The World Trading System, the International Legal System and Multilevel Choice

Abstract:  This article develops a theory of multilevel choice of regulatory jurisdiction based on normative individualism, and suggests how certain features of the World Trade Organization (WTO) might be understood in terms of this theory. The WTO has some capacity for positive integration, as demonstrated in, for example, the harmonised minimum standards for intellectual property protection contained in the TRIPS agreement. Yet the WTO has generally not been used as a site for re-regulation in areas congruent with its de-regulation. However, in a limited way, and in particular contexts, it provides certain incentives for re-regulation at other sites. For example, both the SPS Agreement and the TBT Agreement encourage the formation of harmonised rules. These agreements require Member States to use international standards as a basis for their measures, with important exceptions.     

Regulatory Jurisdiction and the WTO

The WTO is not explicitly concerned with the problem of regulatoryjurisdiction in connection with prudential regulation (as opposedto industrial policy regulation). However, as the WTO has addressedincreasingly complex regulatory barriers to trade, it has developedseveral devices that have the implicit effect of allocatingregulatory jurisdiction among states.This article reviews afew illustrative cases in WTO law, including Helms–Burton,Shrimp, and Gambling. This review suggests how these cases maybe understood as dealing with allocation of regulatory jurisdiction.Negative integration rules such as national treatment or proportionalitymay serve as devices applied by tribunals for allocation ofregulatory authority. The WTO has very limited rules of positiveintegration—whereby states either harmonize regulationor agree on more specific allocations of regulatory authority,such as mutual recognition. However, it has developed a modestdegree of capacity to engage in positive regulation, or to referto positive integration rules developed in other contexts, suchas Codex Alimentarius. Finally, this article examines theoreticalbases for allocating and reallocating regulatory jurisdictionin order to establish a framework by which to analyse the roleof the WTO in this context.     

State Policy and National Representation: Marijuana Politics in American Federalism

Members of Congress represent geographically demarcated districts embedded in subnational policy environments. Drawing on policy feedback literature and literature on congressional representation, I argue that, because of this institutional configuration, subnational policy adoption can affect national representation. More specifically, policy reforms in the states they represent can increase pressures members face from organized groups and individuals in their constituencies to promote aligned federal policies. Empirically, I examine the effects of state marijuana legalization. The inferential design leverages differences across the states in statewide citizen initiative institutions, which provides exogenous variation in legalization. Instrumental variables analysis indicates legalization influenced pro-marijuana bill sponsorship and roll calls in the 116th Congress. The evidence points to growing influence of industry in legalizing states—including the ability to mobilize employees and customers—as the key mechanism, thus underscoring the importance of a political economy perspective for studying interdependencies in American federalism.