When - and Why - Do Hard Cases Make Bad Law? The GSP Dispute

Abstract:     
Hard cases, Holmes famously declared, make bad law. But what makes a case hard? Do hard cases necessarily generate bad law? What strategies can courts use to minimize the likelihood of generating bad law?

There is widespread agreement that India's challenge to the EC's generalized system of preferences (GSP) presented the WTO's Appellate Body with a hard case. This short essay (i) discusses why conventional legal, economic and policy analysis are of only limited utility in explaining why the GSP case was so difficult, and in evaluating the Appellate Body's decision; (ii) addresses the appropriate role of the Appellate Body in difficult cases; and (iii) advances a rather unconventional explanation for why the GSP dispute was so difficult.

Number of Pages in PDF File: 11

Keywords: WTO, GSP, developing states, international trade

Accepted Paper Series