UB Law Professors Offer Advice to Incoming Biden Administration on Combating the Pandemic, Restoring Rule of Law

As President-Elect Joe Biden begins to put together his Cabinet and governing agenda for his upcoming administration, he faces numerous challenges, from a surging pandemic to a struggling economy. He also has the daunting task, many say, of restoring integrity and traditional norms to the institutions of the federal government.

UB Law Dean Ronald Weich, a former senior Senate staffer and assistant attorney general in the Department of Justice (DOJ), and Prof. Nancy Modesitt, who teaches employment law and torts and is also a DOJ veteran, recently published op-eds offering suggestions to the Biden transition team.

Weich’s Nov. 20 op-ed, co-authored with former DOJ colleague Edgar Chen, appeared in Just Security. Titled “The Next Attorney General’s Allegiance Must Be to the Rule of Law,” it describes critical qualifications needed in a Biden nominee.

Dean Ronald Weich
Dean Ronald Weich

“Biden will choose from a pool of many qualified individuals. But, in our view, the key credentials of the next AG should be significant prosecutorial experience at the federal or state level and an abiding fidelity to the apolitical administration of justice, even if doing so results in outcomes that do not politically benefit the new administration.

“Such a choice would go a long way toward reassuring the public and rank-and-file DOJ attorneys and law enforcement agents that the incoming leadership understands that the Department’s mission is to pursue impartial justice, guided by evidence and law, free from partisan considerations,” the authors wrote.

In her Nov. 22 op-ed for The Hill, Modesitt explored ways in which the Biden administration could use OSHA to address coronavirus spread in the workplace.

“Under the Trump administration,” she wrote, “the federal agency tasked with protecting workers, the Occupational Safety and Health Administration (OSHA), failed to act to protect workers from the risks of infection with COVID-19, creating workplace outbreaks. OSHA refused to produce legally binding rules, known as emergency temporary standards, that would require employers to take even the most basic step of requiring masks in the workplace to protect workers from the risks of infection on the job. …

Prof. Nancy Modesitt

“OSHA also failed to use its enforcement authority in a way that would encourage employers to use risk-mitigation strategies in the workplace. Rather than undertaking increased inspections to send a signal that employers need to protect workers from COVID-19, OSHA has conducted fewer inspections since the onset of the pandemic than it has in previous years,” she wrote. 

Modesitt advocates for replacing the current OSHA commissioner with someone more aggressively focused on limiting COVID spread in U.S. workplaces. She also argued that stronger enforcement is needed to have a meaningful impact on transmission rates.

“Creating legally binding safety and health rules, and improving guidance documents, are only two of the steps needed to significantly decrease workplace infections. Effective enforcement must also be a part of the plan. For many years, OSHA has had far too few inspectors to effectively enforce workplace safety rules. Fixing this problem requires Congress to prioritize funding for hiring more inspectors.”

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‘Dissecting the Defund the Police Movement’: One UB Law Student’s Analysis

This article was written for the University of Baltimore Law Forum by Candice Miller, a third-year law student and associate editor for Law Forum. It is reprinted with permission. The entire article, with the citations, can be found here.

The police killing of 46-year-old George Floyd in May 2020 resulted in nationwide protests calling on government actors to “Defund Police.”[1] The demands for reform reached Baltimore City when demonstrators painted “DEFUND THE POLICE” outside of the War Memorial Building.[2] Following months of demonstrations, the Baltimore City Council (“the Council”) approved a $3 billion budget that cuts $22.4 million from the police department.[3] The cuts include $6.7 million in police overtime(not including patrol officers) roughly $2 million to disband the marine unit, and $553,000 to disband the mounted unit.[4]

Baltimore residents have grappled with the implications of this movement and what it will mean for the city. Is “defunding police” an investment in better serving the public, or is it a hinderance to progress? Defunding police does not equate to disbanding the police department.[5] It means reducing the police budget and reallocating those funds to important and oft-neglected social services like education, homeless services, youth services, and mental health services.[6] Defund the police is based on the belief that investing in communities would directly address societal problems that often cause crime.[7]­­

Police are frequently dispatched to calls relating to mental health crises and homelessness.[8] Some suggest that in such instances, a social worker or mental health professional are better suited to handle the situation.[9] Further, advocates claim that when police receive a call it is for a crime that has already been committed.[10] Whereas, investing money into services that support the public could help prevent the crime in the first place.

However, violent crime rates and homicides continue to rise, and the department continues to fall short in response.[11] What will happen to crime when the police department has even less resources to respond to calls? Proponents of the defund the police movement counter with two points. First, investing in communities by providing them with resources will organically reduce crime, and second, police departments nationwide consistently have low rates of reducing crime, even as their budgets have increased.[12]

The movement’s opponents argue that the City Council has made drastic cuts with no plan on addressing blowback from the loss of resources.[13] In particular, the City has not constructed a concrete plan to address the question of who will fulfill the duties of the marine and mounted units.[14] The marine unit patrols speeding vessels, investigates boat accidents, enforces DNR laws, tows disabled boats, searches for missing persons, recovers evidence under the water, and conducts vessel pursuits.[15] Additionally, although, the mounted unit does not police in the traditional sense, it actively works at creating a strong relationship with the Southwest Baltimore community.[16] Cutting $22.4 million without having a plan in place is cause for concern.

Society is apprehensive about change, however, change may be exactly what Baltimore City needs. Whether line budget cuts will result in better funded services is yet to be seen. After all, spending cuts are a small part of the process.[17] The Council has the authority to make spending cuts to the budget, but not to reallocate those funds.[18] Ultimately, the administration has to reallocate money to support these services.[19]

Candice Miller is completing her second semester as a student attorney with the UB Law Low-Income Tax Clinic, is a student liaison for the ABA Law Practice Division, and is a student ambassador for the MSBA. In January 2021, Miller will begin a legal internship with Frost Law, where she will continue to work on a variety of tax and estate matters. She will graduate with her Juris Doctor in May 2021 and her Master of Laws in Taxation in 2022. Upon completing her Juris Doctor, Miller will begin clerking for the Hon. Kevin F. Arthur on the Court of Special Appeals of Maryland.

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GSA Head’s Blockage of Biden Transition Signals Blatant Partisanship, UB Law Professors Say

By law, the head of the General Services Administration (GSA) is authorized to trigger the machinery of the Presidential Transition Act, facilitating the transition from outgoing President Trump to President-elect Joe Biden. The agency chief is to make an “ascertainment” of the winner of the election so that the Biden team has access to office space, funds and national security briefings.

But the Trump-appointed administrator of the GSA, Emily W. Murphy, is refusing to make such an ascertainment, in violation of both the law and decades of precedent for the transfer of executive power.

Professor Charles Tiefer
Professor Charles Tiefer

A week before the election, Trump quietly transferred a White House attorney, Trent Benishek, to the GSA as its general counsel. Democrats suspect that Benishek will be a crucial Trump ally in the effort to hinder the transition process.

“It can’t be good,” said UB Law Prof. Kim Wehle in a Nov. 10 Yahoo News article. “It could be Trump ensuring that he controls all the potential havoc buttons these last few weeks of his presidency.”

While the GSA does not have the power to stop the transition, because certification of the election is completed by the individual states, it is believed that Benishek could direct Murphy to slow the transition, giving the Trump campaign more time to challenge the outcome of the election.

In a Nov. 10 article in Forbes, UB Law Prof. Charles Tiefer points out that Murphy’s personal loyalty to Trump has been demonstrated on previous occasions. “First, it may be asked whether her GSA performance has demonstrated any independence from President Trump. No, she is not independent. Early in the Trump Administration, GSA proceeded with the lease to the Trump Administration of the Old Post Office Building in D.C. This was quickly denounced by observers as illegal. …      

“In the other prominent GSA scandal,” Tiefer continues, “an FBI long-scheduled move out of its D.C. headquarters was blocked to keep the current site from redevelopment into a hotel to compete with Trump’s hotel. At first, Murphy testified to Congress that the decision was made without Trump. 

“However, in July 2018, the GSA inspector general released a report that Murphy’s statement to Congress was ‘incomplete and may have left the misleading impression that she had no discussions with White House officials in the decision-making.’ In fact, Murphy had multiple meetings with Trump on this, notably a two-day meeting in January 2018 between Murphy, Trump, White House Chief of Staff John F. Kelly, and budget director Mick Mulvaney. She was a lawyer giving bogus testimony to a Congressional committee, caught by an Inspector General.

“That adds up to a lot of loyalty to, and no independence from, Trump,” writes Tiefer.

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Visit From Retired U.S. District Judge Gerald Bruce Lee Enlivens Civil Procedure Class for UB Law 1L Students

This post was written by 1L Sadina Zaccari.

With the U.S. ablaze with social justice issues, on the eve of arguably the most important event in modern American history, Prof. Nienke Grossman’s 1L Civil Procedure class was treated to the reflections of a respected figure in East Coast adjudication. Hon. Gerald Bruce Lee visited with the large lecture class on November 2 to offer his expertise, with a touch of self-help guidance wrapped in personal experience for struggling learners in their eleventh week of classes.

The first semester of law school, arduous in its own right, reached an unprecedented challenge in the midst of this global pandemic with the recent introduction of Zoom school. With an already impossible content load meeting the neutral air of learning over black mirror screens, law school moved into a seemingly dystopian virtual age. Lee easily crossed that threshold in the form of inserting students’ first names in a warm and welcoming fashion while asserting a familiar air right off the bat and a friendly bedside manner not normally expected from a speaker of his caliber.

Hon. Gerald Bruce Lee
Hon. Gerald Bruce Lee

Lee, who retired from the bench in the fall of 2017, spent 19 years as U.S. District Judge of the Eastern District of Virginia, also called the “rocket docket,” with a very long and prestigious career in law prior to that. According to the The Washington Post, he presided over some notable cases, including “the case of a too-talkative spy, a wannabe presidential assassin and a Washington football team.”

Judge Lee’s visit had a commanding presence from the start, a hard feat to do via Zoom. He was immediately engaging and didn’t demand or intimidate, but instead lured students in with a wide, inviting smile and an intoxicating whimsy. He wanted the class to come in, have a seat with him, and he didn’t bore us with details of his resume. Instead he posed an existential, “Who will you be in 20 years?” He offered intellectual acuity in the form of a biblical passage from Luke 12:48, “To whom much is given, much is required,” which resonated strongly with many.

He gifted his three C’s: Character, Competency, Contribution. “Who are you when no one is looking?” he posed. He gave examples of Character peppered with individual student names. Competency came next, and Lee calmly, chuckling softly, spoke of law school and its challenges, saying “reading, research and writing … they are fundamental.” He told a funny anecdote about the Oxford comma and a statute relevant to it, followed by a stern reminder that “precision and attention to detail matter.”

Lastly came Contribution, and his demeanor took on a serious note. He prodded: “Will you use this legal education to help others?”

He covered everything from the prison system to the famed Twombley and Iqbal rulings, to the significance of checks and balances in our legislative and judicial branches currently. He mentioned several books to read – “judges and lawyers are woke, I know you all know what woke means” — touched on the value of involvement in local politics, diversity on your law team and recommended reading the Supreme Court case Bush v. Gore with a prophetic reference to “stealing elections” and chants of “stop counting,” knowing it would most likely come full circle.

It is uncertain whether Prof. Grossman knew what she was providing her 1Ls that Monday prior to Election Day. What was anticipated as a regularly scheduled class lecture turned out to be one of the most important exchanges of the semester, chicken soup for the 1L soul.

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UB Law Prof. McFarlane Responds to Suit Against Real Estate Firm Redfin, Alleging Discriminatory Practices in Baltimore and Elsewhere

The National Fair Housing Alliance has filed a federal complaint against Redfin, a national real estate firm, alleging the company’s online listing services unlawfully favor white consumers and neighborhoods compared to their nonwhite counterparts in Baltimore and nine other cities.

The Alliance, a nonprofit organization founded to end racial discrimination in housing, investigated Redfin’s policies and practices for two years. The lawsuit, filed Oct. 28, says the company’s policies “operate as a discriminatory stranglehold on communities of color,” arguing that its minimum home listing price guidelines violate the Fair Housing Act by denying service to customers in largely segregated communities.

UB Law’s Audrey McFarlane, Associate Dean of Faculty Research & Development and Dean Julius Isaacson Professor of Law, explains how this alleged practice of Redfin’s perpetuates longstanding practices of racial discrimination in housing.

Associate Dean Audrey McFarlane
Associate Dean Audrey McFarlane

“This is a very important lawsuit against something we rarely question – how using market-based logic can end up being racially discriminatory. Redfin uses a minimum price policy to decide when to allow a property to display as an available property in a database search.  If the home doesn’t meet a certain market-based minimum price, the home is not eligible for Redfin services and the home will not be marketed to potential homebuyers,” McFarlane says.   

“Market-based criteria seems logical, but it’s not racially neutral. It reflects and reinforces a racial geography of dual housing markets that did not happen by accident.  It happened through nearly a century of deliberate exclusion of Black people from white neighborhoods, and devaluation of and disinvestment from Black neighborhoods. This took place in Baltimore and cities like it across the United States.”

According to the Baltimore Sun, the complaint names Baltimore as one of 10 cities where Redfin is more likely to offer service in “Extremely White” ZIP codes — where 70 percent or more of the residents were white — and less likely to list homes in “Extremely Non-White” ZIP codes — where 70 percent or more of the residents were not white. The other cities named are Chicago, Detroit, Louisville, Memphis, Milwaukee and Philadelphia, as well as Kansas City, Missouri; Newark, New Jersey; and Long Island, New York.

The National Fair Housing Alliance alleges that Redfin is more than five times as likely to not offer services in Black neighborhoods in Baltimore, and more than six times as likely to offer its “Best Available Service” in white neighborhoods, according to the Sun article. The term “Best Available Service” refers to the most comprehensive level of service offered by the company, which connects buyers and sellers to Redfin agents and offers perks such as reduced listing commission fees and refunds.

“Redfin’s policy, whether deliberately or not, disadvantages property owners in Black neighborhoods by perpetuating this historic discrimination and causing real disadvantaging harm by depriving property owners in Black neighborhoods from having access to the full range of buyers searching for homes,” says McFarlane. “Based on the allegations in the complaint, it seems this further devalues the property in Black neighborhoods and reinforces the disadvantages of segregation. The Fair Housing Act is intended to prevent the harms of both discrimination and segregation.”

Redfin CEO Glenn Kelman responded to the allegations on the company’s website, including this statement: “Our long-term commitment is to serve every person seeking a home, in every community, profitably. The challenge is that we don’t know how to sell the lowest-priced homes while paying our agents and other staff a living wage, with health insurance and other benefits. This is why Redfin agents aren’t always in low-priced neighborhoods. It’s why Redfin doesn’t serve many rural towns.”

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UB Law’s November Webinars Feature an Assessment of the ADA at 30 and an Analysis of the Presidential Election

The UB Law in Focus Discussion Series continues in November with Zoom webinars on disability law and the 2020 presidential election.

On Wednesday, Nov. 4, from 5 to 6 p.m., a panel of experts in disability law will address “The ADA at 30: Where Have We Made Progress, and What Remains to Be Done?

The Americans with Disabilities Act was enacted 30 years ago. How are Americans with physical and mental disabilities better off today, and what work still needs to be done to ensure equal opportunity and access for all persons? We know that physical accessibility has been a major consequence of the ADA, but where do we stand in arenas such as employment, education and health care?

Hear from the panel: UB Law alumnus Greg Care, J.D. ’06 , a partner at Brown, Goldstein & Levy; UB Law alumnus Amged Soliman, J.D. ’11 , an attorney at the National Council on Disability, and UB Law student Daniel Hodges , president and founder of Peaces of Me Foundation. UB Law Prof. Donald Stone , director of its Mental Health Law Clinic, will moderate the discussion.

This webinar is co-sponsored by the UB Disabled Law Students Association and will offer live captioning. Register for the ADA webinar here.

This year’s presidential election has been widely touted as one of the most significant in our lifetimes. While the official results might not be know for several weeks, a panel of faculty experts on voting and elections will gather at 5 p.m. on Wednesday, Nov. 18 for a “2020 Election Post-Mortem.”

The panel, led by moderator UB Law Dean Ronald Weich, will review the 2020 presidential election – how it went, what we know of the outcome, and implications for the future. Our experts, including administrative law Prof. Kim Wehle, will discuss voter suppression efforts, the roles of the U.S. Postal Service, the Electoral College and the Supreme Court, and much more. Register for the election webinar here.

All UB Law in Focus webinars are recorded and archived for later viewing here.

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UB Law Prof. Nienke Grossman Signs On to Oxford Statement on Foreign Election Interference Through Digital Means

In the midst of the 2020 U.S. election season, with voting well under way, a group of international law scholars and lawyers has issued a Third Oxford Statement on International Law Protections Against Foreign Electoral Interference through Digital Means. UB Law Prof. Nienke Grossman, co-director of the Center for International and Comparative Law, has joined the resolution as one of more than 100 co-signatories.

The United States is not alone in its vulnerability to election interference from foreign actors. Thirteen prominent intelligence experts stated, in a brief filed in U.S. federal court, that: “Over the last several years, evidence has emerged that Moscow has launched an aggressive series of active measure campaigns to interfere in elections and destabilize politics in Montenegro, Ukraine, Moldova, France, Germany, the Netherlands, Estonia, Sweden, Austria, Italy, Poland and Hungary, to name just a few. They sought to inflame the issues of Catalonian independence and the Brexit vote in the United Kingdom.”

Professor Nienke Grossman
Professor Nienke Grossman

China and Iran also have emerged as suspected perpetrators of U.S. election interference, through disinformation and other means. A summary of the Statement from the International Commission of Jurists states, “Use of digital means to disrupt or undermine elections and to interfere with a population’s right to govern itself strikes at the very core of democracy.”

While the Statement makes clear that states have an obligation to protect and ensure the integrity of their own electoral processes against interference by other states, it emphasizes that domestic law alone cannot adequately address this global phenomenon, and that there is an important role for international law.

The Statement’s goal is to articulate a short list of consensus protections that apply under existing international law to foreign cyberoperations with adverse consequences on electoral processes. These include balloting, verifying and providing voters with information about how to participate in the electoral process.

The Statement details the obligations of nation-states: negative duties – to refrain from conducting cyber operations that have adverse consequences for electoral processes in other states, and not to render assistance to such operations – as well as positive requirements of due diligence, and duties to protect and ensure the integrity of their own electoral processes from interference by other states.

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UB Law Professors React to Court Ruling Blocking DOJ Effort to Protect Trump From Testifying in Rape Defamation Suit

President Trump’s attempt to shield himself from personal liability in a defamation suit was rejected Oct. 27 by a Federal District judge in Manhattan.

The Department of Justice (DOJ) had intervened in the suit, filed by writer E. Jean Carroll, who accused Trump of raping her in a store dressing room in the 1990s. Her lawsuit alleges the president defamed her when he denied the attack last year and accused her of lying. The DOJ removed the case from state court to federal court, arguing that because the alleged defamation occurred while Trump was president, he should be protected from litigation, and the United States should become the defendant in the case.

Professor Charles Tiefer
Professor Charles Tiefer

UB Law Prof. Charles Tiefer, a former general counsel of the House of Representatives from 1984 to 1995, says the statute on which the DOJ relied, the Federal Tort Claims Act, was never intended to apply to presidents.

“Any bill that would get the president out of lawsuits would have received intense and vigorous scrutiny and debate on that issue in the House and Senate,” says Tiefer. “This was a limited reform bill meant to solve a limited technical legal problem of tort suits, mainly against low-level employees.

“The bill was not, and could never be imagined, to work such a huge change in how the courts treat the president, as was now argued. In short, the court was absolutely right to reject this argument,” Tiefer says. 

The presiding judge, Hon. Lewis A. Kaplan, ruled against the DOJ’s maneuver, saying Trump was not acting in an official capacity when he denied Carroll’s accusation.

“His comments concerned an alleged sexual assault that took place several decades before he took office,” the judge wrote, “and the allegations have no relationship to the official business of the United States.”

In an Oct. 28 article for The Bulwark, UB Law Prof. Kim Wehle wrote, “DOJ had claimed that Trump’s public denial had ‘addressed matters relating to his fitness for office as part of an official White House response to press inquiries.’ The state court judge assigned to the case rejected Trump’s argument—through private counsel—that he was accordingly immune from civil suit as president. (That argument had been roundly rejected by the U.S. Supreme Court in Clinton v. Jones.) DOJ removed the case from state court to federal court, arguing that it involves a question of federal law. …

“Under the relevant statutes,” Wehle continued, “President Trump is not an ’employee of the Government’ and was not ‘acting within the scope of his office or employment,’ and so, ruled Judge Kaplan, DOJ cannot take over his defense in the Carroll lawsuit. (No confirmation yet on whether DOJ will appeal, but the safe money would bet that it will.)”

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UB Law Prof. Knowles: Demise of Noncoercive Interrogation Initiative a Consequence of Flawed Institutional Design

In an essay published Oct. 26 in the Yale Law Journal, UB School of Law Prof. Robert Knowles explores the fate of an Obama-era noncoercive interrogation program in the subsequent Trump administration. Knowles, who teaches national security law and administrative law, uses this example as a case study of flawed institutional design, the strategic placement of a new entity within a nation’s bureaucracy.

Prof. Robert Knowles
Prof. Robert Knowles

“In 2010, the Obama administration created the [High-Value Detainee Interrogation Group] (HIG), an interagency group housed within the Federal Bureau of Investigation (FBI), to utilize noncoercive methods while demonstrating the effectiveness of such methods to the rest of the U.S. government,” he writes. “The HIG’s creation was part of an effort to shift interrogation policy away from traditional, coercive practices that had led to the use of torture—a profound violation of U.S. international legal obligations.”

Knowles argues that by choosing to create the HIG and place it within the FBI, instead of simply outlawing coercive interrogation techniques, the Obama administration made the entity vulnerable to abandonment — by a succeeding administration that did not fully embrace its purpose, and by a national-security bureaucracy that rewards “aggressive intelligence-gathering and threat inflation” over transparency and adherence to international norms.

“After 9/11, counterterrorism became central to the mission of nearly every major federal government entity in the national security realm, including the FBI. Even with the best intentions, interrogators in these federal agencies are looking for information about serious threats—that is their core mission,” he writes.

“Coercive methods are more likely to produce that type of result, even if the information is often inaccurate. Agencies whose agendas conflict with their parent agency’s will typically find themselves without much influence. The HIG’s fate is not an unusual one in this respect.”

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DOJ Suit Against Google Could Be Most Important Antitrust Case Since 1998 Microsoft Challenge, Says UB Law Prof. Robert Lande

This post was written by Robert Lande, Venable Professor of Law at UB School of Law.

On Oct. 20, the U.S. Department of Justice (DOJ) sued Google for illegally maintaining a monopoly on internet searching and internet search advertising. DOJ has charged Google with engaging in a large number of illegal exclusionary practices, including “entering into exclusivity agreements that forbid pre-installation of any competing search engines” and “entering into long-term agreements … that require Google to be the default — and de facto exclusive — general search engine ….” on many devices. 

In other words, Google is alleged to have forced smartphone and computer makers not to install any other search engine on their devices, even if they thought that some customers would want and prefer them. If these facts and  allegations are correct, this case could lead to a remedy that will change internet searching and Internet search advertising dramatically.  

Prof. Robert Lande
Prof. Robert Lande

This is potentially the most important antitrust case filed since DOJ’s 1998 suit against Microsoft. The Google case’s claims will take years, and possibly more than a decade, to resolve. The Microsoft case was so large and important it often was referred to as “World War 3.0.” The case against Google should be called “World War 4.0.”

If the facts and other allegations in this complaint are proven, Google will indeed be found to have committed extremely serious violations of the U.S. antitrust laws. However, DOJ under President Trump has been the most political within memory, and Trump has expressed his anger at Google on several occasions. 

It also could be significant that every one of the state antitrust enforcers who joined the complaint are Republicans. All this raises the possibility that the case was filed two weeks before the election mostly for political reasons. On the other hand, even a broken clock can be right twice a day.

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