The newest judge to preside over the fortunes of the world's largest software company may be best known for her decision to spare thousands of Canada geese from government-orchestrated slaughter.
US District Judge Colleen Kollar-Kotelly will oversee all aspects of the federal government's sweeping antitrust case against Microsoft, but the longtime Washington, DC, resident has little experience with antitrust cases--or business cases in general.
The US Court of Appeals for the District of Columbia Circuit appointed Kollar-Kotelly, whose background rests in criminal law, on Friday after a computer selected her randomly from a field of 10 candidates.
Kollar-Kotelly's courtroom experience includes numerous murder cases, a controversial call on agricultural biotechnology and the labeling of some genetically altered foods, and a high-profile decision that awarded US$355 million to an American killed by Iranian terrorists. The Humane Society of the United States also lauded Kollar-Kotelly for her decision to ban the slaughter of migratory birds in Virginia.
Her lack of experience in business cases, specifically antitrust cases, worries some legal experts. They fear generalist judges could make decisions that aren't as informed as those with more first-hand knowledge.
"This is a huge problem in antitrust," said Luke M Froeb, associate professor of management at the Owen Graduate School of Management at Vanderbilt University in Nashville and a former economist with the Antitrust Division of the Justice Department during the Ronald Reagan and George HW Bush administrations.
"Think about the nuances of business cases: If you don't understand bundling, for example, you're immediately suspicious," Froeb said. "Only when you have a lot of experience and knowledge do you start thinking about the alternatives and nuances. This case is very nuanced."
Froeb said the idea of allowing a computer to randomly select judges doesn't do justice to the amount of business and technological savvy required for this particular case. (The computer picked Kollar-Kotelly from 10 candidates; US District Judge Thomas Penfield Jackson, the previous judge in the Microsoft case, was not in the running, nor was Chief Judge Thomas Hogan, who had the prerogative of turning down new case assignments.)
"To put this before the court and ask one of these judges to make a decision--you may as well as be flipping a coin," Froeb said.
Conquering the learning curve
Regardless of Kollar-Kotelly's ability, the appointment of any new judge on the case is likely to stall the proceedings.
James F Blumstein, an antitrust specialist and centennial professor of law at Vanderbilt University, said Kollar-Kotelly will likely need several weeks to read the most basic documents and the Court of Appeals briefing. That could give Microsoft more time to launch its newest product, Windows XP, which critics say also may violate antitrust rules.
Windows XP, Microsoft's new operating system, was released to manufacturers Friday and will arrive on store shelves in late October.
"This judge isn't going to start taking any measures before the first week in October," Blumstein said, noting that Kollar-Kotelly is highly unlikely to make any decisions on XP.
"This is a decision that the government and the states will have to trigger if they want to stop this," Blumstein said of XP. "It would be unwise and set the wrong tone for the judge to intervene absent a request from the party. Judges are referees, not players, in these cases. If she intervenes, it suggests she's got an agenda."
Legal experts--from Microsoft attorneys to armchair judges around the world--are likely to scrutinize Kollar-Kotelly. The stakes are high: Jackson, the previous judge in the Microsoft case, was removed from the position in an embarrassing vote of no confidence by his peers.
In its order upholding eight separate antitrust violations against Microsoft on June 28, the Court of Appeals struck down Jackson's remedy, which sought to break Microsoft into separate operating system and software application companies. The Court of Appeals threw out Jackson's order partially because he failed to hold his own remedy hearings. The seven appellate judges also removed Jackson from the case largely because Jackson gave interviews to journalists regarding details of the case.
Kollar-Kotelly's appointment puts the judge, who got a law degree from Catholic University of America and who spent four years in the Justice Department's criminal division, in a blinding spotlight. Although she has presided over numerous high-profile cases since Bill Clinton appointed her to the US District Court for the District of Columbia in May 1997, none titillated the media as the Microsoft case likely will.
Kollar-Kotelly already has some insight into the media. In September 2000, she ruled that a reporter who breaks a promise to a news source isn't violating a contract under Washington or Virginia law. She dismissed a lawsuit brought by Julie Hiatt Steele, a minor figure in the Clinton impeachment scandal, against Newsweek reporter Michael Isikoff.
After graduating from law school, Kollar-Kotelly served as a law clerk to Judge Catherine Kelley at the District of Columbia Court of Appeals. In October 1984, after serving as chief legal counsel to St Elizabeth's Hospital, she took an appointment as an associate judge at the District of Columbia Superior Court. There she served as deputy presiding judge of the criminal division from 1995 until her appointment as a federal judge.
Other antitrust experts were more optimistic. They noted that judges, based on the volume of diverse cases they handle, are generally adept at immersing themselves in the intricacies of a case--even if they had little or no knowledge of the subject previously. Their careers are based on their ability to climb steep learning curves, proponents say.
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