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- Volume 13, 2017
Annual Review of Law and Social Science - Volume 13, 2017
Volume 13, 2017
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Procedural Justice Theory and Public Policy: An Exchange
Vol. 13 (2017), pp. 1–3More LessThis article introduces a scientific exchange over the status of procedural justice theory and its applicability to policing reform. The introduction notes the long history of sociolegal research on procedural justice and its emergence as a source of ideas for criminal justice reforms and police training programs. The article contrasts the positions taken by Nagin & Telep (2017) and Tyler (2017). Nagin & Telep assert that it is premature to apply procedural justice principles without more definitive causal studies in policing. In contrast, Tyler draws on experimental research and other causal studies from different domains to argue that the work is sufficient to proceed with policy reforms.
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Procedural Justice and Legal Compliance
Vol. 13 (2017), pp. 5–28More LessThis article reviews the evidence on whether procedurally just treatment of citizens by agents of the criminal justice system, usually the police, has the effect of increasing the citizen's compliance with the law. In brief, we find that perception-based studies consistently show that citizen perceptions of procedurally just treatment are closely tied to perceptions of police legitimacy, and that with only a few exceptions perceptions of legitimacy are strongly associated with legal compliance. However, what has not been established is whether these associations reflect a causal connection whereby changes in policies that are effective in changing actual procedurally just treatment of citizens by police and others lead to changes in legal compliance and perceived legitimacy. Three priority areas for future research are identified: (a) devising and testing a theory of the cumulative effects of experience and community and situational context on perceptions of procedurally just treatment and perceptions of legitimacy, (b) filling out and testing a theory of the circumstances in which improved perceptions of legitimacy translate into greater legal compliance, and (c) designing and evaluating policies and training protocols that are effective in translating the constituent components of procedurally just treatment into improved legal compliance.
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Procedural Justice and Policing: A Rush to Judgment?
Vol. 13 (2017), pp. 29–53More LessWithin policing research there is currently little research examining the role of procedural justice in shaping legitimacy and considering their joint role in shaping compliance. However, large literatures in social psychology and management make a plausible case for the value of applying this model to policing. These literatures suggest that it is likely that (a) the practices of the police can be crafted to raise perceptions of procedural justice, (b) police training can alter officer behavior, and (c) redesigning police organizations internally can motivate their members to treat community members more fairly. A focus on legitimacy highlights the virtues of consensual models of policing. Consensual models are found to motivate public cooperation in fighting crime and to heighten identification with and engagement in communities. Consequently, legitimacy is the most promising framework for discussing changing the goals of policing and moving from a police force model to a police service model.
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Response to “Procedural Justice and Policing: A Rush to Judgment?”
Vol. 13 (2017), pp. 55–58More LessWe are heartened by Tom Tyler's concurrence with the key conclusion of our full essay that evidence of procedurally just treatment of citizens by police or other representatives of the criminal justice system altering citizen perceptions of legitimacy and legal compliance is in short supply. Our main point of disagreement with Tyler is on how this agreed-upon conclusion about the state of the evidence should be communicated to policy makers. It is our view that the policy process is best served by a forthright acknowledgement of the weaknesses of the evidence base.
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50 Years of “Obedience to Authority”: From Blind Conformity to Engaged Followership
Vol. 13 (2017), pp. 59–78More LessDespite being conducted half a century ago, Stanley Milgram's studies of obedience to authority remain the most well-known, most controversial, and most important in social psychology. Yet in recent years, increased scrutiny has served to question the integrity of Milgram's research reports, the validity of his explanation of the phenomena he reported, and the broader relevance of his research to processes of collective harm-doing. We review these debates and argue that the main problem with received understandings of Milgram's work arises from seeing it as an exploration of obedience. Instead, we argue that it is better understood as providing insight into processes of engaged followership, in which people are prepared to harm others because they identify with their leaders' cause and believe their actions to be virtuous. We review evidence that supports this analysis and shows that it explains the behavior not only of Milgram's participants but also of his research assistants and of the textbook writers and teachers who continue to reproduce misleading accounts of his work.
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An International Framework of Children's Rights
Vol. 13 (2017), pp. 79–100More LessIt is widely perceived that the UN Convention on the Rights of the Child and the UN Committee established to monitor the Convention's national implementations are key parts of globally supported norms and processes. The Committee has established procedures that national governments are expected to follow as they enforce the Convention. Rather than accept this vision prima facie, this review critically asks whether the world society surrounding children's rights is organized to ensure that these rights are limited in scope and effectiveness.
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Centering Survivors in Local Transitional Justice
Vol. 13 (2017), pp. 101–121More LessScholarship on local transitional justice efforts has proliferated over the past two decades. This article summarizes and synthesizes this growing body of work. It begins by addressing the conceptualization of the local, which to date has been loosely and ambiguously defined. Rather than viewing the local as a spatial level or as based on tradition, the review suggests that transitional justice approaches are local to the extent that (a) survivors have agency and power and (b) their experiences and outcomes are prioritized. Taking this conceptualization seriously, the review examines how local transitional justice varies in terms of ownership and implementation, forms and mechanisms, and effects on survivors, ending with additional suggestions for future research.
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Comparative Constitutional Studies: Two Fields or One?
Vol. 13 (2017), pp. 123–139More LessThis article reviews recent comparative research on constitutionalism and judicial review and argues that it is best understood as falling into two fields: comparative constitutional law (CCL) and comparative judicial politics. Although both fields are directed at the same phenomenon—the global spread of constitutionalism and judicial review—their purposes and methods are different. CCL, for its part, is aimed at constructing constitutional law doctrine, understanding the methodologies of judicial recourse to foreign law, and investigating how similar-seeming constitutional principles take on different meanings in different legal systems. Comparative judicial politics, by contrast, consists of a range of political science research on the origins and ongoing dynamics of judicially enforced constitutionalism. The recent call for CCL to progress into comparative constitutional studies should accordingly be treated with caution. Although there are opportunities for productive dialogue between the two fields, such dialogue needs to recognize the distinct identity of each.
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Formal and Informal Contracting: Theory and Evidence
Vol. 13 (2017), pp. 141–159More LessIn this article, we review the emerging economic literature on formal and informal contracting. Two patterns emerge from this literature. First, the use of informal contracts to complement formal ones is widespread, both within and between firms. Second, informal contracts are limited by the expectation of future collaborations between the parties. Our review suggests that there are significant opportunities for further integrated research in economics, law, and social sciences to enhance our understanding of the interaction between formal and informal contracting within firms, as well as in nonfirm organizations.
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From the National Surveillance State to the Cybersurveillance State
Vol. 13 (2017), pp. 161–180More LessThis article anchors the phenomenon of bureaucratized cybersurveillance around the concept of the National Surveillance State, a theory attributed to Professor Jack Balkin of Yale Law School and Professor Sanford Levinson of the University of Texas School of Law. Pursuant to the theory of the National Surveillance State, because of the routinized and administrative nature of government-led surveillance, normalized mass surveillance is viewed as justified under crime and counterterrorism policy rationales. This article contends that the Cybersurveillance State is the successor to the National Surveillance State. The Cybersurveillance State harnesses technologies that fuse biometric and biographic data for risk assessment, embedding bureaucratized biometric cybersurveillance within the Administrative State. In ways that are largely invisible, the Cybersurveillance State constructs digital avatars for administrative governance objectives and targets digital data deemed suspicious. Consequently, constitutional violations stemming from cybersurveillance systems will be increasingly difficult to identify and challenge.
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How Medical Marijuana Smoothed the Transition to Marijuana Legalization in the United States
Vol. 13 (2017), pp. 181–202More LessPublic support for legalizing marijuana use increased from 25% in 1995 to 60% in 2016, rising in lockstep with support for same-sex marriage. Between November 2012 and November 2016, voters in eight states passed ballot initiatives to legalize marijuana sales for nonmedical purposes—covering one-fifth of the US population. These changes are unprecedented but are not independent of the changes in medical marijuana laws that have occurred over the past 20 years. This article suggests five ways in which the passage and implementation of medical marijuana laws smoothed the transition to nonmedical legalization in the United States: (a) They demonstrated the efficacy of using voter initiatives to change marijuana supply laws, (b) enabled the psychological changes needed to destabilize the “war on drugs” policy stasis, (c) generated an evidence base that could be used to downplay concerns about nonmedical legalization, (d) created a visible and active marijuana industry, and (e) revealed that the federal government would allow state and local jurisdictions to generate tax revenue from marijuana.
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Judging the Judiciary by the Numbers: Empirical Research on Judges
Vol. 13 (2017), pp. 203–229More LessDo judges make decisions that are truly impartial? A wide range of experimental and field studies reveal that several extralegal factors influence judicial decision making. Demographic characteristics of judges and litigants affect judges' decisions. Judges also rely heavily on intuitive reasoning in deciding cases, making them vulnerable to the use of mental shortcuts that can lead to mistakes. Furthermore, judges sometimes rely on facts outside the record and rule more favorably toward litigants who are more sympathetic or with whom they share demographic characteristics. On the whole, judges are excellent decision makers and sometimes resist common errors of judgment that influence ordinary adults. The weight of the evidence, however, suggests that judges are vulnerable to systematic deviations from the ideal of judicial impartiality.
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Law, Innovation, and Collaboration in Networked Economy and Society
Vol. 13 (2017), pp. 231–250More LessOver the past 25 years, social science research in diverse fields has shifted its best explanations of innovation from (a) atomistic invention and development by individuals, corporate or natural, to networked learning; (b) market-based innovation focused on material self-interest to interaction between market and nonmarket practices under diverse motivations; and (c) property rights exclusively to interaction between property and commons. These shifts have profound implications for how we must think about law and innovation. Patents, copyrights, noncompete agreements, and trade secret laws are all optimized for an increasingly obsolete worldview. Strong intellectual property impedes, rather than facilitates, innovation when we understand that knowledge flows in learning networks, mixing of market and nonmarket models and motivations, and weaving of commons with property are central to the innovation process.
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Managing Street-Level Arbitrariness: The Evidence Base for Public Sector Quality Improvement
Daniel E. Ho, and Sam ShermanVol. 13 (2017), pp. 251–272More LessDecentralized decisions among government officials can cause dramatic inconsistencies in bureaucratic decision making. This article provides a synthetic review of the evidence base for improving the quality of bureaucratic decisions and reducing such street-level arbitrariness. First, we offer a typology to unify quality assurance management techniques often treated in distinct scholarly literatures. This synthesis reveals common challenges but also points to novel hybrid solutions that borrow across management techniques. Second, although empirical evidence is limited, our review suggests that ongoing management techniques, such as monitoring, peer review, and pay-for-performance, are more successful than ex post techniques, such as audits and appeals. Third, performance measurement and pay exacerbate the quantity–quality trade-off long opined about in public administration. We offer suggestions for future directions—most importantly, the vital role of academic-agency research collaborations in crafting quality improvement efforts—to address this endemic challenge to bureaucracy and rule of law.
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Measuring the Impact of Human Rights: Conceptual and Methodological Debates
Vol. 13 (2017), pp. 273–294More LessFifty years ago, the world had very few human rights laws and very little information on human rights violations. Today, the situation could not be more different. The world is awash in laws and indicators of legal violations, and two perspectives have developed to explain their relationship. The factualist approach measures whatever information is available, however imperfectly, and assumes that the resulting indicators are valid representations of the theoretical concepts of interest. The constructivist approach reminds us that these processes are not independent and that a science of law and human rights is fallible. Though the conclusions from these perspectives diverge radically, they agree on a central notion: that international human rights law has contributed very little to social progress. We disagree and offer an alternative, constitutive approach that both accepts the critique of indicators and offers a way forward that encourages scholars to treat measurement itself as an object of theorizing and inquiry.
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Felon Disenfranchisement
Vol. 13 (2017), pp. 295–311More LessCrime control and prisons have featured prominently in electoral campaigns, yet currently and formerly incarcerated people are a profoundly disenfranchised constituency in the United States. This article examines the extent to which this population and its concerns have been excluded from American electoral politics. Starting with the philosophical debate on the extent of the right to vote, the article examines the scope of felon disenfranchisement in the United States, including comparative perspectives, policies in states that allow voting within prisons, and eligibility to run for office with a criminal record. The article also examines the problematic underlying issue of racial exclusion via felon disenfranchisement; the impact of disenfranchisement on civic engagement and recidivism; and the perspectives of disenfranchised, formerly incarcerated people. The article ends with thoughts on the prospects of bipartisan reform of voting rights.
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Race, Law, and Health Disparities: Toward a Critical Race Intervention
Vol. 13 (2017), pp. 313–329More LessIn response to persistent and pervasive differences in health across racial and ethnic groups in the United States, there is a national commitment to achieving health equity, or optimal levels of health for all. Achieving health equity and eliminating health disparities is not without its challenges and will require interventions and approaches that focus on improving opportunity structures for racial/ethnic minorities. We provide a brief overview of the literature documenting black/white differences in health across the life course. We then discuss current conceptual models guiding this research and discuss the importance of translating legal theory—specifically, critical race approaches—to both the study of health disparities and the development of interventions to address them. We conclude with examples of research that incorporate, although not explicitly, aspects of critical race theory and discuss how this approach can be leveraged in future studies.
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Race, Law, and Inequality, 50 Years After the Civil Rights Era
Vol. 13 (2017), pp. 331–350More LessOver the last several decades, law and social science scholars have documented persistent racial inequality in the United States. This review focuses on mechanisms to explain this persistent pattern. We begin with policy making, a mechanism fundamental to all the others. We then examine one particularly important policy, the carceral state, which can be described as the most important policy response to the civil rights era. A significant body of scholarship on employment discrimination presents a site for explaining the transformation of law on the books into the law in action. Finally, we review scholarship on the persistence of segregation and concentrated neighborhood disadvantage and their attendant impact on racial inequality. We conclude with two themes that deserve special emphasis: the need for theory drawing these fields together and our need, above all at this moment in our history, for public scholarship changing the discourse, politics, and law perpetuating racial inequality.
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Science, Technology, Society, and Law
Vol. 13 (2017), pp. 351–371More LessLaw and regulation increasingly interact with science, technology, and medicine in contemporary society. Law and social science (LSS) analyses can therefore benefit from rigorous, nuanced social scientific accounts of the nature of scientific knowledge and practice. Over the past two decades, LSS scholars have increasingly turned for such accounts to the field known as science and technology studies (STS). This article reviews the LSS literature that draws on STS. Our discussion is divided into two primary sections. We first discuss LSS literature that draws on STS because it deals with issues in which law and science interact. We then discuss literature that draws on STS because it sees law as analogous to science as a knowledge-producing institution amenable to social science analysis. We suggest that through both of these avenues STS can encourage a newly critical view within LSS scholarship.
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Social Networks and Gang Violence Reduction
Vol. 13 (2017), pp. 373–393More LessThis review traces the origins, development, and use of social network analysis in gang research and gang violence reduction strategies. Although early gang scholars intuitively recognized the networked nature of gangs and gang violence, such insights were not always leveraged by gang violence reduction efforts that became increasingly enforcement-centric throughout the twentieth century. This review describes these historical shifts, the recent advent of social network analysis in research and gang interventions, and future directions that research and interventions can take to develop a more victim-focused approach to gang violence reduction.
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The Catholic Church and International Law
Vol. 13 (2017), pp. 395–411More LessSince the 1960s, the Catholic Church has been immensely influential in shaping international law. It provides a compelling example of how nonstate actors, relying on principled positions rather than resources, can alter the course of global policy making. The Church's authority rests on three distinct features: (a) independence from the nation-state system; (b) a centralized transnational bureaucracy; and (c) its enduring ideology. In this review, we elaborate on the Church's role in promoting peace, serving the poor, and blocking the institutionalization of access to contraception and abortion. Church ideology finds strong secular counterparts in the cases of promoting peace and support for the poor. It is on shakier ground when it ventures into gender issues, which it has done with zeal in recent years. Its primary allies on gender issues have been other religious organizations and Islamic states, reinforcing the religious rather than human rights basis for Church positions. The Church's role as the moral authority in the secular United Nations system is therefore less clear when it speaks about gender and sexuality.
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The Informal Dimension of Judicial Politics: A Relational Perspective
Vol. 13 (2017), pp. 413–430More LessThis article proposes a relational approach to studying judicial politics in non-Western societies—a framework for the systematic analysis of informal relations between judges and other actors, within and outside the judiciary, based on common political interests, ideas, social identity, and even clientelistic obligations. We reflect on how these relations might help explain a variety of outcomes of interest, such as the organization of courts, judicial behavior, and judicial reform. We also highlight some of the methodological challenges of this approach in collecting and analyzing comparative data. In doing so, we seek to build an agenda for research on informal judicial politics beyond Western democracies.
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The Judicialization of Health Care: A Global South Perspective
Vol. 13 (2017), pp. 431–449More LessThis article charts the trajectory of the judicialization of health care from the perspective of Global South countries. It shows how the emergence of health rights litigation in the 1990s and early 2000s was bolstered by the global expansion of the HIV/AIDS epidemic and by major constitutional reforms that triggered a period of rights revolutions in South Africa and several Latin American countries. This article also tracks the litigation epidemic in countries like Colombia and Brazil, where the escalation of health rights lawsuits is threatening the financial stability of health systems and the fair allocation of scarce health resources. It concludes by discussing a fundamental challenge confronting the field, namely, how to look upstream for new approaches to the right to health to reinstate litigation and adjudication as mechanisms to promote more equitable health systems.
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The Mobilization of Criminal Law
Vol. 13 (2017), pp. 451–469More LessPerhaps few decisions have more of an impact on the operational functioning of the criminal justice system than the decision by victims of crime to notify the police. Researchers in the United States and abroad have found that victims often choose not to mobilize the criminal law in the aftermath of a victimization event. A large percentage of property and violent crimes never appear in official crime data estimates. Most remain hidden in the dark figure of crime. Victim nonreporting has numerous implications for criminal justice system processing, crime control policy, and substantive research on the causes and correlates of crime. Studies have long sought to identify the victim-, incident-, and community-based mechanisms that might account for patterns of police notification. Although several important findings have emerged, critical questions remain unanswered. This article provides a critical overview of the determinants of victim nonreporting and charts potential avenues for future research.
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The Role of Social Science Expertise in Same-Sex Marriage Litigation
Vol. 13 (2017), pp. 471–491More LessThis article examines the role of social science in US same-sex marriage (SSM) court cases. The existing literature on the role of social science in courts is inconclusive, with studies suggesting social science exerts influence in some but not all areas of law. The literature on social science in SSM litigation is in its formative stage. This article reviews key SSM cases—including the three SSM trials and recent US Supreme Court cases—and describes how litigants and other interested parties invoked social science to address several key points related to legal recognition of SSM. A review of these cases suggests that social science may have exerted influence in SSM litigation because of the large volume of available evidence, the high level of scientific consensus on key issues, and contextual factors such as shifts in public opinion.
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The Sociology of Constitutions
Vol. 13 (2017), pp. 493–513More LessThis article sets out an account of the historical development and the contemporary elaboration of sociological approaches to constitutional law. It argues that recent years have seen a broad sociological turn in constitutional theory, such that sociological constitutionalism now forms a distinct field of legal research. This is due to the general increase in the importance of constitutionalism in different national societies across the globe. This is also due to the emergence of new patterns of constitutional formation, both within and beyond national societies, resulting from the interaction between national and domestic constitutional law. The article separates different constitutional-sociological approaches into two categories: those with a primarily national, and those with a primarily transnational focus. Overall, however, it claims that sociological constitutionalism is driven primarily by engagement with transnational law, and the main insights in this field relate, in different ways, to global processes of transnational norm formation.
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What Unions Do for Regulation
Vol. 13 (2017), pp. 515–534More LessThe question of how organized labor affects the content, enforcement, and outcomes of regulation is especially timely in an era in which protective laws and regulations are being scaled back or minimally enforced and union membership is in decline. This article surveys literature from a wide array of regulatory domains—antidiscrimination, environmental protection, product quality, corporate governance, law enforcement, tax compliance, minimum wage and overtime protection, and occupational safety and health—in an effort to identify common findings on what unions do for regulation. Literature on the topic has taken up five questions: how labor unions affect the passage of protective laws and regulations; how they affect the outcomes that regulators target; how they affect the intensity of regulatory enforcement; the specific activities and channels of influence they use to influence regulated outcomes; and the role they play in self-regulation. Drawing on empirical literature from the domains listed, I review and analyze literature on each of these questions and offer several conclusions and suggestions for future research.
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Previous Volumes
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Volume 20 (2024)
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Volume 19 (2023)
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Volume 18 (2022)
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Volume 17 (2021)
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Volume 16 (2020)
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Volume 15 (2019)
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Volume 14 (2018)
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Volume 13 (2017)
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Volume 12 (2016)
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Volume 11 (2015)
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Volume 10 (2014)
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Volume 9 (2013)
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Volume 8 (2012)
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Volume 7 (2011)
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Volume 6 (2010)
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Volume 5 (2009)
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Volume 4 (2008)
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Volume 3 (2007)
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Volume 2 (2006)
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Volume 1 (2005)
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Volume 0 (1932)