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Abstract:
In the early years of the GATT/WTO regime, trade regulation occurred through a negotiated legislative process associated with trade rounds. Over the last fifteen years, however, the focus of GATT/WTO trade regulation has moved to the judicial process. GATT negotiations, reliant on reciprocity between big territories, non-reciprocity for developing countries, and the extension of Most Favored Nation status to all, created a regulatory system that substantially liberalized trade, but also enabled some powerful protectionist sectors to remain entrenched in industrialized countries. Since conclusion of the Uruguay Round, the decline in non-reciprocity for developing countries has catalyzed legislative gridlock at the GATT/WTO, reflected in the current Doha Round impasse. The failure of the Ministerial negotiating process has opened up space for public sector entrepreneurs - the Appellate Body - to push for regulatory change. The same divisions that have undermined trade talks have made it increasingly difficult for the membership to provide a check on judicial lawmaking. The result is that we are entering a period of "judicial liberalization" at the WTO, led by the Appellate Body.

GATT, WTO, international regulation, judicial lawmaking, judicial liberalization, Appellate Body, dispute settlement, reciprocity

Abstract:
This article argues that the Appellate Body of the World Trade Organization has engaged in substantial lawmaking since its inception and that, in many circumstances, decisions rendered by court-like bodies in the WTO are adhered to even when the same policy would not gain support in multilateral negotiations. The emergence of judicial lawmaking at the WTO is due to largely to the decline of non-reciprocity in the regime, which has catalyzed North-South deadlock in the legislative process. As the prospects for broad legislative rule-making have declined, judicial lawmaking has become more common. Judicial lawmaking is consequential only if the powerful members of the WTO choose to adhere to judicial rulings. To explain adherence, we offer a model of decision-making in the United States and suggest that, in a number of circumstances, the President and Congress find compliance with international court decisions to be in their interest, resulting in trade opening that would not have resulted from ministerial negotiations.

WTO, judicial law-making, international court decisions, U.S. Trade Politics

Abstract:
This paper investigates the historical impact of party and constituency preferences on tariff votes from the U.S. Senate over the period 1883 to 1930. We find that the estimated effect of party grows during periods in which legislative institutions favored strong parties. We conclude that party has a causal effect on policy. If party serves solely as a proxy for unmeasured components of personal ideology or constituency preferences, then the estimated effect of party on policy outcomes should not vary contemporaneously with changes in legislative institutions. But if party has an independent causal impact on policy outcomes, then changes in institutions favoring strong parties should lead to a greater effect of party on voting behavior, holding constituency preferences constant. Although our findings are limited to votes over tariffs in the nineteenth and early twentieth centuries, they suggest that further research into the mechanism by which party affects political decision-making is important.