Richard Epstein and Judy Feder debate healthcare reform at inaugural NYU Law Forum

The inaugural installment of the NYU Law Forum, a new weekly event organized and moderated by Vice Dean Barry Friedman that is intended to attract all members of the Law School community to programs addressing current events, intellectual ideas, and professional training, could not have centered on a more hot-button issue: U.S. healthcare reform.

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The event took the form of a spirited debate between Professor Judy Feder of the Georgetown Public Policy Institute, who has worked on healthcare issues for 35 years in positions including staff director of the U.S. Bipartisan Commission on Comprehensive Health Care and acting assistant secretary for planning and evaluation at the Department of Health and Human Services, and Visiting Professor Richard Epstein, who is the James Parker Hall Distinguished Service Professor of Law at the University of Chicago Law School, and will join the NYU School of Law faculty in Fall 2010. Epstein is also a senior fellow at the MacLean Center for Clinical Medical Ethics at the University of Chicago.

In her opening statement, Feder promised “to try to shed a little light along with, probably, some heat in our conversation,” and the rapid back-and-forth of the debate reflected the inherent controversy of the topic. Feder covered extensive ground quickly as she enumerated the problems with the current healthcare system: high costs, uneven quality of care, and high and growing numbers of uninsured and underinsured individuals. “If the system’s so lousy, how come we can’t fix it?” she asked, answering her own question by explaining the reluctance of the majority who have insurance to countenance changes in their current coverage, however dissatisfying, in favor of an unknown quantity, coupled with the problem of explaining the counterintuitive need for an infusion of money up front in order to try to increase the efficiency of a system that is already too expensive.

After a whirlwind eight-minute explanation of the proposed healthcare legislation, Feder said, “I’m tired of waiting for this sucker.... Believe me, there’s going to be plenty of work for lawyers and analysts as well as presidents when this legislation gets enacted.’s time to stop scaring people into thinking that they’re going to be worse off with health reform rather than better off. What you should be scared of is continuing the status quo. The time to act is now.”

While agreeing with Feder that the system needed drastic fixes, Epstein differed stridently on what was required. Arguing that “cartel-like restrictions,” mandates, and subsidies in government programs like Medicare had caused healthcare’s woes, Epstein said that the current model of a system like Medicare was not tenable when extended to the broader population: “If all you’re going to try to do is to give everybody the same level of protection that you give to current Medicare recipients, you’ll not be able to finance it with any of the devices that she’s talking about.”

One of the primary problems, Epstein said, was that potential competitors to existing insurance firms lack free entry into local markets, resulting in insurance monopolies. He argued that Obama should pass legislation to correct a “deeply anticompetitive system,” but predicted that the administration would instead “buy off all the interest groups with corrupt bargains” and introduce taxation and cross-subsidy programs that “will bankrupt the nation.” The public health plan option, Epstein continued, would be run by a “bunch of blithering incompetents.... What you’re watching here is a grotesque concatenation of every bad left-wing liberal policy in the last 40 years, and the time has come to stop it.” Epstein prescribed instead a series of “mid-level rationalizations” involving medical malpractice and price restriction issues, as well as the application of contract law.

As moderator, Friedman faced the challenge of keeping order as Feder and Epstein’s exchange grew in intensity. At one point, Feder quipped, “It’s like arguing with my mother-in-law. You change the topic of the conversation.” At another, Epstein said, “That is so wrong that it’s almost a level of painful ignorance.” While it was difficult to say who had the final word—comments flew between the debaters even as the audience was applauding at the conclusion—the substantive exchange kept onlookers engaged.

Watch the full recording of the event (1 hr, 18 min):

Posted on September 18, 2009