LinuxPlanet Interviews Robert Bork

Greg writes: "Robert Bork, former Supreme Court appointee from the Reagan era and a recent entrant in the MS antitrust case, did an interview over at LinuxPlanet. The topic? The Evil Empire's court settlement." Bork isn't actually new to the Microsoft case or to the subject of monopolies -- his legal experience makes this an interesting read, even for those who don't consider Microsoft an "evil empire."

Comments

Important for three reasons.

[dinotrac]

Though many know of Bork only because of the partisan fiasco that accompanied his nomination for the Supreme Court (an unfortunate event that has foreshadowed the regular "Borking" of decent people by both sides of the aisle).

Bork is widely acknowledged in legal circles as one of our country's greatest legal minds.

He is widely respected for his integrity.

He is a well known legal conservative and strong believer in strict constructionist interpretation of the Constitution.

Anyone who thinks that the Microsoft case is a left-wing attack on big business should pay careful attention to Bork's words. Whatever else Bork may be, he ain't no left-wing anti-business type.

Re:Important for three reasons.

[elmegil]

It's worth noting that there is really no such thing as a "strict constructionist interpretation of the Consitution". In every instance I can think of, the "strict constructionist" starts with a belief about what the law OUGHT to say, and then proceeds to find sections of the constitution that can be narrowly construed to mean what they want. Never mind precedent, other parts of the constitution, etc.

To be fair, this is only in stark contrast to the other type of interpretation of the constitution, where the justice will start with a belief about what the law OUGHT to say, and the proceeds to find sections of the constitution that can be broadly inferred to mean what they want. Never mind precendent, other parts of the constitution, etc.

supreme court appointee?

[MathJMendl]

Let me note that for the record, Reagan attempted to put him on the Supreme Court, but he was rejected. This was because of ideological reasons, hence the term "borked" was invoked when Bush appointed Ashcroft Attorney General. Anyways, just wanted to note that while he was nominated, he was not actually placed on the Supreme Court, as "Robert Bork, former Supreme Court appointee" suggests.

Re:supreme court appointee?

[rho]

Yes and no. You are right--he was not an "appointee", implying that he was appointed and confirmed. He was appointed, but rejected. More accurate would be "Bork, Reagan's Supreme Court nominee"

However, "Borking" does not mean rejected for idealogical reasons, per se. Those that opposed Bork's nomination didn't like his ideology, we presume, but "Borking" is a process whereby you spike a nomination through a series of procedural delays, character smearing, mud-slinging, and/or the calling in of political favors or threatening of political retribution. It's the casting of a nominee in the worst possible light and using parlimentary schemes to discourage passage of the nomination.

It's a shameful way of doing the "People's Business", and has probably been in constant use since ancient Rome.

The "Remarkability" of the Public Eye?

[Ieshan]

"So it is not so remarkable that a noted conservative lawyer would see perfect reason for action to be brought against Microsoft for the transgressions we have all witnessed and experienced over the years; what is remarkable is that people would find such a position at all unusual."

I'm not sure I agree, at all. Alright, so from an intellectual standpoint, it's ridiculous that the public would find the Judge's position unreasonable, but from the Public's Perspective, it makes perfect sense.

Mircosoft Provides Software to the Large Majority of the Public that they Encounter Every Single Day for, in their mind, a reasonable price. Therefore, people who use this software have nothing against Microsoft, don't realize what it's doing to the industry as a whole, and keep going with their MSWord/Internet Explorer/WindowsXP Spyware.

The web has started to become "optimized" for Internet Explorer, but the public doesn't really care, because they aren't seeing the huge technological impairment that Microsoft is - they're only seeing the benefits.

If and when Microsoft really does make a PR mistake, or Linux finally jumps into the mainstream, I expect the "flyswatter of freedom" (from the article) to crack down on their heads, but for now, they're going to stay afloat because of public opinion and use.

Attorney: he's the #1 authority on the issue

[hawk]

I am an attorney; this is not legal advise. Contact an attorney licensed in your jursidiction if you need some.

Robert Bork is the #1 authority on modern antitrust law, with Richard Posner (who served as a mediator in this case) a close #2.

Modern antitrust law is essentially what Bork & Posner suggested would better protect consumers in a series of law beginning inthe late 60's. They pointed out that the current state of the law made no sense, conflicting wsith itself and the economics it dealt with (Brown Shoe, Bork's favorite: Brown & Kinney, with 5% and 1% of the manufacturing & sales markets for shoes, wanted to merge. DoJ blocked this (successfully with the USSC) on the grounds that it would allow them to sell a product of comparable quality at a lower price than their competitors . . . aren't you grateful for such protection?)

Anyway, Bork is seen as a rabid conservative, which is inaccurate (though he's now a conservative on many issues), but he wasactually a screaming leftist (borderline socialist) who learned some economics and changed his positions based on them--to achieve the original goals.

Bork argued that the sole legitimate test of the competition was whether it benefitted or hurt the consumer: if consumers will see lower prices from the merger of ten firms down to 3, than it is a pro-competitive merger. He also arugued that the law should protect competition, not the other competitors.

His antitrust rules are *not* republican--the Clinton administration pretty much took the same path.

hawk, esq.

WTF?

[scorcherer]

an interesting read, even for those who don't consider Microsoft an "evil empire".

Huh? This is Slashdot, right?

Weeeee...Sporkin + Bork sport

[Snodgrass]

The Honorable Judges Sporkin and Bork eat pork with forks, popping corks off ports while chortling over court reports of sports of a sordid sort.

What bodes ill...

[Eryq]

When George W. Bush was asked what he thought about the Microsoft case [this was a while ago], his reply was [and I think I have the exact words]:

"I believe in innovation, not litigation."

(I almost expected him to follow with "if the glove don't fit, you must acquit". But I digress.)

Anyway, this statement could have -- and probably DID -- come straight from the mouths of Microsoft's PR department, probably in the same envelope as a campaign contribution (to be fair, I'll bet Gore got one too).

Our best hope is that the President's advisors listen to intelligent conservative commentators like George Will, who wrote an excellent column in the Washington Post about Enron, in which he made the following point:

Capitalist economies don't spring up automatically, like crabgrass. They are dependent upon a complex set of laws. Capitalism is a government program.

Will was speaking about laws which require accurate financial disclosure so that people have faith in the market. But the same priciples hold for the right to fair competition. Without that right, where the success of a startup [e.g., Netscape] leading to its imminent demise by those seeking to maintain their control [e.g., Microsoft], why would anyone risk their money to enter the marketplace? The result in such a case is stagnation, and the loss of a healthy economy.

Re:What bodes ill...

[rho]

Our best hope is that the President's advisors listen to intelligent conservative commentators like George Will, who wrote an excellent column in the Washington Post about Enron, in which he made the following point:

Capitalist economies don't spring up automatically, like crabgrass. They are dependent upon a complex set of laws. Capitalism is a government program.

George Will is wrong. Or, if you prefer, he's wrong, but in an interesting way.

Capitalist economies do spring up automatically. It is in our nature to get what we want at the best price. The interworking of this with more than a single person will be inherently capitalist. Look at kids trading baseball cards: each gets what they want for what they want to pay.

Government does not bring forth capitalism: government's nature is to grow more government. Government's place in a capitalist society is to inhibit the strong from unfairly overpowering the weak. Remember those baseball card trading kids? Government is the teacher on the playground keeping the big kid from knocking the other kids down and simply taking their baseball cards.

The means by which, and the extent to which the government does this is where we get today's political parties. However, after some 60 years of steadily increasing government involvement, it seems that the more government gets involved, the less good it does. Indeed, it seems, at least to some people, to be doing more harm than good.

George Will, in saying that government promotes capitalism, is wrong. Government does have a role, but that role (if you are to have pure capitalism) is very, very limited. Capitalism is intuitive and inherent in our nature.

Re:What bodes ill...

[rho]

That is a confusion between Capitalism, and commerce. Capitalism depend on two things: capital, and free labor.

That is a warped view. Capitalism, at it's heart, is free commerce. I'll grant you that the economic system we have today is called "capitalism", but it's really capitalism's dowdy cousin, "sort-of capitalism".

The first condition of Capitalism is availability of people who lack the tools to produce on their own and thus must sell their labor. The second is a government that sanctions and enforces contracts and property rights, without which capital can neither accumulate nor contract with labor.

This is not correct. The first condition of capitalism is supply, the second is demand. You are stuck on the idea that capitalism needs government intervention in order to function.

Even a stable currency isn't *neccessary* for capitalism (not that our government is providing us with one): barter and trade work interchangably with dollars and cents. The convenience of a single currency, and the standardization (and enforcement) of rules of commerce (i.e. the SEC) are just that: conveniences. They are not, repeat NOT neccessary for capitalism to exist.

Milton and Rose Friedeman described money in this way:
There are four ways for money to move

1. You spend your money on yourself. You get exactly what you want at the best price.

2. You spend your money on other people. You get the best price, but you don't care as much about pleasing the recipient. This is why you got underwear for Christmas.

3. You spend other people's money on yourself. You get exactly what you want, but at any old price. This is why 20-year-old second wives of 55-year-old men drive convertible BMWs.

4. You spend other people's money on other people. Nobody gives two shakes about price, quality, or suitability of purpose.

Capitalism works in the first area. Government works in the fourth. They mix poorly, and whereas #1 can begat #4, the reverse is almost never true.

There isn't any historical reference to capitalism absent these two conditions. Buying and selling isn't capitalism, it's commerce. Capitalism is buying and selling other people's work.

Sure there is: look at the origins and beginning of America. People living out West did well enough without the benefit of the SEC, the dollar, or even Alan Greenspan. If you grew corn, you traded that corn for a cow when you wanted milk or meat. If you wanted a new plow, you bought it with gold you got from selling your corn to hungry miners. If people didn't trust their gold assayer, he got shot.

Modern capitalism is a dog's breakfast of free market, socialism, and political chicanery. Pure capitalism is based in the free market.

Did government help MS to achieve their monopoly?

[PaulBu]

I was reading Ayn Rand recently (Capitalism: The inknown Ideal, 1967 or so) and she pointed out that in all previous anti-monopoly cases it was the government itself that gave some exclusive rights to the companies and these exclusive rights allowed the companies to grow into the illegal monopolies. The AT&T case supports this statement, but what about Microsoft?

In your opinion, did they (MS) get any exclusive rights from the government or are they the exception of a company which managed to get to this position all by itself?

An interesting read...

[blakestah]

Just read it.

For those who haven't, here is the summary.

Linuxplanet: Isn't the proposed settlement horseshit.

Bork: Yes, I'd have to say I agree with that.

Insightful - NOT !

I am impressed!

[cgleba]

"was nominated to the United States Supreme Court by President Ronald Reagan"

Damn. I think this is the first conservative that actually interprets conservatism for the people. I am impressed.

Generally most conservatived *cough* Bush interprets "small government" as "laissez-faire" which then they perverse into "leave big corporations alone even if they have a monopoly" in and Adam-Smithian belief that "The Invisible Hand" will fix everything. Of course they don't argue because it also fixes their wallets.

It is VERY nice to see a person interpret small government as NOT laissez-faire economics. If the whole Republican party went by that ideology I would vote for them every time.

Where's the Innovation?

[bill_mcgonigle]

This is a really good point. This case was about the browser issue.

Once upon a time, not too many years ago, there was real innovation in the browser market. People could barely keep up with the features coming left and right from Netscape, Spyglass, Mosaic forks, Cyberdog, etc., and features were piled on left an right. Forms! Tables! JavaScript! Java! DHTML!

Then Microsoft crept over the 50% market share mark. Now the new browser feature people get excited about is TABS, for Pete's Sake! They're still trying to get a decent CSS2 implementation done, ECMAScript is stagnant at best, and Java applets still don't work all that reliably.

And it's been a few years. There's no innovation to be found. Yeah, Mozilla has some froody features, and XUL may still kick ass someday, but if you want real innovation, you need competition, and any capitalist can tell you that. If IE had to compete on the open market they might even run lint on it.

Impressions of Bork

[jamienk]

I wasn't following politics too much at the time Bork was put forward for the supreme court, but years later I saw him on a William Buckley show where "Free Speech" was debated. (Mark Green, who just lost the NYC mayorality to Bloomberg was on this show too.) Bork argued what seemed to me to be an anti-free speech position (arguing the original intent of the Bill of Rights). He thought it obvious that a lot of sexually-related expression had no place in a civilized society. The example he kept giving of expression going too far was (I kid you not) "Michael Jackson gyrating his hips..."

Off topic? Maybe. But for me this clinched my impression of Bork as someone I not only disagreed with, but who seemed damned-right retarded.

Has Hell frozen over?

[MsGeek]

I actually read the article. Carefully. And damn if I don't agree with the grumpy old bastard.

Wow. Either this is a fever dream or reality has just warped.

Just in case someone believes you...

[ioscream]

from: http://www.techlawjournal.com/atr/80421bork.htm

Robert Bork formerly practiced antitrust law, taught antitrust law at Yale Law School for nearly twenty years, and wrote what is perhaps the most influential book on antitrust law in recent decades. (The Antitrust Paradox: A Policy at War with Itself, New York, Basic Books, Inc., 1978.)

See also the second amendment...

[sterno]

The second amendment is a perfect example of this. It says:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

You can read this in few ways. In one sense this may suggest that you only should be able to bear arms for the purposes of defending the state. Basically that you need to have guns for things like the national guards, etc. But you can focus on the "free" part of that comment and read that the average citizen should have the right to have a weapon to defend their freedom from those within the state who would take it.

Personally I find the interpretability of the constitution to be one of its most valuable assets. It gives our nation a common thread to work from but it also provides flexibility to accomodate for changing attitudes.

Re:See also the second amendment...

[Bob_Robertson]

A well educated citizenry being necessary to the sucess of a free state, the right of the people to keep and read books shall not be infringed.

So we can only keep and read books that relate to education? We can only keep and read books that are permitted by the state?

The most apalling interpretation is that the right is somehow "granted", when it specifically says that the right shall not be infringed. The plain english is that government cannot "grant", it can only "infringe" on a pre-existing right.

Offtopic, here I come.

Bob-

Re:See also the second amendment...

[1010011010]

Thanks. People seem to either not know or want to forget that the Constitution does not grant rights to people. Rather, it limits the government.

Amendments 9 and 10 just spelled that out in neon lettering.

As far as "interpretability" goes, the 2nd is slightly vague, but when taken with the other writings and sayings of the people who wrote it, it becomes clear that they intended that the average Joe have access to weaponry. They didn't want a standing army, etc. Each male with a gun was part of the "militia," called up to defend the neighborhood/town/city/state/nation. Rather than have a standing army, the idea was to train teh regular citizenry to be the defenders of the nation. Those "other writings" aren't part of the Constitution, but all the other laws of the country are interpreted by the courts along with the "intent of congress," so including the "intentions of the founders" in adjudication of constitutional law is par for the course. On a strict reading it would seem to say that each state can have its own army, but armed gangs are illegal.

However: remembering that the constitution doesn't grant people rights, it only limits the government 's scope of actions by granting it specific, enumerated powers, there's no where in the Constitution that prohibits citizens from owning weapons. We would be able to own guns without the 2nd amendment at all. Assuming, of course, that the courts could also remember (alas, they cannot) that U.S. Citizens are not granted specific rights, but have all rights be default.

A clearer case is #1:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

"Congress shall make no law" doesn't have much wiggle room in it.
Number 9 is pretty clear, too:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people

"Shall not." Gotcha.

However, the quality went down as the years progressed. Number 17, for instance, is a mess. It changed the U.S. from a Republic into a Representative Democracy. From a Federation of Soverign States into one big state. It should really be repealed.

The Senate of the United States shall be composed of two Senators from each state, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislatures.

When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

It's pretty clean compared to number 12, though. Sheesh:

The electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;--The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;--the person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

Re:See also the second amendment...

[Malcontent]

"the taking away of guns or limiting their ownership being contradictory to the existence of the militia"

The constitution cleary states the following.

1) Guns are neccasary in order to form militias.
2) Militias ought to be "well Regulated".

If your argument is that everybody ought to have guns thereby becoming a militia then you have to subject yourself to being "well regulated". I don't think you can have this both ways.

Why Bork was Borked -- some more background

[gonerill]

This is slightly OT, but some more context on Bork might be of interest. In case anyone was wondering, Robert Bork's nomination to the Supreme Court wasn't canned by the Democrats simply because he was a conservative --- there are plenty of conservatives on the Supreme Court, in case you hadn't noticed. He was "borked" in a long-awaited act of revenge.

During the Watergate scandal, Archibald Cox (the first ever independent prosecutor, a la Ken Starr) faced down the Whitehouse in an (ultimately succesful) effort to unearth damning evidence of criminal activity by both President Nixon and Veep Spiro Agnew.

Nixon wanted to fire Cox, but it wasn't in his power to do so. As an Independent Prosecutor, Cox was subordinate only to the Attorney General, Elliot Richardson. So Nixon demanded that Richardson fire Cox. This was an appalling abuse of power. Nixon essentially threw out the rule of law to satisfy his political ends. In an act of great courage, Richardson refused to comply. So Nixon fired him. Then he promoted the Deputy A.G. to acting A.G. and gave him the same order --- fire Cox. Again, a refusal; and again Nixon fired the guy. Next in line at the Justice Dept was the Solicitor General. At the time, this was none other than our friend Robert Bork. Nixon made him acting A.G. and ordered him to fire Cox. Bork consented and fired him. As an added bonus, he sent FBI agents over to the Prosecutor's office to seal it off, temporarily shutting down the investigation of the President.

This was the famous "Saturday Night Massacre" --- the most serious constitutional crisis ever faced by the United States, in fact. Bork's decision to cave in to Nixon's unconstitutional power grab forever marked him in the eyes of many Americans, and not just Democrats, either. When Reagan nominated him for the Supreme Court, the possibility of having someone who had helped Richard Nixon flaunt the rule of law sitting on the highest court in the land was just too much for many to bear. And so he was borked.

How much power do they need?

[roystgnr]

People talk about "Microsoft using its monopoly power to..." without recognizing that the only power Microsoft has is the price at which they sell their product.

That's not quite true, but it's a good start. You realize, with their market share, that this power means that Microsoft could instantly destroy Dell, Gateway, Compaq, or any other computer manufacturing company they choose by simply raising that OEM's prices through the roof? That they could bring about such a destruction a bit more slowly by simply raising OEM costs for Windows and Offices up to the retail price? And that the OEMs know this, and so are forced to sign whatever anticompetitive agreement Microsoft wants in order to stay alive?

If you're so libertarian that you don't have any problem with abuse of monopoly power, then what's your problem with the government? Just tell yourself, "The government owns all land within it's borders, and 'property deeds' are just end user license agreements that let me use the land as long as I follow the government's laws." Then you can think of the government as just the luckiest of the big corporations, you can happily bend over for them too, and everything should be A-OK.

Suppose our worse fears are realised

[S. Allen]

and Microsoft dances away from this with a slap on the wrist. The only saving grace I can think of is that this will go a long way towards fueling the fires of Microsoft paranoia brewing outside the US. More non-US governments will look seriously for Microsoft-free solutions as it becomes crystal clear that the US goverment and Microsoft are sharing the same toothbrush and underwear.

Bork was just Nixon's henchman

[fmaxwell]

Before you start praising the supposed high moral character of Bork, perhaps you should take in a little history lesson:

On Oct. 20, 1973, Attorney General Elliot L. Richardson resigned in protest rather than carry out Richard Nixon's order to fire Watergate Special Prosecutor Archibald Cox. His deputy, William Ruckelshaus, also refused to fire Cox and was fired. Nixon's Solicitor General, Robert H. Bork, who was next in command, carried out Nixon's orders and fired Cox.

Anyone who would help Nixon cover up Watergate by firing the Watergate Special Prosecutor lacks the ethics, integrity, and judgement to serve as a Justice of the Supreme Court. I, for one, am happy that the Democrats hae real integrity and blocked the appointment of that scoundrel.

Re:Bork was just Nixon's henchman

[Artagel]

Bork had a tough decision to make, and probably about an hour to make it, tops. I think he made the wrong call, but I also know that I've thought about the issue for more than an hour too.

It couldn't have been that compelling an assault on Bork's character. Otherwise, Patrick Leahy (that's right, the man who is holding up all of the current president's nominees!) decided to attack Bork for earning money and not doing pro bono work while he was desperately trying to pay the bills to (unsuccessfully) save his wife from her cancer.

His character had to be pretty good for Leahy to have to slink that low to even to try to get a shot in.

Okay, I'm calling your bluff

[roystgnr]

Exactly what line on their income statement (man, I hope that's not a temporary link...) does the loss due to piracy fit into? How could they write off such a loss without writing the creation of the pirated software as a revenue in the first place? Does the "lost software" appear on their balance sheet anywhere?

Re:Did government help MS to achieve their monopol

[L-Train8]

I disagree that MS has enjoyed governmental help to achieve thier monopoly.

For the government's use of MS products, I think they are victims of MS's monopoly, not creators of it. I don't see any collusion between MS and the gov to install MS products exclusively on gov computers. The majority of gov computers use MS because it is the de facto industry standard. Everyone uses MS Word, so you better use software that can read MS Word docs. The majority of off the shelf software runs on Windows, so if you want to use off the shelf software, you better run Windows. The government is no different in this respect than the rest of the country. The gov didn't buy MS products exclusively early on, helping to create the monopoly. They gradually moved to it as the corporate and private worlds did.

As for tax breaks and writeoffs, I am unaware that MS gets any different treatment in that respect than any other large software manufacturer.

Re:Not constructionist enough...

[Waffle Iron]

People talk about "Microsoft using its monopoly power to..." without recognizing that the only power Microsoft has is the price at which they sell their product.

That's a gross oversimplification. Microsoft wouldn't be worth jack squat if there weren't billions of .doc and .xls files out there that their products process better than anybody else's.

Why can't others duplicate Microsoft's products? Because Microsoft enjoys the dual protections of copyright and trade secrets. Without either one, competitors would swarm out of the woodwork and eat Microsoft's lunch because office software is a mature product that should be a commmodity by now.

How are the copyright and trade secret protections facilitated? By the heavy hand of government, of course. It is interesting that when the U.S. Constitution was written, there was no single technology such as software that could combine the two protections in such a powerful way. The powerful combination allows the barrier of entry into a monopolized software market to be almost infinite.

Take the example of Sun, who is giving away a capable office suite for free. Most people doubt that even at this price that they can significantly impact Microsoft's market share. This is largely because their handling of proprietary .doc and .xls files is less than perfect. This proves that microsoft's chosen pricing has little to do with the dynamics of this market.

In fact, I'd argue that if you can't even give a product away, it's not a market. There is no market for office software today. Just a government-facilitated fiefdom.

He's on the right side of this BUT...

[fanatic]

I've never had any use for Bork since I heard that he wrote that he found civil rights legislation stopping restaurant owners from discriminating on racial grounds "repugnant", then later upheld Georgia (I think) law under which sex (in this case, gay) between consenting adults in their own home could be illegal and the police could come in and arrest them. For this dipshit, government interference is bad - unless it's interfering in something he's against, then it's OK. (Of course, I'm inconsistent in the opposite direction, but I think it's a much better argument that the government DOES have a place in restaurants and NOT in the bedroom.)

Another conserative opposed to the deal

[jmorse]

I'm not surprised that Bork opposes that joke of a deal. While he's certainly been a critic of antitrust law in general, he at least sticks to his principles. Many "conservatives" bash the antitrust case out of either deference to Micro$oft (a large campaign contributor) or sheer ignorance.

Many people overlook another conservative who chose to follow the law and base his thinking on the facts: Thomas Penfield Jackson...the judge in the original antitrust case. Jackson too was appointed by Reagan. In fact, he was appointed specifically to quash antitrust cases that came his way. But U.S. vs. Microsoft was just too compelling...they openly flaunted the law and even went so far as to fabricate evidence (the infamous video showing how difficult it was to remove IE). His findings of fact in the case, which were upheld by the appellate court, paint a picture of an extremely arrogant and socially destructive corporation openly engaging in socially destructive practices in clear violation of the law of the land.

I long for the days when there were still principled conservatives to be found in positions of power. I can respect an honest difference of opinion...but that's rare anymore. In a world where most conservatives are Enron conservatives it's nice to see someone take a principled stand (Bork's work for Netscape notwithstanding).

Three days left

[kenneth_martens]

This is a direct quote from the article, but since it was the very last paragraph and probably not everyone read that far, I think it's worth repeating:

If you haven't made your comment in U.S. v. Microsoft, you have three days to do so. The e- mail address is microsoft.atr@usdoj.gov while the fax numbers are 1-202-307-1454 and 1-202- 616-9937. As Judge Bork noted, your comment's effectiveness is a function of how intelligently it is rendered. I've received copies of many of the comments sent by readers of this column, and I'm truly impressed. Now we need to multiply them by a hundred or so.

Ze Sveedish Chef Translation, Bork Bork Bork!

[GoRK]

Ecceptunce-a ooff zee prupused settlement in U.S. f. Meecrusufft vuoold cleer zee rued fur zee cumpuny tu ixtend its munupuly tu must iff nut ell espects ooff cumpooteeng, seys Joodge-a Rubert H. Bork.
Bork Bork Bork!

"I dun't theenk it dues unytheeng tu Meecrusufft," seeed Bork in un interfeeoo veet Leenoox Plunet. "I theenk it joost lets zeem cunteenooe-a es zeey vere-a beffure-a."

Iff thet heppens, he-a seys, Meecrusufft's cuntrul is leekely tu ixtend beyund zee sufftvere-a indoostry, leedeeng tu munupuleees in erees incloodeeng oonleene-a eccess und zee Internet.
Bork Bork Bork!

Zee reeleety ooff Joodge-a Bork is fer mure-a interesteeng thun zee cereecetoore-a screebbled by hees inemeees, vhu deesegree-a veet hees "streect cunstroocshuneest" feeoo -- shered veet zee Fuoondeeng Fezeers -- thet gufernment is zee lest resurt, nut zee furst, fur sulooshuns tu suceeetel vues.
Bork Bork Bork!

He-a is knoon cheeeffly fur zee tremenduoos perteesun bettle-a thet iroopted vhee he-a ves numeeneted tu zee Uneeted Stetes Soopreme-a Cuoort by Preseedent Runeld Reegun, und thet, tuu, is sed. Fur hees ixpereeence-a in zee lev, ispeceeelly untee-troost lev, is ixtenseefe-a, es is hees schulersheep. He-a hes serfed es curcooeet joodge-a, U.S. Cuoort ooff Eppeels fur zee Deestrict ooff Culoombeea (vheech hes heerd tvu U.S. f. Meecrusufft ceses in zee teeme-a seence-a he-a lefft zee bench), suleecitur generel, und ecteeng etturney generel ooff zee Uneeted Stetes, es vell es 17 yeers es a pruffessur et Yele-a Lev Schuul und 12 yeers in preefete-a precteece-a. He-a is a seneeur felloo et zee Emereecun Interpreese-a Insteetoote-a. Hees buuks incloode-a Sluoocheeng tooerds Gumurreh: Mudern Leeberelism und Emereecun Decleene-a (1996), Zee Unteetroost Peredux: A Puleecy et Ver Veet Itselff (secund ideeshun, 1993), und Zee Tempteeng ooff Emereeca: zee Puleeticel Sedoocshun ooff zee Lev (1989). Poobleeshed in a veede-a fereeety ooff pereeudicels, und freqooent netvurk telefeesiun legel unelyst, Joodge-a Bork hulds B.A. und J.D. degrees frum zee Uneefersity ooff Cheecegu.
Bork Bork Bork!

Bork deed vurk fur Netscepe-a in cunnecshun veet zee unteetroost cese-a und hes feeled memurunda in fefur ooff a feending egeeenst Meecrusufft.
Bork Bork Bork!

Re:The Abused Interstate Commerce Clause

[Bob_Robertson]

Either "constructionist" means "as reasoned by those that constructed it", or the term is meaningless.

I didn't invent "constructionist" as a term, nor did I invent going back to the arguments and reasons for something to discover its arguments and reasons for existing. That particular discovery technique somewhat predates me as you would know if you read a book.

"On every question of construction [of the Constitution] let us carry
ourselves back to the time when the Constitution was adopted, recollect the
spirit manifested in the debates, and instead of trying what meaning may be
squeezed out of the text, or invented against it, conform to the probable
one in which it was passed." --Thomas Jefferson, letter to William Johnson,
June 12, 1823, The Complete Jefferson, p. 32.

Bob-