An article by legal scholar Richard Epstein published in the Hoover Institution’s Defining Ideas defends George Mason University professor Todd Zywicki who is challenging his university’s Covid-19 vaccine mandate (“The Uneasy Case for Universal Vaccinations,” July 27, 2021). Epstein presents economic and constitutional arguments against this sort of mandate, at least those imposed by a public institution. Epstein explains the gist of the economic case, based on individual incentives:
A final consideration is that it might be wise not to impose any mandate at all. This view argues that the social case for vaccine mandates is not there. Most individuals will probably get the vaccine because it is in their self-interest to do so. Free riding is not an enticing option, given that it is highly unlikely that everyone else will get the vaccine. At the same time, high-risk individuals have every incentive to make the right choice for themselves, undercutting the need for paternalism. And anyone else who fears exposure will also provide implicit protection to others if they get a vaccine to protect themselves. …
In close cases like this one, there is much to be said for respecting the presumption of liberty.
I defended similar arguments in my Reason Foundation paper “Public Health Models and Related Government Interventions: A Primer” (March 2021). It is highly plausible that individual incentives produce the level of protection that individuals want more efficiently than coercive mandates from governments or public institutions.
The presumption of liberty invoked by Epstein is more a moral or political-legal argument than an economic one. Ultimately, however, any government intervention rests on value judgments, even if the latter must be influenced by the ways the social world works (as analyzed with the tools of economics). In my Reason Foundation paper, I also review the history and ideology of the public health movement. On the presumption of liberty, I write:
Translating these ideas in practical policy proposals starts with a general presumption for individual liberty, which should be corrected by government intervention only in the presence of clear market failures and when government failures are not likely to be worse. Expressed differently, coercion should be minimized. This approach is not as radical as it may look. It is related to the idea of economic freedom that led to the Industrial Revolution and the unprecedented explosion of prosperity that followed. From a moral-philosophical viewpoint, it can be thought as implementing John Stuart Mill’s principle that “over himself, over his own body and mind, the individual is sovereign.”
READER COMMENTS
Craig
Jul 29 2021 at 11:44am
Would your analysis hinge on George Mason being a public institution? I mean, would it be legitimate if the same condition on employment existed at the University of Miami?
You could say the same thing for hospitals. If private hospitals imposed a flu vaccine requirement, should the VA hospital system refrain from doing so? I mean, ultimately whether you think the government should be involved in these things or not, they are, and given that they are as long as that dictate is being made by that government entity — as an insular employment unit — I don’t really see its status as being ‘government’ particularly important in this narrow context.
Look at the reverse situation in FL where Governor Desantis is trying to prevent entities like privately owned cruise ships from imposing a vaccine requirement. Generally, I like Desantis, on this particular issue I think he’s wrong. It should be up to Norwegian Cruise Lines whether they are willing to sell tickets to people who aren’t vaccinated. [Upon information and belief, I believe this prohibition applies to entities like the FS system and University of Miami, though I am not 100% sure.]
Pierre Lemieux
Jul 29 2021 at 1:06pm
Craig: What is the “FS system”?
Craig
Jul 30 2021 at 4:13pm
Florida state. In this context not limited to just FSU.
Pierre Lemieux
Jul 29 2021 at 3:39pm
Craig: Epstein discusses that point in the last paragraph of his article. The distinction between private organizations, which should be free, and government organizations, which should be limited like the government itself, is a crucial distinction in a free society. As government regulation and control of private organizations increases, the distinction shrinks, and so does the free society: everything becomes public. In practice, a government that can dictate to private organizations not to require vaccination is also a government that can force them to impose it.
Craig
Jul 29 2021 at 10:08pm
Well, right now let’s just look briefly at hospitals and other medical industry locations like nursing homes. I am led to believe that, at least in many of these institutions, that pre-COVID, these institutions typically made receiving the flu shot annually a ‘condition of employment.’ I’m not entirely sure how rigidly enforced that was, but let’s suppose that this represented the standard of care in the industry. Why shouldn’t the VA hospitals require the same? Outside of the medical industry I am not aware of any pre-COVID employer that required flu shots. Not saying there aren’t a handful, but the general rule was employers simply didn’t require them.
Now of course that brings us to COVID and the ‘standard’ of course is evolving the vaccine isn’t quite fully approved yet, the anti-vaxxers seem entrenched, right? But still we can conceive of a pre-COVID paradigm that existed because I remember living through it and also raising my kids into it, no less. As a general rule, many public schools will give free flu shots and strongly encourage flu shots, but doesn’t require them. However, the vast majority of public schools and private schools require students to have a vax record showing the typical array of vaccines like MMR/TB, etc and if you don’t have those they might not be allowed to attend school. When I moved to FL I had to present the NJ vax record to the FL school and likewise to the school in TN.
This fact has future implications for the laissez faire attitude among non-medical employers. By the time you are being employed by these companies, odds are, you are already vaxed up in the vast majority of circumstances. In other words, if an employer doesn’t see absenteeism from measles, that employer isn’t going to specifically require the measles vaccine. The employers are operating in a system where the pool of talent has presumably already been vaccinated.
Pre-college schools have a long history of requiring the students and teachers to be vaccinated. To be honest I am unsure if the private university I attended required a vaccination record. But I might say that like the employers mentioned above the universities are drawing significant students from a pool of students who are presumably vaccinated already.
When I was a kid chicken pox was a rite of childhood. Nowadays, kids don’t even know what it is, its essentially unheard of. I’m a parent of 10 year olds and I have personally not heard ONE anecdotal story of kids getting chicken pox (I know it happens, I did google it). Now of course COVID hits and we see this particular education institution start to require it. How common will this become? I personally don’t know, but is this anything new? I mean, sure, the fact that it is new might make it itself controversial.
Am I the only one on the right looking around and wondering if we’re turning into a bunch of self-flagellating morons?
Thomas Lee Hutcheson
Jul 30 2021 at 7:15am
Accepting the principle that there are things a government should not do that private entities may do contractually, how does that work in the case of the thing being preventing one person from harming another?
Pierre Lemieux
Jul 30 2021 at 10:32pm
Thomas: That’s a valid question. The problem is defining “harm” and, worse than that, comparing the harm caused to the apparent victim with the harm caused to the victim of a prohibition. How do you compare the harm done to the Christian banned from putting a lighted cross on his property because it sends photon pollution as opposed to the harm done to the atheist whose property is polluted by the view (photons) of the cross? I have an article on these externalities in the forthcoming issue of Regulation.
David Seltzer
Aug 2 2021 at 12:37pm
Pierre asked, “How do you compare the harm done to the Christian banned from putting a lighted cross on his property because it sends photon pollution as opposed to the harm done to the atheist whose property is polluted by the view (photons) of the cross?” I’ve just read Jon Murphy’s Have Coase- Will Travel. I believe there are incentives for both the Christian and the atheist to define the level of harm and seek a solution via a Coaesian bargain.
Phil H
Jul 29 2021 at 11:00pm
I don’t have any problem with the argument, I just think his facts are wrong:
“In close cases like this one…”
More than half a million dead, a good third of the population not keen on getting vaccinated. It’s not close. If it were, his argument would hold. But it’s not close. I agree that a vaccine mandate is an intrusive emergency measure, but this is a massive healthcare emergency, and emergency measures are warranted.
MikeP
Jul 30 2021 at 2:06am
What do you mean? This case isn’t even close.
From a presumption of liberty, the entire argument for public health is that people making their own private health choices based on their own private considerations results in harm to the health of others.
But because COVID vaccines are so effective, the public health argument collapses. Get vaccinated and you protect yourself far more than you protect the sum of all others. Hence private health considerations overwhelm public health considerations.
If people don’t get vaccinated, that’s entirely on them. They weighed their private considerations and elected not to get vaccinated. It is not a public health issue under a presumption of liberty.
Thomas Lee Hutcheson
Jul 30 2021 at 7:06am
I do not understand why the comparison of the benefits to the person vaccinated to the benefits to others from a person being vaccinated is relevant. [I have not seen that calculation made and I’m not sure your estimate that the individual benefit is greater than the external benefit is factually correct.] If my being vaccinated reduces harm to others that ought to count for something. But how much and how should that harm reduction be traded off against the “presumption of liberty.”
Craig
Jul 30 2021 at 10:35am
“[I have not seen that calculation made and I’m not sure your estimate that the individual benefit is greater than the external benefit is factually correct.]”
I guess it depends on how many people you spread it to if you get a case.
When we read that the Pfizer vaccine is, say, 90% effective, I believe they are calculating that by looking at one group versus a control group in a population where COVID is endemic. So obviously the group that got the vaccine sees 90% fewer cases.
But here’s the thing, let’s say the vaccine was 60% effective as measured per above, but 100% of the population receives it. The effect is essentially nobody will get it. You won’t see 60% fewer cases, you’ll see more like a 99.9% reduction because once you bring the Rnaught under 1 the disease basically will burn out.
Pierre Lemieux
Jul 30 2021 at 10:15pm
Craig: You write:
I don’t think that’s correct. A vaccine effective at 60% means that it won’t protect 40% of those who receive it. So even if 100% get vaccinated, the virus will continue to circulate among the 40%, except if it does not circulate at all when the 100% coverage is reached and the borders are closed shut.
Craig
Jul 31 2021 at 11:09am
Well, my example ultimately may not prove to the best example, but my layman’s understanding is that vaccination throws ‘lead into the fission’ — in other words if we presume that the R0 for COVID is 2 (Delta might be higher now because they say it is more transmissable), that means unvaccinated people were giving it to 2 people in a population that hadn’t been vaccinated. The R0 is over 1 and the disease will spread and grow.
Now when they were doing the clinical trials for these vaccines, the vaccinated individuals were confronted with a population that, for the most part, had not been vaccinated at all. So of course the actual vax trials were showing much higher effectiveness scores, but the point I was trying to make about a vaccine that would’ve scored 60% at that point would have snuffed out the disease if taken by near 100% of the population.
The reason is because the R0 of vaccinated individuals who still get COVID still tends to drop because they are fighting it from second base, so they are much less likely to pass along the virus. Then, the two people who they had hitherto would have given it too, those people are now vaccinated, and you are right, they can still get it. Ultimately the effectiveness of the vaccine is measured in a way that it is mathematically dependent on the population that the clinical trial population is actually facing.
Ultimately what is happening is that the R0 drops under 1 and the disease then burns out. Ultimately it just isn’t a binary thing. For instance I was reading that the viral load itself might be important and if that is the case if, as an unvaccinated individual, you were to get infected with a viral load of X or greater, now that you are vaccinated, you might need Y, some greater viral load, meanwhile, the people you run into who have it might be hitting you with viral loads less than X if vaccinated whereas if they were unvaccinated they might have been hitting you with greater than Y.
There is also the severity reduction aspect which of course is very important.
But from what I have read I have read that vaccines under 50% can even have a very dramatic impact if widely taken.
Craig Walenta
Jul 31 2021 at 11:30am
More succinctly if we presume that unvaccinated people with COVID have an R0 of 2 facing an unvaccinated population, the likelihood is that a vaccinated person who still somehow gets a case of COVID but now facing a vaccinated population is almost assuredly going to have an R0 under 1 even if the vaccine, when measured against a mostly unvaccinated population, only showed itself to be ‘60% effective’
MikeP
Jul 30 2021 at 1:22pm
I do not understand why the comparison of the benefits to the person vaccinated to the benefits to others from a person being vaccinated is relevant.
Relevant? It’s everything. Public health is to private health as public good is to private good. Health is underprovided when public costs and benefits exceed private costs and benefits. This is the sole economic justification for public health efforts. Otherwise, people pursuing their respective private health interests will maximize health in the presence of all competing private and public interests.
Pierre Lemieux
Jul 30 2021 at 10:10pm
MikeP: This is not quite correct. What you are arguing is that political authority may impose a cost on some individuals in order to provide a benefit to other individuals. This is not a public good in the standard economic sense: it is a mere externality, from which some benefits and others suffer. A public good is a good for everybody: everybody gets utility from it–or, at least, it imposes no cost to anybody who is not forced to pay for it. You may want to have a look at my Reason Foundation primer on public health. In the forthcoming issue of Regulation, I have a long article on the general problems with externalities.
On political authority pretending to balance costs and benefits, you may want to reflect on what Anthony de Jasay writes (the whole book is very interesting and destroys many sacred images):
Kurt Schuler
Jul 30 2021 at 1:40pm
I am an alumnus of George Mason University and I know Todd Zywicki just a little bit. I am unsympathetic to his lawsuit, which is a typical example of American over-litigiousness. Just get the shot. It is no big imposition on anyone’s liberty, and requiring everyone to be vaccinated reduces the risk that people will die from the virus. It is especially beneficial for protecting the minority of people who have medical conditions such that they should not be vaccinated.
Jon Murphy
Jul 30 2021 at 3:05pm
It’s a bit more than “I don’t want to get the shot so I’ll sue.” Todd’s lawsuit discusses that he faces a medical risk from the shot and the University won;t acknowledge that or his already-existing immunity to the virus (due to previous infection)
Kurt Schuler
Jul 30 2021 at 6:54pm
By the way, here is the link so that people can read the New Civil Liberties Alliance press release containing Zywicki’s comments. I remain unsympathetic: Zywicki’s “medical risk” claim sounds like the phony-baloney stuff that personal injury lawyers sometimes cook up.
Jon Murphy
Jul 31 2021 at 6:57am
With respect, Kurt, that’s nonsense. Todd’s claim is standard epidemiology. It’s the reasoning behind vaccines. He has mountains of affidavits lined up by doctors to support his claim. GMU accepts his claim for other vaccinations and diseases.
This isn’t a personal-injury suit. This is a “the university does not have a compelling or legal interest to force Todd to take the vaccine” suit. Zero benefit. Cost greater than zero. Not a wise action by GMU.
Pierre Lemieux
Jul 30 2021 at 10:21pm
Kurt Schuler: You write:
Be careful here. It is no big imposition on the liberty of those who think it is not a big imposition on their liberty; and it is especially no big imposition on the liberty of those who are imposing the obligation on others. (Many people think that this or that restriction of free speech or freedom of religion is no big imposition on those who think it is. Etc.)
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