The Political Economy of International Trade Law: Essays in Honor of Robert E. Hudec

By Daniel L. M. Kennedy; James D. Southwick | Go to book overview

COMMENT
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

____________________
1
Agreement on the Application of Sanitary and Phytosanitary Measures, GATT doc. MTN/FA II-A1A-4 (Dec. 15, 1993), in Final Act Embodying the Result of the Uruguay Road of Multilateral Trade Negotiations, GATT doc. MTN/FA (Dec. 15, 1993), 33 I. L. M. 9 (1994).
2
For a helpful overview, see Steve Charnovitz, The Supervision of Health and Biosafety Regulation by World Trade Rules, 13 Tulane Envtl. L. J. 271 (2000). The three appellate decisions are ECMeasures Concerning Meat and Meat Products, Report of the Appellate Body, WTO docs. WT/DS26/AB/R, WT/DS48/AB/R (Jan. 16, 1998); AustraliaMeasures Affecting Importation of Salmon, Report of the Appellate Body, WTO doc. WT/DS18/AB/R (Oct. 20, 1998); and JapanMeasures Affecting Agricultural Products, Appellate Body Report, WTO doc. WT/DS76/AB/R (Feb. 22, 1999) [hereinafter referred to as Hormones, Salmon, and Japanese Agriculture, respectively].
3
International Trade Policy and Domestic Food Safety Regulation: The Case for Substantial Deference by the WTO Dispute Settlement Body under the SPS Agreement, this volume supra at pp. 537–574. In order to limit the number of footnotes, references to their essay will take the form of parenthetical page citations.
4
Carol M. Rose, Crystals and Mud in Property Law, 40 Stanford L. Rev. 577 (1988).

-575-

Notes for this page

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this book

This book has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this book

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this page

Cited page

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited page

Bookmark this page
The Political Economy of International Trade Law: Essays in Honor of Robert E. Hudec
Table of contents

Table of contents

Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this book

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
/ 696

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.