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Appeals Court Will Take Microsoft Case
Jason W writes: "In a legal victory for Microsoft, the U.S. Circuit Court of Appeals agreed to hear the case. This was before Judge Penfield Jackson could hear the governement's request to bypass the lower courts and take the case to the Supreme Court."
OK, guys, here's the drill. In a federal case, the Circuit Court of competent jurisdiction has NO DISCRETION AT ALL whether or not to take up an appeal after a final order from the District Court.
Thus, it misses the point to say that they "took up the appeal." They had no choice. After a Notice of Appeal is filed by Microsoft, the case automagically appears on the Circuit Court's Docket. Period.
What is interesting is what they *DID* do, which is to order the review of the District Court case en banc (that means ALL the judges who don't recuse themselves will hear the appeal, not just a panel of three). The order can be found on-line here
This actually isn't so great for Microsoft, because it means that, while they can be assured that two of the three judges who found for them in their first 2-1 victory (on different issues), those two judges will be a MINORITY of the panel that hears this case.
IF THE COURT HEARS THE CASE . . . the Supreme Court can still take up the case directly, or they might wait until after the En banc review is complete.
By way of explanation, Circuit Courts are big courts, typically with at least a dozen, and sometimes way more (the 9th Circuit, e.g.) judges. By random assignment, three of the judges are heard to review each case. After the three judge court has ruled, there is the possibility (before Supreme Court review) of the Court AS A WHOLE (en banc) to review the work of the three-judge panel, which is rarely done except for a really, really important case, or to resolve conflicts of precedent among prior three-judge opinions.
What is interesting is, not that the Court took up the case -- they had to. What is interesting is that the Court has decided to bypass the three-judge review, and go straight to review en banc. (Some Circuits call it "in banc.")
I know it sounds minor. But we are already far too close to believing the hype and buying into the reduction of everyone to consumer cogs. There is value that transcends economic value. People are more than producers and consumers. Citizenry matters.
The Mongrel Dogs Who Teach
Sure, it will happen, but it is highly unlikely that the Supreme Court will take this case. "Gravest National Importance" (which I believe is the operative standard for this particular type of jurisdiction) is a VERY stringent standard. Moreover, there are a plethora of SC opinions on the virtue of taking these cases through the appeals process, to isolate the true constitutional questions. In short, I highly doubt the SC will take this case away from the DC Circuit. The fact that the case is en banc is pretty interesting. The Ninth Circuit (most of the west, including CA) often hears cases en banc, because there is a minority of the judges in the circuit that often hear appeals cases and produce bizzare results. The en banc method makes it so those judges can't make law on their own. In this instance, it prevents Microsoft from facing a lottery on which judges will hear the case - all the judges (that want to hear it) will hear it. So the opinion will truly reflect the thoughts of the Circuit. All in all, probably a damn good idea.
The 9th Circuit has nothing to do with this case (I just mentioned it above as an example of a LARGE Circuit court).
Of this much I am certain, a Circuit Court judge has probably NO INTEREST WHATSOEVER in the public perception of his or her decisions. There are few positions in the world as powerful as that of a Circuit Court judge and few positions as desirable. Moreso even than the Supreme Court, these guys get to practice "pure law" i n the highest.
They pride themselves on their ability to follow the "law" rather than their instincts, and are far more concerned about their colleagues' viewing their work as pandering or anti-intellectual, than by writing a popular opinion. They tend to be more "by the book" than the Supes (who are not final because they are infallible, but vice-versa), precisely because they are subject to review.
In short, Circuit courts, particularly EN BANC circuit courts, tend to do a really, really good job on the merits. What Microsoft misses by the en banc review is that their best chances for a win (getting both of their two judges from the earlier case on the panel) is mooted entirely.
Moreover, there is one other thing. A 3-judge panel is BOUND by a prior 3-judge panel's decision as precedent. However, an en-banc panel can REVERSE the previous 3-judge panel. This adds a very interesting new possibility to the mix:
1) The Court can find the earlier opinion controls and reverse the District Court (or just reverse on some new grounds).
2) The Court can find the earlier opinion does not control, and decide to affirm the conviction on that basis.
OR, the new possibility
3) The Court can find the earlier opinion does control, OVERTURN the earlier opinion, and still decide to affirm the conviction.
In short, the briefing allows the government no only to argue why the earlier case isn't relevant, but can also argue that the earlier case WAS WRONG!!!!!
This is a big deal -- particularly because the third result can really slam the number of Microsoft chances on a subsequent appeal to the Supreme Court.
The Supreme Court will not hear the case before the district court.
The government's legal strategy against Microsoft in Jackson's court was "back up the dump truck, give him every shred of evidence and argument possible."
The case ranged from Netscape to Java, from MSN to "Channels."
The DOJ attacked MS with a double barrel shotgun.
To argue before the Supreme Court, you need to attack your opponent with a scalpel.
The Supreme Court *never* takes undefined cases like that. Remember, the High Court does *not* function like a typical courtroom. The Justices will call in attorneys from MS and the DOJ, and will *grill* them unmercifully; the questions asked will be carved with an exacto knife.
There will be no witnesses. There will be no "presented evidence." There will be no cross-examination.
That is what the appellate court is for. They will take the (IMHO) very random case from the DOJ, and narrow it down, if you will. By now, both sides have sharpened their arguments considerably. Higher legal precedents will be examined; feelings will be hurt.
To whomever stated that the case is still likely to go to the Supreme Court in lieu of the Appellate: You are dead wrong.
1. By agreeing to expedite their hearing of the case, the Circuit Court of Appeals removes virtually every reason for the case to go to the High Court. (The DOJ's argument is that possible consumer harm warrants the Supreme Court hearing the case now. However, based on scheduling, the appeals court could hear and rule on the case before the High court could touch it anyway!)
2. Not only has the 3 judge panel agreed to hear the MS case.... the entire District Court panel will hear the case en banc. That is unprecedented!! (Three of the ten judges opted out, leaving the court pro-MS, 4-3) With that kind of unheard-of force from the Appeals court, the Supreme Court won't touch this thing.
Quite frankly, things now look very bad for the DOJ. This appeals court has *always* sided with Microsoft on even the most minute of matters. Think Penfield was hard on MS? The same fate awaits the DOJ.
What leads me to this conclusion? Firstly, four of the the seven judges presiding over the appeal are staunch Conservatives. (Jackson, though a Reagan appointee, has always been center-of-the-line, and quite anti-MS.) Secondly, this same court flat-out rejected Jackson's two previous rulings on Microsoft. (This happens less than you might think... two slaps in the face for quite similar legal matters.)
Plus, the DOJ now looks quite foolish for having the audacity to ask Jackson to withhold his ruling on MS conduct stay requests. Regardless of Jackson's opinion on the matter, the The District Court of Appeals has now basically said, "That'll be quite enough out of you. We'll take it from here."
Love MS or hate them, legally-speaking, you can't help but be shocked at the level of incompetence the government has displayed in this case. From the infamous Netscape-buyout offer from Barksdale to the amazing shifting market that invalidated many of the DOJ's arguments, to this latest stay fiasco, the DOJ fought like a lightweight.
"But they won" is hardly an argument. Jackson has never pretended to be impartial. (Two previous hard-hitting verdicts against the company, the fact that he - not once - accomodated a filing by MS... the fact that he basically took the DOJ's closing arguments and put his name on it for prelems, the fact that he spent about an hour deciding the fate of the company...) Microsoft never stood a chance in his court.
I was surprised, not by the fact that he ruled against MS, but the fact that he didn't order Bill Gates' death by hanging.
I also strongly am offended that he punished Microsoft because "they exhibited no remorse." Umm... if you are basing your entire case on "WE ARE 100% INNOCENT", logically speaking, why would you exhihib remorse in trial or in public? That would undermine your argument's foundation. Did he expect MS to apologize for the decline of every company they offended? These aren't murders, for christssake, these are multi-billion dollar businesses.
Frankly, if I ran the DOJ and wanted to go after Microsoft, I'd have one argument: "They put that talking paperclip in Office."
So, Microsoft buys some time. And, I suppose, more chances for the ruling to be overturned.
Does it really matter?
Let's suppose Microsoft is split in two and restrained from its usual dirty tricks. Let's even go way out on a limb and suppose that the restraints will actually work. Great. Microsoft can no longer reach for market domination.
Of course, they already have market domination.
So let's suppose that something else happens. There's another suit and Microsoft gets liquidated. Bill Gates and Steve Ballmer die in the same plane crash. Whatever.
Still doesn't matter. Because there are plenty of other companies out there that still believe in proprietary code, closed source, restrictive licenses and all the rest. Microsoft was merely the most successful and aggressive player of that game. And lots of people have learned from them.
And the simple fact is, as long as people continue to buy proprietary software and click on those licenses, the closed-source people will continue to make money and exert control over the computing world.
The U.S. federal government is a big lumbering elephant, very powerful, but very slow. Look how long it took them to notice all the things Microsoft was doing. Remember the other suit, back in the early 90's IIRC, the one that didn't accomplish anything? We certainly can't count on the Feds to keep the software business competitive.
That's our job.
This case does no more than give Microsoft a black eye. We can destroy Microsoft, and all the rest of the closed-source world, and their paradigm. Just by continuing to make free software.
And on that note, I'm gonna log off and do some hacking...
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You are in a twisty little maze of open source licenses, all different.
I recall Bush saying that he would essentially drop the charges if elected.
Bush has no such powers. If it were a criminal case, he could pardon the offender, but it's a civil matter. The moron Bush can go blow, President or not.
For some strange reason, a large majority of the public favors Microsoft.
That's why we don't put legal authority into the hands of the drooling sheeple. We have judges who presumably (at least sometimes) have clues. Otherwise you get mob rule as the majority decides to do crazy stuff like kill all the Jews or execute anyone caught with a joint.
A parliamentary democracy sucks, but it's better than what a "pure" democracy would be, which is insanity.