| BUSINESSWEEK ONLINE : DECEMBER 13, 1999 ISSUE | ||||||||
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| LEGAL AFFAIRS
Making Book on a Microsoft Appeal Chance plays a huge role in determining Microsoft's fate Round One of the Microsoft Corp. (MSFT) case looks certain to go to the government. But as both sides plunge into settlement talks, Round Two is up for grabs. It all depends on the District of Columbia Circuit Court of Appeals. If you bet that it will reverse Judge Thomas Penfield Jackson's all-but-inevitable anti-Microsoft ruling, then the company should drive a hard bargain. If not, the government has the upper hand. Problem is, right now it's impossible to tell which appeals court judges would hear the case. That makes handicapping the outcome of the appeal little more than a crapshoot. Three judges will be chosen to hear the case. Under the D.C. Circuit's guidelines, they will be chosen at random by a computer program. The software schedules the docket so that each of the 11 possible justices, including seven Republicans and four Democrats, has to serve with the other judges at least three times in a year. No attempt is made to achieve ideological balance on the panel. STRONG SKEPTICISM. That means the forces of chance play a huge role in determining the outcome of the case. If the three-judge panel includes Republican appointees Douglas H. Ginsburg or Stephen F. Williams, for example, there will be cheering at Microsoft's headquarters. Both judges are devoted members of the conservative Federalist Society, and each has written opinions displaying a strong skepticism toward antitrust law. On the other hand, Judge Merrick B. Garland would probably spell bad news for the company. A 1997 Bill Clinton appointee, he has taken left-of-center positions on antitrust enforcement. Bottom line: Both sides have reason to be nervous about the appeals court. If nothing else, that should give them plenty of reason to try to reach a deal. By Mike France in New York _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ BACK TO TOP |
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