What does Chevron deference have to do with the Appellate Body of the WTO?
Other than that administrative law and trade law are the two subjects that my students endure from me, the connection between Chevron v. NRDC and the GMO dispute between the United States and Europe is tenuous. Perhaps we can broadly characterize them as vectors through which the federal government vindicates its policies through judicial review – be it domestic and international. But perhaps not.
How often does the United States prevail in these fora?
Orin Kerr, a terrible writer, but a perspicacious empiricist, found that in 1995 and 1996 agency interpretations received Chevron deference 73% of the time in the courts of appeals (not online, but see 15 Yale J on Reg at 30). Now Cass Sunstein and Thomas Miles are at work on a larger study of Chevron deference over a longer period of time, involving three characteristic government agencies – and even if their results show less deference to the agency interpretation, the conventional wisdom is that there’s no way that the United States could lose before anybody more than they lose in the WTO.
But that’s not how the USTR calculates it. In its view, “the Administration’s record in WTO cases involving the United States is 13 wins and 10 losses in three and a half years, a 56% success rate. From 1995-2000, the U.S. record was 18 wins and 15 losses, a 54% success rate.”
Wins – or “wins,” as Joost Pauwelyn usefully reminds us – aren’t as hard to come by for fearsome American government litigators as one might think, no matter what the fora. I find the apples and oranges comparison interesting, although not rigorous.