Microsoft takes it on the Chin

Microsoft on Trial Judge Jackson is clearly determined that he is not going to be Sporkined or Lessiged. In 1995, Judge Stanley Sporkin's refusal to agree the feeble consent decree was reversed by a foolish Court of Appeals in a political decision that resulted in the present case being brought to do what the previous case failed to do. Judge Laurence Silberman, one of the appeal judges who reversed Sporkin, even had control over a slug of Microsoft shares in a trust fund, it emerged, and had to recuse himself from the future appeals, although he did sign the Court of Appeals Order on 2 February 1998, staying the appointment of Professor Laurence Lessig as a special master. Silberman had the doubtful distinction of serving as US ambassador to Yugoslavia fr om 1975 to 1977, and we can all see the result there. He was known to be pro-business, and opposed to antitrust law. So what has Judge Jackson done to ensure that he has access to independent technical and legal advice without aggravation from Microsoft? You're probably thinking he must be reading The Register, but we cannot disclose that. He's certainly done the next best thing by appointing Andrew Chin as his law clerk, something that not even Microsoft can stop. Chin has had a quite remarkable career and is admirably equipped for the job. He won the US Mathematical Olympiad in 1984, was a Rhodes Scholar at Oxford where he completed a doctorate in mathematics and computer science in 1991, and taught computer science for a year at the University of London. He then emerged from Yale Law School in 1998. But that's not all: the clincher is that he's an Associate at Wilson, Sonsini, Goodrich and Rosati, where Gary Reback has proved to be the US heavyweight lawyer against Microsoft in a number of previous contests. There can be little doubt as to Chin's opinion, as a result of this move. The consequence for the present case is that it is likely to be decided somewhat sooner, since Chin has shown from his record that he is a fast achiever. Much of the burden of preparing the Judge's Opinion falls to the law clerk. It will be no easy matter for the Court of Appeals to reverse what emerges, since the arguments are likely to be well-formulated. Chin does lack any industry experience, but it is heartening to see somebody appointed who is so well-grounded in technology and law. It may well be that steps will be taken for any appeal to bypass the Court of Appeals and go straight to the Supreme Court, since the evidence is so overwhelmingly against Microsoft that the only issues can be whether antitrust law should be enforced. That is a political decision, and the higher courts are most decidedly political. It will now be very important for the industry to formulate the best remedies to resolve the case, and to ensure that the DoJ and the states press for their enforcement. We doubt that there will be much happiness in the Microsoft legal camp about Chin's appointment. ®