DOJ

My civil procedure professor used to paraphrase Tom Lehrer's Smut : “When correctly viewed,” he said, “everything is outcome-determinative.” (The original said "lewd.")

The Department of Justice's proposed schedule for one case risked determining the outcome not only of the trial, but of Doug Parker's attempt to create the world's biggest airline . But today, Judge Colleen Kollar-Kotelly said she would not let that happen .

Judge Kollar-Kotelly has been assigned DOJ's antitrust challenge to the airlines’ merger. She has  a major criminal trial starting Jan. 14 . Since it would be difficult to begin one trial before the other has ended, she needed to schedule the antitrust trial soon enough to be complete by mid-January, or else postpone it till sometime around March, when the criminal trial is expected to be done.

The airlines proposed the first option, with a Nov. 12 trial date. The government argued for March.  The judge picked Nov. 25 .

But the merger agreement has a December deadline. Past that point, the airlines aren’t bound  to go through with it, and the longer they wait, the more business reasons may weigh in favor of cancellation. So delaying the case means jeopardizing the deal—which may be why the DOJ, which wants the deal canceled, wanted to do it. (DOJ said the parties need the time to prepare, but the airlines point out that DOJ has already had 16 months to assemble and analyze the evidence.)

For the airlines, extending the process into next year would have meant keeping their businesses in limbo. It would have meant not pursuing other plans that might conflict with the merger, even while not knowing whether the merger would be allowed to go through. For American, whose plan to emerge from bankruptcy now rests on the merger, it could even have meant remaining in bankruptcy for another half a year while waiting for legal clearance—not to mention any delay involved in finding another way out of bankruptcy should the government win the case.

There are good reasons to give criminal cases a special priority. But scheduling the merger case was only an issue at all because the government is trying to manage the economy through antitrust law . It’s only because of the morality of central planning that the man who wants to create the world’s largest airline is being delayed by the government even as long as it still will be.

And when correctly viewed, that is... indecent.

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