An Autopsy of the Appellate Body: International Legal Theory on the Demise of the Rule of Law at the WTO

Once the “crown jewel” of the World Trade Organization (“WTO”), the Appellate Body wielded compulsory jurisdiction over more countries and more agreements than any other international tribunal in history. But it met its demise in 2019, after the United States (“U.S.”) blocked all new judicial appointments and left the Body without a quorum. This Article conducts an autopsy of the Appellate Body, using the tools of international legal theory to better understand its demise, and the demise of the rule of law at the WTO more generally. I examine the Body’s death through five different legal theories: the Rationalist theories of Realism, Liberalism, and Regime Theory; and the Constructivist theories of Managerialism and Transnational Legal Process. I find that no one theory provides a full explanation for the Appellate Body’s downfall, but that by considering various theories together we can develop a more complete understanding of the U.S.’s motive and the Body’s true cause of death. As this Article elaborates, Realism and Liberalism suggest that the U.S. attacked the Appellate Body because domestic, international, and legal developments made the U.S.’s compliance with the Body’s decisions untenable—politically and geopolitically. Regime Theory suggests that the U.S. chose its method of attack because it judged it would suffer fewer reputational costs from destroying the Body than from defying it. And Transnational Legal Process suggests that the reason the U.S. made that remarkable judgment was that WTO members had been acculturated to value formal compliance with the rules of the game more than the cooperative diplomacy that stands behind them. This novel account of the Appellate Body’s demise leads to a host of insights into international law and international trade law. Above all, it highlights the power and limitations of international law, the complementary nature of international legal theories, the highly formalistic culture of international trade law, and the productive and destructive force of legal formalism. I draw on those insights to offer three strategies for enhancing the resilience of our international institutions during this era of great upheaval, and for, perhaps, reviving WTO dispute settlement in the next.