Goldstein and Steinberg argue that the World Trade Organization Appellate Body has been able to use its authority to engage in judicial lawmaking to reduce trade barriers in ways that would not otherwise have been possible through negotiation. This lawmaking authority was not the result of a purposeful delegation; rather, it was an unintended byproduct of the creation of an underspecified set of rules and procedures. There is nevertheless a high rate of compliance with Appellate Body decisions because decentralized enforcement can induce domestic importers to lobby for trade liberalization. In the US, this judicial lawmaking may also allow the President to achieve trade policies that are more liberal than those desired by Congress, if compliance can be achieved by a regulatory change or by sole Executive action.
Judith L. Goldstein & Richard H. Steinberg,
Negotiate or Litigate? Effects of WTO Judicial Delegation on U.S. Trade Politics,
71 Law and Contemporary Problems
Available at: http://scholarship.law.duke.edu/lcp/vol71/iss1/10