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Judge Thomas Penfield Jackson concluded months ago that Microsoft used anticompetitive methods to achieve a monopoly in the market for operating systems running on Intel-based microprocessor systems. By refusing a negotiated settlement of the case to limit the effect of that foregone conclusion on his company, Gates last week took a grave risk. In most such cases, companies knuckle under to the demands of imperious prosecutors, to avoid setting precedents for rapacious civil litigators. Brave Bill Gates insists that this case be settled in public, by appellate judges, who will make laws plainly, for good or for ill. America should have fewer antitrust laws, and certainly it needs clearer antitrust laws. Gates is taking a heroic stand for the cause of antitrust reform.

We recall, however, an adage about live cowards and dead heroes. Just as sending an antitrust case to a trial judge opens a company up to the risk that its rational behavior will be determined to be illegal, sending a case on to the nine judges on the United States Supreme Court opens the economy and the Constitution up to the risk that bad laws will be written by judicial fiat.

The history of antitrust decisions is full of bad laws written by confused Supreme Court justices. Gates ought to know that the high court has ruled that combinations to reduce prices are just as illegal as combinations to raise prices, that charging prices similar to those that would obtain in a competitive market can't excuse a monopoly or a cartel, that monopolies conferred by patent or regulation can still be illegal.

Miles of law-library shelves are devoted to analysis and justification of such economically foolish conclusions. The number of angels dancing on the head of a pin was no more thoroughly illuminated than the scope of the relevant market, the power of a putative monopoly or the enforcement of an illegal tie-in sale.

Ridiculous rulings, however, cannot be parsed by scholars without making the scholars equally ridiculous. The scholars, and all citizens, should realize that ridiculous rulings are the natural results of bad laws.

The Sherman Antitrust Act, with its sweeping prohibition of all contracts or combinations in restraint of trade, literally outlawed all economic activity that the government happens to prosecute. All contracts restrain trade to some degree, just as some efforts to organize the marketplace do not result in higher prices to consumers.

Since passage of the Sherman Act in 1890, only the judgment of the judiciary exercised on cases brought by the judgment of the prosecutor determines what economic transactions and competitive strategies are legitimate. This would be tyranny if the prosecutor also held the power to judge and execute, but it is still too close to tyranny for comfort: Business people have no way to know if what they do will be held illegal when the only real standard for illegality is the ex post facto standard that they succeeded too well.

The Sherman Act should have been held impossibly sweeping or unconstitutionally vague at the first chance the Supreme Court had, and the second chance, and every other chance, up to and including the one that brave Bill Gates now is giving the court. The court's decision in the Standard Oil case that established a "rule of reason" to legitimize the Sherman Act is no better than the even older decision that established a rule of "separate but equal" to legitimize state laws on school segregation. It's as much time to sweep the whole oppressive mess aside as it was in 1954 when the court reversed itself on segregation.

Even on the merits of the case, accepting the current state of case law, Judge Jackson is standing on shaky ground. Microsoft relied on the ruling of a federal court of appeals upholding its right to bundle Internet Explorer with Windows. Judge Jackson waived that ruling away because it concerned a preliminary injunction rather than a full ruling after trial. It's no coincidence that the court of appeals was overturning Judge Jackson's injunction against Microsoft. To our eyes, his conduct ever since has been as injudicious and intemperate as it has been unreasonable and against economic reality.

Even more fundamentally, Judge Jackson held that Microsoft deliberately acted to protect its monopoly power by competing against Netscape and Sun Microsystems "through exclusionary acts that lacked procompetitive justification." He said Microsoft "mounted a deliberate assault on entrepreneurial efforts that, left to rise or fall on their own merits, could well have enabled the introduction of competition ..."

That deliberate assault, however, benefited consumers by providing them with new functions at lower prices, such as Internet browsing integrated with the Windows operating system. The judge seems more concerned with the fortunes of Sun and Netscape than with the well-being of consumers.

BILL GATES=money&money

http://www.microsoft.com/billgates/bio.asp

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