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Microsoft appeal judge removed

One of the three judges assigned to hear a pivotal appeal in the Microsoft-DOJ case is removed from the case.

One of the three judges assigned to hear a crucial appeal in the ongoing antitrust battle between Microsoft and the Justice Department has been removed from the case, a person familiar with the matter said.

Laurence Silberman, a judge with the U.S. Court of Appeals for the District of Columbia, has been replaced with Patricia Wald, said the source, who spoke on the condition of anonymity. It was not immediately clear if Silberman had been recused due to a conflict of interest or had been removed for some administrative or personal reason.

The Justice Department brought its case against Microsoft in October, alleging that the software giant's licensing requirement that Windows 95 be shipped along with the Internet Explorer browser violated terms of a 1995 consent decree.

The three-judge panel is deciding two pivotal issues. One is Microsoft's appeal of a December preliminary injunction requiring the software giant to separate the two pieces of software pending a final outcome in the case. The other concerns the propriety of the appointment of a computer law expert to serve as a "special master" in the case, charged with gathering evidence and making a legal recommendation.

In a previous antitrust dispute between the government and Microsoft, Silberman had backed up the Redmond, Washington, company. After U.S. District Judge Stanley Sporkin in 1995 threw out the consent decree because he felt it was too favorable to Microsoft, the matter was appealed and reversed by a panel that included Silberman.

The makeup of the old panel--which, in addition to Silberman, included Stephen Williams and Raymond Randolph--was considered a major boon to Microsoft's case. All three are considered judicial conservatives, and, in past rulings have demonstrated a strong skepticism of government regulation. Both Silberman and Williams were appointed by President Ronald Reagan, and Randolph is an appointee of President George Bush.

A judicial and political liberal appointed by President Jimmy Carter, Wald stands in stark contrast to Raymond and Williams, who will remain on the panel. Before being appointed, she had brief stints with the Justice Department. In 1992, President-elect Bill Clinton considered her for the post of attorney general until she withdrew her name. Since assuming the bench in 1979, a number of her rulings have demonstrated an activist judicial philosophy, according to legal experts.

"Wald has more of a consumer orientation," said Robert Lande, a professor specializing in antitrust issues at the University of Baltimore School of Law. "She sees a greater probability that a firm like Microsoft could possibly harm consumers by anticompetitive behavior."

By contrast, "a judge like Silberman would be very skeptical that anything a company like Microsoft could do would ever harm competition or consumers," Lande added.

Indeed, in a concurring opinion to a 1986 antitrust ruling, Wald advocated taking "a more pragmatic, albeit nonarithmetic and even untidy" analysis to anticompetition law, one which focused more on potential harm to competitors and consumers and less on strict interpretations of federal statutes.

"She's more concerned about preserving the process of competition and protecting competitors than I think a very conservative judge would be," said Paul Roeder, an antitrust attorney at Gray Cary Ware & Freidenrich. That philosophy lies in sharp contrast to the majority opinion in the case, which held that the only purpose of antitrust law is to promote efficiency in the marketplace, he added.

Wald is only one vote on a panel that is still dominated by two judicially conservative members, so any sympathy Wald's more liberal leaning may bring to the government's case could be moot. Still, her inclusion could make a difference if the case hinges on an unexpected issue.

In an interesting side note, Wald is likely to be up to speed on at least one issue to be decided by the appeal. In 1988, she authored a legal article, entitled The Anatomy of a Decision Under Federal Rule of Civil Procedure 53(b), the statute that governs the appointment of special masters in court cases.

In December, U.S. District Judge Thomas Penfield Jackson issued a preliminary injunction requiring Microsoft to offer Windows 95 separately from Internet Explorer. He also designated visiting Harvard Law School professor Lawrence Lessig as a special master in the case. Microsoft appealed both of those rulings.

A hearing on Microsoft's appeal is scheduled for April 21. It was not immediately clear if the hearing would be postponed because of the change in the panel. Both Microsoft and the Justice Department declined to comment on Silberman's removal, and representatives from the court were not immediately available for comment.