(This is a partial excerpt of an article previously published in Bloomberg Insurance Law Report available here.)

The Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act)1 is the latest development in the ongoing saga of state versus federal regulation of insurance. Unlike other major industries, insurance is still primarily and almost exclusively regulated by the states – and the states have long been vigilant about keeping it that way.  There is no insurance equivalent of a national bank, and an insurer seeking to do business in all 50 states and the District of Columbia must apply for and obtain 51 separate licenses, and thereafter comply with myriad specific laws and regulations of each of those 51 jurisdictions. Critics of state regulation include foreign insurers, who see it as a trade barrier, large commercial insurance buyers, who see it as a complicating and unnecessary cost factor in their risk management programs, and insurers who must maintain robust compliance departments and budgets. On the other hand, proponents of state regulation can point to relatively few insurance company insolvencies on a historic basis, a wellfunctioning insurance delivery system, and meaningful consumer protection.