Document Type

Essay

Publication Title

Putting the CON in Con Law

Abstract

This Comment explores Georgia’s “Anti-Competitive Contracts Clause” and Certificate of Need laws, the intersection of which was recently considered in the 2017 case Women’s Surgical Center v. Berry. Georgia is one of many states that still has Certificate of Need laws on its books. While these state laws have recently undergone minor legislative reform, judicial repeal of these laws may have a strong enough basis to succeed in Georgia. Though federal and state antitrust and constitutional laws offer many avenues for repeal, one such method specific to Georgia is the Anti-Competitive Contracts Clause, a constitutional provision which prohibits contracts or agreements that create monopolies or lessen competition. Although the Supreme Court of Georgia in Berry rejected the use of the clause to strike down Certificate of Need laws, the Court’s analysis of the clause offers the opportunity to examine several theories for why the Court should strike down these laws. Through a discussion of Berry, this Comment will explore the history of Certificate of Need (CON) laws, their legislative and judicial repeals, and how they have been impacted by federal and state antitrust law. It will also examine Georgia’s unique Anti-Competitive Contracts Clause, which offers an alternative method of antitrust law: a state constitutional prohibition against monopolistic contracts. Then, this Comment will provide a three-part critique of the Berry holding and suggest avenues by which Certificate of Need laws in Georgia could be struck down under the Anti-Competitive Contracts Clause.

First Page

82

Publication Date

5-15-2026

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