The case against clarity
DANIEL A. FARBER
A recent innovation in GATT/WTO law, the SPS Agreement, limits the use of food safety and agricultural inspection laws against imports.1 The SPS agreement has already given rise to several decisions of the WTO's Appellate Body, not to mention substantial public controversy.2 In a welcome effort to illuminate the vexing problems in this area, Michael Trebilcock and Julie Soloway provide a sensitive analysisofthepoliciesatissueandprovideasetofrulesforassessingSPSmeasures.3 Their goal is to replace the opaque standards currently used by the Appellate Body with more sharply defined rules.
If we are to have clear-cut rules in this area, there is much to recommend those proposed by Trebilcock and Soloway in their contribution to this volume. In particular, they aptly stress the need for the WTO to respect good faith regulatory efforts rather than attempting to second-guess their wisdom. But some aspects of trade law may not lend themselves to clear-cut rules. To borrow a phrase from a leading theorist of property law,4 trade law may be doomed to combine crystals and mud– clear rules on some subjects but murky standards on others. For this reason, the specific rules proposed by Trebilcock and Soloway may prove less useful than their general insights.
Part I of this comment sketches the Trebilcock and Soloway proposal and compares it with the views of the Appellate Body. The most notable difference seems to be the Appellate Body's reluctance to embrace the kind of clear rules championed by Trebilcock and Soloway. But clear rules may fail to deliver their promised____________________