Oregon Law Review
2014 Volume 93 Number 1
Compulsory childhood vaccination is a cornerstone of U.S. public health policy. All fifty states compel children to vaccinate against many infectious diseases to achieve so-called herd immunity, a scientific theory that attempts to explain how societies protect themselves against infectious disease.
This Article explores both the theory and practice of herd immunity. The authors evaluate the scientific assumptions underlying the theory, how the theory applies in law, a game theory approach to herd immunity, and a possible framework for rational policymaking. The Article argues that herd immunityis unattainable for most diseases and is therefore an irrational goal. Instead, the authors conclude that herd effect is attainable and that a voluntary vaccination marketplace, not command-and-control compulsion, would most efficiently achieve that goal.
The Article takes on the bugaboo of the citizen “free rider” who is out to game the system, how a vaccination marketplace might work, and what factors policymakers must take into account in developing sound policies. The Article concludes that it is time for states to adopt more realistic and cost-efficient laws to achieve attainable herd effect, not illusory herd immunity.
*Mary Holland is a Research Scholar and Director of the Graduate Lawyering Program at New York University School of Law. Chase Zachary received his J.D. degree from NYU School of Law in 2014, and he has a Ph.D. in Chemistry from Princeton University.