Bona Law represents law and economics scholars in federal appellate court
December 2, 2019
Bona Law attorneys Jarod Bona and Aaron Gott submitted a brief representing a group of scholars of economics and scholars of law and economics in a Fourth Circuit Court of Appeals case that challenges the constitutionality of a state program requiring healthcare providers to seek state permission to make basic business decisions. The providers seek to invest in low-cost medical devices without interference from the state—and politically powerful competitors, who often intervene in the application process simply to prevent competition.
The case, Colon Health Centers of America, LLC v. Hazel, challenges the Commonwealth of Virginia's certificate-of-need program. In Virginia, private medical clinics must actually ask the state for permission to invest their own money into inexpensive medical equipment such as MRI machines. Entrenched competitors can prevent new competition by objecting to the issuance of a certificate, substituting cronyism and central planning for economic liberty and unburdened interstate commerce.
The appeal concerns Colon Health Centers' claim that the program violates the dormant interstate commerce clause. Because Colon Health Centers demonstrated that the program discriminates against out of state manufacturers, the state must prove that the local benefits outweigh that burden. Unfortunately, a district judge for the Eastern District of Virginia accepted at face value the state’s speculative arguments that local benefits make the program a permissible burden on interstate commerce. The Centers submitted abundant contrary evidence disproving the purported local benefits.
The scholars' brief provides additional support to the Centers’ argument by providing a scholarly view on the academic literature flatly ignored by the district court. The brief concludes that academic consensus does not support the Commonwealth’s arguments.
The brief was signed by a number of accomplished economist research fellows at the Mercatus Center at George Mason University, a law and economics professor from George Mason University, and a professor of economics from Creighton University. Colon Health Centers of America is represented by the Institute for Justice, a public-interest law firm that Bona Law often finds is on the same side of a case about competition and economic liberty.
Bona Law’s attorneys regularly represent amici curiae before state and federal appellate courts, including the U.S. Supreme Court. If your organization would like to file an amicus curiae brief, please contact us.