International Judicial Lawmaking: A Theoretical and Political Analysis of the WTO Appellate Body

Abstract

Economic liberalization not only requires rules goveming economic exchange (such as multilateral trade agreements), but also institutions (such as courts) goveming how rules are enforced. However, once courts are established to govem economic exchange, they tend to expand their competence to political and social policy. Political scientists have used this theoretical framework to explain the evolution of national (for example the U.S. Supreme Court) and quasi-intemational (for example the European Court of Justice) judicial institutions. In this article, I explain how this model can be extended to a truly intemational "judicial" institution, the WTO's Appellate Body. The thesis of this article is that the Appellate Body has followed the process predicted by political science by using its institutional independence to develop doctrine that has spilled over to political and social policy areas.