Rule of Law

Rule of Law

The Revolution Has Begun

September 28th, 2015 - 11:54 am

“You can almost see the circuits blowing.” – Neil Peart, in Far Cry

It’s hard to pinpoint exactly when it started, but with Speaker John Boehner’s resignation announcement, there’s no doubt the revolution has begun. Perhaps it was the first time you bookmarked the Drudge Report. Or maybe, when at the Drudge Report, you said: “Who is this Breitbart?” Eric Cantor’s primary loss to Dave Brat was certainly a moment when the revolution was stirring and produced tangible results rather than just internet narrative.

Regardless of when the revolution started, it’s clearly underway.

First, what do I mean by revolution? Like with all revolutions, the old ways are being replaced. But this revolution has a twist: the revolution is trying to replace the old ways of doing business with even older, and more timeless ways. Namely, this revolution is a revolution against centralized power.

It could be that this revolution really started two centuries ago. Perhaps it never stopped. We were warned about the price of eternal vigilance, weren’t we?

There was a time when the Republican Party stood as the bulwark against centralized power, against Washington, D.C., eroding personal space. When both houses of Congress were held by President Obama’s party, the Republican Party stood as the most well-placed institution to oppose his agenda.

Things were bad. But if only we had the House! That was the rallying cry from fundraisers, politicians in the minority, and their consultants. So the revolution delivered the House in 2010. But things didn’t seem to change. Obama consolidated his gains and entrenched. There was no consequence.

If only we had the Senate! That was the new rallying cry from the fundraisers, politicians in the House majority, politicians in the Senate minority, and their consultants.

So the revolution delivered the Senate in 2014. Again, things didn’t seem to change. Instead of opposing Obama with every constitutional tool available, yes including the power of the purse, the new leadership failed to return the favor that the revolution bestowed on them in 2010 and 2014.

Instead of the speaker of the House rolling back Obama’s counter-American revolution, Boehner gained a golf buddy. (And yes, that’s precisely what Obama represents — a retreat from American ideals two centuries old. But more on that another day.)


The revolution is bad news for a number of Republican figures. Jeb Bush might top the list.

Jeb’s presidential campaign seems like a political sitcom from Antenna TV – the cable network with the rabbit-ears logo that plays shows from a kinder, gentler time, decades ago. That was before the progressive left marched through federal institutions and turned them against mainstream America.  Jeb’s campaign is suited for another time.


The revolution was also very bad for Eric Cantor and others who seem to feel more at home appearing on the pages of the New York Times than in conservative media.

One of the favorite canards used against the revolution is: “What would you have us do, shut down the government?!” Fear of a government shutdown is to Republican leaders inside the Beltway what fear of witches was in colonial New England. But the Planned Parenthood videos changed everything, and rendered GOP fear of a shutdown a morally bankrupt position. The revolution isn’t happy.

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Jeb: Multiculturalism Was Good Before It Was Bad

September 23rd, 2015 - 5:33 am

Jeb Bush has come out swinging against multiculturalism.

In this Drudge Report-linked story, Bush hammers the multicultural dogma that differences between Americans should be talked about and treasured:

“We should not have a multicultural society,” Bush said, before beginning a longer explanation of his views of what comprises culture in the U.S. “When you create pockets of isolation – and in some places the process of assimilation has been retarded because they’ve slowed down – it’s wrong,” he added. “It limits people’s aspirations.”

Jeb Bush has had these strongly held views . . .  for at least seven days.

Just last week, Bush sent a fundraising letter praising the virtues of his “modern” and “multi-cultural family.”



In a postscript to his fundraising letter of last week, Bush says:

My adult life began when I was seventeen, and I met my beloved bride-to-be Columba. . . . We are a modern American family – multi-cultural, devoted to our Christian faith, active in our community, business and politics.

The fundraising letter asks for up to $500 and promotes Bush’s leadership of a “thoughtful conservative reform movement.”  Bush believes he can win by campaigning “in every corner of America . . .  including places where Republicans have rarely gone and where there is great opportunity for our nation and our Party.”

In the 2012 election, Hispanics voted for President Obama over Mitt Romney 71% to 27%.  Over 4,000,000 Evangelicals and conservative Catholics stayed home.  So did large numbers of middle class white voters.


I appeared on “The Kelly File” Friday to discuss the actual law about anchor babies.

Here’s the bottom line: the Supreme Court has never taken the issue as to whether the children of illegal aliens enjoy birthright citizenship.

The closest the Court came was a case from 1898 involving the child of legal permanent residents from China. There, the court found that the child was a citizen, but contrasted that finding with a potential case arising out of a child of a foreign invasion or a diplomat’s child.

On “The Kelly File,” I noted Congress has the power to clarify this issue under Section 5 of the 14th Amendment. But the bottom line is that, contrary to what some pundits have said, the Court has never taken the issue up and decided that the children of illegal aliens enjoy birthright citizenship:

A federal appeals court has blasted misconduct by Justice Department lawyers in a civil rights prosecution against New Orleans police officers. The case arose in the aftermath of Hurricane Katrina. The Fifth Circuit Court of Appeals affirmed the lower court’s grant of a new trial because Justice Department lawyers — including those responsible for protecting the civil rights of the defendant police officers — engaged in an anonymous blogging campaign to taint the defendants during the trial. The court noted that Justice Department lawyers stoked a “mob mentality” against police officers.

The federal appeals court took note that one of the Civil Rights Division lawyers responsible appears to have gone unpunished.  For sure, one lawyer is still employed and earning in excess of $157,000 per year with her government salary and benefits.

(See previous PJ Media coverage: Justice Dept. Lawyer Karla Dobinski’s Misconduct Sends Cops to Prison)

As the court described:

In the anarchy following Hurricane Katrina, a group of heavily armed New Orleans police officers were dispatched to the Danziger Bridge in response to an emergency call reporting shots being fired at police. There, amid chaos, they shot and killed two unarmed men, one of them developmentally disabled, and wounded four other unarmed civilians.

The notorious Civil Rights Division then brought a criminal prosecution against the police officers (just as many are now clamoring for the same DOJ unit to launch such prosecution against other police departments). The federal appeals court described what happened next:

No less than three high-ranking federal prosecutors are known to have been posting online, anonymous comments to newspaper articles about the case throughout its duration. The government makes no attempt to justify the prosecutors’ ethical lapses, which the court described as having created an “online 21st century carnival atmosphere.” Not only that, but the government inadequately investigated and substantially delayed the ferreting out of information about its in-house contributors to the anonymous postings. The district court also found that cooperating defendants called to testify by the government lied, an FBI agent over stepped, defense witnesses were intimidated from testifying , and inexplicably gross sentencing disparities resulted from the government’ s plea bargains and charging practices.

Read the full outrageous opinion here.

The exact same Justice Department unit which engaged in this misconduct is also investigating police departments across the nation — including in Ferguson, Missouri, and Baltimore.

One such lawyer who engaged in misconduct according to the court was Karla Dobinski. She posted anonymous comments online about the police during the trial in New Orleans. Yet her job was to protect the police officers:  ”Her responsibility in the course of the prosecution was to protect indicted police officers’ civil rights,” said the appeals court.

“Dobinski remains in federal employment with only a bare reproof for her online commenting,” the court said. Dobinski remains employed today at the Justice Department Civil Rights Division, the very same unit that prosecutes police officers.

Karla Dobinski

Karla Dobinski

When the federal court at trial asked the lead DOJ prosecutor if DOJ lawyers were posting anonymous comments, the judge didn’t get the truth:

Additionally, the DOJ’s chief prosecutor in this case, Barbara Bernstein, represented to the district court that no member of “the trial team” had commented online. The district court acutely observed that its concern about leaks and publicity was not limited to the “team” but extended to all of the federal government.

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As his speech ended, and before he could be whisked from the room, I ignored his bodyguards and rushed the podium. I approached the small and unlikely man and silently held out the book and pen. He beamed with a smile. Authors quietly rejoice whenever they are asked to sign their own works — even this giant whose words steered the events of world history.

The well-worn paperback was Open Secrets, a collection of essays by the Czech poet President Vaclav Havel. It was 1998 and President Havel was visiting the United States. I had been tipped off that he’d be speaking to an audience in the bowels of Congress, so I grabbed my copy of his book and set off.

I’ve collected signed books of moonwalkers and rock stars, politicians and new-media pioneers, but I treasure my signed copy of Open Secrets above all. Under his signature, he drew a simple and charming heart.


1998 seems so far off now, and not merely in time. In 1998, America had lived through an age of moral clarity, despite the best efforts of Havel’s foes to blur those lines at home and abroad. America had enjoyed a largely unbroken string of presidencies where America’s moral place in world affairs was without question: Clinton, Bush, Reagan, Nixon, Kennedy, Eisenhower, and on.

Decade after decade, American leaders had defended the universal truth of human liberty.

Naturally, Havel himself had experienced this binary battle between human dignity and what he would refer to as “living the lie.” His recurring visits to the regime’s prisons sharpened this understanding. Good was good and evil was evil.

Only the most dedicated administration shill or the most comfortable Beltway parasite could deny today that America has become detached from the moral clarity that guided the nation through those decades. Nearly 7 in 10 Americans think the country is headed down the wrong track. A sizable majority thinks that America’s best days are in the past, not in the future.

Americans in 2015 might find value in discovering, or revisiting, one of Havel’s monumental essays, “The Power of the Powerless.” Though in that essay Havel was describing efforts to escape from what he referred to as a “post-totalitarian” existence, the essay has value for those in the West seeking to arrest the drift toward it.

To Havel, “post-totalitarian” was not a term relating to sequence. “Post-totalitarian” did not mean a government that arises after the evolution or collapse of a totalitarian structure of the sort we typically associate with singular omnipotent leaders.  Instead, “post-totalitarian” to Havel described a massive, bureaucratic culture that controlled vast territory over people’s lives, the economy, and was not tolerant of deviation or dissent.

Havel’s distinction between “post-totalitarianism” and the more consuming and familiar forms of totalitarianism has serious implications for our discourse today. Americans, even conservatives, tend to skip over Havel’s post-totalitarian nightmares in the continuum between Scandinavian-style socialism and Hilter’s style of totalitarianism. We forget about a big bureaucratic leviathan that masks its truly evil nature. Reading “The Power of the Powerless,” you explore a post-totalitarian bureaucratic system that sucks out the soul in ways that a traditional totalitarian system does not.

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The United States Supreme Court has been asked to end a political subsidy to aliens through the use of alien population in allocating legislative seats. In a case arising out of the decision by Texas to count aliens — illegal and legal — in drawing legislative districts, the Supreme Court will hear arguments on whether using aliens violates the principle of “one person, one vote.”

The case is Evenwel vs. Abbott.

Currently, many states count aliens when establishing the population of legislative districts, therefore diluting the legislative clout of citizens. Legislative districts — whether for Congress, a state legislature, or a county council — must be more or less equal in population.

The case before the Supreme Court will decide what population must be used to calculate that “population.” If Texas prevails, illegal aliens and noncitizens may be counted. This means areas with high alien population will dilute the legislative clout of areas where the residents are almost all citizens.

For example, assume every legislative district must have roughly 10,000 people. A district with 5,000 aliens and 5,000 citizens might receive one legislative seat. A district with 10,000 American citizens might receive another legislative seat.  The district with the heavy alien population has 5,000 citizens getting a vote in a legislature while the other district where all 10,000 residents are American citizens would get the same legislative vote.


The implications for the American political landscape are profound.  Presently, in places like Texas, California, Arizona, and elsewhere, aliens are enjoying a political subsidy in legislative bodies — and in Congress.

The practice offends the concept of “one person, one vote,” a term which derives from the 1964 Supreme Court case Reynolds vs. Sims. Back then, Alabama gave rural counties the same voice in the Alabama Senate that the most urban and populated counties enjoyed. The Supreme Court said that practice offended the 14th Amendment’s promise of Equal Protection and the principle of “one person, one vote.” It ruled Alabama had to have equal population in each Senate district.

The impact of Reynolds in 1964 was the termination of the political subsidy enjoyed by rural areas, and a massive shift of power to urban America.

Now, areas with high alien populations enjoy the same political subsidy that rural areas of Alabama once enjoyed.

The defenders of this status quo make many of the same arguments Alabama made and which the Supreme Court rejected. Most notably, they characterize the decisions to use aliens to allocate power as a political question beyond the reach of the Supreme Court.

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The murder of Kathryn Steinle on the Embarcadero in San Francisco by an illegal alien is the most familiar example of a crime committed by an alien.  But an unreleased internal report by the Texas Department of Public Safety reveals that aliens have been involved in thousands of crimes in Texas alone, including nearly 3,000 homicides.

PJ Media obtained a never-before-released copy of a Texas DPS report on human smuggling containing the numbers of crimes committed by aliens in Texas.   According to the analysis conducted by the Texas Department of Public Safety, foreign aliens committed 611,234 unique crimes in Texas from 2008 to 2014, including thousands of homicides and sexual assaults.

The report describes an alien crime wave of staggering proportions exacerbated by federal officials unwilling to enforce immigration laws.

The Texas DPS report says well over 100,000 individual criminal aliens have been booked into Texas jails:

From October 2008 to April 2014, Texas identified a total 177,588 unique criminal alien defendants booked into Texas county jails. These individuals have been identified through the Secure Communities initiative, in which Texas has participated since October 2008.

There are almost certainly more criminal aliens who haven’t been identified as aliens.  The 177,588 criminal aliens identified by Texas through the Secure Communities initiative only can tag criminal aliens who had already been fingerprinted.  Arrests of illegal aliens who have not been fingerprinted prior to arrest are not included in these arrests numbers derived from the Secure Communities initiative.

That means that the already stratospheric aggregate crime totals would be even higher if crimes by many illegal aliens who are not in the fingerprint database were included.

Confessed hammer killer Juan Francisco De Luna Vasquez

Confessed Texas killer Juan Vasquez

The Secure Communities initiative is an information-sharing program between the Department of Homeland Security and the Department of Justice. Presumably, both departments would have data on the number of fingerprint searches conducted that revealed a criminal act involved an alien.

Texas has been ground zero in illegal alien crossings into the United States.  The Texas DPS report shows that in the Rio Grande Valley, 154,453 illegal aliens were apprehended in 2013.


Total illegal alien apprehensions by sector. (Source: Texas DPS report).

Other Texas sectors saw approximately 86,000 illegal aliens apprehended.  All other sectors combined on the southern border only saw approximately 170,000 illegal alien apprehensions in the same time period.  The Obama administration releases a sizable portion of the illegal aliens captured.

The criminal aliens identified by the Texas Department of Public Safety have been responsible for the most heinous types of crimes — and in astonishing numbers. From the Texas DPS report:

A review of these 177,588 defendants shows that they are responsible for at least 611,234 individual criminal charges over their criminal careers, including 2,993 homicides and 7,695 sexual assaults.

One such murder was committed by Juan Francisco De Luna Vasquez. Vasquez confessed to killing his wife with a hammer in Laredo.

The increasing flood across the border combined with the existence of sanctuary cities bolstered by Obama administration policies allowing the release of the most violent criminal aliens has fueled these crimes.

(Source: Texas DPS)

“Other Than Mexican” apprehensions. Most are released. (Source: Texas DPS report)

The House Judiciary Committee has passed the Davis-Oliver Act, introduced (S.1640) in the Senate by Sen. Jeff Sessions (R-Ala.) and in the House (H.R.1148) by Rep. Trey Gowdy (R-S.C.), which would address many of these issues.

Yesterday, Texas Senator Ted Cruz (R-TX) grilled Immigration and Customs Enforcement Director Sarah Saldaña about the 104,000 criminals that ICE released in 2013, and the 68,000 criminals against whom ICE refused to start deportation proceedings.  Saldaña calls it “good news” that only 30,558 criminal aliens were released by ICE in 2014.

Federal hate crime laws criminalize racially motivated violence. The Obama Justice Department, over and over and over again, has refused to enforce these laws in a race-neutral manner. Instead, justice is available to some Americans, but not all.  Some victims are protected by federal law in the age of Obama.

Some aren’t.

The latest example of racially motivated violence the Obama administration is likely to ignore occurred in Chicago:

Broken glass littered the pavement at 60th and King Drive across from Washington Park, where the attack took place around 9 p.m. Thursday night. Pedersen says she had just dropped off a friend at the University of Chicago when she stopped at a red light and found her car surrounded by several dozen young people.

“They were walking around both sides of the vehicle – in the front, in the back – and as they were walking across, they were hitting my car, using racial slurs and telling me that I didn’t belong in their neighborhood because I was white,” Pedersen said.

The group, all African-American, she says, kicked the vehicle and shook it violently. Her children were screaming from the back of the vehicle.

Susan Pedersen and her two children do not fit the correct victim profile to bring protection from the United States Department of Justice.

The victims

The victims

Instance after instance of racially motivated violence has gone unpunished since Obama’s inauguration in 2009 when the victim looks like Susan Pedersen.

Robert Moossy is the chief of the Criminal Section at the Civil Rights Division.  His section is responsible for bringing criminal charges in Chicago, or not.

Be sure to read: 

It’s Time to Eliminate ‘Hate Crimes’ From the American Legal System


Virginia Governor’s Guide to Free Golf

July 11th, 2015 - 2:46 pm

Thomas Jefferson wrote of his “detestation of the corruption of the English government” and wished for “an ocean of fire between that island and us” to protect America from that aristocratic culture.  Two hundred years later,  Jefferson’s successor as the governor of Virginia had aides trying to score free rounds of golf and hotel rooms.

And now, the Fourth Circuit Court of Appeals has affirmed the eleven felony convictions of former Virginia Governor Robert McDonnell.

McDonnell’s tawdry story of cash and favors (covered here, here and here) saw him receiving cash, clambakes, Ferrari rides, Rolexes and more in exchange for using the governor’s office to open doors in Virginia government for a tobacco-based nutritional supplement whose makers were desperate for credibility without going through the usual routes to credibility.

McDonnell tried to get Virginia government institutions to bless the tobacco pill instead of the manufacturer paying for their own clinical trials.

In exchange, the manufacturer gave McDonnell cash, loans, gifts, golf clubs, golf bags, jets, and more, much more.

Ferrari Joyride

Ferrari Joyride

But it seems McDonnell’s freeloading might have gone well beyond his cash-for-credibility pill scheme.

The Fourth Circuit Court of Appeals opinion reveals that McDonnell’s camp was keen on scoring free golf and hotels… wherever they might find it.

Where they might find it reveals a political insider’s grift: the Virginia Governor’s Guide to Scoring Free Golf.

Enter Adam Zubowsky, McDonnell’s travel aide and eventual son-in-law.

Adam Zubowsky

Adam Zubowsky

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Does Harvard Teach Law Anymore?

June 17th, 2015 - 11:29 am

Harvard is to law what Winchester is to bolt actions.  Powerful, dependable, well engineered and the mark of a serious craft, at least that’s what I was told.

These days, Harvard graduates probably don’t know much about bolt actions, unless they are a member of the Harvard Law School shooting club.  A stroll through the Harvard Law School course catalog also makes you wonder how much they know about the real practice of law.

The course catalog from Harvard Law School hints that the answer might be — not as much as we thought.

The Harvard Law School course catalog frequently reads more like an ideological training academy than it does a program for teaching lawyers how to practice law.

I may be unqualified to opine about Harvard Law considering that I went to a law school in the SEC.  That’s the Southeastern Conference, not the Securities and Exchange Commission.  As such, I spent most of my law school years taking courses that trained future lawyers to practice real law in real American courtrooms: remedies, civil procedure, criminal procedure, legal writing, trusts, evidence, and even more civil procedure.

Six of nine United States Supreme Court justices attended Harvard, so they must be doing something right.  But the course catalog at Harvard reveals a great divide emerging in American legal education.

Is law school about learning to practice law, or fundamental transformation?

Elite universities are graduating lawyers who seem most qualified to engineer fundamental social change, not represent clients in court.  Law schools in most of America still seem to focus on graduating lawyers who know how to practice law.  The course descriptions, below, reveal a different approach to legal education at Harvard.  The political ramifications for the nation should be obvious, especially when so many positions of power are filled with graduates of elite law schools.  That’s not just me saying it, Harvard’s own website boasts of this fundamental transformation:

Harvard Law School recently undertook a sweeping overhaul of its first-year curriculum. The new curriculum reflects legal practice in the 21st century, adding courses in legislation and regulation and international and comparative law to the traditional curriculum of civil procedure, contracts, criminal law, property, and torts. . . . In the second and third years of law school, Harvard students shape their own courses of study, selecting among a wide offering of electives. . . .  Five optional Programs of Study – Law and Government; Law and Social Change; Law and Business; International and Comparative Law; and Law, Science and Technology €”developed by the Law School faculty provide pathways through the upper-level curriculum.

Sorry, but “legislation” doesn’t reflect the “legal practice in the 21st Century.”  I took legislation in law school, and a small fraction of lawyers ever dabble in the area.  Lawyers inside the D.C. Beltway seeking to expand the power of the federal government are one exception.  I’ve sat in courtrooms listening to thousands of docket calls, and never once heard “comparative law” on the menu.  Worse, in most of America, no lawyer has any use for nonsense like “Law and Social Change,” unless politics are on the agenda instead of law.

A classroom blackboard at Harvard Law

Classroom blackboard at Harvard Law

Joel Pollak, a graduate of Harvard Law School and editor at Breitbart News, told me that the shift isn’t always passive, where Harvard law students can hear both sides and peacefully choose.  “Many of the professors who teach the ‘core’ classes are conscientious about fostering debate, open to different perspectives, and able to separate their own political views from their pedagogy. Others, however, seem unable to resist the urge to foist their personal ideological convictions onto their classes, resisting questions from students who disagree.”

And therein lies the danger — law professors with a captive audience of first year students turn law into political ideology, a training academy for the institutional left at an elite law school.  And after the first year of core classes ends, just imagine what happens in these actual classes (detailed below) that are now taught at Harvard Law School:

The Art of Social Change

“We will bring into the classroom as visiting lecturers leaders from the worlds of policy, practice, and academia — people who have themselves operated as successful change agents and who represent different disciplines, career paths, and strategies for change.”

Fidelity in Interpretation

“This seminar will develop a theory of interpretation for the Constituiton [SIC!!!!!] of the United States tied to a particular conception of interpretive fidelity. The aim is Dworkinian — to develop the theory that best explains and justifies our constitutional tradition.”  A screenshot from the Harvard Law catalog, errata included.


Feminist Legal Theory


Prof. Janet Halley

“This course will survey the most important sources of feminist thinking in and around law and law reform, with attention to the ways in which differing feminist ideas have and have not become operationalized as law that actually governs. We will pay attention to the rise and fall of feminist ideas; to competitor theoretical frames and ongoing contests among different feminist worldviews for influence on law; to nonwestern sources of feminist legal thought; and to modes of transmitting feminist ideas from one national, regional, and/or international system to another. A constant theme will be the collaborations among and conflicts between feminist social movements and social movements for emancipation of groups other than women: racial minorities, sexual minorities, immigrants, the poor.”

Law and Psychology: The Emotions

Ironically taught by Professor David Cope:  “Love, jealousy, guilt, anger, fear, greed, compassion, hope, and joy play important roles in the lives of lawyers and those with whom they interact.”

Law and the Political Process

Professor Lani Guinier teaches Law and the Political Process. “Prerequisites: None. Constitutional Law is strongly recommended but is not a prerequisite for this course.”   No surprise in a Guinier-taught course.

Litigating Health Rights: Can Courts Bring More Justice to Health?

“The question of whether courts can not only call for modifying legislation and policies but also enforce affirmative entitlements to care has been answered in many contexts. Yet questions still persist as to when and how litigation can lead to greater equity in health and enhance the functioning and oversight of health systems, rather than distorting priorities and budgets.”

Animal Law

A course, perhaps, about laws surrounding animal-based commodities?  Maybe a survey of useful contractual issues involving agricultural commerce?  Stop it, this is Harvard, not the University of Wyoming!:

Animal Law Prof. Kristen Stilt

Animal Law Prof. Kristen Stilt

“The course will also engage with fundamental questions about animals and the law, such as: Are some animals more deserving of protection than others, and if so, on what basis? What role does culture and belief play in animal law—why are dogs considered pets in the U.S. and food in some parts of the world, for example? Does the status of animals as property pose an insurmountable barrier to increasing protections for animals? What are the advantages and disadvantages of the concepts of “animal rights” and “animal welfare”?

(More course descriptions on next page)

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