![handle is hein.journals/pittjtlp1 and id is 1 raw text is: Volume I - Article 1
Interpretation of Consent Decrees and Microsoft v. United States I:
Making Law in the Shadow of Negotiation
Lloyd C. Anderson*
Fall 2000
Copyright C 2000 University of Pittsburgh School of Law
Journal of Technology Law and Policy
Introduction
People negotiate agreements in the shadow of the law, whether in the private
ordering of affairs such as drafting contracts or in the public forum of settling lawsuits.[ I]
A reverse phenomenon, however, has gone largely unnoticed: judges occasionally declare
law in the shadow of negotiated settlements. In interpreting the terms of a consent
decree[2] when the parties themselves cannot agree on what obligations such terms
impose, the judge may determine that both the words and the parties' own intentions are
so ambiguous that the words must be interpreted in light of the substantive law that gave
rise to the plaintiffs' claim. This writer has previously contended that the meaning of an
ambiguous term should be determined, in part, by reference to the constitutional or
statutory rights sought to be vindicated in the litigation. Even if the law is somewhat
uncertain, part of the judge's interpretive effort should be to determine which
interpretation will best serve the policies of the relevant law.[3] It appears that the
federal courts, at least, have adopted this position. [4]
A recent decision by a divided federal appeals court, however, reached an
alarming result that requires reconsideration of this position. In Microsoft v. United
States, 56 F.3d 1448 (D.C. Cir. 1995) (Microsoft I), the parties settled an antitrust
lawsuit by entering into a consent decree in 1995. One provision in the decree prohibited
Microsoft from requiring computer manufacturers to license an other product as a
condition of licensing its Windows 95 [5] operating system, but also permitted Microsoft
to develop integrated products. When Microsoft sought to require manufacturers to
license its Internet Explorer[6] browser as a condition of licensing Windows 95, the
government contended that Microsoft had violated the decree because the browser was an
other product. A panel majority of the Court of Appeals for the District of Columbia
(hereinafter D.C. Circuit), however, held that Microsoft's Internet Explorer browser is an
integral part of the Windows 95 operating system rather than an other product, and,
therefore, Microsoft did not violate the consent decree.[7] The majority determined that
the prohibition against mandatory licensing of an other product was intended to
prohibit Microsoft from engaging in anticompetitive tying of one product to a distinct
product.[8] Relying on a test proposed in a leading antitrust law treatise, the Microsoft I
majority concluded that mandatory inclusion of Microsoft's browser with its Windows 95
operating system was not an illegal tying arrangement. [9]](ViewImageLocal?handle=hein.journals/pittjtlp1&div=1&collection=&method=preview&ext=.png&size=3)
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