#28 Fall 2000
l TAFOL FILES
AMICUS CURIAE BRIEF
IN MICROSOFT CASE
l TAFOL ESTABLISHES LAW REVIEW
l IOLTA UPDATE
l CHANGE OF ADDRESS
2000 Page 1
AMICUS CURIAE BRIEF IN MICROSOFT CASE
By Robert Getman
On December 26, 2000, TAFOL filed an Amicus Curiae (Friend of
the Court) Brief supporting Microsoft Corporation in its appeal
before the United States Court of Appeals for the District of Columbia
Circuit. The appeal involves the antitrust cases brought by the
Federal Department of Justice and twenty (20) State Attorneys General.
is the latest in a series of Amicus briefs that TAFOL has written
years. The others include: briefs in the recent
Elian Gonzalez case before both the trial court and the Eleventh
Circuit Court of Appeals; briefs in the IOLTA case, challenging
compulsory contributions to "public interest" lawyering
via confiscation of interest earned on forced deposits of client
funds by lawyers before the Fifth Circuit and the United States
Supreme Courts; and briefs opposing mandatory "volunteerism" as
a prerequisite for high school graduation in the Second and Fourth
antitrust case represents a breathtaking and frightening extension
law to a new American technological industry
that is the envy of the rest of the world.1 TAFOL's
brief showed that the antitrust "laws" are not valid
laws, but non-objective edicts that amount to arbitrary lawlessness,
and that these "laws" violate
a number of guarantees of our Constitution. Using words directly
from the mouth of the Supreme Court, the brief revealed the evolution
of antitrust dogma as a series of obfuscations, rationalizations
and contradictions, in which the high court "set sail on a
sea of doubt" (as one judge aptly put it).2 This "sail",
in case after case, necessarily led to further subjectivity, because
the court refused to abandon the false lodestars of antitrust.
The courts and hapless defendants found that there are no signposts
in the fog of the arbitrary.
traced the history of this last point in some detail. The
basic antitrust statute3 makes illegal "Every contract,
combination in the form of a trust or otherwise, or conspiracy
trade." As early as 1911, the Supreme Court noted that, as
a result of "the absence of any definition of restraint of
trade as used in the statute," the statute made every contract
illegal.4 "[F]inding the scope of the statute thus construed
unworkable, the Supreme Court literally inserted judicially the
term 'unreasonable' into the phrase 'restraint of trade.' But how
is a businessman to know, at the time of making a contract, what
provisions will later be considered to fall afoul of the undefined
term "restraint of trade", let alone also be "unreasonable" restraints?
Eventually, the courts realized this and, in an attempt to provide
some certainty, they introduced so-called "per se" rules,
rules which define certain descriptive categories of conduct (e.g., "boycott" or "price-fixing")
that are declared to be unreasonable. Of course, these pigeonholes
are not found in the statute, immediately raising the question
of the legitimacy of such "judicial legislation."
2000 Page 2
In sum, TAFOL's
brief took an "Abolitionist"5 position;
it showed that this was the truly "American" position
as well as an Objectivist position. The brief liberally cited and
quoted our Founding Fathers side by side with Ayn Rand. The introduction
to the brief summarized that:
Amicus' philosophy holds that proper government is the limited
established by our Founders, in which sovereign citizens
retain a reservoir of
rights, as our 9th Amendment held, while
the government is strictly limited---
subordinating might to rights.
It holds that the sole function of government
is to protect individual
rights and that government properly does so using
laws, laws which '[i]n regard to derivation [are] tied to reality
by man's only means of knowing reality: reason [and] [i]n regard
to form have a
firm, stable knowable identity6 so that they may
tell men the law and the nature
and cause of the accusations (to
use the 6th Amendment's words) they will
face if they disobey.
If, as is proper, ignorance of the law is no excuse,
must make only laws which are comprehensible to citizens, or
is not a civilized government of laws and not of men.
In stark contrast, antitrust is based on the opposite premises:
altruism, collectivism and non-objective law.
It is modeled upon sacrifice in that
it demands that some men (such
as producers) must sacrifice themselves for
the sake of others
(such as 'consumers'). It is collectivist in its view that
rights may be overridden by the supposed interests of a collective
(such as 'consumers' or 'society' or their overall 'economic efficiency').
Further, antitrust 'laws' are actually lawless, paradigms of non-objective
law that not only deprive man of
his right to life and property but do so by
statutes whose ambiguities are multiplied by mountains of
precedent which no man even with an army of lawyers, can
before he acts, rather than ex post facto. Worse, in an alleged
'monopolization' case such as this, they punish with draconian
monopolists who are deemed, under vague and
shifting standards, to be
'too successful' in free trade, depriving
them of Equal Protection of the Laws.
And 'in this divestiture
case, which spawned numberless punitive triple
damages cases, these
'laws' are the corporate equivalent of a 'cruel and
punishment by being drawn-and-quartered plus by a death
by a thousand
cuts of 'excessive fines', in the words of the 8th Amendment.
also briefed an important issue specific to---and notorious in---the
Microsoft case: that Microsoft was "railroaded" by
the government's litigation conduct, and by the trial judge in
his conduct of the case and extraordinary out-of-court interviews
and statements even while the case was in progress. These statements
included private discussions with reporters and public comments
about the reasons for his decision, going so far as comparing Microsoft
to a street gang. As TAFOL's brief wrote: "Worse still, the
judge admitted that Microsoft's 'intransigence' in [refusing to
settle the case on the government's terms] was a key factor in
imposing the harsh penalty. This created a perilous new antitrust
principle: the more a presumptively innocent defendant insists
on his innocence and stands by his belief, the more terrible will
be his punishment."
developments provide striking and rewarding confirmation that
TAFOL chose this issue wisely. First, Microsoft itself chose
to feature this issue in its brief, even though criticism of a
trial Judge who may later re-hear the case is risky. What's more,
the appeals court went
2000 Page 3
one better, in a sense: even though Microsoft did not take the
further step of requesting that oral argument
time to this issue, the court on its own ordered that 30 minutes
of argument be especially devoted to the issue. This is twice
as much time as it allocated to the question of whether Microsoft
had attempted monopolization---and almost as much time as it
to argument concerning the extraordinary corporate "breakup" remedy
imposed by the trial Judge.
TAFOL's brief concluded by invoking the terms of the most basic
constitutional rights and the explanation of their base by Ayn
2d of the New Hampshire Constitution declared that" All
certain natural, essential, and inherent
---among which are the
enjoying and defending life and liberty;
acquiring, possessing, and
protecting property; and in a word,
of seeking and obtaining happiness."
Ayn Rand explained the
has to work and produce in order to support his life. He has
his life by his own effort and by the guidance
of his own mind. If he cannot
dispose of the product of his effort,
he cannot dispose of his effort; if he
cannot dispose of his effort,
he cannot dispose of his life. Without property
rights, no other
rights can be practiced . . .The right to life is the source of
rights---and the right to property is their only implementation.
property rights, no other rights are possible. Since man
has to sustain his
life by his own effort, the man who has no right
to the product of his effort
has no means to sustain his life.
The man who produces while others dispose
of his product, is a
. . .
Is man a sovereign individual who owns his own person, his mind,
his life, his
work and its products---or is he the property of
the tribe (the state, the society,
the collective) that may dispose
of him in any way it pleases, that may dictate
prescribe the course of his life, control his work and expropriate
its products? Does man have the right to exist for his own sake---or
is he born
in bondage, as an indentured servant who must keep buying
his life by serving
the tribe but can never acquire it free and
A. Rand, "What is Capitalism?" in Capitalism:
The Unknown Ideal supra at 10-11.
Americans have known the answer since our
Declaration of Independence, and
since slaves were freed. These
are the principles to which America should return.
In the face
of these vital rights, and the fundamental constitutional infirmities
of the antitrust regime, this Court should not sanction the destruction
world's most successful company (in market capitalization)
under the false
banner of that paradigm of nonobjective law, that
judicial and political
rationalization, that arbitrary anti-rights,
anti-ability and anti-success regime
bearing the misnomer antitrust "law." We
respectfully urge reversal."
At oral argument,
almost all of the appeals court judges were concerned about the
conduct of the trial judge. While predicting
the outcome of an appeal is an uncertain affair, this is a good
sign. It seems likely that any further proceedings in the case
will be sent to a different judge, a transfer which may have its
on the "remedy" because it was that phase of the trial
2000 Page 4
the most by the trial judge.
You---past, present and, hopefully, future monetary contributors
to TAFOL---each are soldiers in this fight. With your continued
help, we may see that reversal, a significant step in the halt
of the antitrust juggernaut. Help us to help more. Send a contribution
brief is being mailed to all those who have recently contributed
TAFOL. The brief also can be viewed on the web
[on this web site www.tafol.org at “Briefs”].
Note and References:
is speculation that the Bush administration will settle the
case on terms acceptable to Microsoft. However, even if such
speculation is well-founded, any conceivable "settlement" would
almost certainly be a dangerous attempt to accommodate individual
rights to the legal terrorism of antitrust, for any agreement
to so-called "consent" decrees in antitrust are hard
to justify. Furthermore, such a settlement still would leave
alive the equally threatening companion case brought by the
state Attorneys General, who are very unlikely to agree to
palatable to Microsoft unless the current appeal is resolved
greatly in Microsoft's favor. (In response to the repeated
specter of states prosecuting such cases under their own state
acts, TAFOL---and TAFOL alone---briefed the point that allowing
each state to have an antitrust statute is unconstitutional.)
Hence the battle in the appeals court, which TAFOL is helping
to fight, might be more important to the cause of fighting
antitrust than Bush's electoral victory.
2. The phrase, "sea of doubt", was coined by Judge William
Howard Taft in United States v. Addyston Pipe & Steel Co.,
85 F. 27 1, 284 (6th Cir.1898), aff'd 175 U.S. 211 (1899). Judge
Taft later became president of the United States and chief justice
of the Supreme Court. He is the only person to serve in both capacities.
3. § I
of the Sherman Antitrust Act
Oil Co. of N. J. v. United States, 221 U.S.1, 63
(1911); United States v. American Tobacco Co., 221
U.S. 106, 179 (1911)
repeal of the antitrust laws should be our ultimate goal. . ." Ayn Rand, "Antitrust: The Rule of Unreason," reprinted
in The Voice of Reason, Essays in Objectivist Thought 254, 259.
The apt analogy to the abolitionists comes from Richard Salsman's
lecture at a recent Second Renaissance Conference.
6. H. Binswanger, "What is Objective Law," The
Intellectual Activist, v. 6 #1 (1/92) at 9
[see also at TAFOL Bulletin #7 on this web site.]
TAFOL ESTABLISHES LAW REVIEW
TAFOL's Board of Directors has approved the publication of an
Objectivist law review to be published annually commencing in the
summer of 2002. The purposes of the review are to provide a forum
for critical commentary on current and historical law, and to provide
a platform for scholarly work and scholarly exchanges on the subject
of an ideal or rational system of laws.
Prospective authors may request authors' guidelines and a time
line for submission by writing to:
TAFOL Law Review [address omitted]
or by sending an e-mail to [address omitted] (Dee Tagliavia).
not be TAFOL contributors or lawyers; however, articles should
have legal content, contain analysis from an Objectivist
perspective and be of law review quality.
2000 Page 5
On February 6, argument was heard in the Fifth Circuit Court of
Appeals on the never-ending IOLTA case. As readers of this Bulletin
know, TAFOL has been supporting several plaintiffs in their attack
on a program, operable in many states, that requires lawyers to
place certain of their clients' funds in interest-bearing bank
accounts and to give the interest to a state agency for use in
providing legal services to low-income persons.
Court had ruled that "the interest income generated
by the funds held in IOLTA accounts is the private property of
the owner of the principal." The trial court again ruled against
the plaintiffs who again appealed to the Court of Appeals. Charles
Fried, professor of law at Harvard University, a former solicitor
general of the United States, and a former justice of the Massachusetts
Supreme Judicial Court1 argued for plaintiffs.
The issues are very technical. They concern whether a court can
issue an injunction against a state agency. We are hopeful once
again for a favorable ruling.
1. Professor Fried had also represented the Florida legislature
in Bush v. Gore and Merrill-Dow in the landmark Daubert case
(involving the standards for the admissibility of expert testimony).
CHANGE OF ADDRESS
TAFOL invites its supporters to communicate via U.S. mail, using
the new address listed on the first page. As described below, the
change was made necessary by improper political philosophy.
Some years ago, Bob Getman, who lives in New York and was in charge
of the contributor records, rented a post office box in New York
for TAFOL. A few years later, when Steve Plafker, who lives in
Los Angeles, took over this function, TAFOL decided to keep its
box to avoid the necessity of changing addresses. (With address
changes comes lost mail.) We arranged for the Postal Service to
forward our mail to our treasurer, Mike Conger, in Kansas City,
Missouri every month (for which, of course, we paid a fee). Unfortunately,
it is today considered proper for the government to run a post
office and, in the name of egalitarianism, to use force to prevent
others from doing the same. (See the lead article of the summer
1999 issue.) As a consequence, the postal authorities do not consider
it necessary to honor their contracts. TAFOL was getting its communications
sporadically---and only after numerous phone calls.
Although we will be closing the old post office box, the postmaster
will forward mail under its normal procedures for a period of time;
however, please communicate with us through the new one. It will
be faster and more reliable. Supporters may also contact us via
TAFOL's e-mail address: [address omitted].
[Now see “Contact Us” on
this web site.]
Copyright © 2001
The Association for Objective Law. All rights reserved. The Association
for Objective Law is a Missouri non-profit
corporation whose purpose is to advance Objectivism, the philosophy
of Ayn Rand, as the basis of a proper legal system.