Volume 73, Issue 2

Spring 2024


Personal Data and Vaccination Hesitancy: COVID-19’s Lessons for Public Health Federalism
Charles D. Curran

During the COVID-19 vaccination campaign, the federal government adopted a more centralized approach to the collection of public health data. Although the states previously had controlled the storage of vaccination information, the federal government’s Operation Warp Speed plan required the reporting of recipients’ personal information on the grounds that it was needed to monitor the safety of novel vaccines and ensure correct administration of their multi- dose regimens.

Over the course of the pandemic response, this more centralized federal approach to data collection added a new dimension to pre-existing vaccination hesitancy. Requirements that recipients furnish individual information deterred vaccination among undocumented immigrants already fearful about the Trump Administration’s data-driven immigration enforcement policies—even as undocumented essential workers faced enhanced risks of COVID-19 exposure. Disputes with some states over the federal government’s proposed terms of governance for individual vaccination information compounded delays in the reporting of necessary public health information. Moreover, as the pandemic response evolved, the Biden Administration was obliged to counter apprehension among the broader public that federally-stored information might be used to enforce vaccination mandates or adoption of digital “vaccination passports."

Notwithstanding calls for greater federal authority to directly gather data in future epidemics, I argue that the goal of achieving broad public vaccination uptake will be better served by preserving and improving a federalist approach that generally leaves the states to control the collection and storage of individually identifiable vaccination information. I contend that the lessons of COVID-19 suggest that more robust governance and technological controls for federal access to state public health data—coupled with improved transparency about the limits of federal data use—can both ameliorate public hesitancy and improve inter-governmental exchange.”



The Anitdote of Free Speech: Censorship During the

Christopher Keleher

Free speech in America stands at a precipice. The nation must decide if the First Amendment protects controversial, unconventional, and unpopular speech, or only that which is mainstream, fashionable, and government- approved. This debate is one of many legal battles brought to the fore during Covid-19. But the fallout of the free speech question will transcend Covid-19.

During the pandemic, the federal government took unprecedented steps to pressure private entities to push messages it approved and squelch those it did not. The Supreme Court will soon grapple with the issue of censorship during the pandemic. This article examines this litigation, along with the speech restrictions enacted by social media platforms at the behest of federal officials. It does so through a historical lens as it applies to free speech and prior restraint. Tracing this lineage is vital to understanding the importance of the right to think freely in the Covid era and how to apply historical concepts of free speech to contemporary challenges.

I conclude the solution to the problem of misinformation is more speech, not suppression. Unconventional speech thus warrants constitutional protection. The First Amendment is designed to preserve an uninhibited marketplace of ideas where truth will ultimately prevail. That process is difficult, time consuming, and not without error. However, it is the most prudent alternative to reliance on the government intrusion of prior restraint and viewpoint discrimination.

Administrative Law Judges and the Erosion of the Administrative State: Why Jarkesy May be the Straw That Breaks the Camel's Back
Nick D’Addio

The Trump-era unitary executive movement sought to expand presidential power and shrink the influence of the administrative state through deregulation. This movement ripples into the present moment, as Trump’s overhaul of the federal judiciary installed a comprehensive system to delegitimize administrative agency action— a system that is certain to endure. The independence and role of administrative law judges (ALJs) has proven a key target of the movement. Most recently, in the 2022 case of Jarkesy v. Securities and Exchange Commission, the Fifth Circuit held that the dual-tiered for-cause removal protections of SEC ALJs violated the Take Care Clause of Article II of the Constitution. This Comment argues that the Constitution sets out a functional inquiry for evaluating the removability of officials in the Take Care Clause, as opposed to the categorical inquiry erroneously adopted by the Fifth Circuit. If upheld by the Supreme Court, Jarkesy and the curtailment of ALJ independence will have a profound impact on not only the SEC, but all agencies, and the very fate of the administrative state.

A Look Back in Time: Analyzing the Success and Value of the 2014 Amendments to Rule 2a-7 and Reporting on Form N-CRin Light of the March 2020 Market Events 
Jocelyn Near

Money market funds have frequently been a target of regulation by the Securities and Exchange Commission (SEC). Perhaps the most expansive regulation came as a response to the 2008 financial crisis, in which the Reserve Primary Fund “broke the buck.” The SEC’s misguided 2014 reforms exacerbated the inherent risks of money market funds, including the risk of runs and first mover advantage, particularly with the implementation of Form N- CR. Form N-CR requires a money market fund to publicly report when various events occur, including when a retail or government money market fund’s current net asset value per share deviates downward from its intended stable price per share by more than 1⁄4 of 1 percent. This comment focuses on the success of reporting requirements on Form N-CR by examining the effect of the March 2020 market events on money market funds. Ultimately, this comment concludes that the reporting requirements on Form N-CR for downward deviations in net asset value did not successfully aid government and retail money market funds in handling the March 2020 market events and added little value to investors. This comment then suggests changes to Form N-CR that would make the public reporting more valuable to investors while continuing to mitigate risks of money market funds.