Accepting the proposed consent decree, the judge concluded, "would almost be the equivalent of a court accepting a probationary plea from a defendant who has told the court he will go out and again engage in inappropriate conduct."
The government and the company responded by getting Sporkin thrown off the case and found a new judge to approve the decree, which, indeed, proved ineffective.
"Microsoft has flaunted conduct remedies for years," said Mark N. Cooper, research director of the Consumer Federation of America. "The decision to take a structural remedy off the table puts the Department of Justice and the state attorneys general in the position of having to fashion an extremely aggressive set of behavioral controls that will have to be followed up vigorously."
Some antitrust experts and some state officials wonder whether, in fact, it will prove possible to curb a pervasive corporate culture through a consent decree. In any case, it will require years of close and onerous supervision by the judiciary and law enforcement, an outcome the Clinton administration and the states rejected last year in favor of a break-up.
"Judge Jackson repeatedly made clear that he did not want to be another Harold Greene," said Stephen D. Houk, a lawyer who has represented the states in the Microsoft case, referring to the judge who spent more than a decade supervising every facet of operations of AT&T after its complex consent decree was approved.
"There are problems with the large obstinate corporation but the judge in this situation has an awful lot of power," said John Shepard Wiley Jr, an antitrust professor at the University of California in Los Angeles who has used the Microsoft proceeding as a case study in his classes. "She has enough tools to discipline an unruly litigant. It's not an ideal world and these cases represent a genuine challenge to the judiciary. The conduct remedy may be a blunt instrument but it's certainly not impotent."
Consent decree
Now in private practice, Sporkin says he believes a consent decree can be fashioned to fix the problems identified by the case, particularly if it includes some tough enforcement mechanisms. He added that he is not at all troubled by the prospect of a court's spending years overseeing the company, as Greene did in the AT&T case.
For their part, some prosecutors say they have taken a lesson from the government's experience with the earlier consent decree that Sporkin tried to reject.
"We can learn from our experiences with the consent decrees on how to frame them and how to monitor them," said Richard Blumenthal, the attorney general in Connecticut.
But some state prosecutors said they were concerned that the new leadership at the Justice Department would be more forgiving of the company, and they vowed to press any remedy to also include restrictions on Windows XP.
"We look forward to continuing to work with the Department of Justice in the proceedings that are about to begin before the trial court," said Eliot Spitzer, the attorney general of New York. "But we will, if necessary to protect the public, press for remedies that go beyond those requested by the Department of Justice."
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