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Microsoft's carefully crafted appeal of the federal antitrust case decided against the company earlier this year resembled nothing so much as a post-game press conference in the aftermath of a particularly hard-fought sports contest where the underdog has, miraculously, come out on top.
Bruised, battered and frustrated, the losing team inevitably searches for someone to blame in the face of an unexpected defeat. To place the onus on one's own shortcomings is to lose face; to credit the other team for a better performance is to admit inferiority. The most foolproof tact is to, instead, blame the referee--for a bad call on a particularly key play, for consistently favoring the other team or for simply being, as school kids are apt to whine in gym class, "not fair."
For Microsoft, "not fair" has certainly been the rallying cry in the wake of the decision, which mandated in part that the corporation be divided in two and discontinue many of its current business practices. They contend that the intricacies of the creation and distribution of the operating system the court had to evaluate were so "esoteric" as to be beyond the understanding of any layperson, including the presiding Judge Thomas Penfield Jackson of the Federal District Court in Washington, where the case was heard. As evidence, they point to the fact that Jackson himself often seemed overwhelmed by the technical aspects of the case, remarking to The New York Times earlier this year that he would simply follow the lead of the Justice Department since "there's no way I can equip myself to do a better job than they have done."
Disregarding, for a moment, the motivation behind such an argument, does Microsoft have a point? Have certain sectors of our society progressed so much and in such a rapid fashion that our current legal system and its employees are simply incapable of using the same old approaches to untangle increasingly complex issues of legality?
Some states certainly think so. In 1995, a commercial division of the Supreme Court of New York, which hears complex commercial and business disputes, was formed; last year over 5,000 cases fell under its jurisdiction. Over the past decade, Illinois, Massachusetts, North Carolina, Pennsylvania and Wisconsin have all instituted similar "specialty" court divisions. And Maryland's governor has formulated a study group called the Business and Technology Division Task Force, whose sole responsibility is to determine whether or not the state court system should be reorganized to include a special circuit of "high-tech" courts.
Is this sort of "court categorization" the wave of the future? Given the increasing volume of lawsuits filed, it would seem to make sense to try and subdivide a bit. Not only would it ensure that judges have some sort of background for the matters over which they preside, but it would help to streamline the bureaucratic processes currently in place for assignment of cases and the determination of jurisdiction.
But for all the immediate benefits of instituting such a system, the federal government should think long and hard before following the states' initiative. Without proper safeguards, these sorts of changes are more likely to help benefit companies like Microsoft than provide any increased measure of justice.
The first problem lies in the implication that the call for court subdivision raises: the questioning of judicial competency, which could be extended indefinitely to apply to even the most banal of cases and which could set an uncomfortable precedent. How many judges in this country hold medical degrees, majored in psychology, or have a background in forensic science? And yet, judges are called upon daily to evaluate factual material that can include medical records, the mental state of a defendant, or DNA evidence--all of which are probably better understood by an expert in each of those respective fields. Does this mean that those judges are "unequipped" to preside over these cases?
For the past 200 years, the answer has been: of course not. The job of a judge is to rely on the evidence at hand, the arguments put forth by lawyers and the testimony of expert witnesses; they themselves are supposed to "specialize" only in impartiality and in the legal statutes which apply to a particular case. From this perspective, how different, really, is the Microsoft case from any other of the thousands of cases that cycle through the federal courts each year? What makes it so distinguishable as to require a special arena in which to be judged?
More disturbing still is the sort of "revolving door" syndrome that specialty judges and courts would most likely exhibit. The "revolving door" is dubbed as such due to the manner in which people tend to move between the top levels of industry and the regulatory departments of the executive branch; for instance, the president's appointees to the Treasury Department tend to be top business leaders. Problems arise when those appointees then have to help control and regulate an industry to which they are often inextricably linked.
Those judges who would sit on "special" business and technology courts would need to have experience in those fields; otherwise the purpose of the court would be defeated. Do we really want to risk bringing judges to a circuit where they will have to pass judgement on former employers, coworkers and rivals? It would be incredibly foolish to risk the impartiality of the judicial system in such a fashion.
So unless the federal government can formulate a system that is able to account for and overcome the problem of objectivity--and until the time that the demand for such courts becomes a real concern--Microsoft and other technology companies will have to learn how to plead their case within the confines of the current system. And if Microsoft couldn't win the case playing with the same rules as everybody else, perhaps they deserved to lose.
Alixandra E. Smith '02, a Crimson editor, is a government concentrator in Kirkland House.
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