Defer, Defer, to the Lord High Executioner

Wow, Judge Jackson is really mad. His Memorandum and Order in the Microsoft case practically seethes off the page.

First, despite the Court's Findings of Fact and Conclusions of Law, Microsoft does not yet concede that any of its business practices violated the Sherman Act. Microsoft officials have recently been quoted publicly to the effect that the company has 'done nothing wrong' and that it will be vindicated on appeal.

This sentiment is all over the place: in Jackson's morning-after interview, in the DOJ's triumphant press conferences, throughout the ruling itself. Microsoft, they say, is an unrepentant sinner, incapable of admitting the true nature of its destructive actions, unwilling to change its evil ways. Especially in the late stages of the trial, it wasn't so much Microsoft's bad actions as its bad attitude that sealed its fate. And now that Microsoft is vowing to appeal and still proclaiming its innocence, the fingers are wagging even harder. They still don't get it.

Without passing judgement on the judgement one way or the other, though, it's reasonable to ask whether Microsoft's official attitude should be anything else. And I don't really see why it should be. Law, especially antitrust law, is not entirely a place where all determinations can be made with certainty. It's not just intentions and actions: the case hinges on the effects of those actions, and on the metaphysical nature of some highly abstract concepts. Did the degree of control constitute an effective monopoly? Was that monopoly used to try to gain a monopoly in a different line of business or in the same one? Was competition harmed unduly? Did consumers suffer? Are an operating system and a browser more alike or more different? These are questions whose answers verge on the meaningless. Some cannot ever be definitively assessed: whether consumers would be better off had Microsoft not muscled Netscape is a question for sci-fi writers penning alternate histories. Others are matters for the philosophers, who can debate the nature of the telos of a browser and its relationship to the telos of an operating system.

So it often is in the courtroom, as in life. And in the courtroom, as in life, it is necessary to pass from ill-defined questions to plausible answers, to some sort of conclusion that gives a basis for going forward. We live with tangible approximations, they give us something to hang on to. Their precise relationship to abstract issues of truth and necessity will forever remain unclear, but if we want to speak of truth and necessity at all, then there is some relationship there, there is some connection, however vague around the edges. The law is a device for keeping society running in the presence of epistemological and ethical uncertainty. But, like any such device, it msut deal with certain consequences.

First, its approximations remain forever approxmations, and to the extent that the law claims to speak for some more primary level of truth and justice in its determinations, by its own admission the law is not the author of that truth, only the interpreter. When a court convicts and executes a man for a murder he has not committed, the only man the court makes into a murderer is the hangman.

And second, in the process of shaking the tree of truth to see what verdicts fall out, it sometimes happens that different people may reasonably come to different conclusions. I have no idea whether software would be more or less usable today had Microsoft acted differently in certain ways in the past decade. I haven't made a careful study of the matter. Others have: some say the answer is "yes" and some say the answer is "no." From where I stand, both are plausible. I can at least follow the train of reasoning that leads to each conclusion. And given that I don't happen to think that this is a question which admits a definitive answer, even in principle, I don't believe that a court's ruling one way or the other is of more value in providing an answer at the level of belief than the evidentiary study which has gone into that ruling. And if Microsoft lawyers and executives, after seeing and considering both their arguments and the DOJ's, still happen to think that the answer is "no," then I'm in no position to tell them to think again. Indeed, the only ones who are in such a position are those who are presenting new evidence, or providing a more compelling explication of the existing evidence, and even they can only suggest a change of mind, not compel it. Interpretation of the abstract categories of antitrust law and of software development is just one of those areas where almost about any reasonable position turns out not to be defeasible. One might disagree with Bill, but at some point, his freedom of thought kicks in.

My point in all this philosophising is that the Microsoft company line is, even after all that has transpired, still not a priori absurd. And given that they, and some combination of their lawyers, employees, stockholders, lobbyists, and customers cling to this belief, I think the appropriate question is more accurately "Why on earth should Microsoft not persist vocally in this belief?" I think the answer is that Judge Jackson and the DOJ and various trial watchers are looking for remorse, for repentance, for a believable promise that Microsoft will mend its ways. This is the usual practice of criminal trials, this is the the philosophy (and the etymology) behind the penitentiary system. The system is looking to turn the criminal back into a productive and morally upstanding member of society. And this transformation, as we usually conceive of it is to be accomplished through the essentially Christian mechanism of redemption through sincere admission of sin and the desire to be saved. Should Microsoft understand that it has sinned, should it confess unworthiness and beg forgiveness, then will it be proven worthy and repentant, and then shall the divine grace of the legal system fall upon it, and through a course of conduct remedies it will remit its sins and rejoin the Free Market of God. As a theory of criminal justice as applied to the person of the criminal, it's a reasonable enough system, with its share of good days and bad days. When applied to today's modern multinational corporations, entities with thousands of employees, offices in dozens of countries, and market capitalizations measured in the tens and hundreds of billions of dollars, it falls down on the job. Corporations are legal persons, yes, but here that metaphor is stretched past its breaking point. The objective consideration of whether Microsoft constitues a threat to competition and the objective determiniation as to how best to restrain or encourage Microsoft so as to benefit the country as a whole -- these decisions s hould not hinge on the quantity of tears shed or not shed by certain people at certain times, or on the tone of Bill Gates' voice in an interview, and it is absurd that in our current justice system such decisions do turn on such matters.

There's one further twist, though. It's absurd to ask Microsoft or its executives to come on their knees before the court, it is a confusion of categories and a mistaking of this for that, its officers and many of its employees recognize with great bitterness this absurdity and refuse to kneel and they are entirely correct in their conclusion that their legal case should not be influenced by their public shaming, but this absurdity does not make groveling a bad business decision. Plenty of press analysts have noted this ironic fact, noted the geeky integrity and direct habits of thought that keep Microsofties' necks stiff. They even recognize, at times, that it would be manifestly in their self-interest to feign contrition, and seem entirely incapable of doing so in practice. Our country demands sacrifices, our political system requires certain symbolic acts to oil its gears. And Microsoft, having run headlong against the irrational and arbitrary responses of our nation's politico-cultural institutions, now marches, like Socrates, towards its cup of hemlock, all the while proclaiming its harmlessness and refusing its friends' entreaties to please, please, put life before integrity.