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Did Rehnquist Compromise Ethics On Microsoft Case?
Several folks noted a blurb running over at ZD about
Supreme Court Justice Rehnquist's questionable position on Microsoft. Apparently his son is representing Microsoft in antitrust matters. Here's a longer story with a bit more information. Since
they decided not to advance the case directly to the Supreme Court, this may have a significant effect on the case.
That is why this whole thing is rediculous. So what if he's his son. It's not like his son is paying him to sympathize with Microsoft. A lawyer's job is to represent his client; not to create empathy in the judge/jury.
Really, I think we need to grow up about these kinds of things.
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I am the dot in slashdot.org
The court could have simply decided not to hear the case at all, in effect upholding the first level court's decision.
:)
:)
Yes, they could have. But why would they? Judges love to write opinions; they love to take laws and slice them apart, dissect them under a legal microscope and reassemble them. US v Microsoft is the biggest trial of this century (1901-2000), and it pits 21st Century business models against 19th Century laws.
To a legal scholar, this is like crack cocaine. There's no way they can put down this case. Every judge I know says that they're glad they're not Judge Jackson, due to all the scrutiny he's under... but every single one of them wishes he was Judge Jackson, just so that he could get to write the opinion in US v Microsoft.
Remember: this case is legal crack. Every judge simultaneously fears and lusts for this case.
The Supreme Court is psychologically incapable of giving this case a pass. It's not going to happen. It's going to go to the Court and they're going to write opinions left and right, putting flourish on them worthy of Papal encyclicals. This is another Roe v Wade, another Brown v Topeka School Board... it's big, very big.
So it's a given that SCOTUS is going to hear this case. The only question is when, and after how much legal scholarship? The decision to hand it back to Appellate court is entirely defensible. To continue with the drug analogy, right now they've got a dime bag of crack in the form of Judge Jackson's Findings of Fact, Findings of Law, and his breakup order. Once the Appellate Court is done with it, they're going to have a semi-truck filled with crack. SCOTUS is going to spend six months on a legal high smoking that stuff.
The only way a person ever gets an automatic appeal in a legal case is if they are convicted of a capital crime.
Yes. It's done this way for a reason; a lot of times, people don't want to go through the expense and trouble of an appeal. You only get an appeal if you want one. The exception is in capital crimes, which has a mandatory appeal just because the government wishes to make absolutely certain that innocent people are not wrongly convicted in capital cases.
This is another example of how the law is designed to look fair upon cursory examination...
The law is exquisitely fair. The same laws apply to both sides equally. That's the textbook definition of fair. Now, there are a lot of concerns about the competency of public defenders, et. al., and there's a lot of merit to those concerns--but the law is brutally fair. That's why so many people hate it.
Fair, in a legal context, doesn't mean everybody's happy. Fair means everybody gets screwed over equally. That's why smart people avoid trials whenever possible. While I like fairness, I'd rather avoid getting screwed over.
Think for a second about the symbol of justice that they give to us.
Who's they? Answer: they is us. We're the ones who gave that symbol of justice to the courts; they didn't give it to us.
If I were going to swing the sword of justice based upon the results of a weighing, would I wear a blindfold?
Wrong symbolism. The woman represents the judicial system. The blindfold represents judicial fairness (or, screwing over everyone equally); it's a metaphor for the courts not paying any respect to social class, position, political power or, for that matter, anything else save the law. The scales represent fair judgment; courts "weigh the evidence" to come to a decision, without once looking at who's well-dressed and who's homeless. The sword represents the screwing-over; while the court is fair (and screws everyone over equally), if you're deemed to be a naughty person who just murdered sixteen people because you were frustrated about finding walnuts in your brownie, buster, that sword is for you, and you are not going to like it.
That symbol is a little joke that the evil people couldn't resist.
Friend, I hate to tell you this, but the evil people are us.
We're the ones who gave the courts that symbol. If you think justice has been hoodwinked, then by God, man, act on it.
Write a letter to your Congressional representatives. Tell them to change the laws regulating the courts so that they make more sense. If they won't respond to you, run for office yourself.
Write a letter to your local judges, expressing your frustrations and asking them to exercise better judgment and discretion in the future. They won't write back to you--they're forbidden from doing so by ethics laws--but according to the Constitution, they must read your letter! (The right to petition the government for the redress of grievances is useless if the government is permitted to throw away petitions unread. Hence, the government is required to read your complaints.)
You have a lot of recourse here, as do I, as does everyone. Stop griping and start using your recourse. The government does not care about someone who sits on their couch, watches a little CNN and bellyaches about problems. Really, they don't care a damn.
The instant your feet hit the ground and your ass leaves the couch, Uncle Sam will tremble in fear and throw himself at your feet, begging for mercy. The government knows how powerful the people are when they're motivated to do something.
After all, that's how our nation was established.
With an 8:1 landslide in favor of MS, it is scurrilious to impugn the impartiality of the Chief Justice.
Doubtless the Supremes had their reasons. First and foremost, there's a good reason for all the layers of appeal: you get different arguments and different thinking at each stage. Why not get that out on the table?
Even though I believe MS is guilty as sin, they do deserve all their days in Court. Can't have them claiming there was a rush to judgement.
If the Appeals overturns [as MS hopes], then the Supremes could reaffirm, and perhaps impose a different punishment! MS may yet rue the day it appealed.
It sounds to me like the judge only acknowledged the obvious fact that if the Supreme Court decides the government antitrust suit against Microsoft it could have a direct effect on his son's private lawsuit. Of course it would. Any decision in a lawsuit will usually affect any litigation associated with it.
I think the media wants us to believe that the judge admitted he would have personal conflict in deciding the case, and possibly in this first decision. The more likely case is that the media dug up three statements from the always-infallible law-professor-bin to drum up some sensationalism about this high profile case.
Unless their is reason to believe Renqhuist has let his personal life interfere with his professional, the media should keep their dirty mouths shut.
Antitrust laws are harmful to consumers.
That's just plain wrong. Antitrust law, goes by many names, for example, fair dealing or competition Law, in different jurisdictions. The overriding premise of competition law is to redress the imbalance caused by _failures_ of markets to behave in a "perfectly competitive" way.
Now most often this is couched in terms of protecting consumers, but this is because the most obvious manifestation of these failures is that there is an imbalance of power between the participants in a market, most often with the lone consumer having the weak position when negotiating terms with a stronger legal entity. It seems clear to me that redressing this imbalance is _good_ for consumers.
They raise prices
Prices can only be raised to a level where the momentary return on capital is economical. In other words, if a monopoly has lower prices, it is either because they are operating at a loss or they are subsidising current prices with future (or past) revenue. The other possibility is that the monopoly is already perfectly competitive, which suggests that it is a natural monopoly in which case it should defeat an competition law at first principles. (I shall leave it as an exercise for the reader to decide if there is such a thing as a natural monopoly)
reduce competition
Er,... only if the implementation of the law is an abject failure. Since I would think that the absract of every piece of competition law would state an intention to "promote competition"
stifle innovation
If by stifle innovation, you mean stop companies ripping off consumers to fund R&D that the consumer has not explicitly authorised through the price discovery process then yes you are right. Otherwise how?
foster corruption of government officials
Ah, capture theory, yup, it's a multo problem, but not a problem with competition law, rather with the institutions that execute it. The same problems exist with other areas of the executive branch (such as industrial relations) but it is not a flaw in the law but in the executive branch of government. And the causes and solutions to this are well off topic
The laws are used not to 'manage competition', but as strategic weapons by less-successful competitors seeking an advantage over market leaders
Puh, lease... markets fail. Markets fail to reach perfect competition for all kinds of reasons the existince of competition law as a method for redressing market failure far outweighs the occasions you highlight where they might be used for a strategic advantage over "market leaders". Oh and by the way, I can just imagine how you would define and identify market leaders
Markets fail when extraordinary profits can be made, ie when return on capital exceeds the current economic rate. I think it is _very_ hard to argue that the current market value of Microsoft is anything but the result of extraordinary profits. As such, the market in which they participate must have failed, the reason (IMHO) is they have used anti competitive practices to stifle products that compete with their own.
"The first thing to do when you find yourself in a hole is stop digging."
And I'm going to start a game requiring two shots every time an astroturfer posts an apologetic for MS's (or MS trial judges') misbehavior. (MSbehavior?)
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Sheesh, evil *and* a jerk. -- Jade
I personally think that if you have made it to the position that Judge Rehnquist holds, you'd pretty much know what you are doing.
Read "The Brethren". If Nixon hadn't beleived that "Renchquist" (as he called him) would be his right-wing conservative yes-man on the court he would never have gotten anywhere near the court. His appointment was purely politically motivated, and if I recall, he was Nixons third choice or so, after Congress outright rejected several other Nixon cronies. Things are not always as they appear 30 years later...
"I will gladly pay you today, sir, and eat up
Sacred cows make the best burgers.
Actually there is, the american public. We hold ultimate authority in this country. The government exists and derives its power from us. If the supreme court were to do something that the majority of americans were strongly opposed to, you can bet your bottom dollar something would be done about it directly or indirectly.
Lee
Muslim community leaders warn of backlash from tomorrow morning's terrorist attack.
Kind of like the way the Jewish community does itself harm when it publishes articles and materials decrying the holocaust of their people by the Nazi's?
Is that the kind of harm you're talking about?
If Microsoft doesn't piss you off it either means you aren't paying attention or you own some of their stock.
Which is it?
Muslim community leaders warn of backlash from tomorrow morning's terrorist attack.
More than one supreme court justice made the choice not to advance the case.
I do not think that Judge Rehnquist influenced all of them. He may have violated ethics by particpating in the decision, but since it is a Judge's job to be informed of the case, chances are one of the other Judges may have known about his son also.
Anyway, don't you think it would have been worse (and he could have done more damage) if he had gotten the case to the Supreme Court and tried to influence the decsion on that level? Even if the Government loses - they can appeal, so technically, the case may still reach a court where he has a fair amount of influence.
The constitution of the vote has been deliberately withheld, so for
all we know the vote was 5-4. The figure of an 8-1 decision comes
from the fact that there was only one published dissenting view
(Justice Breyer), but there may have been other unpublished dissenting
views.
28 USC 455. Disqualification of justice, judge, or magistrate [judge]
(a) Any justice, judge, or magistrate [judge] of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
blah blah blah
(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
blah blah blah
(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
Rehnquist's son is representing Microsoft in private Antitrust suits. A son is related to the father in the first degree of legal consanguinity.
His private suits are all won if the Supreme Court declares Microsoft has no monopoly and maybe even if they are simply ruled to not have abused their monopoly. High profile lawsuits involving the richest private client on earth certainly constitute "an interest" where I live. Certainly, if Rehnquist Senior can make Rehnquist Junior a winner against all comers by the disposition of the DoJ's Antitrust suit then that means he can substantially affect the interest of someone closely related to him. If OTOH, he does not exonerate Microsoft, then Junior's billable hours are going to be much, much greater than if he did. He really can't help but affect his son's interest whatever he does. He should disqualify himself -the law demands it.
If he will not recuse himself he has to ignore black letter law to do so. Doesn't he care that behaving with disregard for US Laws concerning his office casts a shadow on whatever decision the Court eventually produces? I wonder what he'd say to a young lawyer who reminded him that according to the language of the law, even if the relative wasn't his son but was a niece or nephew, he's obliged to recuse himself. Even if it were not his niece or nephew but their spouse he should also recuse himself...
If the law is so insistent about this as to demand self disqulification in cases affecting the interests as remote as those of nephews' and neices' spouses then how in the world can Rehnquist blithely ignore the fact that it's his son ? Doesn't this by itself fail the first sweeping clause--that a judge should disqualify himself "in any proceeding in which his impartiality might reasonably be questioned"? He already looks biased to me by his stubborn denial of his family's involvement. According to Rehnquist a reasonable person would not believe that he has an appearance of conflicting interests, but then he's never been a dispassonate judge of what's reasonable and rational...Nor has he ever been particularly susceptible to the sense of shame. William Rehnquist simply does not believe the laws regarding recusal for conflicts of interest has ever applied to him.
One of the most famous cases or controversies over this matter involves Rehnquist himself. In the late sixties it became known that the Department of the Army was conducting surveillance --widespread domestic surveillance-- of lawful civilian political activities. This resulted in the class action complaint, Tatum v. Laird . Assistant Attorney General William Rehnquist represented the Nixon Administration ( Laird being Melvin Laird, the Secretary of Defense), before a Senate Judiciary subcommittee in hearings on a key point of Constutional law. The issue was whether pervasive, Constitutionally questionable surveillance (w/ no national state of emergency declared, no Federal property endangered, and ONLY the vague request of a state law enforcement agency to lend aid under the Civil Disturbances Statutes) of peaceable, lawful activities was or wasn't an infringement of 1st Amendment free speech rights of the people being monitored.) You can guess which side Rehnquist was arguing. Anyway, while the case flipflopped through the appeals process, Nixon put Rehnquist on the Supreme Court. Tatum v. Laird inevitably arrived in the Supreme Court docket. The newly minted Justice refused to step aside and recuse himself despite having been a counsel for the respondent in a legal proceeding regarding the self same case. In the words of the lead plaintiff attorney, himself a target of Army surveillance: It was as if Billy Martin had resigned as manager of the New York Yankees after the sixth game of the World Series and taken the job of umpire for the seventh game. That's right--this man faced Rehnquist first as an witness and adversary in the Senate hearings and later as a Justice in the Supreme Court on the same case. And Rehnquist refused to heed suggestions that he might be a wee bit biased. Rehnquist eventually voted with the majority in 1972 to allow the US military to monitor and collect information on your lawful political activities without a declared state of emergency in effect, on an ongoing basis-- 1st, 2nd, 3rd and 4th Amendments to the Constitution be damned. The result of this sterling defence of individual rights by the Judiciary was Congressional passage of the Federal Privacy Act of 1974.
When microsoft is involved even small news items gets blown up to be 1 of the 10 headlines of the day.
Is this really news?
Please answer that question after reading for example the hard legal stuff from a computer scientist who was an expert whitness in the trial.
Just my 2 eurocents,
Johan