75 Antitrust L.J. 847 (2008-2009)
Section 2 Remedies and U.S. v. Microsoft: What is to be Learned

handle is hein.journals/antil75 and id is 855 raw text is: SECTION 2 REMEDIES AND U.S. v. MICROSOFT:
WHAT IS TO BE LEARNED?
RENATA B. HESSE*
I. INTRODUCTION
As the possible expiration of the Final Judgments in the Microsoft case
neared in the fall of 2007, the question loomed: what would the case's
legacy be, in light of the remedy imposed by the district court? Would
the expiration of the Final Judgments (assuming the court did not ex-
tend them) bring to closure one of the most-if not the most-signifi-
cant episodes of antitrust enforcement in the United States in the last
decade? Or did the case stand for something more, entirely apart from
the remedy and whatever effect it had on the marketplace? After a num-
ber of years working on the Microsoft case while at the Antitrust Division
of the U.S. Department of Justice, the significance of the case beyond
the debate about the Final Judgments and their effectiveness became
clear to me. In particular, as this debate evolved over time, it became
clear that the issues that fueled the discourse on the remedy had signifi-
cance well beyond Microsoft. One can and should view these discussions
as being about the larger issue of remedies in Section 2 cases, and not
just about the case itself.
The anniversary of the Final Judgments-even though they have been
extended by the district court-provides an opportunity to look back at
the proceedings over the last ten years and to explore the interesting
and novel issues that arose after the D.C. Circuit's June 2001 liability
decision.' In particular, the specific terms of the Final Judgments re-
sulted from months of negotiations between the Department, the states,
and Microsoft. At least as to the Department's settlement, these negotia-
* Member of the District of Columbia and California Bars. The author previously
served as Chief of the Networks & Technology Section of the Antitrust Division of the U.S.
Department ofJustice, where she oversaw the Division's work on the remedial portion of
United States v. Microsoft Corp. With profound thanks to Franklin Rubinstein for his assis-
tance in drafting and editing portions of this article.
I United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001) (D.C. Circuit 2001).

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