He puts the odds for that scenario at 15 percent. It could accept the conclusions of District Judge Thomas Penfield Jackson that Microsoft is an unlawful monopolist that should be broken in two and subjected to stringent conduct controls. Given the vigor with which the D.C. Circuit attacked Jackson and his legal conclusions in the appeal, that's equally unlikely, Kovacic and others said. It could throw out most of what Jackson did, asking a new trial judge to take a fresh look at the factual record developed at trial, said Herbert Hovenkamp, an antitrust law professor at the University of Iowa. That judge could then develop new findings of fact, conclusions of law and a remedy.
Findings of fact declare what was proved at trial.
Conclusions of law declare the legal implications of those findings. A remedy sets out what should be done to discourage further wrongdoing. On remand, the trial judge would read the thousands of pages of evidence without the emotional and sensational aspects of an ongoing trial that draws worldwide media attention. Still, most likely the judge's actions would be appealed, either to the Supreme Court, the appeals court or both, Hovenkamp said. In fashioning a remand, the judges must consider whether to accept the conclusions that Microsoft illegally tied the Internet browser to the Windows operating system, tried to monopolize the browser market, and engaged in predatory practices designed to protect its lawful Windows monopoly.