Max Stearns
[Author's note: This lawsuit has settled. I provide an update and relevant links at the end of the post.]
Professor Todd Zywicki of the George Mason Scalia Law School is suing his university. He seeks to reverse the denial of a full exemption to a newly implemented vaccine policy. That policy requires proof of full vaccination status as a precondition to live teaching this coming fall and to avoid possible sanctions for those who fail to comply or to secure an exemption. An exemption comes with specified restrictions, including masking and social distancing.
As a Professor at the George Mason Law School from 1992 to 2005, I played a significant role in hiring Todd Zywicki. Since then, we’ve become colleagues and personal friends. We have coauthored two major textbooks (the second also joined by Professor Tom Miceli at the University of Connecticut Department of Economics). In those intervening decades, Professor Zywicki and I have worked as closely together as I have with any colleague. We have also had many disagreements, sometimes intense to the point of maddening. Despite that, I have no doubt that even after publishing this, were I to call him to let him know I have an emergency and need his immediate help, he would be at my home within the ninety or so minutes required to drive from his house to mine. The reverse is certainly also true. I struggled, even stumbled, when I learned of this lawsuit and read the Wall Street Journal op-ed as I fundamentally disagreed with both.
Professor Zywicki’s central argument is that, supported by his physician, Hooman Noorchashm, M.D., Ph.D, he has natural immunity to COVID having contracted the virus in March 2020. His physician claims to corroborate this with antibody tests, and he further maintains that Professor Zywicki risks adverse side effects as a consequence of the vaccine, coupled with low probability of potentially more serious risks specific to his medical circumstances, meaning beyond any general vaccine risk. I cannot, and will not try to, assess specific medical claims.
Each of the two books Professor Zywicki and I coauthored discusses the famous 1905 Supreme Court decision, Jacobson v. Massachusetts, which upheld a Massachusetts law requiring smallpox vaccination subject to restrictive bases for exemption that did not apply to Jacobson, who sued to avoid vaccination. My point isn’t to compare the two pandemics; rather it is to demonstrate a common feature, raised in the analysis of each of our two coauthored textbooks. We explain that vaccines present two different kinds of immunity, individual immunity, protecting the vaccinated person against the risk associated with infection, and herd immunity, reducing the risk of those vaccinated from spreading the disease to others in the community.
We cast our analysis as a classic Prisoners’ Dilemma (Chapter 15: Game Theory part I pp. 599-605). There are inevitable risks associated with getting a vaccine, however small those risks might be. If the entire community, or at least the necessary threshold, receive the vaccine, individuals wishing to do so can avoid specific vaccine risks to themselves while gaining the benefit others provide of herd immunity. But if too many people follow this strategy, and if the relevant threshold for herd immunity isn’t achieved, each is individually worse off than if he or she were vaccinated, thereby providing individual immunity and receiving the benefit of improved herd immunity.
Professor Zywicki maintains that for him the shot is not medically indicated, invoking the Hippocratic Oath—first do no harm. Setting aside whether the Hippocratic Oath applies to vaccines, which are generally not prescribed or administered by physicians, we must distinguish two risk factors. The first is whatever specific risk uniquely applies to Professor Zywicki given his medical circumstances, which I won’t speak to. The second is the general risk associated with vaccines, coupled with the claim of no specific personal medical benefit. The first claim would justify an exemption subject to the GMU’s specified conditions; the second argues against the ordinary justification for mandating vaccines. Here it is a state university doing the mandating as a continuing condition of employment. With respect to that risk, the benefit of contributing to herd immunity justifies the mandate, and to that extent, the justification is independent of any medical benefit to the vaccinated individual. This also explains vaccination requirements for public school children, including possible exemptions.
Professor Zywicki responds to this argument by claiming that the GMU exemption would attach conditions that distinguish his case from the example of school children. Exempt children are not required to exhibit signs of non-compliance that would reveal their status to teachers or students. By contrast, Professor Zywicki, if exempted for medical reasons, would be required to wear a mask, socially distance, and follow other specific protocols, making faculty, students, and others aware of his exemption and non-vaccinated status. Set aside that the lawsuit and WSJ op-ed have publicized Professor Zywicki’s status far more than wearing a mask and maintaining social distance, both likely to be fairly common continuing practices whether mandated or not. Having taught at GMUSL for many years, I’m confident that its amply capable students are already well aware of this lawsuit. Even so, Professor Zywicki maintains that these impositions infringe on his individual liberty, relying in part on the University’s namesake, the great Anti-Federalist, George Mason.
For the sake of argument, let’s assume a collective amnesia rendering the Scalia Law School community unaware of the suit and op-ed once the fall semester begins. Let’s further assume that an exemption with distinguishing conditions interferes with Professor Zywicki’s liberty not to present himself as he prefers, namely as fully compliant with the GMU vaccine policy, which would then be required to accept his claim of natural immunity as equivalent to a full authorized vaccine regimen. We then confront two competing sets of liberty-based claims that cannot be simultaneously reconciled. (For those who have taken Law and Economics, this simply extends the Coase theorem from the context of conflicting property rights to the context of conflicting exercises of rights grounded in liberty (See our textbook, chapter 1, pp. 22-24). Certainly not every student, faculty member, administrator, or staff, including janitorial, is duty-bound to accept the arguments Professor Zywicki and his physician advance concerning his natural immunity, all contrary to GMU’s CDC-based policy.
Rights to liberty require sufficient information to ensure that those exercising them may do so appropriately. One of these competing liberty claims—Professor Zywicki’s or the Scalia Law School community’s—must be subordinated to the other. As a matter of moral philosophy, my own view is that those embracing the outlier position—in this instance Professor Zywicki and his physician—must yield. Otherwise, any time someone who rejects a medical-compliance policy locates a physician taking a minority view that comports with available data, the enacted policy cannot succeed, or alternatively, anytime lawmakers rest on such a minority view, they can impose a problematic policy for pretextual reasons. This isn’t hypothetical.
In the context of state abortion restrictions, both Texas and Louisiana have demanded close proximity to surgical centers despite findings by the American College of of Obstetrics and Gynecology and the American Medical Association that this is not medically beneficial to women seeking the procedure and despite its imposing an undue burden on women for whom providers with such access are remote. The states defended these policies based on outlier physicians taking a contrary view to the nation’s leading experts. The Supreme Court has twice struck such policies down. (The same outlier physician strategy was used to justify a ban on Intact Dilation and Extraction procedures that, although as gruesome as standard Dilation and Extraction, are notably more dangerous for the woman having the procedure, ultimately producing two contrary Supreme Court rulings, one striking a Nebraska statutory ban, and another sustaining an even more restrictive federal statutory ban.)
There is always a contrarian to be found, and elevating the contrarian as the basis for sustaining (the abortion context) or striking (the vaccine context) a policy prevents reliance on critical and widely-accepted expertise as the basis for sensitive medical policies. Here such an approach would bring regulatory powers to a halt during a pandemic, which appears to be the goal of many conservative intellectuals and political leaders. Today’s conservatives would prefer every decision—masking, vaccines, social distancing, etc.—to be up to each individual’s personal choice. (Of course not every decision. See prior discussion of abortion restrictions).
This too rejects a basic economic insight from our second coauthored textbook. It is vital in a pandemic to distinguish a pooling versus separating equilibrium (see generally chapters 9 an 10). Those states that have mandated safety measures have fared enormously better respecting COVID, including the Delta variant, than those that have defied CDC guidance, favoring a more individual approach. Consider Alabama, Louisiana, Wyoming, Idaho, and Mississippi, the five states with the lowest vaccination rates, now reaping, along with others, what their political leaders have tragically sown. Herd immunity requires pooling, not separating. The virus doesn’t distinguish those who voted for Donald Trump versus Joe Biden, or those who prefer Dr. Rand Paul to Dr. Anthony Fauci. Unless enough people are vaccinated to achieve herd immunity, we are all at risk. Today, the Delta variant is in search of opportunities to infect and mutate, possibly giving rise to even more virulent forms.
Professor Zywicki further claims that not all vaccines are equally powerful against the Delta variant, and he faults GMU for allowing a Chinese vaccine, presumably for some foreign students, and also Johnson & Johnson, due to their claimed lower relative efficacy. (On Johnson & Johnson, the actual data might be more promising.) Regardless, it’s certainly true that at the time the FDA approved vaccines on an emergency basis we had less information than we do today. How could it be otherwise? Our book also discusses the concept of path dependence (see generally chapters 13 and 14)—the order in which decisions are made can affect substantive policy. Had the FDA known then what we know now, it is possible that it might have made different choices for emergency approval. And so, yes, GMU might be piggybacking on an imperfect set of past decisions. Life is like that sometimes, but the logical implication would be for GMU to impose more restrictive conditions—further narrowing the qualifying vaccine regimen—not opening it wider also to include no vaccine at all, as Professor Zywicki claims.
Professor Howard Wasserman at Florida International University has written important work on Universal Injunctions. These sometimes allow a single federal district court, meaning a trial court, that finds a legal policy unconstitutional to ban the policy across the board, potentially throughout the United States, subject of course to appeals. This particular mandate is by state university, but its reach could still go quite far. Longer term the effects of a favorable ruling might be greater. President Biden is on the cusp of mandating a vaccine regimen for the United States military. On the logic of Professor Zywicki’s complaint, it would take but one soldier to find a like-minded physician to bring that policy potentially to a halt at a time when any serious delay can cost lives.
I am strongly opposed to this lawsuit. I believe it is fundamentally misguided. I also believe that the right course of action, depending on Professor Zywicki’s personal medical circumstances, is for him to apply for an exemption subject to whatever limitations ensure that others in the community are fully aware of his status and can make their own choices as to how best to proceed. I believe that George Mason would agree with me, not Professor Zywicki, on this.
I provided Professor Zywicki an opportunity before posting this to read and respond. He kindly agreed to reading, and I am grateful. I offered him the opportunity to provide a written response, which I would have posted as well, but as this is in litigation, he declined.
I also welcome your comments
[In addition to Todd Zywicki, special thanks to Steve Wolpe, an immunologist; David S. Cohen, Drexel Law School; and Howard Wasserman, Florida International University Law School, for helpful comments on an earlier draft.]
[Update: This lawsuit has settled, and you can read about this here:
and here:
My view:
GMU should have fought to the end, and it would have won. GMU had an entirely reasonable policy in place, one that allowed those with special medical circumstances to seek an exemption, subject to reasonable conditions such as masking and social distancing. These modest requirements would have alerted those in the community that although he was authorized for living instruction, Professor Zywicki was not vaccinated. This would let members of the Scalia Law School community, especially those at special risk, and who have family members at special risk, decide for themselves how they wished to proceed.
It is more than a bit ironic that by caving in this lawsuit, a law school so closely associated with libertarianism has subordinated the concerns for the liberties of so many of its community members to a meritless lawsuit. I am disappointed and saddened, although I am not entirely surprised.]
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