La Gestión de la Calidad Se acaba de ver que entre el modelo de control y el de aseguramiento existe una línea de evolución que va del primero al

For two reasons, general theories of regulation and administrative process, although helpful in understanding and assessing insurance regulation, provide no firm basis for either supporting or opposing re- tention of the current system of state regulation. First, the literature focuses on federal rather than state regulation, typically examining the relationships between and among Congress, the President, fed- eral regulatory agencies, regulated industries, and the public. To the extent that the structure of state government parallels that of the federal government, the literature provides some useful analogies. However, insurance regulation occurs not merely through the activi- ties of individual state regulatory agencies, but also through the ef- forts of the NAIC. This is the second reason that general theories of regulation cannot be immediately applied to assess insurance regula- tion. As general theories, they cannot take into account the unique structures of insurance regulation in which a private, nongovern- mental body composed of state government officials both performs central regulatory functions and attempts, at the individual state legislative and administrative levels, to implement joint decisions on regulatory issues.

The substantial body of literature developed in the last decade dealing with the phenomenon of the “private legislature”253 _{in the}

253. See, e.g., Peter A. Alces & David Frisch, Commenting on “Purpose” in the Uniform Commercial Code, 58 OHIO STATE L.J. 419, 441-47 (1997) (noting the prominence of the Permanent Editorial Board and the National Conference of Commissioners on Uniform State Laws (NCCUSL) in the drafting and revision of the Uniform Commercial Code (U.C.C.)); Kathleen Patchel, Interest Group Politics, Federalism, and the Uniform Laws Process: Some Lessons from the Uniform Commercial Code,78 MINN. L. REV. 83, 145-55 (1993) (arguing that due to a lack of political accountability, the NCCUSL and the Ameri- can Law Institute (ALI) have not been adequately conscious of consumer interest in revis- ing the U.C.C.); Larry E. Ribstein & Bruce H. Kobayashi, An Economic Analysis of Uni- form State Laws, 25 J. LEGAL STUD. 131, 142-46 (1996) (arguing that the NCCUSL suc- cessfully lobbies for uniform state laws that are adopted because they are subject to inter- est group influence); Steven L. Schwarcz, A Fundamental Inquiry into the Statutory Rule- making Process of Private Legislatures, 29 GA. L. REV. 909, 917-21 (1995) (identifying a va- riety of flaws in the rulemaking process used to update the U.C.C.); Alan Schwartz & Rob-

context of uniform law revision provides some useful insight into the issues raised by the NAIC’s role in drafting model insurance laws and regulations, but its analytical utility is similarly limited. The NAIC’s model law drafting function is similar to that of the National Conference of Commissioners on Uniform State Laws (NCCUSL),254

which creates model laws, and the American Law Institute (ALI),255

which drafts restatements of the law and assists with drafting the Uniform Commercial Code. However, the significant differences be- tween bodies such as NCCUSL, the ALI, and the NAIC preclude di- rect application of the “private legislature” analysis to the NAIC. First, the members of ALI and NCCUSL are private individuals— lawyers, academics, and judges—who devote some of their time to working to improve the law. The NAIC membership is composed of state officials with regulatory powers and responsibilities in their re- spective states, who may also wield substantial influence in their own state’s legislatures and who are individually accountable to their governors, or in some cases, to the electorate. Second, unlike the NCCUSL and the ALI, the NAIC performs substantial and important regulatory functions in addition to the drafting of model laws.

Scholarly writing on insurance regulation generally supports state regulation of insurance but fails to account fully for the NAIC’s cen- tralizing and enabling role in the state system. In the 1960s, Spencer L. Kimball wrote on the purposes of insurance regulation in well- regarded articles256 _{and a book. He examined the processes of state}

regulation and concluded that state regulation is appropriate, but he did not address the NAIC in any detail. Kenneth J. Meier produced ert E. Scott, The Political Economy of Private Legislatures, 143 U. PA. L. REV. 595, 650-52 (1995) (concluding that a variety of institutional factors drive the uniform legislation drafted by the ALI and the NCCUSL); Robert E. Scott, The Politics of Article 9, 80 VA. L. REV. 1783, 1813-15 (1994) (arguing that the average private legislative member does not have as strong a preference for revision as do members of drafting committees and study groups).

254. The NCCUSL consists of more than 200 commissioners (approximately four from each state) appointed by the governors of their states for three-year renewable terms. Its members are practitioners, academics, and judges. Appointments are typically renewed and the appointments are nonpolitical. NCCUSL creates uniform laws for recommendation to state legislatures for adoption. It is supported by state taxes and contributions by the ABA and others. See NATIONAL CONFERENCE OF COMMISSIONERS, A 100 YEAR TRADITION OF EXCELLENCE: THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE

LAWS (1991).

255. The ALI is a private law reform group that creates the Restatements of Law and works with NCCUSL in drafting and revising the U.C.C.. It chooses its own membership, which includes practicing lawyers, academics, and judges. See generallySymposium on the American Law Institute: Process, Partnership, and the Restatements of Law, 26 HOFSTRA L. REV. 576 (1998).

256. See generally INSURANCE, GOVERNMENT, AND SOCIAL POLICY: STUDIES IN

INSURANCE REGULATION (Spencer L. Kimball & Herbert S. Denenberg eds., 1969); Spencer L. Kimball, Introduction: Unfinished Business in Insurance Regulation, 1969 WIS. L. REV. 1019; Spencer L. Kimball, The Purpose of Insurance Regulation: A Preliminary Inquiry In the Theory of Insurance Law, 45 MINN. L. REV. 471 (1961).

an award-winning analysis of the politics of insurance regulation in 1988.257 _{The book is a response to interest-group theories of regula-}

tion first articulated in the 1970s,258 _{and concludes, contrary to the}

claims of those theories, that insurance regulation is not dominated by the industry. Meier articulates two basic reasons for his conclu- sion: the size and diversity of the industry itself suggests that mono- lithic industry domination is unlikely, and the dispersion of regula- tory authority among the states (and to a much lesser extent, the federal government) suggests that domination would be very diffi- cult. Both factors, in Meier’s assessment, make interest-group domi- nation unlikely. As this Article has demonstrated, the NAIC’s role as a central regulatory body significantly undercuts Meier’s reasoning. The history of the NAIC and, in particular, its continuing failure to enhance market conduct regulation or adopt market conduct accredi- tation standards demonstrates that the industry has utilized its power jointly to influence and even direct the NAIC’s actions. Fi- nally, in their important analysis of insurance regulation, Jonathan R. Macey and Geoffrey P. Miller conclude that insurance regulation is not subject to systematic bias in favor of either the industry or consumers and that federal regulation is thus not necessary to cor- rect problems in the state regulatory structure.259 _{Although federal}

regulation may not be necessary to guarantee effective regulation of the insurance industry, the history of the NAIC suggests, contrary to Macey and Miller’s conclusions, a systematic bias in favor of the in- dustry.260

In short, the literature, although illuminating in many ways, is critically flawed by its insufficient recognition of the important and often enabling role of the NAIC in the system of insurance regulation and the opportunities for industry participation in and control of the NAIC’s functions.261

257. See KENNETH J. MEIER, THE POLITICAL ECONOMY OF REGULATION: THE CASE OF

INSURANCE (1988).

258. See George J. Stigler, The Theory of Economic Regulation, 2 BELL J. ECON. & MGMT. SCI. 3 (1971).

259. See MACEY & MILLER, supra note 249, at 41-44; Jonathan R. Macey & Geoffrey P. Miller, The McCarran-Ferguson Act of 1945: Reconceiving the Federal Role in Insurance Regulation, 68 N.Y.U. L. REV. 13, 40-43 (1993).

260. Seeinfra Part IV.C.2. At the very least, the structure of the NAIC facilitates in- dustry participation in and potential control over the content of various regulations; whether the NAIC has been controlled by the industry may be subject to debate, but it is clear that the potential for such control exists and has been exercised on at least some oc- casions.

261. Other works on insurance regulation take little notice of the NAIC’s pivotal role. See, e.g., DOUGLAS CADDY, LEGISLATIVE TRENDS IN INSURANCE REGULATION (1986); PETER

M. LENCSIS, INSURANCE REGULATION IN THE UNITED STATES: AN OVERVIEW FOR BUSINESS AND GOVERNMENT (1997); MCDOWELL, supra note 4.

C. Interest Groups