Law Commons^™

Competition And Regulation In The Insurance Sector: Reassessing The Mccarran-Ferguson Act, Susan Beth Farmer

Susan Beth Farmer

This article was presented at a symposium entitled “Public and Private: Are the Boundaries in Transition?” sponsored by the American Antitrust Institute on June 24, 2010. It proposes a different paradigm, which more precisely describes regulation and competition in the insurance sector. This relationship is the shifting boundary between state and federal regulation instead of a boundary between the public and private sectors. The McCarran-Ferguson Act was adopted to protect firms acting in the business of insurance from federal antitrust scrutiny, but its language and impact goes far beyond federal competition law. So broad is the exemption that the modern …

Application Of The Antitrust Laws To The Activities Of Insurance Companies: Heavier Risks, Expanded Coverage, And Greater Liability, Joseph Bauer, Earl W. Kintner, Michael J. Allen

Joseph P. Bauer

Since 1945 Congress has exempted certain activities of insurance companies from federal antitrust scrutiny. This exemption, provided by the McCarran-Ferguson Act, is not unqualified; it only applies to insurance company activities that constitute the "business of insurance" and that already are regulated under state law. Moreover, the exemption does not apply to activities that involve boycotts, coercion, or intimidation. The purpose of this exemption was to preserve the long tradition of state regulation of insurance, while providing federal remedies for coercive anticompetitive activities. The authors examine recent Supreme Court interpretations of the Act in light of this legislative policy and …

Competition And Regulation In The Insurance Sector: Reassessing The Mccarran-Ferguson Act, Susan Beth Farmer

Journal Articles

This article was presented at a symposium entitled “Public and Private: Are the Boundaries in Transition?” sponsored by the American Antitrust Institute on June 24, 2010. It proposes a different paradigm, which more precisely describes regulation and competition in the insurance sector. This relationship is the shifting boundary between state and federal regulation instead of a boundary between the public and private sectors. The McCarran-Ferguson Act was adopted to protect firms acting in the business of insurance from federal antitrust scrutiny, but its language and impact goes far beyond federal competition law. So broad is the exemption that the modern …

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

All Faculty Scholarship

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 v. …

A Single-License Approach To Regulating Insurance, Henry N. Butler, Larry E. Ribstein

Faculty Working Papers

State regulation of insurance companies has been criticized for many years because of the burden imposed on insurers by having to comply with the laws of many jurisdictions. These higher costs are passed on to consumers. The problems with the current regulatory structure are prompting calls for increased federal regulation of insurance. However, all proposals to federalize insurance regulation create opportunities for abuse at the hands of the federal government and fail to utilize the benefits of a federal system. This article shows how many of the problems of the current system can be addressed without resorting to a large …

Federalism And Antitrust Reform, Herbert J. Hovenkamp

All Faculty Scholarship

Currently the Antitrust Modernization Commission is considering numerous proposals for adjusting the relationship between federal antitrust authority and state regulation. This essay examines two areas that have produced a significant amount of state-federal conflict: state regulation of insurance and the state action immunity for general state regulation. It argues that no principle of efficiency, regulatory theory, or federalism justifies the McCarran-Ferguson Act, which creates an antitrust immunity for state regulation of insurance. What few benefits the Act confers could be fully realized by an appropriate interpretation of the state action doctrine. Second, the current formulation of the antitrust state action …

Application Of The Antitrust Laws To The Activities Of Insurance Companies: Heavier Risks, Expanded Coverage, And Greater Liability, Joseph Bauer, Earl W. Kintner, Michael J. Allen

Journal Articles

Since 1945 Congress has exempted certain activities of insurance companies from federal antitrust scrutiny. This exemption, provided by the McCarran-Ferguson Act, is not unqualified; it only applies to insurance company activities that constitute the "business of insurance" and that already are regulated under state law. Moreover, the exemption does not apply to activities that involve boycotts, coercion, or intimidation. The purpose of this exemption was to preserve the long tradition of state regulation of insurance, while providing federal remedies for coercive anticompetitive activities. The authors examine recent Supreme Court interpretations of the Act in light of this legislative policy and …

Bar-Related Title Insurance Companies: An Antitrust Analysis, H. Lee Roussel, Rod J. Pera, Moses K. Rosenberg

Villanova Law Review

No abstract provided.

The Mccarran-Ferguson Act: Expanding The Boycott Exception

Washington and Lee Law Review

No abstract provided.

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust-Section 2(b) of the Robinson-Patman Act Permits Seller To Use a Pricing System To Meet the Prices of Competing Goods of Equal Saleability

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Constitutional Law--First Amendment--State Legislature May Not Require Local School Boards To Lend Textbooks to Pupils of Parochial Schools

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Constitutional Law--Imports Shipped Directly to Dealer Under Consignment Contracts With the Importer Are Not Immune to State Taxation Under the Import-Export Clause

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Constitutional Law--Reapportionment--One Man-One Vote Principle Applies to Popularly Elected Local School Boards

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Criminal Law--Admissibility in Evidence of Blood Tests Over Defendant's Objection

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Criminal Law--Resentencing--Court Has Duty To Make Known Reasons for Increased …

Pups, Plants And Package Policies - Or The Insurance Antitrust Exemption Re-Examined, Richard A. Wiley

Villanova Law Review

No abstract provided.