Did Rehnquist Compromise Ethics On Microsoft Case? 203
Several folks noted a blurb running over at ZD about
Supreme Court Justice Rehnquist's questionable position on Microsoft. Apparently his son is representing Microsoft in antitrust matters. Here's a longer story with a bit more information. Since
they decided not to advance the case directly to the Supreme Court, this may have a significant effect on the case.
It's All Relative (Score:3)
That is why this whole thing is rediculous. So what if he's his son. It's not like his son is paying him to sympathize with Microsoft. A lawyer's job is to represent his client; not to create empathy in the judge/jury.
Really, I think we need to grow up about these kinds of things.
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Err. No. (Score:3)
Yes, they could have. But why would they? Judges love to write opinions; they love to take laws and slice them apart, dissect them under a legal microscope and reassemble them. US v Microsoft is the biggest trial of this century (1901-2000), and it pits 21st Century business models against 19th Century laws.
To a legal scholar, this is like crack cocaine. There's no way they can put down this case. Every judge I know says that they're glad they're not Judge Jackson, due to all the scrutiny he's under... but every single one of them wishes he was Judge Jackson, just so that he could get to write the opinion in US v Microsoft.
Remember: this case is legal crack. Every judge simultaneously fears and lusts for this case.
The Supreme Court is psychologically incapable of giving this case a pass. It's not going to happen. It's going to go to the Court and they're going to write opinions left and right, putting flourish on them worthy of Papal encyclicals. This is another Roe v Wade, another Brown v Topeka School Board... it's big, very big.
So it's a given that SCOTUS is going to hear this case. The only question is when, and after how much legal scholarship? The decision to hand it back to Appellate court is entirely defensible. To continue with the drug analogy, right now they've got a dime bag of crack in the form of Judge Jackson's Findings of Fact, Findings of Law, and his breakup order. Once the Appellate Court is done with it, they're going to have a semi-truck filled with crack. SCOTUS is going to spend six months on a legal high smoking that stuff.
The only way a person ever gets an automatic appeal in a legal case is if they are convicted of a capital crime.
Yes. It's done this way for a reason; a lot of times, people don't want to go through the expense and trouble of an appeal. You only get an appeal if you want one. The exception is in capital crimes, which has a mandatory appeal just because the government wishes to make absolutely certain that innocent people are not wrongly convicted in capital cases.
This is another example of how the law is designed to look fair upon cursory examination...
The law is exquisitely fair. The same laws apply to both sides equally. That's the textbook definition of fair. Now, there are a lot of concerns about the competency of public defenders, et. al., and there's a lot of merit to those concerns--but the law is brutally fair. That's why so many people hate it.
Fair, in a legal context, doesn't mean everybody's happy. Fair means everybody gets screwed over equally. That's why smart people avoid trials whenever possible. While I like fairness, I'd rather avoid getting screwed over.
Think for a second about the symbol of justice that they give to us.
Who's they? Answer: they is us. We're the ones who gave that symbol of justice to the courts; they didn't give it to us.
If I were going to swing the sword of justice based upon the results of a weighing, would I wear a blindfold?
Wrong symbolism. The woman represents the judicial system. The blindfold represents judicial fairness (or, screwing over everyone equally); it's a metaphor for the courts not paying any respect to social class, position, political power or, for that matter, anything else save the law. The scales represent fair judgment; courts "weigh the evidence" to come to a decision, without once looking at who's well-dressed and who's homeless. The sword represents the screwing-over; while the court is fair (and screws everyone over equally), if you're deemed to be a naughty person who just murdered sixteen people because you were frustrated about finding walnuts in your brownie, buster, that sword is for you, and you are not going to like it.
That symbol is a little joke that the evil people couldn't resist.
Friend, I hate to tell you this, but the evil people are us.
We're the ones who gave the courts that symbol. If you think justice has been hoodwinked, then by God, man, act on it.
Write a letter to your Congressional representatives. Tell them to change the laws regulating the courts so that they make more sense. If they won't respond to you, run for office yourself.
Write a letter to your local judges, expressing your frustrations and asking them to exercise better judgment and discretion in the future. They won't write back to you--they're forbidden from doing so by ethics laws--but according to the Constitution, they must read your letter! (The right to petition the government for the redress of grievances is useless if the government is permitted to throw away petitions unread. Hence, the government is required to read your complaints.)
You have a lot of recourse here, as do I, as does everyone. Stop griping and start using your recourse. The government does not care about someone who sits on their couch, watches a little CNN and bellyaches about problems. Really, they don't care a damn.
The instant your feet hit the ground and your ass leaves the couch, Uncle Sam will tremble in fear and throw himself at your feet, begging for mercy. The government knows how powerful the people are when they're motivated to do something.
After all, that's how our nation was established.
Re:Similar, but different (Score:1)
Dell, IBM, Gateway, Compaq and others sell Linux machines without any MS OS at all, and MS does not receive one red cent of Windows licensing for them.
Re:Anti-trust must show harm to CONSUMER (Score:1)
Years ago, MS was stopped (using anti-trust laws) from putting blanket restrictions on PC manufacturers that if they sold ANY PC with MS-DOS, they had to pay a license for EVERY PC they sold.
Not exactly true. Microsoft agreed to no longer do this, and signed a binding contract with the government to abide by that agreement. This was a peace offer of sorts to get the DOJ off of MS's back, and avoid a trial. No laws were involved other than contract law.
Re:Let's use a simple example (Score:1)
Re:I Sorta Know This Guy (Score:1)
Wait, ethics in D.C.??! Bwaahahahahah!! Double Bwaahahahahah!!
Besides, you shouldn't be so hard on the guy. Teaching law is an impressive accomplishment for a man whose own father once referred to him as a "little green monster [imdb.com]".
Re:Supreme Court Vote was 8-to-1 (Score:1)
Libertarians are idiots.
Keep it in the family (Score:2)
Albert Gore begat Al Gore.
George Bush begat G.W. Bush (and Jeb).
Joe Kennedy begat...oh shit let's not go there.
the real problem is the corruption. I mean, the smartest thing Bill Gates and Co. can do now is start doing background/lineage checks on all the appeals court Judges to see where they stand as far as employing their offspring in Microsoft or a shadow affiliate.
You can bet Rehnquist's son will have favor in the law firm, as a result in this decision, even though it wasn't even close. My gut feeling : it made no difference. Had the vote been closer, then I think he should have bowed out.
Remember, this is the richest man in the world, living in a highly corrupt country. It's unlikely that MSHAFT will ever get more than a handslap/$1 fine, for example.
Justice is NOT for the victims (Score:2)
Justice only exists to protect society by discouraging illegal acts. "Innocent until proven guilty" is an important element in this. Punishment should be appropriate to deter the perp and others from similar crimes.
That said, you are absolutely right that the additional delay is highly advantageous to MS. I would expect the DoJ to request commensurately more severe penalties and remedies. If Appeals cannot increase sentencing, then deterrence is undone.
Re:Anti-trust must show harm to CONSUMER (Score:1)
Re:Let's use a simple example (Score:1)
Damn sounds pretty good to me, although I wasn't using Linux at the time, hell i was still using win3.11 on top of IBM lan manager 1.0.
Re:Supreme Court Vote was 8-to-1 (Score:2)
But when it has been exercised, I still don't think that it usually has been for ill. Are cases frequently brought by competitors? Sure. The DOJ has better things to do. They don't start antitrust cases themselves that frequently. But let competitors try to do it to each other and they'll police themselves to our benefit.
While the effects may indeed raise prices (East India Tea was cheap too, for all the good it did) since when have they reduced competiton? (Innovation varies - yeah, it's great to have Bell doing pure research, but it's also great to have cellphones, phone cards, PBX software, faxes, etc.)
And had IBM bought MS at the beginning... people still would have flocked to them just for the name. But the clones would have died - w/o an RE'd OS they wouldn't be legal, just as it was with the BIOS. Would DR have written an RE'd OS? Would IBM have renewed Apple's basic license? (MS had them by the balls in real life) I think that it would have eventually ended up in something along the lines of the PS/2. A closed but otherwise nice debacle for us. Not at all fun if there was nothing significant competing with it.
Re:Okay, so one is an evil Microsoft supporter (Score:1)
I think you meant to say
--
You think being a MIB is all voodoo mind control? You should see the paperwork!
Win or Lose (Score:2)
Re:What Timing (Score:1)
Nepotism : Keepin' it the family (Score:2)
This is a country that runs on nepotism, political favors, bribes, payoffs and kickbacks.
If the vote had been closer, then it would have mattered, and he should have bowed out. I suspect that the Supreme Court, for the most part, did not feel they had cause to fast track this case, so it's no big deal.
If we were at war, and it involved national security or something, then, yes, I think they would have heard it.
The bigger picture, where the two lead candidates for the USA's presidency both come from "political families", is scary. It's like having fucking royalty all over again.
You're not supposed to express an opinion! (Score:2)
Re:Okay, so one is an evil Microsoft supporter (Score:1)
Re:More than one.. (Score:1)
See politicians, also J. Danforth Quayle
Re:Similar, but different (Score:2)
But if I recall correctly, and I could be wrong of course, the court was discussing M$'s bundling practices (Netscape and OS) of the past 10 years, before Linux was a choice, while OS/2 was still a contender, and when Netscape was still a solvent, independent company.
Now the landscape is radically different. It makes no sense to talk about today's situation in the context of yester-year's behaviors.
The nick is a joke! Really!
Re:Supreme Court Vote was 8-to-1 (Score:1)
But Rehnquist should have recused himself; judges must avoid even the appearance of impropriety.
And I totally disagree with your opinion that MS will win, or that they ought to. The cure is an old one - antitrust legislation has been around for about a hundred years, and it has been pretty damn good too. But I find it difficult to believe that you don't think that MS has been acting illegally. It's a pretty cut and dry case.
Certainly MS never had any problems with antitrust legislation existing until recently. (given that IBM would be the only computer company, had a number of cases not been persued against it)
Retroactive law? (Score:1)
Perhaps Gates, Ballmer et al should be imprisoned. But you cannot imprison them unless that was the penalty at the time they committed their crimes. The law would need to be changed, and then broken for new penalties to apply.
Or perhaps you believe in retroactive law??? Imprison Napster users maybe?
Re:So who exactly would Microsoft complain to? (Score:2)
The Chief Justice, and all other federal judges, may be impeached by the House and tried by the Senate just like the President.
If the President can be impeached for failing to volunteer incriminating personal information when he was never asked a straight forward question as to what physical activities actually took place between him and another consenting adult, then certainly a Chief Justice who apparently violates the Judicial Ethics Laws in the US Code should be subject to at least a further investigation.
Think of all the Supreme Court nominees who were rejected because they didn't understand the tax witholding laws for their nannies. If this was on a court nominee's record, there is no way they would be approved for the Supreme Court.
The Supreme Court Justices, must hold themselves to the highest standards of ethical conduct, both in fact and in appearance, if nothing else, there is certainly the appearance of a conflict here and he should have recused himself.
Of course! It's a conspiracy! (Score:2)
It couldn't possibly be because the Supreme Court is somewhat conservative, and prefers to have major cases such as this one go through the entire process before appearing on their docket. It couldn't possibly be because judges (including Justices) are loathe to circumvent the appeals process. It couldn't possibly be because the Supreme Court docket is already full, and having such a critical case thrown before them without the full weight of appeals already built doesn't exactly make the Justices happy. Nope, it's got to be a conspiracy.
Call me a blind optimist, but I believe that, unlike Congress or the President, the Supreme Court still takes its responsibility to the Nation and the Constitution very seriously. I don't believe they're in any way, shape, or form, corrupt. Indeed, if they were to become corrupt, we would truly be doomed, for they are the final arbiters of the Constitution.
Re:ROFL (Score:2)
Re:The Supremes had their reasons (Score:2)
Re:Let's use a simple example (Score:2)
Except that it dosn't. If a contract clause is illegal then it is never any threat to anyone.
Compaq (and everyone else) could simply ignore such a clause and Microsoft couldn't sue them beacuse they'd at best lose at worst be held in contempt of court by the judge. (Some judges, quite rightly, don't like a plaintiff who wastes their and the defendants time.)
Nor would this have been dragged out for years. Self evidently such clauses can be "legal". Even though they have no place in a free market economy.
Re:Here's the text of his statement (Score:2)
- Yes, my decision in this case might conceivably affect my son
- Any of my decisions might have an impact on the lives of 300 million people
- That includes my son
When you look at it from "might you have a personal interest in this case", you say, Yeah, of course he does. But then you realize that this is probably the case for every case the court hears. That's just part of being one of the most powerful people in the world.Re:Keep it up, Slashdot (Score:2)
When Slashdot becomes embroiled in a legal battle against Microsoft (that Kerberos thing cut it pretty close) and it becomes publicized so Microsoft and Microsoft's controlled press (ZDNet) begins spouting anti-Linux/OSS/Slashdot nonsense that convinces the general public that Linux/OSS are the "bad guys" and Microsoft are the "good guys" (because everyone loves a good dualistic system!) and then Slashdot will be preoccupied with defending themselves from Microsoft hype, and somebody will realize they are no longer receiving news of Star Wars Origami or Open Source Mindstorms untainted by anti-ms/pro-linux hype and say, "WHAT HAPPENED? WHERE DID MY NEWS FOR NERDS, STUFF THAT MATTERS GO? HOW DID SLASHDOT BECOME THIS WARTORN BATTLEGROUND OF ANTI-MS?". And then everyone will go read Kuroshin (no '5', because, admit it, that's just gay).
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The Supremes had their reasons (Score:3)
Doubtless the Supremes had their reasons. First and foremost, there's a good reason for all the layers of appeal: you get different arguments and different thinking at each stage. Why not get that out on the table?
Even though I believe MS is guilty as sin, they do deserve all their days in Court. Can't have them claiming there was a rush to judgement.
If the Appeals overturns [as MS hopes], then the Supremes could reaffirm, and perhaps impose a different punishment! MS may yet rue the day it appealed.
Clarifications... (Score:2)
- Congress can overturn a supreme court decision by amending the Constitution. Basic checks-and-balances people. How much more ignorant of the legal process can you be?
- If the Supreme Court makes a decision that the public disagrees with AND the Constitution is not amended THEN nothing happens. The law is the law. No amount of public outcry changes anything. Just think how pissed the South was after the Supremem Court decided to integrate schooling in Brown vs. Board of Ed - there was a lot of outcry but the law stood. And with good reason.
- Just because his son may represent Microsoft does not mean that Rehnquist has to recuse himself. It could be, and is likely the case, that this does not belong before the Supreme Court quite yet. Higher courts often remand cases to lower courts. The Supremem Court is a last-resort NOT the first stop.
- Just because the appellate court may appear to favor Microsoft does not mean that it should not hear the case. That argument makes absolutely no sense. If it was a prima facia anti-MS court you would be all gung ho about remanding it to that court. This case, like every other case, has to follow the legal process in every step. Accept it and move on.
- There are 9 Supreme Court Justices. They often disagree with each other. None is more powerful or important than any other. It would be very difficult for Rehnquist to make the other 8 agree with him "just because it is my Son." Don't believe me - wait until the dissent comes out.
Re:There is NO ethical breach here. (Score:2)
1. (5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: blah blah blah
That applies to if his son were going to be in the courtroom defending or prosecuting MS in front of the Supreme Court.
2. The situation you describe his son being in, he wins either way no matter how the Supremem court rules. In fact he will probably make MORE money if They are declared an (illegal) monopoly and have to battle private antitrust suits. All you slashdotters should hope that their IS a conflict of interests, as it is a conflict that reflects YOUR best interests.
Re:So who exactly would Microsoft complain to? (Score:2)
Thought that was the first two Attorney Generals that Clinton tried to appoint.
Re:Anti-trust must show harm to CONSUMER (Score:2)
Re:Anti-trust must show harm to CONSUMER (Score:2)
Not really a lack of choice when you can go to netscape.com and download it. Perhaps McDonalds should get broken up because I'm forced to drink Coke and they don't offer me the choice of Pepsi.
Or how about not being able to chose the best of breed graphics and 3d for PCs. We get direct3d at the expense of openGL, when openGL was mature and well defined, and direct3d was just a poorly design upgrade to Windows. Stuck with poor performance, poor implementation, poor design and poor product for 6 iterations now.
Again you are free to use OpenGL, no company should be forced to inculding something in their product that they don't want to. Just because you want OpenGL doesn't mean they have to put it in.
What else? How about their pricing policies, essentially the M$ tax? Every PC comes with M$ Windows, and you pay for it, even if you don't need it? It's similar to bundling child car seats with every car, and charging for it. It's not even a selling feature, it's mandatory with every PC that Compaq or Dell had to sell.
If you buy a car with a stereo you don't get a discount if you promise not to use it, why should you when you buy a PC ? Would you rather have it that when Joe Consumer buys a PC he gets a blank box and has to go about installing an OS himself ? That would be a great way of killing demand for PC's overnight. Most consumers can't do this and just want a PC that they take out the box, plug in and use.
Re:Err. No. (Score:2)
rjh's post is an excellent example of the conventional point of view. I would like to dissect it a little bit.
As I see it there are two types of people who staunchly support the legal status quo - there is a small core of truly evil psychopaths who benefit from the deliberate actions of the psychopaths who proceeded them in the legal system. These people are not in any sort of formal conspiracy and never have been - but they recognize each other when they see another of like mind. In the past these people have been very influential in shaping the course of the legal system. They understand that the correct course is a very narrow path; that it takes only a single step off of that path to steer things into the quicksand on either side of the path. It takes only small, deliberately introduced errors, in the structure of the legal system to pervert it from something intended to be good to something which results in evil.
The second type of status quo supporters in the legal system are those who are utterly unable to see the evil core of what they are doing and come up with reasonable explanations for their actions.
Let us give rjh the benefit of the doubt, and assume that he is not a psychopath. That is a reasonable assumption to make as most psychopaths are unwilling to try fighting out in the day light where they might be exposed for what they are.
The first point rjh raises is about this case being legal crack. He is correct in that point; it is the tacit understanding of that point that causes most people to have an expectation that Microsoft will get a de-facto automatic appeal. I have no argument with the fact that the law is very addicting to those who practice it. I would like to point out that addictions are generally considered to be very bad things.
People who are addicted to anything are often very dangerous, and legal addicts are no exception; people who are in positions where their actions affect the lives and fortunes of others need to be particularly resistive to the temptations of addiction; less they do great harm in feeding that addiction. Sadly the people who are in positions of great power and thus are potentially far more dangerous to society than any single criminal could ever be - rarely resist the temptations that the law gives to them.
Temptation is the main tool of evil, it is how people are seduced into doing evil's bidding. Here is an example of the direct temptations that a few evil people have suggested into the basic structure of the law: the royal treatment that is given to judges. Judges dress in royal robes and are addressed by a royal title; "Your honor".
Doubtless an apologist for the legal system will be quick to point out that the honor is for the legal system - not for the individual judge - but that is only a plausible lie. The brutal truth - which the judges are not honest enough to admit to themselves - is that their subconscious minds except the 'stroking' they are getting as their personal due - and most judges act as though they personally are due the respect that is being 'afforded to the legal system'.
For example most contempt citations come when somebody shows a judge that the judge is wrong about something - it would be a very rare situation when you would get a contempt citation for showing a judge he was right. The judge realizes he was wrong - but isn't about to admit it - so he threatens a contempt ruling if the lawyer doesn't stop causing the judge turmoil. When would you get more angry, when you think you are right about something and somebody disagrees with you - or when you realize you were wrong but you don't want to admit it because it would make you look bad?
Now let us look at the second point rjh raises - about automatic appeal. I believe he has misinterpreted what I was saying. I meant that someone would have an automatic right to have an appeal heard if one was offered. I did not mean that all cases would be automatically appealed to a higher court.
Now to the crux of the discussion; the contention that the law is fair. Rjh states that the law is exquisitely fair - that it applies equally to both sides. I have no objection to statement that the law applies equally to both sides - that is absolutely true; Bill Gates is just as forbidden to steal a loaf of bread to feed his family as is someone living under a bridge. In that sense the law is equally applied - the question is: "Does that automatically mean that the law is fair in practice?" The answer to that question is - as the loaf of bread example demonstrates - "Not necessarily; correctly applied law can be very unfair."
We now get to my real argument with the legal system: rjh's legal definition of the word fair :
" Fair, in a legal context, doesn't mean everybody's happy. Fair means everybody gets screwed over equally."
My main objection to the legal system is the belief by those in the profession that they get to screw everybody . That Sir is a carnivorous view of the world; the belief that everyone else is raw meat for your consumption.
Here is an alternative structure for the legal system: that the law be constructed so as to afford the maximum chance of arriving at a decision which is "Free of favoritism or bias - impartial, just to all parties, equitable, consistent with rules, logic, or ethics." That is the definition of fair which most people mean when they say "fair" in a legal sense - and that is what most people want to get from the legal system. But by your own admission that is not what people get as the legal definition of fair. The legal definition of fair comes from a different definition of the word fair: " Lawful to hunt or attack as in fair game ".
None of the rest of us have got any interest in having a legal system which allows those in the system to screw everybody equally. I am sure that those of you in the system have fun with the illusion of power that screwing all the rest of us gives to you - but the simple fact is that we all hate you for it. You have outlined something which is absolutely evil in its nature - and there is no arguing with that fact - you really stepped on your dick with that admission.
I stand by my statements about the 'blind lady'. I am sure that the people who created that symbol (at least the addition of the blindfold) meant exactly what I said they meant by it - they came up with the plausible lie about 'impartiality' to mask what they were doing. It is an idiotic symbol.
The problem with having any sort of hidden agenda is that is the intellectual equivalent of trying to walk in one direction while looking like you are walking in another direction. This is a ridiculous method of walking - no one tries it in the physical world because it is so obvious. The mental "hidden agenda walk" is just as obvious to anyone who is basically honest and has some world experience - people with hidden agendas look strange. The only hope of getting away with a hidden agenda is to convince everyone that "This is how we walk in this field". A key to spotting institutionalized hidden agendas is to look for systematic formalism: any time people are dressed in 'traditional' garbs and do things in a formalized stilted fashion - that can be used to hide a "hidden agenda walk" - by getting everyone in the field to have that peculiar "walk". The formalism's of the legal system are there to hide the presence of evil in the system - anything else is a plausible lie used to sell that formalism to the people in the system.
For instance here is an example of an argument that could be used against what I have to say: "Ballet is done in traditional garb and in a 'stilted' formal fashion - do I think there is a hidden agenda in Ballet?" No, Ballet does not have the power to damage the population as a whole - a hidden agenda there would be meaningless. The legal system does have the power to cause great damage so anything which could hide a hidden agenda in the law is something which it is proper to suspect.
Now as to rjh's advice that I quit complaining and run for office etc. As a matter of fact I have run for office, and I have been involved in politics. What I learned from that experience is that before people can change things that they have to understand :
1. That a problem exists.
2. What the problem is.
That is an education problem: how do you show people a problem they don't even dream exists? What I am doing on slashdot is trying to learn how to educate people about the existence of a problem which they don't know is there. The main problem which I face is that circumstances are such that anyone who does see the fundamental problems in the world looks like a crackpot - things are so complex that I need a great deal of bandwidth to transfer the information I have obtained in my life. The internet is the highest bandwidth information transfer agent I have available - so I use it.
I have discussed the "we are the government" argument is previous posts - while that may have flown in 1800 - not many people buy that particular argument 200 years later.
There are evil people in the law - just as there are evil people in most fields - the difference is that the law is the only field which is structured deliberately to favor those who are evil. While there are psychopaths who enter surgical fields in medicine because they enjoy cutting people and causing them pain I do not believe that the surgery was created for the amusement of those people.
I do believe that the law differs in that respect and that the fundamental structure of the legal system needs to be completely revamped.
Apple is a monopoly in PowerPC space; (Score:2)
If confined to PPC space, it can be charged with being a monopoly, but it actually created that space, and owns that space. It's a tough call if any sort of regulation can be thrown at them, since there really isn't any competition.
The nick is a joke! Really!
Re:So who exactly would Microsoft complain to? (Score:2)
Congress has the potential to get involved, if we do assume that the Supreme Court does something incredibly unethical. Article III of the Constitution places much of the disposition of the Judicial system under the control of Congress. It's hard to say what direct action they could legitimately take, since the thing's pretty vague. The courts have, by tradition, been the interpreters of the constitution, and would doubtless say that whatever Congress tried to do was illegitimate. The Judicial system's constitutional custodianship is, however, self-appointed, so who knows.
But practically, Congress could probably bully them into doing what they wanted. FDR, who could bully Congress, got the Court to do a 180 on the Commerce Clause by threatening to pack the courts with extra justices (even though the plan flopped).
The Senate could impeach any or all of the justices as well.
And, of course, Microsoft has recourse to the president, who can pardon them. Now that would be interesting... Bush gets elected, and pardons Clinton's quarry. It'd probably get him impeached... but then Ford got away with pardoning Nixon, so again, who knows.
Oh... you meant what recourse they'd realistically have? None. :-) Nobody wants a constitutional crisis, and Microsoft'd just be screwed.
Can't we trust a judge? (Score:3)
It sounds to me like the judge only acknowledged the obvious fact that if the Supreme Court decides the government antitrust suit against Microsoft it could have a direct effect on his son's private lawsuit. Of course it would. Any decision in a lawsuit will usually affect any litigation associated with it.
I think the media wants us to believe that the judge admitted he would have personal conflict in deciding the case, and possibly in this first decision. The more likely case is that the media dug up three statements from the always-infallible law-professor-bin to drum up some sensationalism about this high profile case.
Unless their is reason to believe Renqhuist has let his personal life interfere with his professional, the media should keep their dirty mouths shut.
Re:Okay, so one is an evil Microsoft supporter (Score:2)
Re:Err. No. (Score:2)
The simple fact is that the legal system is not evil. It can't be evil. Evil, if you believe in it (note that it's fairly unique to the Judeo-Christian-Islamic mindset), is a trait of living, conscious beings. The legal system is not alive; therefore, it cannot be evil.
Josef Stalin and Mao Zedong were evil, but their governments were not--they simply were.
Therefore, I've got to discount your entire argument about the legal system being evil. While I will readily agree that there are people in positions of power who become corrupted by their power, that does not translate to the system being evil.
There are a lot of very good people who work in the legal system, in case this has escaped your notice. And unlike evil people, the good people tend to work together. By completely discounting the selfless and devoted service given to us by legions of underpaid, underrecognized public servants, you do the entire field of public service a dishonor.
The "royal treatment that is given to judges" is a historical accident. Remember that our courts are direct descendants of English Courts, and that some of our oldest law is English Common Law. (I know one judge whose hobby is finding the oldest precedent possible for a case--his record is finding an English Common Law decision from 1672 which applied to a case. Common Law is older than our country is; and our court system, as an inheritor of the Common Law, dates back to medieval times.) In the English system of court, the judge is a representative of the monarchy and is thus referred to with an honorific to show respect to the Crown.
In American courts, the judge is a representative of the people, and is thus referred to with an honorific to show respect to the people. It's that simple. Outside of the courtroom, I refer to judges as "Mr." or "Ms.", the same as I do anyone else. The vast majority of them seem to be quite content with the simple honorific of "Mr.", and by and large they return the favor in kind.
Most contempt citations come when somebody shows a judge that the judge is wrong about something
Show me your reference for this fact, please. Most contempt citations I've heard of come as the result of a litigant trying to usurp judicial power from the judge. The proper way to show a judge that he's wrong is to approach the bench, quietly point out the judge's error and a reference to where the judge can find correct information, and then proceed from there. This happens a lot in courts.
Judges make mistakes. They make a lot of mistakes. Most of them understand this, and are amenable to courteous reproach. What they are not amenable to is a litigant saying "Judge, you're wrong, as this reference points out" in open court. That undermines the judge's authority, and that is something which is not allowed to occur.
While your message is worded quite reasonably and eloquently, I don't think you understand the judicial system very well. It is composed of human beings, and as such, it has human failings. It strives eternally towards perfection, as most well-adjusted human beings do, and occasionally has enormous blunders and errors of judgment, as all human beings do. But it is neither good nor evil, because it is neither conscious nor alive.
It is my resolute belief that people are essentially good at heart. You apparently believe otherwise. Due to this difference, we are never going to agree, not in the slightest, on the judicial system. If you believe that people are essentially good, then the democratic systems which essentially good people bring up will also be essentially serving the good (with the occasional spectacular blunder, due to human nature).
If you believe that people are evil, then the democratic systems which evil people bring up will also be essentially serving evil (with the occasional spectacular moment of good, which you will discount as "well, they just haven't gotten around to corrupting that yet").
I have no need of your fatalist and pessimist philosophy. I feel it's wholly invalid, and possesses absolutely nothing of worth to me.
Re:Microsoft's victims (Score:2)
You still have a chioce.
Re:Microsoft's victims (Score:2)
Actually, what you're saying makes it even more clear that Microsoft is abusing its monopoly. The fact that people are getting screwed, know that they're getting screwed, and still decide to buy the computer anyway tells me that they know they don't have any real choice. The problem is that all the major vendors do this. There is no alternative if you want to buy your computer from a major vendor (because you trust their hardware).
If you didn't want the software, you didn't have to purchase the hardware.
In anti-trust terms, that's called "tying," and it's illegal.
Why don't any of the vendor's offer their customers a choice? Because they can't afford to. Why can't they afford to? Because if they offer a choice, Microsoft will ream them on the cost of Windows, thus making them unable to compete with the other vendors on system prices. Does this sound like a healthy market to anybody? I doubt it. That's why something needs to be done about Microsoft.
Re:Err. No. (Score:2)
Of course it could also be claimed that I am 'tilting at windmills' well meaning but mistaken. I have been wrong many times in the past, and I am sure I will be wrong many times in the future so that is possible - however, I have the honesty to admit that possibility. Do you have the honesty to admit that you might be wrong? I have a very different perpective on the legal system than lawyers have: I am looking at the forrest, lawyers look at the trees - I see very different things than legal schollars see.
You claim that the royal treatment of judges is an 'accident'. Bullshit, If it was an accident then the modern judiciary will realize that the royal title of 'Your honor' is unconstitutional - and that the royal treatment they are being given is wrong in an egalitarian country and they will stop demanding it. ROFLOL. Yeah, that is going to happen.
Do I believe people are mostly evil? No, I think that about 5% of people are evil. I think most people tend toward the 'good' end of the spectrum. It is not a bell shaped curve, it is a distribution which is skewed toward good.
I think that evil presents arguments which are attractively packaged and which if not examined closely are persuasive.
Arguments similar to mine could be made about many systems: for example "surgery causes pain, and therefore surgery is the product of evil." That is a specious argument. What differentiates my arguments from those kind of arguments is one key fact: The legal system is the only societal construct which is directly involved with the regulation of evil; as such it is the one system in society which evil people have an overriding desire to control. In effect the legal system acts like the societal equivalent of the human immune system.
What I am trying to point out is that there is a class of evil people who behave like the AIDS virus - they pervert that societal immune system to their own evil ends - to reproduce and further their goals rather than the goals which most people want. The actions of those people pervert those ideals which were democratically arrived at.
I have stated my views simply and in a way which anyone with an IQ exceeding that of a box turtle can understand. If you insist on 'arguing like a lawyer' to defend a system which has been corrupted by evil people, then I can have only one response to you: FUCK YOU, YOU EVIL PIECE OF SHIT
Re:Okay, so one is an evil Microsoft supporter (Score:2)
Re:More than one.. (Score:2)
but perhaps the Chief Justice would have attempted to influence them to advance the case in other circumstances, and you have no idea how close they were to the fence. Situations like this need to be evaluated on principle, not outcome.
Anyway, don't you think it would have been worse ... if he
had gotten the case to the Supreme Court and tried to influence the decsion on that level?
what?! Better that a judge is corrupt in dropping a case rather than hearing it and really being corrupt? This is just nuts!
Re:Supreme Court Vote was 8-to-1 (Score:3)
Antitrust laws are harmful to consumers.
That's just plain wrong. Antitrust law, goes by many names, for example, fair dealing or competition Law, in different jurisdictions. The overriding premise of competition law is to redress the imbalance caused by _failures_ of markets to behave in a "perfectly competitive" way.
Now most often this is couched in terms of protecting consumers, but this is because the most obvious manifestation of these failures is that there is an imbalance of power between the participants in a market, most often with the lone consumer having the weak position when negotiating terms with a stronger legal entity. It seems clear to me that redressing this imbalance is _good_ for consumers.
They raise prices
Prices can only be raised to a level where the momentary return on capital is economical. In other words, if a monopoly has lower prices, it is either because they are operating at a loss or they are subsidising current prices with future (or past) revenue. The other possibility is that the monopoly is already perfectly competitive, which suggests that it is a natural monopoly in which case it should defeat an competition law at first principles. (I shall leave it as an exercise for the reader to decide if there is such a thing as a natural monopoly)
reduce competition
Er,... only if the implementation of the law is an abject failure. Since I would think that the absract of every piece of competition law would state an intention to "promote competition"
stifle innovation
If by stifle innovation, you mean stop companies ripping off consumers to fund R&D that the consumer has not explicitly authorised through the price discovery process then yes you are right. Otherwise how?
foster corruption of government officials
Ah, capture theory, yup, it's a multo problem, but not a problem with competition law, rather with the institutions that execute it. The same problems exist with other areas of the executive branch (such as industrial relations) but it is not a flaw in the law but in the executive branch of government. And the causes and solutions to this are well off topic
The laws are used not to 'manage competition', but as strategic weapons by less-successful competitors seeking an advantage over market leaders
Puh, lease... markets fail. Markets fail to reach perfect competition for all kinds of reasons the existince of competition law as a method for redressing market failure far outweighs the occasions you highlight where they might be used for a strategic advantage over "market leaders". Oh and by the way, I can just imagine how you would define and identify market leaders
Markets fail when extraordinary profits can be made, ie when return on capital exceeds the current economic rate. I think it is _very_ hard to argue that the current market value of Microsoft is anything but the result of extraordinary profits. As such, the market in which they participate must have failed, the reason (IMHO) is they have used anti competitive practices to stifle products that compete with their own.
Re:Keep it up, Slashdot (Score:3)
--
Re:There are other candidates (Score:2)
Personally I like the supreme court the way it is right now, roughly half "conservative" and half "liberal." This ensures that political ideology will take a back seat to the real issues at hand. Not that supreme court judges need concern themselves with political ideology as their terms are for life or until they retire. In other words they don't have to toe either party's line. But even so their personal character and the philosophies to which they subscribe are still important.
Lee
Re:More than one.. (Score:3)
I personally think that if you have made it to the position that Judge Rehnquist holds, you'd pretty much know what you are doing.
Read "The Brethren". If Nixon hadn't beleived that "Renchquist" (as he called him) would be his right-wing conservative yes-man on the court he would never have gotten anywhere near the court. His appointment was purely politically motivated, and if I recall, he was Nixons third choice or so, after Congress outright rejected several other Nixon cronies. Things are not always as they appear 30 years later...
"I will gladly pay you today, sir, and eat up
Re:Sign, no I don't agree. (Score:2)
Yes. The average user doesn't KNOW HOW to install Netscape. I know it's just a matter of hopping over to www.netscape.com, finding the package, downloading, and double-clicking on the icon (almost forgot the obligatory reboot). However, that's 5 (or more, if you want to split hairs) steps to get a piece of software that has an almost identical look, feel, and feature set as software they were *so kindly given* by M$ (tongue FIRMLY in cheek).
And to your argument concerning OpenGL and Direct3d, the sad thing is that the consumer doesn't even know what he's missing out on. The programmers are so closely wedded to M$, they basically HAVE to work with the D3D API. You say it yourself... there wasn't much in the way of OpenGL implementation on Windows PC. Have you thought about why? OpenGL isn't M$ and they can't control it.
This isn't even a matter of a comsumer being computer savvy enough to check out the alternatives. There ARE no alternatives.
Using your logic, all users should be able to code up their own web browsers and 3d graphics engines if they are unhappy with the alternatives. Not likely!
Eric
Re:Supreme Court Vote was 8-to-1 (Score:2)
And I totally disagree with your opinion that MS will win, or that they ought to. The cure is an old one - antitrust legislation has been around for about a hundred years, and it has been pretty damn good too.
Antitrust has been around for 90-100 years, but has been spottily enforced. Just in the past few years Joel Klein (Assistant Attorney General in charge of the DOJ's antitrust division) has brought it back alive with a frenzy of lawsuits. He's leaving in a month for the private sector... it's estimated that he can now make a salary of $750K/yr. helping corporations defend themselves against the very antitrust enforcement empire he built.
Antitrust laws are harmful to consumers. They raise prices, reduce competition, stifle innovation, and foster corruption of government officials. The laws are used not to 'manage competition', but as strategic weapons by less-successful competitors seeking an advantage over market leaders. They are extremely counterproductive and damaging, and should be repealed.
But I find it difficult to believe that you don't think that MS has been acting illegally. It's a pretty cut and dry case.
It might be cut and dry to you... but its been rehashed here on /. for eons and there's still no consensus. So I'd say its far from clearcut.
Certainly MS never had any problems with antitrust legislation existing until recently. (given that IBM would be the only computer company, had a number of cases not been persued against it)
Do you truly believe that IBM would be the only computer company around today without government intervention?
--
There is NO ethical breach here. (Score:2)
However, neither Rehnquist nor his son are financially interested in the case. If Rehnquist owned stock in Microsoft, then he should recuse himself, because his fortunes may be riding on the decision the Supreme Court would have to make. But this is not the case here. The most either of them stand to gain by a biased decision towards Microsoft is the continued employment of Rehnquist the Younger - and this is already probably going to be happening already. Rehnquist the Younger does not need Microsoft to stay afloat to maintain his position in the law firm where he works.
The reasoning behind the alleged appearance of impropriety is thus tenuous at best. It is equivalent to recusing yourself from a business decision to buy Apple G4's for the office because your brother just happens to work for Apple as an accountant.
Of course, if Rehnquist's son were on the board of directors of Microsoft, or perhaps even just a staff attorney directly on the Microsoft payroll, it would be another matter.
Amazing statement from the ABA (Score:2)
I wonder what his reasoning is. Is he implying..
Put me down as questioning Rehnquist's reasoning. He argues that no outcome of the case could effect his son's income. It is as if he believes there is an infinite supply of litigants willing to engage expensive lawyers. I will continune to
hope that this is not true.
Re:Supreme Court Vote was 8-to-1 (Score:2)
Not warranted? I'm going to rely on rational ignorance here when I say that Judge Jackson knew what he was talking about when he made is judgement. I'm doing this because I'm not familiar with every aspect of this case as played out in court. But then again neither are you.
I am familiar with Microsoft's track history and how they have violated antitrust law ever since they were paid by IBM for DOS. They used their monopoly on DOS to create monopolies in other areas. The fact that it took them till the windows days to finally pull it off is testament to the quality of their products more than anything.
Microsoft needs a good declawing. They are a long standing threat to the rest of the computer industry and they need to be taken out. If I woke up tomorrow in a world where there was no microsoft, I'd hardly be depressed about it.
Re:Nepotism : Keepin' it the family (Score:2)
Microsoft is alleged (and many of us here believe this) to have included secret back-doors in IE and Windows for the NSA.
Windows is THE standard desktop OS in many, many government agencies.
In classic "who babysits the babysitters" conspiracy-theory fasion, I question the patriotism and motives of the NSA. How do we know that they are not a threat to our National Security? It's also been alleged that the NSA has used Echelon to discover proprietary competitive information from Airbus, and gave it to Boeing. How do we know that similar schenanigans have not gone on with regard to defense contracts with our government - and what else? We know Microsoft serves the NSA. Who does the NSA serve? People are still getting blown up by terrorist bombs every day, so they apparently aren't serving us.
We don't know. We assume, we call people who come up with crazy theories like this crackpots. Then we're all suprised and up in arms when someone comes forward and says that this big bugaboo everyone was theorizing about (Echelon) for decades turns out to be the real deal - how are they using this tool? How does any human being use any tool? For good or for evil?
Microsoft's actions, and the government's compliance (in turning a blind-eye for too long at the antitrust violations), have established Microsoft's position of industry dominance, and as a critical element of the WORLD'S information infrastructure; and it's full of back doors and security loopholes. Some intentional, some apparently (but not necessarily) not. Feeling vulnerable? Feeling insecure? Tell yourself you're just being paranoid, and it will all go away. Just like when you walk past those homeless panhandlers on the street and pretend not to see them.
Soylent Green is people!
Oh, please do... (Score:2)
Second thought: so, I, and all the other people who doubt his objectivity are simply being unreasonable?
Hell YES it's news!!! (Score:2)
It's just been revealed that the CHIEF JUSTICE of the fscking SUPREME COURT can be bought and sold by gates like so much fruit at the flea market!!!
To MY mind, that should be front page, New York Times news!
Or perhaps I was foolish not to have realised that the supreme justices have been for sale to the highest bidder all along. If so, that's one bit of foolishness I'm rathar sad to lose.
john
Resistance is NOT futile!!!
Haiku:
I am not a drone.
Remove the collective if
Re:The Supremes had their reasons (Score:2)
Second; Microsoft had their day in court, the judge found them guilty, they are abusing the system of due-process in order to squeeze more ill-gotten revenue out of their advantageous market position while they can, and possibly delay until the whole deal is irrelevant. Microsoft got off scott free on the previous trial in 1995, so nobody can claim that there was a rush to judgement. How many more software companies have to go under, how many more cool new REAL innovations have to be squashed, before we all agree that the existence of Microsoft overall, has been a bad thing?
If they DO impose a different punishment, however, I think that would be great. Microsoft should NOT be split up, or fined - such moves would not alter Microsoft's behavior or market dominance. It does NOTHING to the API and file-format strategy. What *should* happen is that the people who gave the orders and made the decisions that resulted in illegal behavior for the corporation, should be identified, and punished, as individuals who committed crimes. Punishing the corporation only punishes it's customers. A corporation isn't a human, does not have a will, or a rational mind, or a moral compass. Punishing individuals for bad decisions makes more sense.
Put Gates and Ballmer behind bars NOW!
Soylent Green is people!
Re:Can't we trust a judge? (Score:2)
You don't get there UNLESS you do have poor ethics.
Soylent Green is people!
Let's use a simple example (Score:2)
Thank you Mr. Freedom to Innovate.
But consider the case of preinstalling browsers. Microsoft was forbidding companies like Compaq from preinstalling Netscape and forcing them to install only IE, under threat of losing their Windows license. If that type of behavior goes unchecked, the web becomes little more that the Microsoft version of AOL. It doesn't matter how fantastic of a browser Netscape makes at this point, Compaq has the choice of being Microsoft's bitch, or going out of business.
Tell me how this does not harm consumers. Microsoft has way, way too much power.
- Scott
------
Scott Stevenson
Read the damn article! (Score:3)
Actually there is.. (Score:4)
Lee
Re:Anti-trust must show harm to CONSUMER (Score:2)
How about this: Lack of choice for the consumer. Not being able to chose best of breed web browsers, through bundling and other practices. Netscape, specifically, and not being able to sell PCs with Netscape, as dictated by MS.
Or how about not being able to chose the best of breed graphics and 3d for PCs. We get direct3d at the expense of openGL, when openGL was mature and well defined, and direct3d was just a poorly design upgrade to Windows. Stuck with poor performance, poor implementation, poor design and poor product for 6 iterations now.
What else? How about their pricing policies, essentially the M$ tax? Every PC comes with M$ Windows, and you pay for it, even if you don't need it? It's similar to bundling child car seats with every car, and charging for it. It's not even a selling feature, it's mandatory with every PC that Compaq or Dell had to sell.
There are other things, and I'm not going to try to research it. But M$ has done some bad things (not that any other corporation hasn't!) Apple, of course, does very similar things-but Apple isn't a monopoly, and M$ is.
The nick is a joke! Really!
Re:Anti-trust must show harm to CONSUMER (Score:2)
Apple, of course, does very similar things-but Apple isn't a monopoly, and M$ is.
Ironically, according to Judge Jackson's yardstick, Apple IS a monopoly. Note that he defined Microsofts monopoly as being a monopoly over x86 based computers. He didn't go on to qualify that as being important because x86 based computers are the most popular kind or anything like that. In fact, in his conclusions of law, he made no distinction between x86-based computers and Motorola-based computers for the purposes of declaring Microsoft a monopoly.
So either his statement is incomplete, which I doubt, or he definitely seems to think Apple is a monopoly too.
Re:Keep it up, Slashdot (Score:3)
Is that the kind of harm you're talking about?
If Microsoft doesn't piss you off it either means you aren't paying attention or you own some of their stock.
Which is it?
I personally don't think it is an issue (Score:2)
So what if it is his son. It's not like his son is Bill Gates. His son is representing Microsoft, nothing more. And while he can be expected to do his best to fight for Microsoft's side, he has no personal involvement in the company. Win or lose Rehnquist's son will still be an attorney and will go on to other cases and other clients.
So Judge Rehnquist should have no feelings of familial obligation towards the company his son is representing that would cause him to be less than impartial.
I don't like Microsoft, but I'm hardly going to pretend this is some kind of an issue just to have an excuse to complain about the company.
Lee
Re:Okay, so one is an evil Microsoft supporter (Score:2)
The decision was simply to decide whether to take the case up before the record was developed and analyzed by the DC Circuit. There were many open questions (not an accident that Microsoft's Appeal was scattergun -- with lots of issues, BTW), and it is quite likely the Court felt that an Appeal would substantially reduce the number of issues to be addressed by the Court.
More than one.. (Score:5)
I do not think that Judge Rehnquist influenced all of them. He may have violated ethics by particpating in the decision, but since it is a Judge's job to be informed of the case, chances are one of the other Judges may have known about his son also.
Anyway, don't you think it would have been worse (and he could have done more damage) if he had gotten the case to the Supreme Court and tried to influence the decsion on that level? Even if the Government loses - they can appeal, so technically, the case may still reach a court where he has a fair amount of influence.
umm (Score:2)
Re:Keep it up, Slashdot (Score:2)
They are a threat to free speech and must be silenced! - Andrea Chen
What if he had voted the other way.. (Score:2)
If Judge Rehnquist would have ruled in favor of speeding the trial to the Supreme Court, would
The majority would not. I know this sounds like a flame, but it is the truth.
It seems, from reading many of the comments, that whether he should have excused himself or not is related to whether he ruled in favor of Microsoft or not. When in fact it should be related strictly to the ethical question(s) presented in the article.
If you can honestly say that you think he should have removed himself regardless of the decision, then you are truly impartial.
Re:Baby w/the bath water (Score:2)
The split only prevents bundling apps with the OS, it does NOTHING to eliminate the API and file-format strategy that Microsoft has used so well to lock-in developers to a single-platform, which will become the MS Applications for Windows, a middleware layer, the OS will become irrelevant, it will be a low-level creep, like DOS. Necessary to exist everywhere, because the PLATFORM (the applications and API) are what dominates the market, and the platform requires the underpinnings. But nobody will buy the underpinnings without the application layer that goes on top, because THAT is the part that is useful, and is required to do business and be on the internet, because that portion is still tied to the Microsoft APIs and file formats which are the dominant standards.
Toss them in jail, that's the only real punishment that will deter future illegal behavior. Let the market take care of the remainder of the problem. Once the officers stop directing the company's illegal activities, and Microsoft's business practices go legit, I firmly believe that the market will have no trouble at all returning to normal, and beating back the beast. It is only through these illegal practices that Microsoft maintains their dominance, NOT through some supposed product superiority.
I installed and ran the Mac OS X Public Beta last night, on a 300MHz G3 beige desktop, with minimal memory (196 meg), and try as I might, I could not crash that fucker for anything. This is beta. I had NO trouble at all crashing Win2k on decent hardware (800MHz PIII 256 meg RAM). Other, better OSes are out there, and can uproot Windows, as soon as Microsoft stops behaving illegally.
Soylent Green is people!
Corrupt court systems in the US ... nooooo (Score:2)
about MS appealing ... they will be appealing for the next 20 years ... bet me :-)
The really sad part is (Score:2)
Crime pays, if your in the legal profession.
Re:Let's use a simple example (Score:2)
/sarcasm
Soylent Green is people!
So who exactly would Microsoft complain to? (Score:2)
Ethical point (Score:2)
Surely you have heard of 'flying fish'. You can stretch a point, and call the structures that they use to fly 'wings'. Almost all fish, even the real bottom feeders, have similar structures.
There is such a thing as an honest lawyer, and you could stretch a point and call the way he treats people 'ethical'. Almost all lawyers, even the real bottom feeders, are bound by the same rules which bind an honest lawyer.
So, in the same stinking, slippery, slimy, fashion that fish have wings, lawyers have ethics; the analogy is really quite exact.
Re:Interesting... (Score:5)
all we know the vote was 5-4. The figure of an 8-1 decision comes
from the fact that there was only one published dissenting view
(Justice Breyer), but there may have been other unpublished dissenting
views.
Similar, but different (Score:2)
M$ has a per PC tax that applies to *all* PC shipped by the big companies, and many small companies, regardless of whether it's a clean machine, a Linux machine, etc.
IBM isn't the only manufacturer of PCs, where Apple is.
The nick is a joke! Really!
Re:Let's use a simple example (Score:2)
Maybe what's needed here is new legislation to declare such clauses illegal.
On the basis that they involve a supplier interfering with the business of their customer.
Re:Baby w/the bath water (Score:2)
Splitting up the company *is* slapping them hard. That's hard to disagree with.
Splitting up the company into either competitive components or complementary components *also* prevents many of the anti-competitive practices.
Is there a better way? The DOJ lawyers didn't think so!
At least you aren't disagreeing with the fact that M$ did harm and needs to make amends.
The nick is a joke! Really!
Re:So who exactly would Microsoft complain to? (Score:2)
Re:Baby w/the bath water (Score:2)
Splitting the company will cause competition to exist again, as the MS Office, IExplorer, etc. developers will no longer have an advantage over everyone else. (Access to the WinAPI source code, and the ability to ask for new features in it.)
--
Right here (Score:5)
28 USC 455. Disqualification of justice, judge, or magistrate [judge]
(a) Any justice, judge, or magistrate [judge] of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
blah blah blah
(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
blah blah blah
(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
Rehnquist's son is representing Microsoft in private Antitrust suits. A son is related to the father in the first degree of legal consanguinity.
His private suits are all won if the Supreme Court declares Microsoft has no monopoly and maybe even if they are simply ruled to not have abused their monopoly. High profile lawsuits involving the richest private client on earth certainly constitute "an interest" where I live. Certainly, if Rehnquist Senior can make Rehnquist Junior a winner against all comers by the disposition of the DoJ's Antitrust suit then that means he can substantially affect the interest of someone closely related to him. If OTOH, he does not exonerate Microsoft, then Junior's billable hours are going to be much, much greater than if he did. He really can't help but affect his son's interest whatever he does. He should disqualify himself -the law demands it.
If he will not recuse himself he has to ignore black letter law to do so. Doesn't he care that behaving with disregard for US Laws concerning his office casts a shadow on whatever decision the Court eventually produces? I wonder what he'd say to a young lawyer who reminded him that according to the language of the law, even if the relative wasn't his son but was a niece or nephew, he's obliged to recuse himself. Even if it were not his niece or nephew but their spouse he should also recuse himself...
If the law is so insistent about this as to demand self disqulification in cases affecting the interests as remote as those of nephews' and neices' spouses then how in the world can Rehnquist blithely ignore the fact that it's his son ? Doesn't this by itself fail the first sweeping clause--that a judge should disqualify himself "in any proceeding in which his impartiality might reasonably be questioned"? He already looks biased to me by his stubborn denial of his family's involvement. According to Rehnquist a reasonable person would not believe that he has an appearance of conflicting interests, but then he's never been a dispassonate judge of what's reasonable and rational...Nor has he ever been particularly susceptible to the sense of shame. William Rehnquist simply does not believe the laws regarding recusal for conflicts of interest has ever applied to him.
One of the most famous cases or controversies over this matter involves Rehnquist himself. In the late sixties it became known that the Department of the Army was conducting surveillance --widespread domestic surveillance-- of lawful civilian political activities. This resulted in the class action complaint, Tatum v. Laird . Assistant Attorney General William Rehnquist represented the Nixon Administration ( Laird being Melvin Laird, the Secretary of Defense), before a Senate Judiciary subcommittee in hearings on a key point of Constutional law. The issue was whether pervasive, Constitutionally questionable surveillance (w/ no national state of emergency declared, no Federal property endangered, and ONLY the vague request of a state law enforcement agency to lend aid under the Civil Disturbances Statutes) of peaceable, lawful activities was or wasn't an infringement of 1st Amendment free speech rights of the people being monitored.) You can guess which side Rehnquist was arguing. Anyway, while the case flipflopped through the appeals process, Nixon put Rehnquist on the Supreme Court. Tatum v. Laird inevitably arrived in the Supreme Court docket. The newly minted Justice refused to step aside and recuse himself despite having been a counsel for the respondent in a legal proceeding regarding the self same case. In the words of the lead plaintiff attorney, himself a target of Army surveillance: It was as if Billy Martin had resigned as manager of the New York Yankees after the sixth game of the World Series and taken the job of umpire for the seventh game. That's right--this man faced Rehnquist first as an witness and adversary in the Senate hearings and later as a Justice in the Supreme Court on the same case. And Rehnquist refused to heed suggestions that he might be a wee bit biased. Rehnquist eventually voted with the majority in 1972 to allow the US military to monitor and collect information on your lawful political activities without a declared state of emergency in effect, on an ongoing basis-- 1st, 2nd, 3rd and 4th Amendments to the Constitution be damned. The result of this sterling defence of individual rights by the Judiciary was Congressional passage of the Federal Privacy Act of 1974.
Re:Anti-trust must show harm to CONSUMER (Score:2)
If there was a supplier of Beef, who bought out all the cattle ranches in the world, and used genetic engineering to gain a proprietary foothold so that nobody else could raise cattle, without violating that supplier's IP. Then, as selling beef to all the fast food restaurants, this supplier insisted that since they also produced potatoes, that only their brand of french fries would also be available - and soft-drinks too (let's say the supplier owns Coca-Cola). Since all fast-food restaurants now only offer the same exact food, they have no way of differentiating their product other than packaging logos and price, and since the costs of running a fast food chain is pretty much the same when they're all world-wide, there then is a loss of choice for the consumer, nobody can ever go out to eat and drink Pepsi, because if a fast food restaurant ever supplied Pepsi instead of Coke, they would lose their license to sell beef products from the ONLY supplier of beef in the world. What if this supplier's mass-production technique for french fries rendered them barely edible. Sure, someone else could grow good potatoes, and supply them to a fast food restaurant, who could sell them, and offer a superior product to the consumers. But that would mean they couldn't sell beef hamburgers. So if a customer wants GOOD fries with his fast-food meal, they've got to go to the specialty-shop, across the street, that sells ONLY french fries. Find parking, stand in line again, just to get the good fries with the meal. Instead of the ratty rancid spotty fries from the same place he bought the burger. This competitive disadvantage, along with the fact that the rancid fries are offered free with the burger, slowly bleeds the Fry-shak dry, until they start losing locations, they lose economy of scale, and go further down, etc.
Sure, customers could go to a fine restaurant and get Chicken or Pork, and have to sit down, have a waiter, tip the waiter, pay probably 10 times as much for a meal - while the fast-food shop claimed that for 1/10th the cost, their meal was just as nutritious, and done in 1/4th the time. Connisuers of fine food know the truth, and dine out, but most folks just can't afford to do that all the time. So they don't have a choice. Even when the fast food restaurant raises prices, doubles, triples. At half the price of a sit down meal, it's still a bargain, right? Even with the rancid fries. Bargain nothing, there's still no choice for those who either don't have time or enough money for the sit-down meal.
Then there are the folks who still breed their own cattle, you can get one of these cows cheap, but you have to slaughter it yourself, butcher it, cook it, etc. But it's really a damn good burger, if you've got the time, a pickup-truck and a trailer to haul it, and a really big freezer to store the excess beef. Still, since Fry-shak went out of business, and so did Pepsi and Snapple, there's only one drink in town, and that's Coke. Sorry if you don't want all that sugar, or if the caffeine keeps you up late at night, or if you get food poisoning from the rancid fries. (even though they're free with the burger, you can still buy it separately). Sometimes you can search and find one of the last remaining fry-shak restaurants, and get some fries with your home-slaughtered beef burger. At least that's a consolation.
Soylent Green is people!
Possibilities (Score:2)
Or, maybe he read judge Kaplan's recusal motion and realized that it doesn't matter if you've got connections to one side, because nobody really pays attention to judicial ethics.
Is everything news? (Score:4)
When microsoft is involved even small news items gets blown up to be 1 of the 10 headlines of the day.
Is this really news?
Please answer that question after reading for example the hard legal stuff [felten.com] from a computer scientist [princeton.edu] who was an expert whitness in the trial.
Just my 2 eurocents,
Johan
Re:Sign, no I don't agree. (Score:2)
Yes, 99% of them would have been shitcanned, but I bet it would have saved Netscape in the long run.
Soylent Green is people!
Re:the case wasn't dropped, you idiot (Score:2)
Which is stupid considering the law that allows the DOJ to appeal directly to the Supreme Court was created for the purpose of speeding up the judicial path for cases exactly like this one. I think it was incredibly disingenous of Rehnquist to say that it wouldn't have any significant effect on his son or his son's firm. By refusing to hear the case, the SC just sent it to a court known to be much more friendly to Microsoft, thereby giving Microsoft's lawyers a better chance of winning the case than they would likely have if it went straight to the Supreme Court.
Re:More than one.. (Score:2)
Kaplan did not personally represent the MPAA at all. Some attornies in the firm he used to work for did represent them though. (Can't remember if it was the MPAA that they represented or the DVDCCA)
I think Rehnquist is on much more shaky ground than Kaplan was. While he denies that his participation in the decision to refuse to hear the Microsoft case will have any significant effect on his son or his son's firm, I think he's crossed the line, bigtime. I think there are very obvious effects. First of all, it will dramatically extend the length of the case. This obviously will allow his son to continue working on it for some time to come. Second, by refusing to hear it, he's sending it to a court that has all but broken out the pom-poms to cheer for the Microsoft team. Think that might help his son out a bit?
Re:Right here (Score:3)
they were ruling on whether or not MS should be allowed to bypass normal legal processes and proceed directly to trial by the Supreme Court.
Actually, the law provides for a direct appeal to the Supreme Court for cases exactly like this one. Basically the Supreme Court just disregarded that law and the reasons why it exists.
In other words, Rehnquist had every right to participate in the decision about whether or not to advance the case; given the reference you cite, he was *required* to participate in that decision.
Wrong. The portion of the USC that was cited says that the judge should have recused himself from making any decisions regarding the Microsoft case. Including whether or not the Supreme Court (note that the decision was whether or not the court should hear the case, not Rehnquist himself) hears it now instead of later. Rehnquist should have recused himself from participating in that decision, as well as recusing himself from hearing the case when it gets before his court.
Re:The Supremes had their reasons (Score:2)
The longer the delay, the less effect the reparations will be and the more damage MS's actions will be allowed to continue to cause.
Which is exactly why the law allows the DOJ to appeal directly to the Supreme Court. Why the court made this decision, I can't understand. It simply allows Microsoft to continue as usual. They've been in court before and settled with a consent decree which they ignored and nothing changed. The DOJ learned from this and that is why they have refused to settle with Microsoft. Now, instead of bringing this thing to a close, the Supremes are going to allow it to continue for years probably. When it's all over, it won't matter anymore. That's why the DOJ is allowed to appeal directly, and why the Supremes should have heard the case.
Re:The Supremes had their reasons (Score:2)
Unfortunately, corporations exist for the sole purpose of allowing those in control to make decisions without being held responsible for the consequences of those decisions. Sure, sometimes corporations are punished, but that usually doesn't do much harm to those who were running the show. It usually just hurts those who depended on the corp for their livelihood. The little guys get screwed and the big guys usually have their golden parachutes that let them laugh all the way to the bank.
A legal point (Score:2)
The court could have simply decided not to hear the case at all, in effect upholding the first level court's decision.
Most appeals are denied before they are heard. Unless you have an exceptional basis for your appeal, it will never be taken; only if you are a huge rich company are you assured of an appeal in a civil case.
The only way a person ever gets an automatic appeal in a legal case is if they are convicted of a capital crime.
This is another example of how the law is designed to look fair upon cursory examination, but on closer study is revealed to be a sham. The idea is to get people who could question what is going on in the entire legal system to only glance at the law and say to themselves "Oh I see how this works. There are a lot of technical things in the law that I'm not interested in, so there is no need to look any farther."
Meanwhile there is a core of truly evil people in the law saying: "That's right, nothing to see here, move along. This is the only justice we are going to let you get."
Think for a second about the symbol of justice that they give to us. Now ask yourself this question: "If I were going to swing the sword of justice based upon the results of a weighing, would I wear a blindfold?"
That symbol is a little joke that the evil people couldn't resist: it means: "We have justice hoodwinked", and it is a source of wry humor for the evil people who get the joke.
God, computer people are so helplessly innocent.
--
The law, 100's of millions of lines of code, not one line of which has ever been tested to see if it works
Re:Anti-trust must show harm to CONSUMER (Score:2)
Re:So who exactly would Microsoft complain to? (Score:2)
If the Chief Justice's son worked for the DOJ prosecuting MS and the decision was to skip federal appeals and go straight to Supreme Court, _then_ MS would undoubtably cry foul.
As it is, it is the government who would be in a position to complain if Rhenquist had tainted his decision to deny the direct appeal because his son would be in a less favorable position as a result. But who does the DoJ complain to, the pres? Is there any constitutional recourse against the Chief Justice of the Supreme Court?
But really, what would Rhenquist's motivation be? If his son is defending MS in a 'private antitrust action', what would he even gain/lose based on the appeal to the SC? If the case gets accepted to the SC and is pretty much upheld, the case the son is working on is probably settled. If the case gets accepted and is overturned, the case the son is working on might get thrown out.
Since the case was handed back to federal appeals, the private case will likely drag on for an extra year and then the son's case drags on an extra year also. Regardless of the outcome of appeals, MS or the DoJ will take it to the SC. The Supreme Court could refuse to hear an appeal, though I wouldn't think that was likely.
The son is working for the defense so he's likely working on retainer, right? Not like he works for the prosecution and stands to make a huge score from a settlement.
I geuss I don't see where Rhenquist has that much incentive to influence the court on his son's behalf. If he what that whacked out and wanted to help his son's career as much as possible, wouldn't he have voted to accept the appeal and then overturned Jackson's ruling?
If he was trying to help his son out financially, bouncing the case back to appeals for a year probably makes some difference. If he is trying to help him win his case, accepting the appeal and then overturning Jackson's ruling would make the most difference.
Re:ROFL (Score:2)
Lee
Re:Anti-trust must show harm to CONSUMER (Score:2)
Real World experience. (Score:2)
My father is Judge David R. Hansen, sitting on the United States Eighth Circuit Court of Appeals, and at the time MCI (and other long distance carriers) were challenging the Telecommunications Reform Act.
For a couple of weeks he was considering recusing himself from the trial just to avoid even the appearance of impropriety. While my financial future wasn't tied to the trial, nor my continued employment, there could have been the perception that there was, and as such, Dad would have been obligated to recuse himself. I volunteered to pass on MCI's employment offer and accept a (slightly inferior) position elsewhere, but Dad wouldn't hear of it.
He didn't want to recuse himself, because he felt it to be a fascinating trial and he wanted the opportunity to write the opinion on it. Nor did he want me to pass on a good job after college. Nor did he want even the appearance of impropriety to touch the Judiciary.
Dad decided that full disclosure was the best option. He fully informed all parties that I had accepted employment with MCI and volunteered to recuse himself if any parties involved objected to his presence.
In the end, none of them did, and Dad wound up writing an opinion which he was quite proud of--and then the Supreme Court overturned the Eighth Circuit, and there was much gnashing of teeth and wearing of sackcloth and ashes in Mom and Dad's house.
So, as you can see, these sorts of events have happened before. The procedures for dealing with them are well-known. While I'm not accusing Rehnquist of being biased (I feel he's far too professional for that), I do have to wonder exactly why he didn't make full disclosure to all parties long before.