The basic inquiries in legal proceedings are what happened and why. The evolution of legal systems is the story of efforts to devise better ways of answering these questions. Trial by jury may not provide answers we can accept with absolute confidence, but the use of peers chosen from the community to listen to and evaluate evidence germane to these inquiries seems eminently preferable to trial by combat or trial by ordeal as a mechanism for ascertaining truth.

In recent years, methods of ascertaining what happened and why in international trade cases have been debated, partly on grounds of their accuracy (ability to discern the truth) and partly on grounds of their fidelity to law (whether they ask the right question). This debate has been especially intense in respect to determinations of the U.S. International Trade Commission (ITC), which is charged with administering the “injury test” under the U.S. antidumping and countervailing duty laws.

Two different inquiries are required by these laws. The International Trade Administration of the Department of Commerce (ITA) must determine whether the imports under investigation embody an “unfair trade practice” – whether they are sold into the United States at “less than fair value” (dumped) or are unfairly subsidized – a what happened question.

The ITC must decide whether the complaining U.S. industry is materially injured “by reason of” sales of such unfairly priced or unfairly subsidized imports (both a what happened and a why inquiry).