May 11, 2012
Perlin on Mental Health Courts
Michael L. Perlin (New York Law School) has posted 'There are No Trials Inside the Gates of Eden': Mental Health Courts, the Convention on the Rights of Persons with Disabilities, Dignity, and the Promise of Therapeutic Jurisprudence (Coercive Care, edited by Profs. Bernadette McSherry & Ian Freckelton, Routledge/Taylor & Francis (UK), Forthcoming) on SSRN. Here is the abstract:
The ratification of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) radically changes the scope of international human rights law as it applies to all persons with disabilities. It is most significantly changed in the area of mental disability law. Always marginalized, individuals with mental disabilities have always been “outsiders” in the world of international human rights law, with many important global human rights agencies traditionally expressing little or no interest in the plight of this cohort. Internationally, persons in forensic mental health systems generally receive, if this even seems possible, less humane services than do civil patients. Prisoners with mental disabilities are treated inhumanely in most nations, both in correctional facilities and in forensic mental health facilities.
Advocates have begun to consider whether the CRPD can potentially remediate this situation, but ratification is too recent to see much concrete change. One potential remedy lies in the expanded use of mental health courts as a means of 1) infusing therapeutic jurisprudence (TJ) into the legal process; 2) assuring that the standards of the CRPD are met; and 3) treating persons with mental disabilities with dignity in the court process. There are now multiple mental health courts in the United States, as well as others in Canada, the United Kingdom and Australia, but few in civil law nations. Advocates should seize upon the ratification of the CRPD as a launching pad for an international movement to create such courts to emulate the successes of those in common law nations that have operated with dignity using a TJ model while adhering to civil rights and civil liberties principles.
This chapter seeks to explore the intersection between international human rights and the mental health court movement. I begin here, however, with a cautionary note. Notwithstanding the potential great value that mental health courts have for persons with mental disabilities involved in the criminal justice system, it is essential that these courts do not lose their original focus as therapeutic jurisprudence-based courts, and that judges and court administrators resist the temptation to use these courts as coercive vehicles through which to simply expedite case dispositions without any meaningful attention being paid to issues of civil rights, civil liberties, dignity and autonomy. This warning underscores the importance of the responsibility on mental health court judges and administrators to consider the impact of the CRPD – and international human rights law, in general -- on the operation of these courts, especially regarding issues of potentially coercive treatment.
It is time to restructure the dialogue about mental health courts and to (1) consider whether the development of such courts will finally allow us to move away from society’s predominant opinion that mental illness reflects a defect of morality or will, (2) take seriously the potential ameliorative impact of such courts on the ultimate disposition of cases involving criminal defendants with mental disabilities, (3) assess the impact that such courts might have on the extent to which individuals are treated with dignity in the court process.
I remain a strong supporter of mental health courts but believe firmly that supporters must do a better job of responding to some of the critiques of the courts (especially those coming from what I will somewhat-awkwardly characterize as the “political left.” As I will discuss below, the critiques that, I believe, have the most merit are these: that these courts may provide “false hope” to those who come before them, and that the success of the courts is overly-dependent on the personal charisma of the presiding judge.
I believe that our “culture of blame” still infects the entire criminal justice process, and that it continues to demonize persons with mental illness for their status. Until this is remediated, there can be no assurances that mental health courts -- or any other such potentially-ameliorative alternative – will be ultimately “successful” (however we choose to define that term).
Much of the recent debate on mental health courts has focused either on empirical studies of recidivism or on theorization. All of this discussion, while important and helpful, bypasses the critical issue that must be at the heart of the ultimate inquiry here: do such courts provide additional dignity to the criminal justice process or do they detract from the measure of dignity provided? Until we re-focus our sights on this issue, much of the discourse on this topic remains wholly irrelevant.
My paper proceeds in this manner. In Part I, I discuss the underpinnings of therapeutic jurisprudence. In Part II, I briefly discuss some of the universal factors that contaminate mental disability law in all nations. In Part III, I look at the new Convention and its general implications for the future of mental disability law, with a special focus on the importance of dignity considerations in a Convention context. In Part IV, I first consider the role of blame in the criminal justice system, and then briefly outline the history of the development of mental health courts and consider some of the more serious criticisms of those courts. I conclude by offering some suggestions as to how therapeutic jurisprudence can best inform a MHC model that can be counted on to enforce international human rights and promote dignity.
Klein & Grobey on Debunking Claims of Over-Federalization of Criminal Law
Susan Riva Klein (pictured) and Ingrid B. Grobey (University of Texas School of Law and affiliation not provided to SSRN) have posted Debunking Claims of Over-Federalization of Criminal Law (Emory Law Journal, Volume 62, Forthcoming Sept. 2012) on SSRN. Here is the abstract:
Virtually all criminal law scholars, and many jurists, Republican legislators, and special interest groups bemoan the over-federalization of criminal law, which they perceive as the inevitable result of too many federal laws being enacted and enforced at the whims of Congress and federal prosecutors. This uncontrolled growth, they argue, disrupts the delicate balance between state and federal law enforcement systems by draining resources and attention away from local law enforcement.
We believe that such claims are largely unfounded or misdirected. While it is true that there are more federal criminal laws in existence than ever before, empirical evidence indicates that the size of the federal criminal code has little (if anything) to do with the annual number of federal prosecutions. In fact, as we demonstrate in Part I, while federal criminal caseloads have grown in recent decades almost all of the growth can be attributed to tougher federal drug and immigration enforcement policies, and not to a creeping federal encroachment upon areas traditional state concern. A review of federal criminal caseload data from 1940 onward reveals that rates of prosecution for most offense types remained stable, indicating there’s been no seismic change in the balance between federal and state law enforcement systems. In fact, most indicators suggest that federal resources continue to be expended primarily to vindicate and protect federal interests, while states remain the first line of defense against violent crimes, sex crimes, property crimes, and the like.
In Part II, we explore and analyze scholars’ condemnation of federal criminal law enforcement as arbitrary or disruptive of states’ ability to craft local solutions to local problems. We respond directly to concerns over sentencing disparities between the state and federal systems, and the perception that some defendants are arbitrarily selected for prosecution. We argue that, in the vast majority of cases, federal prosecutors make reasoned, sensible decisions when selecting cases for federal prosecution. Even assuming arguendo that selection for federal prosecution was random, we find no support in case law for the proposition that random selection would be unjust or violate constitutional principles. The very nature of Our Federalism not only permits but encourages state and federal entities to identify and protect their (frequently overlapping) interests as they see fit.
Finally, in Part III, we respond to the criticism that the over-federalization of criminal law has created an explosion of regulatory offenses without culpability, and a series of overbroad and vague federal criminal prohibitions. There are few if any unwitting individuals wrongly imprisoned because of unfair prosecutions. Instead, Congressional drafting deficiencies have been resolved by our long history of Supreme Court intervention in cases where federal statutes might otherwise raise due process concerns. The Court has successfully imposed extra-textual mens rea requirements to public welfare offenses, and similarly narrowed the interpretation of mail fraud, obstruction, and RICO.
May 10, 2012
Johnson on the Presumption of Mens Rea
Eric Alan Johnson (University of Illinois College of Law) has posted Rethinking the Presumption of Mens Rea (Wake Forest Law Review, Vol. 47, No. 4, 2012) on SSRN. Here is the abstract:
This paper answers a question that has divided courts and scholars, namely: To which elements of a criminal offense does the traditional presumption of mens rea apply? Scholars long ago settled on the view that the presumption applies to every objective element — every proscribed result, for example, and every attendant circumstance. Courts, on the other hand, usually have held that the presumption applies only to elements that “make the conduct criminal” and not to elements that make the conduct a more serious offense. In this paper, I will argue that both views are problematic and that the right answer to the question of the presumption’s scope lies somewhere in between. The right answer, as Justice Stevens once suggested, is that the presumption of mens rea applies to every element except those designed exclusively to measure the degree of harm inflicted by the actor’s conduct. The reason why this is the right answer is that elements designed to measure instead the risk posed by the defendant’s conduct ordinarily cannot perform their function — cannot tell us anything about the wrongfulness of the actor’s conduct — without being assigned a mental state.
Ferguson on Predictive Policing and Reasonable Suspicion
Andrew Guthrie Ferguson (UDC David A. Clarke School of Law) has posted Predictive Policing: The Future of Reasonable Suspicion (Emory Law Journal, Forthcoming) on SSRN. Here is the abstract:
Predictive policing is a new law enforcement strategy to reduce crime by predicting criminal activity before it happens. Using sophisticated computer algorithms to forecast future events from past crime patterns, predictive policing has become the centerpiece of a new smart-policing strategy in several major cities. The initial results have been strikingly successful in reducing crime.
This article addresses the Fourth Amendment consequences of this police innovation, analyzing the effect of predictive policing on the concept of reasonable suspicion. This article examines predictive policing in the context of the larger constitutional framework of “prediction” and the Fourth Amendment. Many aspects of current Fourth Amendment doctrine are implicitly or explicitly based on prediction. Search warrants are predictions that contraband will be found in a particular location. Investigative detentions are predictions that the person is committing, or about to commit, a crime. Fourth Amendment concepts like “probable cause,” “reasonable suspicion,” informant tips, “drug courier profiles,” “high crime areas” and others are based on evaluating levels of probability that criminal activity will occur or is occurring. Predictive policing both fits within this established tradition and also challenges it in novel ways. This article concludes that under current Fourth Amendment doctrine predictive policing will have a significant effect on reasonable suspicion analysis, a reality that necessitates a careful understanding of the technology.
Baldus, Grosso, Woodworth & Newell on Racial Discrimination in Military Death Penalty
David C. Baldus , Catherine M. Grosso (pictured), George G. Woodworth and Richard Newell (University of Iowa - College of Law , Michigan State University - College of Law , University of Iowa - Department of Statistics & Actuarial Science and University of Iowa - College of Law) have posted Racial Discrimination in the Administration of the Death Penalty: The Experience of the United States Armed Forces (1984-2005) (Journal of Criminal Law and Criminology, Vol. 101, No. 4, p. 1227, 2012) on SSRN. Here is the abstract:
This Article presents evidence of racial discrimination in the administration of the death penalty in the United States Armed Forces from 1984 through 2005. Our database includes military prosecutions in all potentially death-eligible cases known to us (n=105) during that time period.
Over the last thirty years, studies of state death-penalty systems have documented three types of evidence of racial disparities in the treatment of similarly situated death-eligible offenders. The most common disparity or “race effect” is that capital charging and sentencing decisions are applied more punitively in cases involving one or more white victims than they are in similar cases with no white victims. These disparities are generally viewed as evidence of “race of victim” discrimination in the system. The next most common race-based disparity is the more punitive treatment of cases involving a black or minority defendant and one or more white victims compared to the treatment of cases involving all other similarly situated defendant/victim racial combinations. These disparities are viewed as evidence of “minority-defendant/white-victim” discrimination in the system. The least common racially based disparity is the more punitive treatment of cases involving black and minority defendants compared to the treatment of similarly situated white-defendant cases, regardless of the race of the victim involved in the case. These race effects are usually referred to as evidence of “independent” or “main effect” racial discrimination.
The data in this study document white-victim and minority-accused/white-victim disparities in charging and sentencing outcomes that are consistent with these findings. The data also document independent minority-accused disparities of a magnitude that is rarely seen in state court systems.
The principal source of the white-victim disparities in the system is the combined effect of convening authority charging decisions and court-martial panel findings of guilt at trial — decisions that advance death-eligible cases to capital sentencing hearings. The principal source of the independent minority-accused disparities in the system is the death-sentencing decisions of panel members in capital sentencing hearings.
The evidence in the sixteen cases with multiple victims, which are the principal source of the race effects in the system, supports Supreme Court Justice Byron White’s hypothesis that in death-eligible murder cases, the greatest risk of “racial prejudice” exists in highly aggravated minority-accused/white-victim cases.
There is, however, little or no risk of racial prejudice among the small group of cases that constitute the most aggravated military cases — those with substantial military implications because they involve lethal attacks on United States troops or commissioned officer victims.
Limiting death eligibility to death-eligible murders with substantial military implications could substantially reduce or entirely eliminate the risk of racial bias in the administration of the military death penalty. Without regard to the race of the defendant and victims, those cases uniformly receive more punitive treatment than “civilian-style” murder cases that have no military implications. This has particularly been the case between 1990 and 2005. Militarily implicated cases have accounted for 75% (6/8) of the military death sentences imposed during that period.
May 9, 2012
Bambauer on How the War on Drugs Distorts Privacy Law
Jane Yakowitz Bambauer (Visiting Assistant Professor, Brooklyn Law School) has published How the War on Drugs Distorts Privacy Law (64 Stan. L. Rev. Online 131). In part:
The U.S. Supreme Court will soon determine whether a trained narcotics dog’s sniff at the front door of a home constitutes a Fourth Amendment search. . . .
The Essay concludes by proposing how Fourth Amendment analysis can be reconfigured to accommodate both the old model of individualized suspicion and new suspicionless models designed to decrease discretion. It argues that courts should require three elements before determining that use of a new tool does not constitute a search: (a) low error—the screen significantly outperforms the accuracy rates of traditional probable cause warrants; (b) uniform application—all citizens are equally likely to be screened; and (c) negligible interference—the tool itself should not cause adverse effects. The drug sniff in Jardines fails on all three of these factors and would not be allowed under this rubric, but future law enforcement technologies might not.
Herbert on How the Occupy Movement May Improve Fourth Amendment Jurisprudence
Lenese C. Herbert (Albany Law School) has posted O.P.P.: How 'Occupy's' Race-Based Privilege May Improve Fourth Amendment Jurisprudence for All (Seattle University Law Review, Vol. 35, 2012) on SSRN. Here is the abstract:
This Article submits that Occupy’s race problem could, ironically, prove to be a solution if protesters grow more serious about exposing the injury of political subordination and systems of privilege that adhere to the criminal justice system. Privilege is a “systemic conferral of benefit and advantage [as a result of] affiliation, conscious or not and chosen or not, to the dominant side of a power system.” Accordingly, now that police mistreatment affects them personally, Occupy may finally help kill a fictitious Fourth Amendment jurisprudence that ignores oppression through improper policing based on racial stigma. Occupy may also help usher in an era in which courts are free(er) to produce a more legitimate jurisprudence regarding police conduct that inspires greater confidence in reality-based adjudications of modern (albeit longstanding) police misconduct, irrespective of race, as the current “[s]ystems of privilege maintain hierarchies of inequality, adversely impacting the possibility of full societal participation.”
Gowder on Creating a Market for Prison Conditions
Inadequate medical care, inmate-on-inmate violence, and overcrowding routinely inflict extraordinary suffering on inmates, suffering that is incompatible with the Eighth Amendment and international human rights norms. Among the factors contributing to this widespread cruelty is a principal-agent problem: relative to voters as well as courts, local officials have greatly superior knowledge of conditions in their (typically isolated) prisons, and an incentive to shirk on the effort to implement difficult and expensive reforms.
In this short essay, I propose a novel market-based reform to ameliorate these problems. The fundamental idea is simple. Every year, each inmate will be entitled to elect to change prisons once per year. Should an inmate exercise this option, s/he will be randomly assigned to another prison within the jurisdiction. Sanctions will be imposed on prison operators whose inmates exercise an excessive number of exit rights.
The object will be to put market tools to work in improving prison conditions in three ways. First, inmates’ exercise of their exit rights will replicate the conditions of a competitive market in prison services: the worst prisons can expect long-run financial losses, which in turn will give those who operate them an incentive to improve conditions for inmates. Second, inmates’ exercises of their options will transmit information to elected officials and voters about the relative conditions of prisons in the jurisdiction. Third, operators of private prisons can be expected to demand a price premium for the risk of suffering sanctions if too many prisoners exercise their options; the price demanded will, in turn, reflect their assessments of the risk of suffering such sanctions, and thus of the conditions in their prisons. Accordingly, the price mechanism, in Hayekian fashion, will bring it about that they reveal their private information about the conditions that prevail in the prisons they operate to elected officials and, ultimately, voters.
May 8, 2012
Findley, Barnes, Moran & Squier on Shaken Baby Syndrome
Keith A. Findley (pictured), Patrick David Barnes , David A. Moran and Waney Squier
University of Wisconsin Law School , Stanford University - School of Medicine , University of Michigan at Ann Arbor - The University of Michigan Law School and John Radcliffe Hospital) have posted Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting It Right (Houston Journal of Health Law and Policy, Forthcoming) on SSRN. Here is the abstract:
In the past decade, the existence of shaken baby syndrome (SBS) has been called into serious question by biomechanical studies, the medical and legal literature, and the media. As a result of these questions, SBS has been renamed abusive head trauma (AHT). This is, however, primarily a terminological shift: like SBS, AHT refers to the two-part hypothesis that one can reliably diagnose shaking or abuse from three internal findings (subdural hemorrhage, retinal hemorrhage and encephalopathy) and that one can identify the perpetrator based on the onset of symptoms. Over the past decade, we have learned that this hypothesis fits poorly with the anatomy and physiology of the infant brain, that there are many natural and accidental causes for these findings, and that the onset of symptoms does not reliably indicate timing.In the last issue of this journal, Dr. Sandeep Narang marshaled the arguments and evidence that he believes support the diagnostic specificity of the medical signs that are used to diagnose SBS/AHT. Dr. Narang does not dispute the alternative diagnoses but nonetheless argues that, in the absence of a proven alternative, the SBS/AHT hypothesis is sufficiently reliable to support criminal convictions. The cited studies do not, however, support this position since they assume the validity of the hypothesis without examining it and classify cases accordingly, often without considering alternative diagnoses. To address this problem, Dr. Narang argues that, in diagnosing SBS/AHT, we should rely on the judgment of child abuse pediatricians and other clinicians who endorse the hypothesis. Reliance on groups that endorse a particular hypothesis is, however, antithetical to evidence-based medicine and Daubert, which require an objective assessment of the scientific evidence. In the past decades, thousands of parents and caretakers have been accused "and many convicted" of abusing children based on a hypothesis that is not scientifically supported. While we must do everything in our power to protect children, we must refrain from invoking abuse as a default diagnosis for medical findings that are complex, poorly understood and have a wide range of causes, some doubtlessly yet unknown. To this end, we are calling for collaboration between the medical and legal communities for the sole purpose of "getting it right."
Featured downloads: Farahany on the Fourth and Fifth Amendments in a Brave New World
Nita A. Farahany (Vanderbilt Law School) has published two interesting pieces exploring, inter alia, the pressures placed by evolving technology on existing doctrine. The first, which focuses on the Fifth Amendment, is Incriminating Thoughts (64 Stanford Law Review 351 (2012). The second, focusing on the Fourth Amendment, is Searching Secrets (160 University of Pennsylvania Law Review 1239 (2012). Both are highly recommended.
May 7, 2012
Ferzan on Premeditation
Kimberly Kessler Ferzan (Rutgers, The State University of New Jersey - School of Law - Camden) has posted Plotting Premeditation's Demise (Law and Contemporary Problems, Vol. 75, No. 2, 2012) on SSRN. Here is the abstract:
Theorists have consistently critiqued premeditation as being both over and under inclusive in capturing the worst killers. It is over inclusive because it covers a mercy killer, who emotionally deliberates about putting a loved one out of his misery. It is under inclusive because it does not include hot blooded, angry attacks that reveal deep indifference to the value of human life.
This symposium contribution argues that the problem is that premeditation can only partially capture the most culpable choices. Culpability is complex. Culpability assessments include the analysis of risks imposed; the reasons why they were imposed; the defendant’s thoughts about the killing — either identifying with the wrong or displaying utter indifference to it; the quality of the defendant’s reasoning process; the number of choices the defendant made in killing; and the defendant’s responsibility for prior choices that may lead to degradation of his later reasoning. With all of these factors, it is simply no wonder that premeditation cannot capture the most culpable killers. No one test could. Moreover, because different aspects of choice yield different conceptions of why premeditation is culpable, abandoning premeditation will result in greater doctrinal clarity than simply suggesting supplements to it.
Part II of this article surveys the messy doctrinal terrain. Part III explains the normative objections to premeditation. Part IV performs the autopsy of the culpable choice, analyzing the various aspects of choice and why they are constitutive of culpability. Part V begins by sketching the total recasting of the criminal law that Larry Alexander and I propose in our book, but then offers suggestions for how to more modestly reform the criminal law to better capture the myriad aspects of culpability. One test cannot possibly capture all of the worst killers, and it is time that jurisdictions abandoned their efforts to contort premeditation in order to do so.
Gilchrist on Expressivism and Corporate Criminal Liability
Is it possible to justify imposing criminal liability on corporations? Two of the most distinctive aspects of criminal law have no application to corporations: corporations cannot be jailed and they cannot form mens rea. Moreover, there is reason to think that much of the deterrent effect generated by corporate criminal liability could be generated more efficiently by civil liability. Still, the demand for criminal prosecution of corporations remains high. This article seeks to understand why we have corporate criminal liability and it concludes that only expressivism justifies the practice. Expressivism justifies punishment by reference to the benefits of a statement of moral condemnation. With regard to corporations, however, the power of expressivism is strongest in the absence of liability. While there may be some expressive benefit to holding corporations criminally liable, the expressive cost of excluding corporations from the criminal law altogether is the real driving force in justifying corporate criminal liability: immunity presents a materially harmful expression. This expressive cost of immunity justifies holding corporations criminally liable. Of course, just because it is possible to justify corporate criminal liability by reference to the expressive cost of immunity, it does not follow that the current practice of prosecuting corporations serves this end well. There are reasons to think it does not, but the relationship between expressivism and corporate criminal liability suggests a fruitful path toward reimagining how and when corporations ought to be subject to criminal liability. The path to reform is the subject of a subsequent article; this article lays the theoretical groundwork for reform.
Slobogin on Forcible Medication to Restore Competency to Stand Trial
The Supreme Court’s 2003 decision in Sell v. United States declared that situations in which the state is authorized to forcibly medicate a criminal defendant to restore competency to stand trial “may be rare.” Experience since Sell indicates that this prediction was wrong. In fact, wittingly or not, Sell created three exceptions to its holding (the dangerousness, treatment incompetency, and serious crime exceptions) that virtually swallow the right to refuse. Using the still-on-going case of Jared Loughner as an illustration, this essay explores the scope of these exceptions and the dispositions available in those rare circumstances when none of them is met. It concludes that Sell has created an unnecessarily complicated and often counter-productive legal regime that should be abandoned in favour of the regime that pre-existed it.
Drones in Domestic Use
The New Yorker has an article by Nick Paumgarten entitled "Here's Looking at You: Should We Be Worried about the Rise of the Drone?" It includes an interesting account of the current technology. You can find an abstract here but need to subscribe or pay to view the entire piece.
May 6, 2012
Top-Ten Recent SSRN Downloads
|1||1960||A Due Process Right to Record the Police
Glenn Harlan Reynolds, John A. Steakley,
University of Tennessee College of Law, Unaffiliated Authors -affiliation not provided to SSRN,
Date posted to database: April 23, 2012 [new to top ten]
|2||500||The First Judgment of the International Criminal Court (Prosecutor v. Lubanga): A Comprehensive Analysis of the Legal Issues
Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: March 29, 2012 [new to top ten]
|3||311||Implicit Bias in the Courtroom
Jerry Kang, Mark W. Bennett, Devon W. Carbado, Pamela Casey,Nilanjana Dasgupta, David L. Faigman, Rachel D. Godsil, Anthony G. Greenwald, Justin D. Levinson, Jennifer Mnookin,
University of California, Los Angeles (UCLA) - School of Law, Unaffiliated Authors - affiliation not provided to SSRN, University of California, Los Angeles (UCLA) - School of Law, Unaffiliated Authors - affiliation not provided to SSRN, University of Massachusetts at Amherst - Psychology, University of California - UC Hastings College of the Law, Seton Hall University - School of Law, Unaffiliated Authors - affiliation not provided to SSRN, University of Hawaii at Manoa - William S. Richardson School of Law, University of California, Los Angeles (UCLA) - School of Law,
Date posted to database: March 21, 2012 [1st last week]
|4||287||The Mosaic Theory of the Fourth Amendment
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: April 3, 2012 [3rd last week]
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Amy J. St. Eve, Michael A. Zuckerman,
U.S. District Court Judge, U.S. District Court,
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Sheri Lynn Johnson, John H. Blume, Theodore Eisenberg, Valerie P. Hans, Martin T. Wells,
Cornell Law School, Cornell Law School, Cornell University - School of Law, Cornell University - School of Law, Cornell University - School of Law,
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Victoria University of Wellington, Victoria University of Wellington,
Date posted to database: April 3, 2012 [new to top ten]
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Butler University College of Business,
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