15 Tul. J. Int'l & Comp. L. 465 (2006-2007)
Between Intensive Care and the Crematorium: Using the Standard of Review to Restore Balance to the WTO

handle is hein.journals/tulicl15 and id is 469 raw text is: Between Intensive Care and the Crematorium:
Using the Standard of Review to Restore
Balance to the WTO
Phoenix X.E Cai
This Article explores the issue of the appropnate standard of review in the WTO dispute
settlnementprocess The standard ofeview, whether de novo review, total deference, or somewhere
in betwee, is incredibly important in international adjudication because it is an expression of the
balance ofpower between sovereign nations and the WMU In recent yer, the standard of review
has received unprecedented political attention, particulady in the area of health and safety
regulations aid dumping (selling goods below fair market value), both of which am discussed in
detal in tis Article. This Article synthesizes three areas of law-US adminstrative law,
constitutdonal law, and WTOjurisprudence-to argue that the total deference model borrowed
firom the US Chevron Doctrine can not work in the W7O for a number of stuctural and policy
reasons. TisArticle first describes the WTO9 dispute settlement #-rnework and situatesChevron
within that framework Nex=4 it highlighta why some of the strongestjustifications for Chevron,
such as efficiency, coordination and democracy fal in the WTO context. TheAftcle then relies on
recent case law to demonsate that the WTO is ignoingChevron, despite the fact that it is required
by one of the WI0 agreements. TheArtile concludes by offering some explanations for why tis
is happening and suggests a finmewour  based on dormant commerce clause analysis, in which it
would be appropriate, if the domestic decision body had undertaken a least mstrictive means
anasis, for the WTO to give more deference than it currently does
I.    INTRODUCTION      ................................................................................. 466
II.   A BRIEF HISTORY OF THE WTO ....................................................... 470
A.    Dispute Settlement Understanding ........................................ 473
B.    History of Trade Dispute Settlement Procedures .................. 474
C The Dispute Settlement Undestanding Mending the
Leaky   R oof  ............................................................................. 478
IIL   STANDARDS OF REvIEw ................................................................... 483
A.    Standards ofReview Codfied in the GA7T/WTO .............. 483
B      Why a Chevron Model Is Inappropnate in the WT
Context .................................................................................... 490
C The Search fora New Comparative Model: Dormant
Commerce Clause Analysis .................................................... 494
*     Assistant Professor of Law, University of Denver Sturm College of Law. B.A.,
Washington University; J.D., U.C. Berkeley (Boalt Hall). I dedicate this Article to my parents,
Jian Bin Cai and Yu Lan Huang, for all that they have taught me. I would also like to thank my
colleagues at the University of Denver Sturm College of Law who provided helpful comments
and suggestions. Tamara Qureshi and Emily Robbins provided valuable research assistance. Any
errors in the Article are my responsibility.

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