ichard Epstein is a professor at the University of Chicago's School of Law. He wrote about the Justice Department's case against Microsoft for National Review's December 6, 1999 issue.

Lopez: How big a victory for Microsoft is Monday's procedural ruling in the Microsoft case? How much of a setback for the Department of Justice's case?

Epstein: As a first approximation, it looks as though the victory is a substantial one. The government wanted to go directly to the U.S. Supreme Court in part to avoid any delays in the implementation of its decision. Here this assertion of the jurisdiction by the Appellate Court, if allowed to stand, will slow up the process by perhaps as much as a year. So much has changed since the case began, that it is quite possible that the remedy proposed will look still more out of place than it did before. Time does not help the government and its lawyers know this.

Second, putting this decision back in the lap of the Court of Appeals forces the government to show how this decision is reconciled with the earlier ruling which held that "integrated products" included the beefed-up basic operating system with the browser made part of the unit. The earlier decision was on a consent decree but it hardly matters for those intent on reading tea leaves. The attitude that animated the decision was one that held that government lawyers and federal judges make for lousy software engineers. If that attitude carries over, then the split-up of Microsoft will not be sustained by the Court of Appeals.

Third, it seems likely that the Court of Appeals may lift the interim order which calls for direct supervision of Microsoft's activities pending the breakup. Where is the harm in the delay? The harm the other way seems very large because with supervision comes a loss of speed and agility. If the D.C. Circuit thinks its earlier decision was correct, then it should stay the order to go forward.

Fourth, if, as seems better than even, the D.C. Circuit will reverse the decision below, at least on the question of remedy, then the case has a very different posture before the Supreme Court, which will surely be attentive to whatever is written by the court below. Jackson's decision, to say the least, was one-sided. Now there will be both sides heard. Microsoft has to benefit from the dialogue.

Lopez: How significant is it that this appeal — despite the government's protests — will be heard en banc?

Epstein: The en banc appeal has several effects. First, it knocks out one stage in the argument — the usual hearing before the panel — but it also adds time to the first tier of deliberation. It signals what everyone knew, that this is the most important case in antitrust law in some time, not so much for liability, but for remedy. And of course the en banc opinions will be very thorough, which will reduce the importance of briefing when the case reaches the Supreme Court.

Lopez: The lineup — given that three judges had to recuse themselves from the case — seems to be Microsoft's favor. Is that the case? How do you anticipate the appeal will play out, given the judges?

Epstein: The en banc decision rarely has only four judges, and the reason for the procedure now takes on a very different coloration. It would be arbitrary to leave one judge out. But there is no vote that looks to be presumptively pro-government on this lineup.