Issue 2

Rule-Based Dispute Resolution in International Law

This Essay examines why the United States government demanded a more rule-based dispute settlement system in the World Trade Organization (“WTO”). American support for a trade court limiting its international bargaining power is puzzling, particularly given the United States’ general resistance to international courts and obvious advantage in a negotiation-based system. Access to the United States’ market is one of the primary benefits of membership in the WTO and, by limiting access to its market, the United States can resolve trading disputes on favorable terms. Why would the United States give up this flexibility in favor of a strong international court?

This Essay addresses both the puzzle of the United States’ preference for rule-based dispute resolution and the broader implications for international law. It argues that the WTO system strengthens the President’s hand in trade policy negotiations with Congress. The United States’ preference – or more specifically, the President’s preference – for a rule-based system derives, in part, from the President’s efforts to gain greater control over trade policy at the national level. A trade court imposes an international constraint that actually increases the President’s power over lawmaking at home. The Essay then turns to the broader implications for international law. It shows how domestic actors, such as the President, may use international law to try to change domestic politics. International law influences state interests by shifting bargaining power among different players within the government and thereby changing the outcome of domestic politics.

Chevron Step Zero

The most famous case in administrative law, Chevron U.S.A. v. Natural Resources Defense Council, Inc., has come to be seen as a counter-Marbury, or even a McCulloch v. Maryland, for the administrative state. But in the last period, new debates have broken out over Chevron Step Zero — the initial inquiry into whether Chevron applies at all. These debates are the contemporary location of a longstanding dispute between Justice Scalia and Justice Breyer over whether Chevron is a revolutionary decision, establishing an across-the-board rule, or instead a mere synthesis of preexisting law, inviting a case-by-case inquiry into congressional instructions on the deference question. In the last decade, Justice Breyer’s case-by-case view has enjoyed significant victories. Two trilogies of cases — one explicitly directed to the Step Zero question, another implicitly so directed — suggest that the Chevron framework may not apply (a) to agency decisions not preceded by formal procedures and (b) to agency decisions that involve large-scale questions about agency authority. Both of these trilogies threaten to unsettle the Chevron framework, and to do so in a way that produces unnecessary complexity for judicial review and damaging results for regulatory law. These problems can be reduced through two steps. First, courts should adopt a broader understanding of Chevron’s scope. Second, courts should acknowledge that the argument for Chevron deference is strengthened, not weakened, when major questions of statutory structure are involved. 

Reviewing Premarital Agreements to Protect the State’s Interest in Marriage

Courts and commentators have struggled with the question of whether substantive review of premarital agreements is necessary and, if so, why. Those who eschew substantive review generally equate it with legal paternalism. To the extent that the justification for substantive review rests on notions of cognitive limitations and bounded rationality, it is subject to the criticisms of legal paternalism in general.

Stronger support for substantive review can be found in notions of the public interest in marriage. Furthermore, a focus on the state’s interest in marriage would enable lawmakers to more narrowly tailor the scope of review to protect that interest without unnecessarily infringing on the freedom to contract. The question of the state’s interest in marriage can be defined prospectively and in more concrete terms than the question of whether the parties made a rational decision.

This Note begins by reviewing the historical and current status of premarital agreements concerning the division of property and provision of support following divorce. An analysis of recent court decisions and legislation reveals the extent to which the law continues to monitor the substantive fairness of premarital agreements. Next, the Note examines the arguments for and against paternalism in the premarital context by reviewing recent scholarship on behavioral decision theory. It concludes that procedural safeguards can adequately protect against irrational decisionmaking. Finally, the Note looks at the state’s interest in marriage, how premarital agreements implicate that interest, and ways to efficiently protect that interest.

©Virginia Law Review Association. All rights reserved.