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

THE WTO AND DEVELOPING NATIONS, G. Bermann, P. Mavroidis, eds., Cambridge University Press, 2007

Temple University Legal Studies Research Paper No. 2008-50

11 Pages Posted: 26 Feb 2008 Last revised: 4 Nov 2008

Jeffrey L. Dunoff

Temple University - James E. Beasley School of Law

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.

Keywords: WTO, GSP, developing states, international trade

Suggested Citation

Dunoff, Jeffrey L., When - and Why - Do Hard Cases Make Bad Law? The GSP Dispute. THE WTO AND DEVELOPING NATIONS, G. Bermann, P. Mavroidis, eds., Cambridge University Press, 2007; Temple University Legal Studies Research Paper No. 2008-50. Available at SSRN: https://ssrn.com/abstract=1097407

Jeffrey L. Dunoff (Contact Author)

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States
215-204-8233 (Phone)
215-204-1185 (Fax)

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