JUDGE THOMAS Penfield Jackson's move on Friday to ask a fellow jurist, Richard Posner, to mediate between the government and Microsoft is surely unorthodox. It is also wise. Though there appears right now to be little common ground between the parties, it is a good idea for Judge Jackson to find out for sure whether settlement is impossible before issuing a ruling that could affect competition in the high-tech arena for years to come. Bringing in someone of enormous stature -- Judge Posner is both chief judge of the 7th Circuit Court of Appeals and godfather of a major academic movement in legal theory -- to bang heads together offers the case a useful second track even as Judge Jackson works toward issuing his conclusions of law.
To be sure, something seems a little strange about one judge asking another judge from a different level of the federal court structure and, indeed, from an entirely different circuit, to mediate his case. But it was done with the approval of both parties, and that goes a long way to smoothing its procedural oddness.
Judge Posner's being an appellate court judge could even bring a fresh perspective to settlement talks. Microsoft is betting the farm on the idea that the D.C. Circuit Court of Appeals will reverse what everyone now assumes will be Judge Jackson's finding of liability on the part of the company. The government, meanwhile, has some reason for confidence before the appeals court, given Judge Jackson's strong findings of fact. But the D.C. Circuit also reversed an earlier ruling by Judge Jackson in rather broad terms. To the extent that Judge Posner -- as someone who reviews district court decisions for a living -- can convince both parties that there is great unpredictability before the D.C. Circuit, he may be able to push both sides into a more accomodating posture.
Both sides could live to regret the continuation of this litigation. If Judge Posner can make settlement a viable alternative to brinksmanship, he will have performed an enormous service. If, by contrast, the parties still can't come to an understanding, at least we will know that there is no choice but to let this case make groundbreaking new law. Either way, it's worth a try.