An Empirical Examination of Product and Litigant-Specific Theories for the Divergence between NAFTA Chapter 19 and U.S. Judicial Review

Journal of World Trade, Vol. 42, No. 4, pp. 691-722, 2008

2nd Annual Conference on Empirical Legal Studies Paper

36 Pages Posted: 5 Jul 2007 Last revised: 7 Oct 2008

Juscelino F. Colares

Case Western Reserve University School of Law

Date Written: September 17, 2008

Abstract

Empirical analysis of NAFTA panel review has shown that panels reverse US agency trade remedy determinations twice as often as US courts. Recent studies have eliminated case selection and other hypotheses as potential explanations for this divergence. In this article, Probit regressions show that case docket differences, such as type of import or litigant identity, also cannot account for this discrepancy. As NAFTA panels must apply the same law and standards of review as the US courts they replace, this divergence presents serious questions regarding US Congressional acquiescence to the operation of NAFTA panels and encourages discussion of the role or absence of popular preferences in the trade policy process.

Keywords: empirical, international trade, NAFTA Chapter 19 panels, judicial review, divergence, asymmetric decisions, trade remedies, AD/CVD law, agency determinations, deference, public choice, capture, trade liberalization

JEL Classification: F13, F53, F55, K33

Suggested Citation

Colares, Juscelino F., An Empirical Examination of Product and Litigant-Specific Theories for the Divergence between NAFTA Chapter 19 and U.S. Judicial Review (September 17, 2008). Journal of World Trade, Vol. 42, No. 4, pp. 691-722, 2008; 2nd Annual Conference on Empirical Legal Studies Paper. Available at SSRN: https://ssrn.com/abstract=997949 or http://dx.doi.org/10.2139/ssrn.997949

Juscelino F. Colares (Contact Author)

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States

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