Can Microsoft win?

A pro-business court may make it difficult for government

By Elizabeth Knefel
Special to CNN Interactive

The composition of the appeals court that heard arguments in the Microsoft-Department of Justice case on April 21 may work in favor of the software giant.

The three D.C. Circuit Court judges who heard the case -- Patricia M. Wald, Stephen F. Williams and A. Raymond Randolph -- sharply questioned the Justice Department attorneys regarding the government's antitrust case against Microsoft.

Profiles of the judges
	Judge Patricia M. Wald: Appointed by President Carter in 1979
A graduate of Yale Law School, Wald clerked for Judge Jerome N. Frank of the Second Circuit after graduating. She also served as assistant attorney general for Legislative Affairs in the Department of Justice. From 1986 to 1991, Wald served as chief judge of the court.
	Judge Stephen F. Williams: Appointed by President Reagan in 1986
Williams, a Harvard Law School graduate, had a private practice and served as an assistant U.S. attorney for the Southern District of New York in the 1960s. He taught at the University of Colorado School of Law until his appointment.
	Judge A. Raymond Randolph: Appointed by President Bush in 1990
After graduating from the University of Pennsylvania Law School, Randolph clerked for Judge Henry J. Friendly of the U.S. Court of Appeals (2nd Circuit). Randolph also served as an assistant to the U.S. Solicitor General from 1970 to 1973 and as a deputy solicitor general from 1975 to 1977. He has taught at Georgetown Law Center and at George Mason Law School. Prior to his current appointment, Randolph was a partner at Pepper, Hamilton & Scheetz.

If the judges rule in favor of Microsoft -- in other words, dismissing the case -- the Justice Department can petition for a rehearing en banc, asking the entire District of Columbia Circuit Court to hear the case. If the Justice Department's petition is denied, it can then appeal to the Supreme Court. The Supreme Court may or may not choose to hear the case.

Antitrust studies

Charles E. Mueller, a longtime antitrust attorney and now editor-in-chief of Antitrust Law & Economics Review, has studied the antitrust record of the three judges, reviewing the decisions of the D. C. Circuit Court from 1986 to 1991.

Mueller says the court is quite conservative, with pro-monopoly leanings, pointing out that, generally, antitrust plaintiffs fare poorly and the Federal Trade Commission is sometimes overruled. The federal courts have shifted right, Mueller says, because Republican Presidents Reagan and Bush selected many judges for their traditional values and relative youth, ensuring a long reign of conservative views and court rulings.

Another factor in the conservative shift of the courts is what Nan Aron, executive director of the Alliance for Justice, describes as the popularity of the "Law and Economics" movement.

The movement, Aron describes, was popular in the early 1970s at the University of Chicago, home of the "Chicago School" of economics, where students were taught a free market theory that accepts monopolies and rejects governmental intervention in the marketplace.

According to Aron, the movement promotes "a more predictable legal environment for businesses, because of its anti-regulatory orientation and its focus on economic costs and benefits rather than 'abstract' notions of right and wrong."

Other battles to face

Given the conservative slant of the judges on the panel and the prevalent "Chicago School" dogma, Microsoft may dodge this legal bullet as it has many others. But what about another potential hurdle, several state attorneys general who also want to take Microsoft to court?

Mueller says the conservative slant exists in state courts, as well.

"The Justice Department is going to face it in the D.C. Circuit in Washington and the states' attorneys general are going to face it when they get to their courts," Mueller says.

Mit Spears, former general counsel for the FTC, reckons that the judges will probably rule in favor of Microsoft. "I don't see that (the judges panel) as an ideological court, and I don't even see it necessarily as a pro-business court. I do see that as ... perhaps less willing to get creative around antitrust concepts than perhaps the Justice Department would ... like."

Spears says he believes the Justice Department is going to lose this battle. "Then, I think the question is, are they going to try to widen the war at the end of the day by filing a new Sherman Act (antitrust) investigation?"