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. Last Updated: 07/27/2016


Judge Thomas Penfield Jackson has given the Justice Department and those state attorneys general suing Microsoft the breakup they requested. We agree that Microsoft broke the law but worry that the remedy is too drastic. Microsoft has serious questions to raise on appeal; the question is who should hear them. Should the case go directly to the Supreme Court, or to the D.C. Circuit Court of Appeals, as would any normal case? The D.C. Circuit is the better answer. A breakup of Microsoft is such an extreme punishment, and its potential effect on the economy so great, that haste would be unwise.

The trouble with expediting a Supreme Court review is that it would take a mass of issues and a difficult series of technical questions and leapfrog them over the court best positioned to review them. The Supreme Court functions best when presented with highly refined questions, after appeals courts have winnowed a trial record and resolved most issues. The D.C. Circuit is adept at handling complex cases with giant records. Its intervention here would improve the ultimate quality of decision-making.

Jackson has alleviated the time problem by imposing interim restrictions on Microsoft's business practices. Microsoft has asked that these be stayed, but they should go into effect to give the public protection from Microsoft misconduct while appeals are pending. If this happens, following the regular order is the best way to review this historic ruling.

June 8