Before i begin I should mention that I hate Microsoft’s products. Windows is the first product I have owned (since my 1969 Chevy Malibu) which regards breaking down (crashing) at critical moments as its sacred obligation. As for Word-I’ll just say that the individual who thought up the little paper-clip guy deserves to be dipped in honey and left on an anthill in the Mojave Desert.
The point is that I have no tears to shed for Microsoft. Judge Thomas Penfield Jackson’s decision to split the company in two might prove to be a good thing. Even if it were not a good thing, it couldn’t possibly happen to a nicer bunch of people.
However, it is impossible for a nonlawyer to look on this case with anything other than misgivings. For a lawyer, the case poses no deep problems. We have a process, and we’re sticking to it. A normal person, however, might wonder whether the legal process has the faintest notion of what it is doing.
To see why a normal person is right to wonder, I refer you to a book called Jurismania: The Madness of American Law, by Paul Campos. It begins with a simple but important observation. The further a civil case gets in the legal system, the closer a call it probably is. The obvious cases-where the facts and the law are plainly on one side or the other-are weeded out early.
Many cases which reach the trial phase are thus fairly close, in the sense that a reasonable judgement could go either way. There are plausible arguments on both sides. And many cases that are decided at the appeal level are very close. They present difficult legal or analytical questions, or they pit core principles of law and morality against each other. Such hard cases must be decided arationally, which is not the same as irrationally. That is, reason and evidence can take you a fair distance, but cannot clinch the argument.
If Campos is right, modern law has something in common with the oracle of ancient times. If intractable questions must be decided, dressing up some fairly intelligent person in a black gown and requiring him or her to sit on a pedestal and conduct an elaborate ritual which ends with the intonement that The Law requires this or that, is not a bad method. We have to decide.