On June 7, 2023, the Society presented its first in-person historical program in four years, on the Court of Appeals’ 2001 decision in United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001). The Court of Appeals’ 2001 opinion was the first federal major appellate court opinion to address application of traditional “old economy” antitrust rules to the new, dynamic and fast-paced technology markets of the late 20th Century. This was the Society’s twenty-fourth program, and the second program in the Judge Patricia M. Wald Programs on Life and Law in the Courts of the D.C. Circuit. Over 175 individuals attended the Program.
The historical context for the 2001 decision was set by Douglas Melamed, currently Scholar in Residence at Stanford Law School, who was a principal author and the final editor of the Justice Department’s briefs. Doug discussed the challenges posed by Microsoft’s meteoric growth in the technology marketplace, and the Justice Department’s concerns that Microsoft’s business practices crossed the line of antitrust law, which led to the filing of the case.
Judge Douglas Ginsburg and Judge David Tatel, who were members of the en banc court in 2001, then presided over a reenactment of a portion of the argument. The arguments were expertly presented by Kristen Limarzi, a partner at Gibson, Dunn, and David Gelfand, currently at Cleary Gottlieb and a professor at Arizona State Law School. The superb advocacy and a “hot bench” provided a lively reenactment.
The Program concluded with a panel discussion, superbly moderated by Bill Baer, former Director of the Bureau of Competition at the Federal Trade Commission, and former Assistant Attorney General of the Antitrust Division at the Department of Justice. Judges Ginsburg and Tatel reflected on the dynamic within the Court of Appeals that led to several extraordinary steps: the decision to take the appeal en banc at the outset, the decision to issue the lengthy decision per curiam, with each of the seven participating judges responsible for a section of the opinion, and the collegiality among the judges that allowed them to issue a unanimous and historic opinion. Doug Melamed discussed the government’s overall strategy, while David Frederick, who in 2001 was an Assistant to the Solicitor General and one of the two government attorneys to present the argument on behalf of the United States, reflected on the unique challenges and pressures of presenting the government’s argument over the two-day argument period. Maureen Ohlhausen, currently at Baker Botts and formerly the Acting Chairman and Commissioner of the Federal Trade Commission, provided perceptive insights on the impact of the decision on antitrust enforcement over the past 20 years.
A full video recording of the Program by the Federal Judicial Center is now available on this page and on the Society’s YouTube channel. An overview, followed by introductory remarks by Society President Jim Rocap, begins at 0:00. Beginning at 5:40, Douglas Melamed sets the stage for the reenactment. The reenactment, by Judges Ginsburg and Tatel, with Kristen Limarzi and David Gelfand as advocates, commences at 17:15. The panel discussion, moderated by Bill Baer, with panelists Judges Ginsburg and Tatel, David Frederick, Maureen Ohlhausen and Douglas Melamed, begins at 46:25 and continues to the end of the video.