The appointment of Richard A. Posner, the chief judge of the Seventh U.S. Circuit Court of Appeals, comes on the heels of Judge Jackson’s ruling two weeks ago that accepted almost all of the government’s arguments while sweeping aside most of Microsoft’s. Naming Posner, whose charge is to oversee “voluntary” talks, removes Jackson –and potential charges that he’s biased against the company–from the settlement process. By placing Posner in the peacemaking role, Jackson has forced both sides to work with a prominent and respected legal theorist whose views they couldn’t easily dismiss. Since Posner is an appellate judge, he’s in the unique position of highlighting the weaknesses of both sides’ respective cases should they continue to battle in court–giving each reason to settle.
The Justice Department and Microsoft publicly welcomed the move. A Microsoft spokesman called it “potentially a very positive step,” and the DOJ said “we look forward to meeting with him to discuss ways to address the serious competitive problems” identified in the preliminary ruling. Privately, however, one government lawyer said the appointment of Posner, a conservative judge who favors market efficiencies over a mandated breakup, could help Microsoft. Though Posner is fair, the lawyer said, “the bad news is that he’s someone whose natural inclination is to side with Microsoft.” Experts expect Posner to be open-minded.
Put on the bench by President Reagan in 1981, Posner, 60, is a judicial superstar who was a founder of the “Chicago School” of professors and economists wary of regulation. He is also a law professor at the University of Chicago and a prolific author of 30 books. A workaholic, Posner once told a reporter, “I don’t have a sharp sense of the difference between work and play.” That’s good, because the task ahead of him doesn’t sound like much fun.
