Do Easy Cases Make Bad Law--Antitrust Innovations or Missed Opportunities in United States v. Microsoft
![handle is hein.journals/gwlr69 and id is 1052 raw text is: Do Easy Cases Make Bad Law?
Antitrust Innovations
or Missed Opportunities in
United States v. Microsoft
Timothy J. Brennan*
[A]nd in the history of antitrust this is indeed a landmark opinion.
Assistant Attorney General Joel Klein, April 3, 2000,1 regarding Judge Jack-
son's conclusions of law in United States v. Microsoft.2
L Introduction
A. Context
Much has been said and written regarding United States v. Microsoft.
The most salient issue has been whether bringing an antitrust case against
Microsoft was good or bad for competition in the computer industry and the
economy.3 A second related, but more general, concern has been whether
* Professor, Policy Sciences and Economics, University of Maryland Baltimore County,
and Senior Fellow, Resources for the Future, Washington, D.C. Email: brennan@umbc.edu.
The author served as a part time staff economist with the Antitrust Division of the U.S. Depart-
ment of Justice from 1986 to 1999. As should be apparent, the views expressed here are not
those of the U.S. Department of Justice or any of its past or present employees, save mine.
The author is grateful for helpful discussions with and criticisms from Judy Boggess, Joseph
Farrell, William Kovacic, John Kwoka, Molly Macauley, Debra Pearlstein, Richard Pierce, Bruce
Snapp, and Thomas Spavins. Readers should be assured that none of these colleagues necessa-
rily agrees with the opinions expressed here. I also thank seminar participants at Northwestern
University, University of Maryland Baltimore County, the Energy Information Administration
of the Department of Energy, the International Association of Energy Economists, Economists
Inc., George Washington University's Institute for Public Policy, the Federal Communications
Commission, the American Bar Association Antitrust Section's Economics and Computer In-
dustry Committees, Resources for the Future, Vanderbilt University, the George Washington
University School of Law, and West Virginia University. Finally, students in UMBC's class in
public policy issues in electronic commerce, particularly Anocha Yimsirivattana, shared insights
relying on their technical expertise in software engineering. None of the above necessarily en-
dorse the views presented here; errors remain the responsibility of the author.
1 News Hour with Jim Lehrer (PBS television broadcast, Apr. 3,2000) (broadcast of U.S.
Department of Justice press briefing) (transcript available at http://www.pbs.orgtnewshourlbb/
cyberspace/jan-juneOO/microsoft discussion_4-3.html).
2 United States v. Microsoft Corp., 87 F. Supp. 2d 30 (D.D.C. 2000) (Microsoft VII)
(conclusions of law). For ease of exposition, I will refer to the case in the text as United States v.
Microsoft, even though the United States, as plaintiff in this case, was originally accompanied by
twenty states, nineteen of which remained throughout the litigation, and seventeen of which
supported the proposed remedy. The extent to which the collective size of the plaintiffs influ-
enced the construction of the case is not at issue here. Some commentators have suggested that
the states have made it more difficult to settle this or other antitrust cases. Richard A. Posner,
Antitrust in the New Economy, 68 ANTrrRusT L.J. 925, 940 (2000).
3 DAVID EVANS ET AL., DID MICROSoFr HARM CONSUMERS: Two OPPOSING ViEws
(2000). David Evans and coauthor Richard Schmalensee consulted for Microsoft in the antitrust
October/December 2001 Vol. 69 No. 5/6
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Do Easy Cases Make Bad Law--Antitrust Innovations or Missed Opportunities in United States v. Microsoft
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