A Response to Professor Huang

by Salil Mehra and Meng Yanbei

We appreciate Professor Huang’s comments, especially his praise, of course. We probably do not differ with his view that much. We do not believe that the AML will easily become effective – its enforcement in many areas is likely to suffer setbacks, given the looming turf battles that the AML Enforcement Agency (AMLEA) is likely to have with existing economic regulators. Of course, whether the AML can be directly enforced is an important question. Having just heard FTC Chairman Kovacic talk at the AALS Meeting about how, for all antitrust agencies, and especially new ones, enforcement is a constant balancing act between building political capital with some cases and spending it on others, this is going to be an especially tricky task for the AMLEA. This challenge is probably what Professor Huang refers to in invoking the economic regulation heritage in China.

That said, the mainstay of our argument is that what Professor Huang refers to as symbolic enforcement can actually become self-enforcement. As we argue, especially with respect to local and regional monopolies, if it makes sense to move towards a cooperative equilibrium of freer internal trade, the AML could help spark the move to that equilibrium, much like free trade agreements do internationally, even in the absence of strong enforcement. And information about costs of trade restraints, again even in the absence of strong enforcement, can help create an understanding of the value of competition. If Professor Huang is correct that the AML is destined to be a transitional law, catalyzing stronger support for competition could assist a future competition law successor to the AML.

http://opiniojuris.org/2009/01/28/a-response-to-professor-huang/

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