Critique of Elenanor Fox's working paper on local protectionism and the anti-monopoly law

This is a draft....

Critique of Elenanor Fox's paper on Anti-Monopoly Law

In thinking about the paper, I was struck at how complex the subject of local protectionism is and how it creates the interaction of various forms of law.

In particular discussions of local protectionism bring into focus two types of law that are not usually combined. In particular it sits at the intersection of commercial law and the law of governmental administration, which includes constitutional law in the case of national bodies, and public international law in the case of international organizations. Constitutional law becomes of extreme importance in discussions of local protectionism because the issue of local protectionism brings with it the question of how governmental bodies of different levels interact with each other as well as the question of how powers ought to be divided among different local organizations.

The issue of local protectionism also introduces with it questions of politics and economics which are not normally covered as part of law. Local protectionism introduces more complex interactions than most anti-trust laws. In most anti-trust situations, you have public actors acting on private actors. While private actors can attempt to influence the political and judicial process, the impact they have is indirect. By contrast with the issue of local protectionism one has different public actors influencing each other and this makes the political context much more complicated.

The issue of local protectionism also has more influence on economic structures than most other issues because of the interaction of public actors. In most pure anti-trust cases, the economic issues have been decided, and the political process has created a legal framework to implement economic issues that have been decided.

In essence you have in most anti-trust cases you have.

economic consensus -> political consensus -> implementation

However, because local protectionism involves the granting or withhold of powers to state actors, you have two way feedbacks, which make the actual situation look like this.

the economy <-> the political process <-> implementation of law

What this does is change the nature of the question a bit. In standard anti-trust law, one can get by with "thin conceptions" of the law because it is assumed that