Politech mailing list archives
FC: Judge Richard Posner to mediate Microsoft antitrust case
From: Declan McCullagh <declan () well com>
Date: Sat, 20 Nov 1999 09:28:53 -0500
The Microsoft trial took an interesting turn yesterday when Judge Jackson asked Judge Posner to mediate: http://washingtonpost.com/wp-dyn/articles/A24943-1999Nov19.html http://www.washingtonpost.com/wp-dyn/articles/A25033-1999Nov19.html Jackson also asked Larry Lessig to file an amicus brief summarizing what he thought of Microsoft's actions. Posner is a very respected jurist but also controversial, as the excerpts from the cyberia list below may demonstrate. -Declan ********
Date: Fri, 19 Nov 1999 18:29:07 -0500 From: Paul Gowder <pgowder () LAW HARVARD EDU> Subject: Re: Posner to mediate US v. Microsoft At 05:45 PM 11/19/99 -0500, masinter () NSU ACAST NOVA EDU wrote:Judge Jackson appointed Judge Richard Posner to serve as mediator in the antitrust litigation. I cannot imagine a better choice.Greaaatt... Satan the Economist who hasn't learned anything about economics since the 50's but writes an endless stream of books advocating the sale of babies is now playing a vital role in the future of the software industry. I am now a luddite. I once heard an urban-legendy rumor that Posner was one of the inspirations for Mr. Burns, on the Simpsons. -Paul
Date: Fri, 19 Nov 1999 18:37:32 -0500 From: Paul Gowder <pgowder () LAW HARVARD EDU> Subject: Re: Posner to mediate US v. Microsoft At 06:23 PM 11/19/99 -0500, wb8foz () NRK COM wrote:How about some background on Posner for us layman?Posner -- asshole chief judge of the Seventh Circuit. One of the most prominent "law and economics" morons. Although his economic analysis is less sophisticated than that of your average barfly juggling covers and free drinks. Also teaches at Chicago. Very conservative. Would have probably been nominated to the Supreme Court by the Reagan-Bush misadministrations (some claim) had he not published a law review article suggesting that it might be "efficient" to have an adoption market -- selling babies. A very bad man. Possibly the person I hate most in the legal profession. I'm surprised, given his 1950's style economics, that he'd have anything to do with antitrust law. Altogether, a very evil man.
Date: Fri, 19 Nov 1999 14:57:05 -0900 From: "Daniel J. Boone" <djboone () ROMEA COM> Subject: Re: Posner to mediate US v. Microsoft Alternative views exist. Posner -- possibly the single most respected member of the federal juciary below the supreme court level. Probably a genius, certainly a polymath. Possesses, or at least demonstrates, the best economic understanding of
anyone
currently writing in legal academia. Understands, and is a powerful advocate for, the positive social uses of free markets. Feared and hated by liberals, socialists, and statists, because he skewers, effectively, the
liberal/orthodox
view that government regulation can cure social ills. A great jurist, a fine professor, an adequate economist, and a pretty good writer. And, apparently, touchstone for identifying worldviews of cyberia posters. -- Daniel J. Boone
Date: Fri, 19 Nov 1999 19:30:39 -0500 From: Declan McCullagh <declan () wired com> Subject: Re: Posner to mediate US v. Microsoft At 18:37 11/19/1999 -0500, Paul Gowder wrote:legal profession. I'm surprised, given his 1950's style economics, that he'd have anything to do with antitrust law. Altogether, a very evil man.Not only is Posner a touchstone to identify cyberian worldviews, he appears to be a way to identify lack of manners and knowledge among the same. Paul might wish to learn that his nemesis wrote "Antitrust Law -- An Economic Perspective" over two decades ago and is considered one of the fathers of modern antitrust theory, not to mention one of the most cited judges in US legal history. That book laid the groundwork for focusing on "consumer harm" in antitrust, which not-so-coincidentally the appeals court zeroed in on when slapping down Jackson's earlier ruling. Posner may well be a terrible, fabulous, or simply uninteresting person -- I don't know him -- but it would seem to make sense to first learn something about someone you're frothily namecalling "evil" and "Satan." -Declan
Date: Fri, 19 Nov 1999 20:23:39 -0500 From: Paul Gowder <pgowder () LAW HARVARD EDU> Subject: Re: Posner to mediate US v. Microsoft To: CYBERIA-L () LISTSERV AOL COM Declan wrote:Paul might wish to learn that his nemesis wrote "Antitrust Law -- An Economic Perspective" over two decades ago and is considered one of the fathers of modern antitrust theory, not to mention one of the most cited judges in US legal history.Who can keep track of what Posner writes? He wrote a book on law and literature -- does this make him Shakespeare? -Paul
Date: Fri, 19 Nov 1999 20:03:46 EST From: "Ronald M. St. Marie" <RSTM () AOL COM> Subject: Re: Posner to mediate US v. Microsoft In a message dated 11/19/1999 4:08:32 PM Pacific Standard Time, netimken () EROLS COM writes: << It seems unlikely from what I have heard that he will be able to work out a settlement that Gates can swallow. >> My "read" on Posner is that he is likely to approach the case thinking that there is no real antitrust violation -- Big is Beautiful. He will side with MST. MST wants to settle and get on with raking the bucks in. The government does not want to bust up Microsoft into baby Bills -- just too controversial, particularly in light of the lack of a public groundswell for this remedy. My guess is a settlement by Easter, if not earlier. That's just my opinion; I could be wrong. Ronald M. St. Marie, Esq. Member Chan Law Group lc Los Angeles, California
Date: Fri, 19 Nov 1999 20:54:32 EST From: Steve Middlebrook <STM () AOL COM> Subject: Re: Posner to mediate US v. Microsoft In a message dated 11/19/99 8:04:01 PM, RSTM () AOL COM writes:My "read" on Posner is that he is likely to approach the case thinking that there is no real antitrust violation -- Big is Beautiful. He will
side
with MST.A response that shows little understanding of Posner, Jackson or this case. Posner is one of the "big thinkers" in antitrust law. To reduce him to "Big is Beautiful" is absurd. Further, why would Judge Jackson, who so many on this list have excoriated for having a bias against MS, appoint a mediator who would immediately side with MS? Why would he appoint a mediator who had no chance of helping the parties reach settlement? If Jackson doesn't favor a settlement, why appoint a mediator at all? Declan noted that Posner was an innovator of ideas of "consumer harm." My guess is that Jackson has made it clear where the case is going legally, and perhaps that includes consumer harm. Jackson wants assisitance with what's going to be hugely complex issues of first impression with regard to both damages and constructing a remedy that eliminates future harm without creating collateral damage. Not only does the Court have to decide who wronged who, when and where, he has to put a dollar figure on it. Expect Posner to help with the heavy lifiting on that task. Posner is a good choice. He's demonstrated the ability to juggle big complex economic theories and apply them to real world situations. Even if you don't like his law and economics approach (and personally it's not my cup of tea) you have to give Posner credit for the ability to lay out the theory, apply to real world facts, and make the conclusions. Note that in this matter, Posner won't be applying his own personal theories but rather taking the guidance Jackson has given the parties and trying to get them to agree on where the law should take them. You can't deny that he is a solid jurist with a solid reputation regardless of how you feel about his politics. I take his appointment as a signal that we should expect a large, complex, probably "cutting edge" result in this case (why else would Jackson need Posner) rather than some kind of simple, straight out of the book, easy to implement solution. stm
Date: Fri, 19 Nov 1999 22:03:18 -0500 From: "Andrew C. Greenberg" <werdna () GATE NET> Subject: Re: Posner to mediate US v. MicrosoftPaul might wish to learn that his nemesis wrote "Antitrust Law -- An Economic Perspective" over two decades ago and is considered one of the fathers of modern antitrust theory, not to mention one of the most cited judges in US legal history.Indeed, I found it fascinating that he opted to write in his monograph about Cardozo, suggesting as indicia of Judge Cardozo's greatness, not the substance of Judge Cardozo's analysis and writing, but rather the number of times Cardozo was cited. Judge Posner's influence is substantial, and he has already written more on jurisprudence and economic theory than most people will ever read. He is an excellent writer. I am not certain, however, that his theories have been touchstones for liberal versus conservatism because they are so great, fundamental and well-founded. Rather, I think they are the focus of so much attention mostly because they are so conservative. One will find similar salutary comments directed toward prolific writers of the critical legal studies movement from the left, with similar pejorative remarks coming from the right. At the end of the day, the proof is in the pudding. It is not the conclusion at which a writer arrives that determines the worth of his or her writing -- it is the substance of her arguments. (Also, right or wrong, did the person tweak your mind in a useful way -- even if only to irritate you.) Don't accept on its face any judgments about any social scientist without actually considering the merits of their ideas, viewing all judgments about their brilliance or naivete with a grain of salt.
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- FC: Judge Richard Posner to mediate Microsoft antitrust case Declan McCullagh (Nov 20)