The Microsoft Case: Fair, Necessary, and Totally Random

Here only one thing is clear: This decision cannot be made rationally on the basis of law and currently available facts. It is all guesswork: guesswork about how the marketplace might look in the future, how hypothetical companies might behave, how technology might change.

"My own view is, the antitrust laws don't need changing," said Joel Klein, the Clinton Administration's antitrust chief, in an interview with National Journal recently. (See National Journal, May 27, 2000.) I respectfully disagree. I think that if the government cannot show that present-day consumers have in actual fact been significantly hurt, the government should not be able to go to court and seek to break up a company, even a bullying company. If you're not darn sure something is broken, don't fix it. I think it's important for businesses to have a fairly clear idea, in advance, what is legal and what is illegal. The Microsoft case, I fear, subtracts from clarity instead of adding to it.

A lot of people, beginning with the government, will disagree with me. So they should. They will say that antitrust law will always be messy and that messiness is a small price to pay. They may be right. But let them, and the rest of us, be clear, at least, about what the law is doing in the Microsoft case: whistling in the dark. The process is certainly fair, and it is possibly necessary, but it is not rational. Next time, consult a chicken.