Meet the mediator
Richard Posner is one of America's most brilliant jurists. But
can he settle the Microsoft case?
By Adam Cohen
December 6, 1999
Web posted at: 1:30 p.m. EST (1830 GMT)
The Microsoft media pack was out in force last week outside
Chicago's prestigious Standard Club. Its target was Judge
Richard Posner, the recently appointed mediator in the
government's landmark antitrust lawsuit. When reporters fired
questions at Posner just before his first meeting with the
parties, he had a crisp answer: "Get out of my way, please."
It's a new day in the Microsoft case. Judge Thomas Penfield
Jackson last month appointed Posner to try to mediate the case,
and the action has now moved from Jackson's courthouse in
Washington to Chicago, where Posner is presiding over closed-door
conferences intended to push Microsoft and the Justice Department
toward settlement. It's a daunting task: the government seems to
want a lot more than Microsoft is willing to give up. But if
anyone can get an agreement, it may be the brilliant and insanely
workaholic Posner.
Posner has the kind of jaw-dropping resume that makes resolving
the Microsoft case seem like a plausible Christmas vacation
project. He is the chief judge of the federal appeals court in
Chicago, where he pens about 100 decisions a year, and he teaches
law at the University of Chicago. He also finds time to churn out
scores of law-review articles, speeches, op-ed pieces and, oh
yes, a book or two a year. (His latest: An Affair of State, a
scathing account of President Bill Clinton's impeachment woes;
and the less reader-friendly The Problematics of Moral and Legal
Theory.) "Dick is sort of a legendary intellect," says law-school
colleague Randal Picker. "He is one of the great legal minds of
the 20th century."
He's also one of the most conservative. A leader of the
law-and-economics school, Posner believes the market should be
allowed to resolve many of society's thorniest problems. His
dollars-and-cents approach has led him in some controversial
directions. Posner famously suggested that the adoption system
might be improved by allowing babies to be sold. And he has
written that whether abortion should be banned can be evaluated
by some mathematical formula in which V is the value of a fetus'
life and N is the average number of abortions that would be
performed without a ban.
Why they should settle
Justice Department
GETS Fast results and a chance to declare victory
AVOIDS Facing appellate courts that may be more pro-Microsoft
Microsoft
GETS To put a damaging lawsuit behind it
AVOIDS Returning to court and facing years of uncertainty on
appeal
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Posner's decidedly free-market views mean that he starts out as
an antitrust skeptic. He's argued that regulation of monopolies
is often a mistake, and that in many cases government
intervention does more harm than good. But he has also shown an
inclination to follow established law and has written approvingly
of the AT&T breakup. His admirers say he won't approach this case
with ideological preconceptions. "Labels are meaningless,"
insists University of Chicago Law School Dean Daniel Fischel.
"He's completely unpredictable in his views."
By appointing Posner, Jackson gave something to each side.
Microsoft gets a mediator who is close to its thinking about
government intervention. Posner may be reluctant to back some of
the more extreme remedies Microsoft's critics are calling for. At
the very least, he's likely to give the software giant a
friendlier hearing than Jackson, whose findings of fact last
month were a down-the-line rebuff.
The Justice Department, for its part, gets a mediator who will
have credibility when he lays down the law for Microsoft. Trial
watchers have conjectured that Gates & Co. may already have given
up hope of prevailing before Jackson, and may be counting on
getting him reversed on appeal. The conservative Posner is in
sync with many of the judges in Washington who would hear that
appeal. "He's going to be able to tell Microsoft that if they're
counting on the Court of Appeals and the Supreme Court to
vindicate them completely, that's not going to happen," says
George Washington University law professor William Kovacic.
In other words, Posner may be the perfect mediator: someone each
side is a little afraid of. What happens next? Posner will
probably meet with the parties together and separately to hunt
for common ground. (One question: Will Posner and Bill Gates be
sitting down for a chat?) Count on the parties to be closemouthed
throughout the negotiations. "We're not even going to talk about
the food we ate," Justice Department lawyer David Boies said
after the first day's meeting. If talks fail, it's back to court
in late February for the next phase: arguments over Judge
Jackson's conclusions of law, a search for remedies and, quite
likely, years of appeals.
It's possible, however, that Posner could make all that
unnecessary. One path the negotiations are likely to explore is
spinning off Microsoft's operating-systems division, which makes
Windows, into its own company. That would track the logic of
Judge Jackson's findings of fact: that it's not illegal for
Microsoft to have an operating-systems monopoly, but it is
illegal to leverage the monopoly to gain an unfair advantage in
other markets. Carving Windows out of Microsoft would probably be
sufficiently dramatic to please the Justice Department. It might
not thrill Microsoft, but it would be preferable to any remedy
that required ongoing government supervision of its actions and
products. And it's a solution that could find favor with Posner:
a surgical strike by government that creates a more competitive
market.
--With reporting by Julie Grace/Chicago
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Cover Date: December 13, 1999
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