Judicial Review in the United States and in the WTO : Some Similarities and Differences

Among international organizations, the World Trade Organization (WTO) is widely credited with having the most effective dispute settlement system. Its highly developed dispute settlement system, which is one of the few in international law to include a standing appellate body, invites comparisons to the institution of judicial review in the United States under the paradigm of Marbury v. Madison. Such a comparison yields insights about both the WTO dispute settlement system and Marbury-style judicial review. This article first notes an important parallel between the two systems: like the WTO, judicial review in the United States began as the refinement of a flawed treaty-based system. After describing how the two institutions developed from flawed treaty regimes, this article examines some important structural differences between how the two institutions exercise “judicial review," as well as one feature of the WTO that is sometimes thought to distinguish it from other legal regimes, but in fact does not. The article concludes with some reflections on what the differences between the two systems tell us about the necessary elements of an effective legal system