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IP: Microsoft's rifle-shot
From: David Farber <dave () farber net>
Date: Tue, 07 Aug 2001 17:16:05 -0400
Date: Tue, 7 Aug 2001 17:05:27 -0400 To: dave () farber net From: John Noble <jnoble () dgsys com> Subject: Microsoft's rifle-shot MS petitioned for cert and it's a pretty interesting move. The question presented is clearly the issue on which the Circuit Court is most vulnerable. It strikes me as particularly interesting that they do not challenge the Circuit Court's ruling upholding the sec. 1 judgment on any alternative ground. It seems to be solely on the basis of their refusal to set aside the judgment for the district court's violation of 28 USC 455. This is very politic. Question Presented The district judge engaged in secret discussions with select reporters about the merits of this case beginning no later than September 1999 and continuing over the succeeding eight months. (A119-20) During that period, the district judge entered his findings of fact, followed by his conclusions of law, and then a remedial decree. (A120) The court of appeals held that (i) the district judge's course of conduct flagrantly violated 28 U.S.C. § 455(a) and the Code of Conduct for United States Judges (A118-19) and (ii) the district judge would have been immediately disqualified had he not concealed his misconduct by requiring the reporters to "embargo" their stories until after entry of judgment (A128). The court nevertheless disqualified the district judge "retroactive only to the imposition of the remedy" (A136), some eight months after the earliest known violation. The question presented for review is: Whether the court of appeals erred in not disqualifying the district judge as of the date of his earliest known violation of 28 U.S.C. § 455(a) and the Code for Conduct of United States Judges, thus requiring that his findings of fact and conclusions of law be vacated.
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