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The author argues against the belief that the monopoly power held by the Microsoft Corporation actually benefits consumers. He states that placing US 7th Circuit Court of Appeals Judge Richard Posner in the position of mediator for the Microsoft litigation is improper.

The author presents the Microsoft Corp. antitrust case finding of fact with comments regarding Judge Thomas Penfield Jackson's findings.

Most of the 1,000 federal judges are Reagan/Bush appointees chosen for their devotion to laissez-faire economic theory who after their appointment were subjected to propaganda hostile to antitrust enforcement. Mainly young, inexperienced lawyers file the few antitrust cases filed each year and almost all are dismissed by the pro-monopoly judges. Posts to the antitrust Internet discussion groups term this denial of trial by jury in antitrust cases unconstitutional.

The Microsoft Corp. is unlikely to lose the Justice Department's 1999 antitrust challenge because the courts have been packed for 20 years with pro-monopoly advocates such as Posner and Scalia and the press, key to the earlier US trustbusting movement, is no longer likely to report honestly on the issue as it has itself been effectively monopolized. Posts to antitrust Internet discussion groups are listed.

Law students can now read online the story of how monopoly was legalized in America on the Findlaw archives give the full-text of all U.S. Supreme Court opinions since 1937. The URL is http://www.findlaw.com. Internet discussion group posts from non-lawyers for reading and interpreting these cases are given.

The Microsoft monopoly has generated much comment on various Internet discussion lists in the 1990s. Given the blatant unfairness of the monopoly involved, the software industry's technical people were confident that the courts would quickly grant them relief. This did not happen, as Microsot CEO Bill Gates knew the DC Circuit Court to be on his side with the Reagan-appointed judges enemies of antitrust.

The US Supreme Court disregarded hard evidence in Matsushita Electric Industrial Co. v. Zenith Radio Corp. that the lower court found persuasive and relied on economic theories advocated by an academic on the payroll of the alleged predatory pricer. The Supreme Court believed that Matsushita had little incentive to charge below-market, predatory prices in the US market, as Zenith alleged. The Court assumed that, since Matsushita had not begun to wield market power and raise prices in the US, it had not lowered prices in a predatory fashion. In fact, increased capacity had allowed Matsushita to recoup lost profits while still charging predatory prices.

Bringing an antitrust suit involving claims that are decided through the rule of reason, as opposed to per se violations, dictates that counsel introduce evidence of both the defendant's conduct and the market conditions that it and its competitors face. Expert testimony on monopolistic conduct must be based on an industry study that focuses on industry structure, conduct patterns and performance characteristics. Scale economies and price comparisons should also be included in the economic analysis.

Allowing contingency fee arrangements for economic experts is a potential solution to the burden of showing structural proof placed on antitrust plaintiffs. Structural proof, proof of market conditions and market power, became a requirement in the 1970s. Ethical rules currently prohibit contingency fees for expert testimony, though such fees are allowable for attorneys. Requiring judicial approval for all fee arrangements would help ensure that contingency fees for experts would not result in the expert testimony being biased.

Review of the 19 antitrust cases that US Supreme Court Justice Stephen G. Breyer ruled on as judge with the US Court of Appeals for the First Circuit demonstrates that he has been unreceptive to the arguments of antitrust plaintiffs suing large corporations. His addition to the Supreme Court will only increase the Court's opposition to antitrust enforcement. Breyer will be able to reinforce the decisions he made as a circuit judge with the greater authority he receives as a member of the Supreme Court.

Review of the US Supreme Court's decision in Klor's, Inc. v. Broadway-Hale Stores (1959) indicates that the requirements that antitrust plaintiffs demonstrate the price effects of market power and some public harm are recent judicial constructs. Klor's was decided based on the Sherman Act, and the Court was unwilling to require showing of public harm. The Court accepted the presumption of Congress that group boycotts are inherently anticompetitive. The Court also affirmed the rights of small firms to be free of anticompetitive practices regardless of consumer welfare.