Judge Jackson Takes Unusual Path in Microsoft Antitrust Case, Seeking Expedited Appeal to Supreme Court

Strategic Insights -

In a reversal of his previous ruling, Federal District Judge Thomas Penfield Jackson has taken an unusual approach in the Microsoft antitrust case, criticizing the appeals court for failing to follow Supreme Court precedents and indicating that he may help government lawyers bypass the appeals court entirely. This move could potentially shave a year or more off the appeals process, which has already been delayed for two years.

Key Takeaways:

  • Judge Jackson has rebuked the appeals court for failing to follow Supreme Court precedents, stating that its decision was "not formally binding."
  • The judge has indicated that he may help government lawyers bypass the appeals court entirely and take any appeals directly to the Supreme Court, using the Antitrust Expediting Act.
  • The Antitrust Expediting Act gives a federal district judge the power to certify any final judgment in a civil lawsuit to be ripe for immediate review by the Supreme Court if the appeal is of general public importance to the administration of justice.
  • The expediting act has been used sparingly since 1978, when Congress made expedited appeals discretionary.
  • Judge Jackson's move could potentially shave a year or more off the appeals process, which has already been delayed for two years.
  • The government's lawyers have said they want the case resolved before the issues become moot, and the expediting act enables them to circumvent an appeals court that has already handed a significant defeat to the government.
  • It is uncertain whether any Microsoft appeals will ultimately be expedited, as the Justice Department has not made a decision about accepting Judge Jackson's invitation.
  • Even if the government seeks an expedited appeal, the Supreme Court cannot hear the case unless four justices vote to put it on the calendar.

Statistics:

  • Two years: the duration of the Microsoft antitrust case
  • 1 year: the potential time that could be shaved off the appeals process using the Antitrust Expediting Act
  • 1978: the year Congress made expedited appeals discretionary
  • Twice: the number of times the Antitrust Expediting Act has been used in the AT&T antitrust case
  • October: the month the next Supreme Court term begins, during which the case could be put on the docket
  • 4 justices: the minimum number of justices required to vote to put the case on the Supreme Court calendar

Sources:

  • BNA's Antitrust Report, Mon Oct 30 1995
  • Oct. 30, 1995 BNA Report