Now, I should say that I am one of the “urban drivers” whose rates could very well go up under competition unless regulations aimed at protecting urbanites prevent an increase. I should also say that I don’t see any grave problem with our current regulated system. Politically speaking, in other words, I suppose I’m opposed to a change.
That being said, what is the law on this question? The law permits the Commissioner to fix rates only if she affirmatively determines that
with respect to any territory or to any kind, subdivision or class of insurance, competition is either (i) insufficient to assure that rates will not be excessive, or (ii) so conducted as to be destructive of competition or detrimental to the solvency of insurers…
How did Burnes approach the problem? Instead of treating the problem as a political or ideological problem (“There was no ideological motivation,” she said. “I don’t have a business philosophy, really”), she treated it as a legal problem. Is competition, in fact, insufficient to assure that rates will not be excessive?
Now there are surely a lot of value judgments that go into such a decision. The clearest judgment Burnes had to make was what constitutes an “excessive” rate. But what was refreshing was that she approached the problem through the lens of the statute, which says that she is forbidden to fix rates unless there is insufficient competition. She did not start off asking how she could go about protecting our current rate-fixing system or how we could open the market to competition.
Contrast Commissioner Burnes with “lawyers” such as John Yoo or Alberto Gonzalez, yes men who have used to law to justify their boss’s policies and to insulate policymakers from prosecution rather than exercising the independent judgment regarding the law that is the lawyer’s most important job. (This may be a little unfair to Yoo, who is a scholar and who, I suppose, could in good faith hold his ridiculous views on presidential power; but it’s no surprise that he is the lawyer whom the Bush administration chose to advise it on such topics).
So while some lawyers have brought dishonor to the profession, let’s hear it for lawyers like Nonnie Burnes, who show that lawyers at our best can be the one group in our society dedicated to the law per se rather than to any particular view of politics.
(Marxists, critical theorists, etc., you may commence firing).