Volume 2011, No. 5

Articles

The Properties of Instability: Markets, Predation, Racialized Geography, and Property Law
Audrey G. McFarlane

A central, symbolic image supporting property ownership is the image of stability. This symbol motivates most because it allows for settled expectations, promotes investment, and fulfills a psychological need for predictability. Despite the symbolic image, property is home to principles that promote instability,

albeit a stable instability. This Article considers an overlooked but fundamental issue: the recurring instability experienced by minority property owners in ownership of their homes. This is not an instability one might attribute solely to insufficient financial resources to retain ownership, but instead reflects an ongoing pattern, exemplified throughout the twentieth century, of purposeful involuntary divestment of land owned by members of racial minorities, particularly Black Americans. The subprime mortgage crisis, the most current manifestation of this involuntary land loss, can be attributed to property doctrine’s policy embrace of markets and importation of contract principles such as the “freedom of contract.” This embrace of markets and contracts ignores the reality that real estate markets are racially segregated, and due to the nature of those disparate markets, easily exploitable. The current racially concentrated subprime mortgage crisis has torn the stable property image apart by revealing longstanding truths: that fraud, exploitation, and desperation are not anomalous. These truths present a disquieting reality: that the persistent and enduring experience for minorities is instability. They also present an overlooked insight that there is a dark side of property ownership: that fraud, exploitation, and desperation are the bad that enables the good of property markets. Because this “bad” is both ubiquitous and geographically situated, it suggests that stability for some within the system of property ownership is provided at the expense of instability for others. This Article argues that we should begin to pay attention to an undertheorized stick in the bundle of property rights: “the right to keep.”

Patients over Politics: Addressing Legislative Failure in the Regulation of Medical Products
Efthimios Parasidis

This Article proposes reform measures that mitigate risk-enhancing aspects of the regulatory framework for medical products. By incentivizing product analysis and information disclosure, the proposals aim to ensure that marketed products contain accurate risk-benefit profiles. Under the proposed reforms, firms must conduct active post-market

analysis for the entire lifecycle of their products and disclose research findings to the FDA and public. The mandatory post-market analysis and disclosure requirements are aligned with preemption laws, such that firms may benefit from limited liability only if they have successfully completed their postmarket obligations. The underlying goal of the proposed framework is to advocate a cost-effective theory of regulation that promotes legitimacy, accuracy, and transparency by incorporating innovations that account for regulatory failure and asymmetries in information into regulatory procedure. In the context of health care markets, this process of innovative regulating informs health-related decisions, reduces patient risk and health care costs, and improves the quality of health care.

Book Review

The European Prescription for Ending the Death Penalty
William W. Berry III

Comment

The Exclusive Control Requirement: Striking Another Blow to the Brady Doctrine
Leslie Kuhn Thayer

The Supreme Court’s landmark decision in Brady v. Maryland is simultaneously one of the most important and most flawed standards protecting the constitutional due process rights of criminal defendants. The Brady decision placed an affirmative duty on the prosecution to disclose exculpatory, material evidence to the defense.

Over time, however, courts have chipped away at the scope of the duty to disclose. Notably, lower courts have excused prosecutors from their duty to disclose under Brady where evidence is not within the exclusive control of the prosecution. Hence, while Brady only discussed the prosecution’s duty, courts have introduced a corresponding duty on the defense to discover exculpatory evidence. While the exclusive control requirement seems logical, this Comment critically analyzes the scope, origins, and role the requirement plays in Brady jurisprudence and suggests that it is neither well grounded in the Supreme Court’s decisions nor a useful doctrine for preserving the adversarial nature of the criminal justice system. This Comment concludes that a collaborative remedy needs to come from the courts, legislatures, and prosecutors’ offices. Each of these institutions can undertake to modify or eliminate the exclusive control requirement in an effort to ensure the fairness of criminal trials.