Misuse and abuse of the Tunney Act: the adverse consequences of the microsoft fallacies

There have been two Microsoft cases leading to final judgements. Throughout the Tunney Act processes in both cases, however, there was little discussion regarding the standards of judicial review that should apply in a Tunney Act consent decree proceeding where no litigation has taken place. There was also little examination of whether the Tunney Act is the appropriate tool for a case in which there has been litigation, findings of fact or conclusions of law, and more than one appeal. Regarding the government's first case against Microsoft, this article will argue that the court used an inappropriate standard of judicial review for proceedings under the Tunney Act. Regarding the second case against Microsoft, this article will contend that the Tunney Act was misused because it was applied in circumstances where Congress did not intend for it to be applied.