Putting Rationality Back into the Rational Basis Test: Saving Substantive Due Process and Redeeming the Promise of the Ninth Amendment

Jeffrey D. Jackson *

Substantive due process is broken. This doctrine, which provides that the Due Process Clauses of the Fifth and Fourteenth Amendments contain substantive limits on the power of federal and state governments, has been an important protector of rights since its beginnings in English law, and the main vehicle through which the protections of the Bill of Rights have been incorporated against the states. However, as currently practiced by the Supreme Court of the United States, the tiered scrutiny formulation of substantive due process is illusory. It is followed only in easy cases, and abandoned in hard ones. This practice throws the legitimacy of the entire doctrine into question.

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Beyond Formalist Sovereignty: Who Can Represent “We the People of the United States” Today?

David Chang*

To so many among us, it appears that our political system is broken. From the rigid partisanship in Congress, to the Senate’s rule of sixty, to the influence of lobbyists, to the vapid commercials and “robo-calls” used to influence voters, to the disproportionate power of small states in presidential primaries and in the Senate, to the disproportionate political influence of profit-seeking corporations, it seems that a system predicated on the people’s rule is badly in need of repair. The Supreme Court’s decision last term in Citizens United v. FEC, striking down a recent congressional effort to curb the influence of corporations in political campaigns, is just the latest occasion when pressing public needs have crashed against the barriers posed by an aging Constitution and a broad range of aging practices that have evolved within its framework.

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Modal Retributivism: A Theory of Sanctions for Attempts and Other Criminal Wrongs

Anthony M. Dillof *

This article attempts to think systematically about what sanctions are deserved for a range of criminal offenses. The offenses considered include both consummate offenses (such as murder) and inchoate offenses (such as attempts), as well as offenses of negligence and crimes of passion. Unlike other theories of punishment, which tend to focus on justifications of the practice of punishment, or the “why” question, the theory presented here focuses on the amount of punishment, that is, the “how much” question: Specifically, “How much punishment, in terms of size and severity, is deserved for a given criminal offense?” The article attempts to answer this question for a variety of crimes in a unified, principled manner.

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Blowing Out All the Candles: A Few Thoughts on the Twenty-Fifth Birthday of the Sentencing Reform Act of 1984

J.C. Oleson *

Happy Birthday, Sara!

Yes, I know that your full name is the Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987, codified at 18 U.S.C. § 3551 et seq. and 28 U.S.C. §§ 991 to 998, but that’s an awful mouthful. And really, you’ll always be just “SRA”—Sara—to me. Sara, 2009 was your twenty-fifth birthday and in your honor, throughout 2009 and early 2010, the United States Sentencing Commission (“Commission”) held parties across the country. Yes, I know, officially they called them regional hearings, convened pursuant to the Commission’s authority under 28 U.S.C. § 994(o), but we know that they were really birthday parties for you.

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Foreword: Celebrating the Twenty-Fifth Issue of the Annual Survey of Virginia Law

Marguerite R. Ruby *

Sarah Warren S. Beverly **

As the 2010–11 Annual Survey Editor and the 1985–86 Editor-in-Chief, we are proud to commemorate the twenty-fifth anniversary of the Annual Survey of Virginia Law with a look back at its history. The Annual Survey continues to be the most widely read of the four issues published by the University of Richmond Law Review each year. We attribute the Annual Survey’s success to the combination of relevant and timely subject matter and adept and renowned authors. This foreword and the entire anniversary issue celebrate the subjects and authors that have made the last twenty-five years of the Annual Survey so enjoyable and successful. We hope the Law Review will continue this tradition of compiling and disseminating to the legal community a comprehensive critical analysis of recent developments in Virginia law for years to come.

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Bifurcation of Civil Trials

John P. Rowley III *

Richard G. Moore **

Despite its widespread and long-standing recognition as a valuable docket-control device, the bifurcation of issues in civil trials has generated considerable debate among legal scholars and judges. The state and federal courts both utilize bifurcation, and the Supreme Court of Appeals in Virginia recognized the advantages of the procedural device as early as 1915. Nonetheless, authority for the bifurcation of issues in civil trials in Virginia has remained clouded. The Supreme Court of Virginia lifted at least some of the clouds when it decided Allstate Insurance Co. v. Wade, thereby rejecting the position taken in an amicus curiae brief filed by the Virginia Trial Lawyers Association that bifurcation is not authorized under Virginia law.

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Challenging Supremacy: Virginia’s Response to the Patient Protection and Affordable Care Act

Matthew R. Farley *

Health care reform has been a primary goal of presidential candidates for the past half-century. At least since the adoption of the Universal Declaration of Human Rights in 1948 and the inception of the Medicare system in 1965, the primacy of achieving extensive and efficient health care in American policymaking cannot be seriously disputed. Currently, health care costs seem uncontrollable, and nearly fifty million Americans remain uninsured. Continuing into modern times, a cornerstone of President Bill Clinton‘s first term in office was to provide health care for all Americans. And although Democrats held a majority of seats in both chambers of Congress at the time, Clinton‘s attempt to revamp the health care system failed remarkably.

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Community Development Authorities

Andrew A. Painter *

Governed under current Virginia Code section 15.2-5152 et seq. (jointly, “CDA Statutes”), Community Development Authorities (“CDAs”) were first authorized by the General Assembly in 1993 under the provisions of the Virginia Water and Waste Authorities Act (“WWAA”) to provide an additional method for localities to finance infrastructure associated with development and redevelopment in an authority district. Given that Virginia‘s localities have increasingly considered CDAs as a way to cope with revenue shortfalls and growing infrastructure demands, and considering that many jurisdictions have yet to enact policies concerning their use, this article endeavors to provide an overview of the current status of CDA law in Virginia, including attendant considerations as to CDA legislative development, establishment, governance, and powers.

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Fool Me Once, Shame on Me; Fool Me Again and You’re Gonna Pay for It: An Analysis of Medicare’s New Reporting Requirements for Primary Payers and the Stiff Penalties Associated with Noncompliance

Brent M. Timberlake *

Monica A. Stahly **

July 30, 1965—that was the date on which two decades of debate over the national health insurance system that would come to be known as Medicare was signed into law as part of President Johnson‘s “Great Society” legislation. Since that time Medicare eligibility has expanded and the prospect of its insolvency continues to become more likely. In order to minimize unnecessary expenditures of Medicare funds, Medicare was statutorily deemed to have secondary liability in areas where primary insurers— including self-insurers, liability insurers, group health plans, and workers‘ compensation insurers—have an obligation to pay for Medicare recipients‘ medical care.

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