Judicial Review in the United States and in the Wto: Some Similarities and Differences

I. INTRODUCTION Among international organizations, the World Trade Organization (WTO) is widely credited with having the most effective dispute settlement system. Its highly developed dispute settlement system, which is one of the few in international law to include a standing appellate body, invites comparisons to the institution of judicial review in the United States under the paradigm of Marbury v. Madison.1 Such a comparison yields insights about both the WTO dispute settlement system and Marbury-siyle judicial review. This Article first notes an important parallel between the two systems: like the WTO, judicial review in the United States began as the refinement of a flawed treaty-based system. After describing how the two institutions developed from flawed treaty regimes, this Article examines some important structural differences between how the two institutions exercise "judicial review," as well as one feature of the WTO that is sometimes thought to distinguish it from other legal regimes, but in fact does not. The Article concludes with some reflections on what the differences between the two systems tell us about the necessary elements of an effective legal system. II. JUDICIAL REVIEW IN THE UNITED STATES AND THE WTO AS THE REFINEMENT OF FLAWED TREATY-BASED REGIMES A. The Treaty-Based Origins of Judicial Review in the United States The Articles of Confederation (Articles)-the constitutive document in force in the United States between independence and the adoption of the Constitution-were basically a treaty among the thirteen states. The Articles operated on the states as political bodies, and not directly on the individuals in the states. They imposed obligations on the states, but lacked a mechanism for enforcing those obligations. In enumerating the flaws of the Articles, the framers of the Constitution compared the Articles to a "mere Treaty" because they depended on the good faith of the parties for their efficacy.2 The states failed to meet their federal obligations, however, and the federal government lacked the power to compel them to comply. Their experience under the Articles convinced the framers that a government comprised of separate states could not depend on "good faith" to secure the states' compliance with their federal obligations.3 To address this problem, the framers replaced the Articles' treaty regime with a true federal government. Their most important modification of the treaty regime was to empower the federal government to direct its legislation to the individuals in the nation.4 The federal government was given the power to regulate commerce among the states and with foreign nations, among other legislative powers, and to tax the people to provide for the general welfare.5 The federal government would no longer depend on the states to provide it with necessary funds or to implement and enforce federal directives. The Constitution operated directly on individuals, and could be enforced through the courts.6 The Constitution also provided for federal courts, establishing a Supreme Court to review decisions of state courts regarding federal law, and granting Congress the power to establish lower federal courts.7 The Constitution imposed certain obligations directly on the states, such as the prohibition of ex post facto laws and bills of attainder.8 To ensure compliance with federal obligations, the federal courts were given jurisdiction in cases arising under federal law.9 Some of the framers were worried that the new federal government would become too powerful, usurping powers not delegated to it and eventually obliterating the state governments.10 The framers adopted certain safeguards to prevent such an eventuality. Prominent among them was the institution of judicial review. If the federal government exceeded its legislative powers, the framers assured skeptics, the courts would refuse to enforce the non-conforming legislative acts, thus protecting the citizenry and the states from the federal government's expansive tendencies. …