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University of Pennsylvania Carey Law School

State and Local Government Law

2010

Insurance

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The Insurance Industry's Antitrust Immunity, Herbert J. Hovenkamp Jan 2010

The Insurance Industry's Antitrust Immunity, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The 1945 McCarran-Ferguson Act provides that federal legislation generally, including the antitrust laws, is “applicable to the business of insurance [only] to the extent that such business is not regulated by State law.” The statute was enacted after United States v. South Eastern Underwriters Assn. (1944), held that insurance transactions were “interstate commerce” and thus subject to the antitrust laws. That case had in turn undermined the traditional view expressed in Paul v. Virginia (1868), that insurance was not interstate commerce, but strictly local transactions. The South Eastern case followed in turn upon the Supreme Court's decision in Wickard ...