On Valentine’s Day, Microsoft agreed to settle a class action brought by Iowa lawyer (and Democratic politician) Roxanne Conlin, purportedly on behalf of every Iowa resident who purchased Microsoft Windows or Microsoft Office between 1994 and 2006. The actual terms of the settlement won’t be disclosed until a court hearing in April, but the announcement does short-circuit a jury trial that began in Polk County court last November.Microsoft has “settledâ€ several other class actions in the aftermath of the Justice Department’s long-running antitrust case, which also ended officially in a “consent decree.â€ I have nothing to add to the volume of criticism about those cases. Instead, what piqued my interest about the Iowa case was this paragraph from a report in the Des Moines Register:
Members of the six-man and five-woman jury were clearly relieved at the settlement. They were told of the agreement shortly after 8:30 a.m., when the trial resumed after a one-day delay. Jurors walked out of the courtroom at 8:45 a.m. and cheers could be heard immediately from a jury room as they prepared to go home.
More than 40 individuals were in the courtroom to hear the announcement of the settlement. Nearly all were members of the legal teams on one side or the other.
The Iowa case against Microsoft was originally filed in 2000, and made three trips to the Iowa Supreme Court for various legal decisions before it was finally scheduled for trial last fall.
The trial began with jury selection on Nov. 13 and has taken much longer than either side anticipated. It was expected to continue for well into the summer months.
Conlin and Hagstrom had told the jury in opening statements that they intended to present the case as a series of nine stories, but Conlin said Wednesday they hadn’t even completed the first story when the settlement was reached.
Both sides had told reporters at the outset that they fully expected a jury to decide the case. (Emphasis added)
The first paragraph quoted sounds more like the end of a hostage negotiation than a case of justice served. And indeed that’s what this jury was: hostages forcibly imprisoned by Conlin and the State of Iowaâ€”with the intent of keeping them indefinitelyâ€”in order to generate millions in fees for Conlin and her co-counsel. (Let’s remember that in class actions, the attorneys take a large percentage of the award, and individual class members generally receive a token award.)
Unlike many hostages, the jurors were compensated for their trouble, in the amount of ten dollars per day under Iowa law. That wouldn’t pay for an hourâ€”maybe not even ten minutesâ€”of billable time by Ms. Conlin or her attorney colleagues. Of course, attorneys operate in a semi-free market, while all jurors are conscripts. There is also no cost to attorneys for holding juries indefinitely. Witness Conlin’s statement that she hadn’t completed the first of her nine “storiesâ€ after holding the jury hostage for three months. If Conlin were forced to pay jurors (or a private arbitrator) market wages, you can bet she would have been more efficient with her storytelling.
Murray Rothbard, writing in chapter 12 of The Ethics of Liberty, made the argument against judicial hostage-taking (a.k.a. “jury dutyâ€) without reservation:
If no force may be used against a noncriminal, then the current system of compulsory jury duty must also be abolished. Just as conscription is a form of slavery, so too is compulsory jury duty. Precisely because being a juror is so important a service, the service must not be filled by resentful serfs. And how can any society call itself “libertarianâ€ that rests on a foundation of jury slavery? In the current system, the courts enslave jurors because they pay a daily wage so far below the market price that the inevitable shortage of jury labor has to be supplied by coercion. The problem is very much the same as the military draft, where the army pays far below the market wage for privates, cannot obtain the number of men they want at that wage, and then turns to conscription to supply the gap. Let the courts pay the market wage for jurors, and sufficient supply will be forthcoming.
There’s much debate within libertarian circles about the propriety of “jury nullificationâ€â€”a concept I fully supportâ€”when it comes to enforcing unconstitutional or unjust laws. But what about jurors ruling against a plaintiff whose complaint resulted in their own forcible imprisonment? For sure, many potential jurors can be excused from imprisonment simply by professing a bias or advocating nullification during voir dire, but what about jurors who are misled about the true nature of their confinement, as I’m guessing the Iowa Microsoft jury was? If civil juries routinely dismissed cases to protest their unjust imprisonment, it might discourage the sort of predatory lawsuits presented by attorneys like Roxanne Conlin, or at the very least encourage resolution by arbitration or other non-state method.