Posted by
ryuzaki0
on from the let's-all-hold-hands-and-smile dept.
fremen writes "CNN is reporting that Judge Thomas Penfield Jackson has appointed a mediator in the Microsoft case. The mediator is Richard Posner, chief Judge of the 7th Circuit U.S. Court of Appeals. Yahoo has a similar story indicating that he'll be acting in a 'private capacity.'"
I'm intrigued. I had been figuring that there is close to no chance of settlement. Now, I don't know.
A mediator doesn't impose a solution, but tries to bring the parties together. Someone with experience in the particular area can be useful, and may be more able to get them to see eye to eye.
And thus the interest in Posner. Judge Posner is the second leading authority on antitrust law today (behind Bork). You can quote Posner's writing to argue that Supreme Court precedent is wrong--and the odds will be on your side. If there's any one person left in the country that can get it through Microsoft's head that they didn't win, this is the man--Bork has already been hired by Netscape.
I'd still put odds against a settlement happening, but they just changed.
Yes, you called it simplified, but you oversimplified to the point of falsification.
Posner is a leading member of the Chicago School, the body of thought from the Law School and Economics Department at the University of Chicago that are very big on competition--and the econ department which picked up four *consecutive* nobel prices recently.
The Chicago school does *not* claim that the open market corrects all monopolistic problems. Read Bork and *gasp* Posner and you'll see this. The change in law as the Bork/Posner view replaced the old antitrust law is that it is the effect on consumers, and not competitors, that matters. Bork explicitly defines competition as whatever benefits consumers--if mergers that will leave two firms instead of ten will lower prices, the merger is pro-competitive.
Posner doesn't necessarily go that far, but expects antitrust law to make economic sense.
And the extreme wing of the chicago school believes that in some cases, one firm is enough for competitive behavior to hold, since other firms *could* enter.
But the catch (which you'll find in Posner's writings) is that competition has to be working. If competition is possible, and is alive in the industry in question, they expect it to make use of monopoly power impossible. They don't see it so much as a *cure*, but as a way of determining whether or not a monopoly couldhurt consumers.
They most certainly do not think (as a group) that antitrust law should be eliminated (Posner's textbook on the subject is about five feet behind me:), but that the portions which harmed consumers (such as Brown shoe, which protected us from low prices on quality goods) should be tossed. This means tossing the "Big is Bad" principle, and actually looking at what's happening.
hawk, esq.
An interesting (and dangerous) choice
by
Rilke
·
· Score: 5
Posner is generally considered one of the leaders of the Chicago "Law and Economics" school of thinking, whose best-known "member" is probably Robert Bork (not that Posner and Bork are interchangable). But if MS had to choose a mediator, Posner just might be the person they'd most prefer.
In "Natural Monopoly and its Regulation", he came out pretty strongly against regulating monopolies, saying basically that the cure (i.e., regulation) was worse than the disease.
One of the standard tests of monopoly comes from one of Posner's decisions (Olympia Leasing vs. Western Union, though, where he says that illegal actions being when a company...
"Retaliates against customers who have the ternerity to compete with him by cutting such customers off...in order to discourage competition."
This speaks pretty directly to the IBM portion of the FoF. But a final quote from Olympia Leasing is a bit more worrisome...
"Most businessmen don't like their competitors, or for that matter competition. They want to make as much money as possible and getting monopoly is one way of making a lot of money. That is fine, however, so long as they do not use methods calculated to make consumers worse off in the long run."
The "...but we haven't hurt the consumers" argument is exactly what MS has been pushing all along.
He didn't mean to say that. What he meant to say (to give him the benefit of the doubt) is that Judge Posner is one of the founders of school of legal thought known as law and economics. Law and economics is usually associated with the University of Chicago, where Judge Posner has taught for many years. He and Nobel Prize winning economists like Ronald Coase and George Stigler (among others at the U of C) are credited with much of the research and writing fundamental to the law and economics approach.
To suggest that law and economics views all regulation of the market as bad and therefore that Judge Posner will automatically favor Microsoft is a serious oversimplification. It's worth remembering that Larry Lessig, who was dismissed as special master in the M$ case because of his perceived bias against M$, was a University of Chicago law professor as well.
I got my law degre from U of C and studied under Judge Posner while there, so I felt the need to post something. I'm not sure how I feel about this turn of events and I expect to post more later after I've had some time to think, but it must be noted that, of all the things Judge Posner can be accused of being, he is not stupid. In fact, though many disagree with his views, I can say almost without fear of contradiction that he is one of the smartest people on the planet. This is a very interesting development on which more later.
-- "The true administration of justice is the firmest pillar of good government." - George Washington
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I'm intrigued. I had been figuring that there is close to no chance of settlement. Now, I don't know.
A mediator doesn't impose a solution, but tries to bring the parties together. Someone with experience in the particular area can be useful, and may be more able to get them to see eye to eye.
And thus the interest in Posner. Judge Posner is the second leading authority on antitrust law today (behind Bork). You can quote Posner's writing to argue that Supreme Court precedent is wrong--and the odds will be on your side. If there's any one person left in the country that can get it through Microsoft's head that they didn't win, this is the man--Bork has already been hired by Netscape.
I'd still put odds against a settlement happening, but they just changed.
hawk, esq.
Yes, you called it simplified, but you oversimplified to the point of falsification.
:), but that the portions which harmed consumers (such as Brown shoe, which protected us from low prices on quality goods) should be tossed. This means tossing the "Big is Bad" principle, and actually looking at what's happening.
Posner is a leading member of the Chicago School, the body of thought from the Law School and Economics Department at the University of Chicago that are very big on competition--and the econ department which picked up four *consecutive* nobel prices recently.
The Chicago school does *not* claim that the open market corrects all monopolistic problems. Read Bork and *gasp* Posner and you'll see this. The change in law as the Bork/Posner view replaced the old antitrust law is that it is the effect on consumers, and not competitors, that matters. Bork explicitly defines competition as whatever benefits consumers--if mergers that will leave two firms instead of ten will lower prices, the merger is pro-competitive.
Posner doesn't necessarily go that far, but expects antitrust law to make economic sense.
And the extreme wing of the chicago school believes that in some cases, one firm is enough for competitive behavior to hold, since other firms *could* enter.
But the catch (which you'll find in Posner's writings) is that competition has to be working. If competition is possible, and is alive in the industry in question, they expect it to make use of monopoly power impossible. They don't see it so much as a *cure*, but as a way of determining whether or not a monopoly couldhurt consumers.
They most certainly do not think (as a group) that antitrust law should be eliminated (Posner's textbook on the subject is about five feet behind me
hawk, esq.
Posner is generally considered one of the leaders of the Chicago "Law and Economics" school of thinking, whose best-known "member" is probably Robert Bork (not that Posner and Bork are interchangable). But if MS had to choose a mediator, Posner just might be the person they'd most prefer.
In "Natural Monopoly and its Regulation", he came out pretty strongly against regulating monopolies, saying basically that the cure (i.e., regulation) was worse than the disease.
One of the standard tests of monopoly comes from one of Posner's decisions (Olympia Leasing vs. Western Union, though, where he says that illegal actions being when a company...
"Retaliates against customers who have the ternerity to compete with him by cutting such customers off...in order to discourage competition."
This speaks pretty directly to the IBM portion of the FoF. But a final quote from Olympia Leasing is a bit more worrisome...
"Most businessmen don't like their competitors, or for that matter competition. They want to make as much money as possible and getting monopoly is one way of making a lot of money. That is fine, however, so long as they do not use methods calculated to make consumers worse off in the long run."
The "...but we haven't hurt the consumers" argument is exactly what MS has been pushing all along.
To suggest that law and economics views all regulation of the market as bad and therefore that Judge Posner will automatically favor Microsoft is a serious oversimplification. It's worth remembering that Larry Lessig, who was dismissed as special master in the M$ case because of his perceived bias against M$, was a University of Chicago law professor as well.
I got my law degre from U of C and studied under Judge Posner while there, so I felt the need to post something. I'm not sure how I feel about this turn of events and I expect to post more later after I've had some time to think, but it must be noted that, of all the things Judge Posner can be accused of being, he is not stupid. In fact, though many disagree with his views, I can say almost without fear of contradiction that he is one of the smartest people on the planet. This is a very interesting development on which more later.
"The true administration of justice is the firmest pillar of good government." - George Washington