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Hello Stigler: Google Trusted Stores, Amazon, and Price Discrimination

Hello, Stigler. Matchmaking and advertising are Google’s forte. It has upped its game. Never to leave things as they are, Google has been rolling out a trusted vendor system. I noticed the service for a company that I cannot recall. Not a good sign for the company, but then again I don’t notice Amazon third parties either. If Google can use algorithms and other options such as requiring applications by vendors to be part of a trusted network of retailers, that change could be huge. There are, however, some issues.

First, Amazon should keep an eye on this program as it might be the first one to challenge Amazon’s excellent third party system. For that to be a true threat, Google will have to find a way to protect customers. Amazon has been great, in my experience, when it comes to protecting me while I deal with sellers far away and sometimes dubious. It does not give away my credit card etc. So if a lemon is in play, Amazon covers me. I assume it takes a fee for being the broker. Google customer service may have to evolve, if it is to match Amazon. A series of online, automated loops that end up hitting walls will make me stay with Amazon. But as Google gets better at identifying good sellers and protecting consumers, the service may work well. In addition, the play should feed into Google’s foray into ecommerce. Again if it can aid in delivery and resolve poor third party service, Google could do quite well in this space.

Second, will search results be influenced by participation in the program? On the one hand, I’d love results that lead to better sellers. Heck if Amazon or eBay ratings figured into Google results and improved knowing whether an ad or listed result was trust-worthy, that’d be great. Then again, right or wrong, I expect Google watchers/haters/worriers will argue that Google has promoted results unfairly. As long as a company can go through certification, it seems that argument should fail. I imagine Amazon, eBay, and others require some level of clearance to be in their system. Regardless of purveyor, it seems systems that are relatively low-cost (or maybe free except for time to fill out forms) to join and then are monitored should be embraced. In other words, Yelp etc. are near useless to me. Crowds are not as smart as folks think. As the great agent Kay in Men in Black said, “A person is smart. People are dumb, panicky dangerous animals and you know it.” More ways to improve how each of us, separately, evaluates options would be welcome, and plays to the way we each are capable of being smart. Options that limit us and feed echoes of dubious sources, behaviors, and beliefs, I’d like to avoid.

So we’ll see whether Google can one-up Amazon in connecting buyers and sellers. If so, I may buy more LPs and who knows what from folks I will never meet. And prices should be more competitive. Of course, that will be so until Christmas hits. Then as happened this year, prices may go up. But hey, Amazon listed the MSRP and connected me to a retailer whose markup combined with Amazon shipping worked for a gift to my niece. That was great. Wait, did I just agree with perfect price discrimination?!!? Damn, you Goog! and Amazon! Or is that Happy Holidays! I got what I wanted without fighting through stores.

0

Million Dollar Reward Case Over

aaa millionA claim to $1 million for meeting a lawyer’s dare made on Dateline NBC is now dead. The case is over thanks to an opinion, by Judge Wilson for the 11th Circuit, that will be in the next editions of all Contracts casebooks: it  provides a comprehensive, careful and contestable treatment of unilateral contracts.

Former law student Dustin Kolodziej filed the case in 2009 against high-profile Florida defense lawyer, James Cheney Mason.  Prosecutors said Mason’s client, a wealthy businessman on trial for  murdering his business partner and others, manufactured an alibi putting him in a La Quinta hotel in Atlanta on the day of the Central Florida murders.

On Dateline NBC, Mason explained his defense, that the state could not show that the trip they imagined the defendant took was possible within the time frame.  A vital leg of the journey involved getting off a plane at Atlanta’s busy airport to the hotel five miles away, in less than 30 minutes, where the defendant was seen in security tape early and late in the day.

Mason said he’d pay $1 million if proven wrong.  Kolodziej did just that,  reenacting the full trip, capturing it on his camcorder, and making the final leg in less than 30 minutes.    Kolodziej claimed a valid contract, formed by Mason making an offer of a reward for an act and Kolodziej accepting it by performing the act.   Mason called the claim ridiculous.

The case raises a classic issue in contract law, about whether dares to be proven wrong like this are recognized as offers or mere bluffs and jests.  The 11th Circuit, affirming a grant of summary judgment, sided with Mason.  Stressing context,  not only was his bluster about the million a joke, the full text of what he said makes clear he was daring the prosecutors to prove the point, not the general public.

Dave Hoffman correctly predicted this outcome–nice job Dave (here and here)! I thought the case a closer call, as I explained  here and in my book, Contracts in the Real World: Stories of Popular Contracts and Why They Matter (Cambridge U Press 2012).

While I am persuaded by Dave and the 11th Circuit’s opinion, I remain convinced that Mason was wrong to call the claim ridiculous.  The court takes the claim more seriously, to its credit, though I wish they had engaged more with the arguments  put forth in my book (which, alas, the court does not cite).

Hat tip to Jim Gross, currently clerking for the 9th Circuit, who wrote to remind me that we discussed this case on his first day of Contracts class at GW back in 2011.  Hat tip also to David George, the lawyer for Kolodziej, who also sent me a copy.

0

Goliath aka Google aka No Surprises in Hollywood versus Silicon Valley

This just in: Hollywood hates/fears/plots against Google! The Sony security breach and following leaks have yielded many insights, sort of. If anyone thought Hollywood executives were discrete, that was naive and now debunked. If anyone thought most people knew not to use work email for personal business, that too is shown false. (I am continually amazed at how many law professors have thought it “odd” or “paranoid” that I use different emails for work and non-work communication). And yes, Hollywood aka the copyright industry is quite savvy and plots ways to go after its competitors and/or threats. The revealed emails do show the details of the plans and that there was a code word, Goliath, for Google (which I take as a place holder for Silicon Valley). All of which seems very Dr. Evil. But let’s be clear. Strategies to go after state attorneys general or legislators and to push negative news stories are endemic. They are endemic to Hollywood, telecoms, Silicon Valley, Wall Street, pharmaceuticals, and really any major industry. I am not saying that these practices are great or that policy is well-made from them. But they are real and should be understood. And, for those interested in the open Internet debates there are some other lessons. If you thought SOPA was the end, think again.

Vigilance and support for many companies and groups that support your issue (regardless of what it is) matters. The game is afoot. It will not end. Disclosure moment: Yes, I worked at Google in the policy group, and I have also worked on a political campaign. And one thing that I know from my experience and research (check Jessica Litman’s work on the copyright industry for a great lesson in this industry’s ability to play the game) is that if ideas come from only one entity, they seem weak. For better or worse, trade groups, NGOs, etc. matter. I prefer those that are independent and offer some nuances, but overall the concerted voices of many can be powerful. No matter what issue you wish to see succeed, backing only one entity dilutes the power of the idea or makes it seem like one company or group is crying over its lot in life. Some other post may get into the public choice issues here. But for now, the Sony leaks show that nothing much has changed. “The sun also ariseth, and the sun goeth down, and hasteth to his place where he arose. The wind goeth toward the south, and turneth about unto the north; it whirleth about continually, and the wind returneth again according to his circuits.” Ecclesiastes, 1:5-6.

Hollywood will always lobby for its interests and so will everyone else. “So it goes.”

2

Let the Games Begin! Lightsabers, 3D Printing, and Jedi Skills

Toys are a big area for 3D printing, and now someone is printing prototype lightsabers from a fleeting image in a trailer for the new Star Wars movie. As Gerard and I argue in Patents, Meet Napster: 3D Printing and the Digitization of Things, “Advances in 3D printing technology are launching an Industrial Counter-Revolution, and the laws governing the way things are made will need to make peace with the reality of digitized objects and on-demand fabrication.” These Hollywood-inspired designs may end up a case study for the ideas and issues we raise in the article. After all, Lucasfilm had a history of strong IP enforcement as does Disney, the new owner of the Star Wars franchise. And George Lucas is famous for having negotiated the merchandising rights to Star Wars and making a fortune from that revenue stream. There is, arguably, much at stake.

So will Disney try to stop this fun? If so, who will the target be? Thingiverse, a repository for 3D printing files? FDM, the company that makes the printer hardware? The source of the PLA filament (the materials for the object)? What about the tinkering that has come from just a brief view of the new lightsaber (it has a crossguard which has caused online debates about that design)? The designers at le FabShop offer:

As Makers, we couldn’t help but try to find out by ourselves if this “crossguard” design was a good configuration or not… So we decided to build one, with our army of 3D printers. Of course, the “darkness” of the movie sequence and the lack of details on the weapon itself left a lot of place for imagination and interpretation.

A dozen of 3D printable lightsabers being already available for download on internet, we decided to make one that would be completely customizable. The modular system we invented makes hundreds of configurations possible. From Yoda’s lightsaber to Darth Maul’s.

To me that sounds like some creative work and cool ways to let people play with designs to come up with a range of lightsabers. Of course, others might disagree (as I might if I were the corporation trying to make money selling the merchandise).

Then again, as we say in the article, “Advances in 3D printing technology are launching an Industrial Counter-Revolution, and the laws governing the way things are made will need to make peace with the reality of digitized objects and on-demand fabrication.” So maybe the Disney/Lucasfilms folks will work with these tinkerers and fans. Streamed official lightsabers might be possible. Or a customized lightsaber shop at Disney stores or even in licensed partnership with le FabShop would be great. If so, someone like me is more likely to order that specialized toy for me and for others as a gift and thus rely on expertise and safe materials a bit more than designing my own lightsaber.

Wait, designing my own lightsaber? That was evidence that Luke’s Jedi skills were complete. Maybe I need to get to work on that. Thank you le FabShop!

0

UC Davis Law Review, Issue 48:1 (November 2014)

Articles

Rights Speech
Timothy Zick

Vertical Power
Michael S. Green

Immigration Law and the Myth of Comprehensive Registration
Nancy Morawetz & Natasha Fernández-Silber

Toward a New Equilibrium in Personal Jurisdiction
Charles W. “Rocky” Rhodes & Cassandra Burke Robertson

The (Un)Enforcement of Corporate Officers’ Duties
Megan W. Shaner

Against Confidentiality
Dru Stevenson

Essay

California Dreamin’: Tax Scholarship in a Time of Fiscal Crisis
Joseph Bankman & Paul L. Caron

Note

Windsor, FAFSA, and Retroactivity: A Critique of the Department of Education’s Guidance on Same-Sex Spousal Reporting
John Ormonde

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“We Hold These Truths”

For those of you who love constitutional law like I do, here is a Christmas present.  I’ve mentioned in some prior posts that Bill of Rights Day in December 1941 was celebrated with a radio drama narrated by Jimmy Stewart that included many Hollywood stars.  At the end of that program, FDR gave an address to the nation that expressly contrasted the Bill of Rights with Nazi Germany.  I thought that that were was no easily accessible audio version, but I was wrong.

Go to this link and scroll down until you reach the program.  The President’s address starts at the 49:00 minute.  Among the highlights:

1.  Jimmy Stewart’s melodramatic performance.

2.  Edward G. Robinson as the outraged political protestor in jail.

3.  The way they used louder background music to drown out the more technical parts of the Bill of Rights.

4.  The discussion of the Second Amendment.

5.  The discussion of how Christ inspired the First Amendment.

Plus a lot more.  Enjoy!

2

Jeannie Suk on Teaching Rape

In this week’s New Yorker, Jeannie Suk laments what she perceives as the increasing difficulty in teaching rape to today’s law students. I was a bit surprised in reading Suk’s article because her descriptive account of today’s law school classroom environment regarding rape is at completely at odds with my own. A few years ago, I attended SEALS where there was a panel discussing teaching rape in the classroom. I asked the panelists whether the reluctance to teach rape, most famously described in James Tomkovicz‘s 1992 Yale Law Journal article on the subject, was simply outdated. Almost everyone else was teaching rape and students were reacting positively to that choice. And that is why Suk’s article struck me as particularly strange – teaching rape has become the majority rule in 1L Criminal Law.

Of course, the reluctance to teach rape articulated by Tomkovicz was somewhat different than the one now described by Suk. Tomkovicz was primarily focused on classroom controversy, potential professional consequences, and students being marginalized because of classroom discussions. In contrast, Suk focuses on trauma of rape victims in the classroom. She is concerned that students seem to want trigger warnings or no discussion of rape in the classroom.

I don’t want to entirely discount Suk’s assessment of modern criminal law teaching, but my experience has been radically different.  Since I started teaching in the Fall of 2007, I have taught twelve sections of Criminal Law and seven semesters of a Sex Crimes elective I have designed. I have probably taught 750 1L students in Criminal Law  and about 150 in Sex Crimes. In Criminal Law, I have never had a single complaint from a rape victim or person otherwise affected by sexual violence. In fact, I have received numerous anonymous reviews, emails, and comments in person from students thanking me for teaching about rape. This has been true at Kansas, in Chicago at John Marshall, and during my semester visiting at Iowa. After class discussions, students have often come to my office to share their personal experiences with sexual violence. Sometimes, they tell me stories that have just happened in the past couple of months. I am certain that if I didn’t teach rape in the classroom, those students wouldn’t feel comfortable coming to talk to me in private. A major theme of my classroom discussions of rape is that the dysfunction of America’s sex crime laws is due our failure to discuss the subject. And while I do my best to create a healthy learning environment, we do not shy away from the tough legal and social dimensions of sexual violence.

In my experience, it has been a net positive learning and personal experience for victims I have spoken with to have rape as part of the 1L Criminal Law curriculum. It has been beneficial much like when I had a student in a class who had experienced unfathomable trauma with a family murder. A few years previous to being in my 1L Criminal Law class, this student’s mother had killed his father. She was found guilty and sentenced to lengthy period of incarceration. He came and talked to me about it after we started our section on homicide, became my best RA, and I still keep in touch with him. I can’t speak with certainty as to Harvard students, but my experience has been that 1L Criminal Law has helped traumatized students deal with the violence and difficulty in their past. And, in doing so, many have found greater purpose and direction in their law studies. Some have harnessed that purpose to dedicate their legal careers to addressing the social ill that had previously plagued their lives. If Suk’s concern is with the victims of sexual violence, I hope she doesn’t give up teaching about it.

Of course, my experience might be atypical or I might be overstating the positives that have come from my classes. So, I welcome comments from other professors and will forward this post to some KU students to see if they want to chime in anonymously.

7

Child Safety, Part II

In my last post, I introduced a set of studies that suggest that parents and nonparents alike prefer to invest about twice as much in child safety as adult safety. For purposes of this post, I want to take that descriptive claim as true and ask: What justifies that differential treatment?

One answer is simply that we should respect preferences (almost) regardless of their content. But that seems too quick.

Below are a few thoughts on how we could justify greater protections for children.
I invite readers to add to this preliminary list.

  • Children have more life years ahead of them to live with permanent injury, and lose more life years if they die. This is likely part of the story, but it is an incomplete defense of the data because focusing on life years would not justify providing children with extra protection for temporary injuries like spending one year in the hospital or catching the common cold.
  • Perhaps everyone deserves an opportunity to achieve certain milestones in life, like growing up and falling in love, that often occur during adolescence and young adulthood. To the extent that life years leading up to those milestones are more valuable, we might want to offer younger people more protection. We might also want to ensure that temporary injuries do not impede those opportunities. (Something like this view might be at work here, where one couple recently wrote up a bucket list for their terminally ill infant and went to great lengths to ensure that they checked off each entry.)
  • Children might deserve an open future.

Stay tuned for Part III, where I will discuss what these empirical patterns might mean for tort law …

 

Posner
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On Judicial Reputation: More Questions for Judge Posner

Successful people often are insecure (though they may hide their insecurity behind a facade of bluster); it is what drives them to success. – Richard Posner (1994)

We are experts in self-presentation, in acting a part to further our aims and interests. We have, all of us, a public relations strategy.  Richard Posner (May 5, 2011)

I have never yearned for greatness!  Richard Posner (November 26, 2014)

This is the eighth installment in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second here, the third here, the fourth here, the fifth here, the sixth here, and the seventh one here.

In Judge Richard Posner’s The Essential Holmes, he echoed a line from Oliver Wendell Holmes concerning John Marshall. This is that line: “A great man represents a great ganglion in the nerves of society, or to vary the figure, a strategic point in the campaign of history, and part of his greatness consists in his being there.”

Holmes’s resort to the word “ganglion” (meaning a swelling, or mass of nerve cell bodies, or a nerve cell cluster) is rather opaque — his use of the term is not readily apparent. But to tease the Holmesian metaphor out a bit, part of a judge’s greatness depends on a willingness and ability to successfully affect or change the nerve center of a society. In other words, a true capacity to alter something central. The alternative Holmesian account of greatness hinges on a combination of strategy and timing (or one might say Fortuna). That is, judicial reputation depends on a special ability to seize the perfect moment and act boldly – the case of John Marshall, circa, 1803, comes immediately to mind.

Surprisingly, to talk with Richard Posner one might assume from what he says in his all-too-causal manner that he has little or no interest in greatness or judicial reputation as it pertains to him. Strange from a man who has written on book on judicial reputation (not to be confused, he tells us, with judicial greatness) and who in so many ways seems to have a will for greatness. But don’t believe it, he admonishes us emphatically: “I have never yearned for greatness!”  

According to Judge Posner, Cardozo was a highly reputed jurist and Holmes was a great jurist. But what of Posner? Silence. Apparently, he doesn’t care to discuss it. Why? Perhaps because as a maverick jurist (and he is surely that), he cannot appear to seek public approval. And yet, if one were to invoke his own criteria for measuring judicial reputation, Judge Posner would rank quite high. (See e.g., Ronald Collins & David O’Brien, “Gauging Reputations, National Law Journal, pp. 13-14, April 1, 1991, and Lawrence Cunningham, “Cardozo and Posner: A Study in Contracts,” William & Mary Law Review (1985).) Fine, he might say, brushing it off with a disinterested look. And what of his legal legacy? Of that he claims to care not: “I have absolutely no interest in my posthumous reputation,” he assures us.

So there you have him: a great jurist (or should I say a highly reputed jurist?) who really does not care a bit about being seen as great. Speaking of that subject, see Richard Posner, “The Hand Biography and the Question of Judicial Greatness,” 104 Yale Law Journal 511, (1994).

All that said, in what follows, Judge Posner says a few things about these matters in connection with various American jurists.

Note: Some of the links used below will open in Firefox and Chrome but not in Safari.

____________________________________

Max Lerner

Max Lerner

Question: In his book Nine Scorpions in a Bottle (1994), the late Max Lerner asserted: “There is no recipe for judicial greatness. Yet, if hard-pressed, I should settle for someone with a flexible mind, a compassion for the walking wounded, a refusal to be cowed by power, a capacity to live with the contradictions of life and to separate the permanent from the transient.” And then he added: “That is what I should call a passionately judicial temperament, and only a few have had it.” Before we turn to your own particular views on the subject, what is your opinion of Mr. Lerner’s recipe (albeit tentative) for judicial greatness?

Posner: [As for Lerner’s formula for greatness, I find it] a little puffed up. Forget greatness. A very good judge is a judge who is well educated and intelligent, hard working, willing to write his own opinions, curious about the real-world activities, transactions, and institutions out of which the cases he hears arise, collegial, and aware (so far as anyone can be aware) of his limitations and of the influences that play on him as a result of his upbringing, ideology, career, and temperament.

Posner on the Criteria for Judicial Greatness

For one thing the criteria of judicial greatness are contested. Some might insist that a judge’s greatness consists in the “rightness” of his decisions as judged by the test of time. I think that this is too demanding a standard. Most judicial decisions, even of the agreed-to-be-the-greatest judges, like most scientific discoveries, even of the universally acknowledged greatest scientists, usually are superseded and in that sense eventually proved “wrong.” I believe that the test of greatness for the substance of judicial decisions, therefore, should be, as in the case of science, the contribution that the decisions make to the development of legal rules and principles rather than whether the decision is a “classic” having the permanence and perfection of a work of art. . . Creativity is .  . . one possible criterion ofjudicial greatness. Another . . . . is the gift of verbal facility that enables a familiar proposition to be expressed memorably, arrestingly, thus enforcing attention, facilitating comprehension, and, often, stimulating new thought (in which case the expressive dimension of judicial greatness merges with the creative). [Source here]

Question: Almost a quarter-century ago you called on scholars to pay considerably more attention to “critical judicial study” by way of quantitative analysis of judicial reputation, influence, and achievement. Do you think that call has been heeded?

Posner: A little, not a great deal.

UnknownQuestion: The quantitative analysis you employed in Cardozo: A Study in Reputation (1990) turned largely, and understandably so, on a judge’s reputation within the legal community. But greatness surely extends beyond the confines of that domain and into the larger public realm. How is judicial reputation to be gauged at that macro level? And how does that pursuit of greatness differ, if at all, from one confined to the legal community?

Posner: No one outside the legal profession (with the intermittent exception of politicians) is interested in judges other than Supreme Court Justices. I don’t think it’s healthy for judges to worry about what lay people think of them.

Question: Most judges, you contend, “would rather be regarded as sound than as original, as appliers of the law rather than inventors of it. Judges find it politic to pretend that they are the slaves of the law, never its masters and the competitors of legislators.” If a judge takes that creed of moderation seriously, is such a jurist likely to be heralded as great?

Posner: As I said earlier, forget greatness. The judges who adopt the pretense will be respected by many other judges and applauded by legislators, who don’t like the idea of judges making law, though judges to make a great deal of law.

Question: You have suggested that “rhetorical power may be a more important attribute of judicial excellence than analytical power.” Why? And should that be so?

Posner: The analytical issues presented by cases are rarely complex or difficult, though lawyers and judges and law professors try to make them seem so. The insights of the excellent judges tend to be the result of intuition, experience, and temperament rather than of analysis, and the rhetorical power in which they are expressed are important to the persuasiveness and reception of the insights.

None of the [current Justices] has any empirical, technical background. They’re just humanities majors. Richard Posner, Oct. 23, 2014, University of Chicago Law School remarks.

Question: In terms of his position in American law, what single trait do you think best helps to explain Chief Justice John Marshall’s revered and lasting reputation?

Posner: He had a great deal of common sense and government experience, and he wrote forcefully and lucidly.

Justice Joseph Story

Justice Joseph Story

Question: By the time he died in 1845, Justice Joseph Story published twenty-one books after his three-volume Commentaries on the Constitution of the United States, which was a major legal work for its time and long afterwards. And he authored some important opinions such as Martin v. Hunter’s Lessee (1816), Swift v. Tyson (1842), and Prigg v. Pennsylvania (1842). And yet, today the man and his work seem to be largely forgotten. Why do you suppose that is?

Posner: I don’t know. I’ve never read anything by him. Prompted by your question, I read his opinion in Swift v. Tyson. I thought it was well written, though not as well written as Marshall’s opinions.

[RC: Consider Bernard Schwartz, “Supreme Court Superstars: The Ten Greatest Justices” (1995) (ranking Story as second greatest Justice.]

Question: I was struck by how much the reputational stock of some of the judges and scholars you listed in Tables 1-4 of your Cardozo book has dropped since you published that work in 1990. Is judicial reputation thus akin, at least in some general way, to the rise-and-fall celebrity stardom of, say, the Michael Jackson variety? If so, how does a judge best secure a reputation that lasts over generational time?

Posner: The decline is experienced by almost all judges, simply because law changes as society changes, and the old cases cease to have any relevance. Well-written opinions have the best survival chances, because the quality of the writing is independent of the currency or importance of the issues.

Question: The filaments of Holmes’ thought, you maintain, included “Nietzschean vitalism.” Tell us more about that and why you think it important. Read More

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Worst Modern Court Opinion in Criminal Rape Case?

For the coming semester, I have decided to try teaching without a casebook. Instead, I have been putting together materials with an emphasis on more recent cases embodying prominent issues in substantive criminal law. Regarding rape and sexual assault, in particular, I feel that the cases used in the major casebooks are too dated and less relevant to students today. So, in my search for new cases, I stumbled across an appellate court opinion out of Louisiana in 2005, State v. Wilbert Touchet, Jr., 897 So. 2d 900 (La. Ct. App. 2005). I think this is has to be the worst reasoned opinion regarding rape I have seen by an American court in the last thirty years. The basic facts, as described by the appellate court were: “The State of Louisiana alleges that the Defendant struck the victim with his fists, forced her to remove her clothing at knife point, and had sexual intercourse with the victim against her will.” Yet, despite a guilty verdict at a bench trial, the appellate court reversed the aggravated rape conviction and found insufficient evidence for the lesser included offense of forcible rape (The court’s reasoning after the jump).

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