The Good Case: Decisions to Litigate at the World Trade Organization

This article draws upon the law-in-action, repeat players, and motive to understand how legal actors construct the "good case" in dispute settlement systems. The construction of "good cases" is examined at the World Trade Organization (WTO), a relatively new and unexplored site for the study of dispute settlement. Findings show that the good case encompasses flexible sets of motives including economic, political, and symbolic characteristics of trade grievances to mobilize WTO law. The flexibility is due to uncertainties associated with litigation, which are manifestations of four features of the WTO: the newness of the system, the organizational and legal structure of the dispute system, the context of the WTO as an intergovernmental agreement, and the persistence of inequality between states. Six variations of the good case are identified. This article examines the decision to initiate litigation in the dispute settlement mechanism of the World Trade Organization (WTO). Prior empirical research has focused on determinants of participation in WTO disputing but without full consideration of the social processes by which the decision to litigate is made. To the extent that these processes have been subject to study, scholars have presumed that initiation of a formal WTO dispute results from a cost-benefit analysis, and they have conceived of dispute initiation as a way to force "renegotiation" of a trade relationship, eliminate inefficiency caused by protectionist trade policies, and yield outcomes congruent with the quest to maximize national income (Bagwell & Staiger 1999; Bown 2004, 2005; Busch & Reinhardt 2003:722-3; Dunoff & Trachtman 1999). This approach strongly presumes the stability of preferences over time and across contexts, and that the decision to litigate originates primarily out of structural relationships, such as the volume of trade and diversity of trade partners (Horn et al. 1999), type of political regime (Busch & Reinhardt 2002, 2003; Davis & Bermeo 2005), gross domestic product (Busch & Reinhardt 2003), or litigation capacity (Bown 2005; Bown & Hoekman 2005; Davis & Bermeo 2005; Hoekman & Mavroidis 2000; Michalopoulos 1998). While recent efforts have sought to incorporate political dynamics into the study of WTO litigation, the empirical literature on WTO dispute settlement is fundamentally dominated by the presumption of market-based rationales. In contrast, this article adopts a sociolegal approach to understanding the practice of international law-in-action and critiques the market rationality of prior analyses. I argue for a socially based understanding of rational action that attends to the specific social context in which a decision is made. What are the conditions in which the decision to initiate a formal WTO dispute can be claimed as rational behavior? Edelman (2004) articulates this approach in her argument for providing greater attention to the social basis of legal rationality. Rational action is not simply responsive to social norms and institutions; rather, it is instituted through social interaction, culture and meaning-making, norms, and rituals. Institutionalized ideas about what is rational develop at the societal level in concert with institutionalized ideas about what is fair, what is legal, what is legitimate, and even what is scientifically or technically possible (2004:186). The reification of the concept of rationality has precluded thorough understanding of how its meaning is constructed in specific social contexts and institutionalized in norms, values, common sense, and law. To the degree that this construction requires struggle between competing social groups and their "common sense" notions of legitimacy, fairness, and other values and norms, the institutionalization of rationality is fundamentally power-laden (Edelman 2004; Epstein & Knight 2004; Weber 1947:124-32). The concept of motive provides a framework for examining the social meanings that produce rationalities and also for understanding how power struggles and inequalities are institutionalized in legal decisionmaking. …