is maybe not totally appropriate. Gertner wrote to a newspaper correcting what she saw as inaccuracies in a report, and following that the paper quoted from a phone interview with her. She could therefore have been construed as expressing views about the case while it was still in progress. Jackson, on the other hand, has been pretty careful about when he speaks, and what he says. With hindsight that may not have been enough, and he might have been wiser to clam up completely, but it's not quite the same thing. ®

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