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?
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