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NCSC Provides Procedural-Fairness Training Materials   Leave a comment

The National Center for State Courts has produced four videos that can be used in training programs for judges and court personnel about procedural fairness. The videos are available at proceduralfairnessguide.org.

The videos explore how procedural-fairness principles may best be deployed in situations faced by judges and court staff. Four video scenarios are provided, and each one includes discussion questions and links to additional materials about the topic.

The four video scenarios are:

  • The Multitasking Judge (5:18): A judge conducting a hearing on whether to modify a no-contact order in a pending domestic-violence case also signs a stack of routine orders during the hearing.
  • The Counter Clerk and the Upset Litigant (2:42): A mother who has just received a court order taking away her children comes to the Clerk’s front counter for information. The clerk may–or may not–be able to help.
  • The Criminal First-Appearance Docket (3:04): A judge must process more than 100 defendants making their first court appearance in criminal cases.
  • The Computerized Judge (9:15): A judge hearing a proceeding to terminate a mother’s parental rights sits in a modern courtroom where he accesses the court file on one computer, the court calendar on an iPad, and texts about emergency warrants on an iPhone. This leads to a motion for mistrial based on the judge’s inattention.

These video segments can be used as part of a training program on procedural fairness. Kevin Burke and I have tried some of them out in the past year; they help to crystallize for an audience some of the problems that can come up–and the video scenarios set in the courtroom are all based on real court hearings.

For judges or court staff who may be leading a training program in this area, the National Center for State Courts has also produced guide to each scenario for discussion leaders. Those guides provide additional background about each scenario; they can be accessed with a password that can be requested. (Information about that can be found under the “Leader’s Guide Login” tab at proceduralfairnessguide.org.)–Steve Leben

 

 

Posted June 28, 2016 by Steve Leben in Uncategorized

A Chance to Focus on Fairness: The Post-Scalia Supreme Court   Leave a comment

Like everyone else, I was surprised last weekend to hear that Justice Antonin Scalia had died. Whether you agreed with him or not, he was a justice whose work changed the legal world.

I teach a law-school course on statutory interpretation. Coincidentally, at our first class after Justice Scalia’s death, our scheduled topic was his methodology for interpreting statutes. Before Scalia, courts often started with the legislative history, not the text. As he noted in a 1989 opinion, a brief to the Court had recently said, “Unfortunately, the legislative debates are not helpful. Thus, we turn to the other guidepost in this difficult area, statutory language.” After Scalia began pointing out arguments like that, everyone came to agree that you must start with the statutory text—and often you will end there as well, even if you also check the statute’s meaning against legislative history, statutory purpose, or past precedents.

But Justice Scalia brought more to the Court than the substance of his arguments—he also had an often-acerbic style and, in recent years, what seemed an openly partisan bent that contributed to the drop in public approval of the Court. Linda Greenhouse has put together an excellent review of where the Court sits today and how it got there (“Resetting the Post-Scalia Supreme Court”), published yesterday in the New York Times. She deals with both substance and style. Our blog is not concerned with the substance of Supreme Court opinions; we are concerned with the appearance of fairness in judicial proceedings. One of the basic tenets of the procedural-justice movement is that no matter who may win on the merits of a case, it’s important that those on all sides believe the judicial hearing was fair to them.

And this brings me back to the Greenhouse op-ed, in which she suggests that it’s time for the justices to hit the reset button. She recognizes that her column may seem “uncharitable, even tasteless” so soon after Scalia’s death, but she makes some good points, including some that Minnesota judge Kevin Burke and I have made in presentations around the country and in comments here on the Procedural Fairness Blog.

One key observation is that public disapproval of the United States Supreme Court—which had long enjoyed broad public support—has reached a new low. The Gallup Poll at the start of the Court’s term last October showed 50% disapproving of the way the Court handled its job, with only 45% approving. Equally important is that people now view the Court in a highly partisan way.

Viewing the Court as partisan rose sharply with the Bush v. Gore decision—after it, 80% of Republicans approved of the job the Court was doing compared to only 49% of Democrats. Those numbers evened out again until shortly after the appointments of Chief Justice John G. Roberts, Jr., and Justice Samuel Alito. In late 2006, 75% of Republicans approved of the Court while only 48% of Democrats did.

But once President Barack Obama began making appointments, approval scores flipped—by mid-2009, 75% of Democrats approved of the Court compared to only 49% of Republicans. And the most recent Gallup survey in mid-2015, after decisions on same-sex marriage and the Affordable Care Act, showed only 18% approval among Republicans (compared to 76% for Democrats and 49% for Independents).

Can the judiciary—and the American justice system—survive over the long haul with numbers like this? I think it’s a cause for real concern.

Greenhouse worries “that the conservative majority is permitting the court to become an agent of partisan warfare to an extent that threatens real damage to the institution.” She provides both substantive and procedural examples; I want to talk about the procedural-fairness side.

Back in 2012, when the Court heard its first set of cases on the Affordable Care Act, Kevin Burke and I (sometimes also joined by Tom Tyler or David Rottman) did some blog posts assessing how well the justices had done to provide the impression of a fair hearing. (See “Focused on Fairness: The Public Turns Its Attention to the U.S. Supreme Court,” “Supreme Court Gets a Passing Grade on Procedural Fairness—So Far,” “The Healthcare Ruling: The Public Stands Ready to Judge the Judges,” and “The Healthcare Decision: First Reaction.”)  We generally commended them—but we also said that “one justice seemed tone-deaf at times to the principles of procedural fairness: Justice Antonin Scalia.” He was “the only one to introduce partisan politics directly into the discussion,” and he seemingly did so only to get a laugh line in. He also brought up what seemed a needlessly partisan reference to the so-called “Cornhusker kickback,” a charge that a Nebraska senator had traded his vote in exchange for a provision he sought. We said, “Using the term ‘kickback’ in referring to a provision that provided benefits to one state, Nebraska, in exchange for the vote of its senator sounds more like a political attack ad than the sort of question a neutral judge would ask.” We also noted that the provision Scalia referred to, while in the Affordable Care Act, was repealed by another bill before it took effect.

Greenhouse points to other examples and to Scalia’s “frequent parroting of right-wing talking points in recent years.” She suggests that this might be a time for the remaining justices to “tak[e] stock of the court, where it has been and where it goes now.”

I would like to follow up on her column with a few suggestions for the future of the court:

  • The justices should approach oral arguments more as an open exchange with counsel than as an attempt to persuade their colleagues of the right result for the case. Often, it’s clear in oral argument how most of the justices will vote. Why not ask more open-ended questions, leaving the debate with colleagues for the case conference among the justices? I am an appellate judge myself, and I will concede that there are times when I try to move the discussion toward a point that I hope will be persuasive to a colleague. But I also try to ask some open-ended question even to the counsel for the side I think will likely lose. Doing so at least gives the attorney a chance to address what you see as his or her weakest point. And I try to ask the side I think likely to win to address its weakest point too, thus insuring that questions are addressed to the weaknesses of both sides.
  • The justices should allow television coverage of their oral arguments. I have long thought that one of the reasons they don’t allow it may have been the way Justice Scalia carried on at oral argument. He did not fit a model of procedural fairness, and many of his remarks, particularly if cut up into bite-sized snippets, could have been quite harmful to the Court’s image. But many state supreme courts regularly stream their oral arguments over the Internet, allowing the public to see them at work. If the justices conducted themselves with an awareness of the importance that they appear open-minded and willing to listen to the parties’ arguments, televising the Court’s proceedings could be a key step toward improving the public’s impression of them.
  • The justices should write opinions that are designed for the lay reader, not the constitutional lawyer. The decision in Brown v. Board of Education was intentionally made short enough that it could be reprinted in full in a newspaper. Even legal scholars and judges find it discouraging to wade through some of the lengthy and multiple opinions issued in some cases. How can the public have a sense that the Court has handled a case fairly if they can’t understand the Court’s opinion, which is its only work product?

Like Ms. Greenhouse, I don’t suggest that the low public-approval scores for the Court today are all based on Justice Scalia’s actions or even on those of all the justices put together. This is an era of intense partisanship. This is also an era in which trust in all institutions is low (and the Supreme Court’s approval remains higher than the other branches of the federal government).

Given this climate, we must earn the public’s trust today in each encounter we have with them. For the Supreme Court, these encounters occur through media coverage and written opinions, and could be valuably supplemented by allowing video coverage of oral arguments. For the long-term health of the judicial system, we need greater public support, and the public needs to believe that important cases have been handled fairly. Letting them see more of the process, making sure that the process appears to have been a fair one, and writing decisions so that members of the public can understand them would all be good steps to take.—Steve Leben

 

Posted February 19, 2016 by Steve Leben in Uncategorized

Quarterly Research Report Includes Study of the Effect of the 2014 Events in Ferguson, Missouri, on Views of Police Legitimacy   Leave a comment

For more than a year, our website has been posting a Quarterly Research Report featuring the most notable scholarship we’ve found in procedural fairness and procedural justice. The report is edited by Justine Greve, M.A., a staff member at the Kansas Court of Appeals, and Shelley Spacek Miller, J.D., a staff member at the National Center for State Courts.
The Summer 2015 report has just been posted, and one interesting study compares views about police legitimacy among residents of St. Louis County, Missouri, in interviews taken before and after the August 2014 shooting of Michael Brown. Researchers from Southern Illinois University Carbondale had done extensive interviews of nearly 400 people living in high-crime and disadvantaged parts of St. Louis County for a study on policing in 2012 and 2013. Most of the respondents in that survey lived within six miles of where Brown was killed. So the researchers followed up with new interviews of the same people in September and October 2014 to compare public perceptions before and after Brown’s shooting.
The 2014 questioning came immediately after protests, looting, and violence that followed the Brown shooting. The interviews asked questions related to police legitimacy (defined by the researchers as “a view that police authority is valid and to be respected and adhered to”) and to trust in police and procedural justice (defined by the researchers as “a belief that police act fairly, impartially, and respectfully”).
Overall, perceptions of both police legitimacy and trust/procedural justice declined (by 5% and 17% respectively). But the perception rose slightly for nonblack residents (up 2% for each) while falling significantly (by 8% and 26%) for African-American respondents. Views also diverged in feelings about the public and police responses. A majority of nonblack respondents disagreed with the public’s response to the shooting, while a majority of blacks agreed with it. A majority of nonblack respondents agreed with the police response to protests, looting, and riots in the area, while a majority of black respondents did not.
This study, of course, captures views from only a small geographical area, but the respondents certainly intensely experienced the events of that time. It’s one of many new research articles and reports that you can find in the latest Quarterly Research Report.

CCI Seeks Criminal Courts to Participate in Procedural-Fairness Project    1 comment

The Center for Court Innovation (CCI) is seeking courts to participate in an assessment of each court’s procedural-fairness practices. CCI is accepting applications until June 12 from local courts with the jurisdiction to hear criminal cases.

The official Request for Proposals gives full details on the project, but CCI says that it hopes to advance procedural-justice goals “by (1) highlighting promising practices for the field at large, (2) helping jurisdictions identify problem areas, and (3) outlining short- and longer-term plans to implement appropriate interventions.”

CCI suggests that this project “is targeted to criminal courts interested in deepening their understanding of procedural justice and examining whether and how their current practice promotes the core elements of procedural justice: voice, respect, understanding, and neutrality.” The selected sites will gain the feedback of outsiders who are familiar with the background research in this area. 

The project will focus on four key areas at each site:

· Providing information about court procedures to court users and to the community;

· Fostering a user-friendly courthouse environment;

· Developing mechanisms to solicit and respond to feedback from staff and court users; and

· Improving the communication strategies used by judges and other court staff.

Project staff will provide suggestions for improving practices in each court.

Evidence That Practicing Procedural Fairness Gets Better Results    Leave a comment

From time to time, it’s useful to take stock of some of the evidence that demonstrates that the judge who spends the time to learn procedural-fairness principles and who shows the discipline to practice them regularly is doing something valuable. Toward that end, let’s consider a study of drug courts operating in 29 different locations around the United States.

Like many other studies, this one concluded that drug courts do produce both significant reductions in relapse to further serious drug abuse and significant reductions in criminal behavior. But the researchers asked a critical question: Why does this occur? And that’s where the principles of procedural fairness came squarely to the fore:

Role of the Judge: The primary mechanism by which drug courts reduce substance use and crime is through the judge. Drug court offenders believe that their judge treated them more fairly than the comparison group, including demonstrating greater respect and interest in them as individuals and greater opportunities to express their own voice during proceedings. Furthermore, when offenders have more positive attitudes toward the judge, they have better outcomes. This was true across all offender subgroups when examining demographics, drug use history, criminality, and mental health. A separate analysis drawing upon the results of structured courtroom observations found, similarly, that drug courts whose judge was rated by members of the research team as exhibiting a more positive judicial demeanor (e.g., respectful, fair, attentive, enthusiastic, consistent/predictable, caring, and knowledgeable) produced better outcomes than other drug courts. Both analyses reaffirmed the central role of the judge.”

Drug courts by design provide greater voice to defendants and opportunities for judges to show respectful treatment of defendants. Judges who do a good job in carrying out these roles get better results—and this appears to be true across various demographic groups. Sounds like a winner to me.

The study, reported in 2011, was done by the Urban Institute, the Center for Court Innovation, and RTI International. The Executive Summary is a quick and easy read.



So What Courtroom Behaviors Promote Perceptions of Fairness?   1 comment

As judges, we know that we should practice the principles of procedural fairness—voice, respect, neutrality, and trust. But what specific things might we do in the courtroom?

As part of its courtroom-communication training program for the state court in Milwaukee, the Center for Court Innovation put together a list of observable behaviors that court observers could look for to see whether judges were practicing these principles. Among the behaviors listed there:
· The court started on time.
· The judge apologized for any delay in the starting of court.
· The judge or other court staff clearly explained court etiquette and rules at the beginning of the court session.
· The judge provided some overview of what might happen during various court appearances and how decisions would be made.
· The judge assured the defendants that all of the evidence would be considered before making any decision.
· The judge made eye contact with the audience upon entering the court.
· The judge introduced himself/herself by name.
· The judge thanked the audience members for their on-time appearance.
· The judge acknowledged the experience of defendants while waiting for their cases to be called (e.g., having to sit quietly, waiting for a potentially long period, etc.).

As far as I know, there’s no research so specific as to track the effect of any of these specific behaviors on courtroom participants. But all of them seem to be reasonable suggestions that would help lead those in the courtroom to conclude that a judge is sincere and caring.

We will note other lists of observable courtroom behaviors that may promote a sense of fairness in the courtroom in a later blog post. The full report of the Center for Court Innovation’s Milwaukee court-training program is on the web.

Posted November 5, 2014 by Steve Leben in Courts

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Announcing a New Quarterly Report on Procedural-Fairness Research   Leave a comment

The Procedural Fairness website has started a new service, providing a quarterly summary of recent research. Found under the “Resources” tab on our website (click on “Resources” and then choose “Quarterly Research Report” from there), the report is edited by Justine Greve (M.A., American Studies), a staff member at the Kansas Court of Appeals, and Shelley Spacek Miller (J.D.), a staff member at the National Center for State Courts.

They have scoured a variety of academic and other sources to find new books, articles, and events related to procedural fairness. We will note the posting of each quarterly report here on the Procedural Fairness Blog. Wherever possible, Greve and Miller have provided a link either to the full article or a summary.

We hope that this will prove helpful to you. Let us know your thoughts.

Posted June 4, 2014 by Steve Leben in Announcement

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A Must-Read State-of-the-Judiciary Address   Leave a comment

State-court chief justices often provide a state-of-the-judiciary address at the beginning of the year, highlighting key issues, accomplishments, and challenges. Although they may address important topics, many of them are of little interest to those outside the state. But this year’s address by Utah Chief Justice Matthew B. Durrant should be of great interest to anyone interested in procedural fairness in courts.

Chief Justice Durrant began his speech with a number: 93. That’s the percentage who agreed that they had been “satisfied with [their] experience at court today” in a recent survey taken as litigants and others left Utah courthouses. He also cited other data showing that 90% or more agreed that their court hearing had been fair, that the judge had listened to all sides, that the person understood what had happened, and the person knew what to do next in the case. And 96% felt they had been treated with courtesy and respect.

What makes this a must-read address for the purposes of this blog is not the data, even though it is incredibility positive. What makes it a must-read is that Chief Justice Durrant tied these results to the ongoing work in Utah courts to emphasize procedural fairness. As Durrant put it, “[W]e have taken the research in this area to heart. We have educated our judges and helped them hone these skills.”

Take a look at Chief Justice Durrant’s address. Give some thought to how you might use procedural-fairness principles. In Utah, they have taught these principles to their judges, they have done some measurements to see how courts are performing in this area, and they have reported the results to the public.

Utah is different than most other states because it also has a formal judicial-evaluation program that specifically observes judges in the courtroom to see how well the judge practices procedural-fairness principles. Other judges generally aren’t formally evaluated that way. But the Utah experience is worth considering, and Chief Justice Durrant’s recent speech is a good starting place.

Posted April 27, 2014 by Steve Leben in Courts

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Ending Starting the New Year Right: Building Procedural-Fairness Skills (Part Three)   Leave a comment

For those of you who have been following along on this series, you’ve now gotten a good overview of procedural-fairness principles from Kevin Burke’s 90-minute webinar (still available) and you’ve given some thought to how you might improve your listening skills. The next step is to evaluate how you’re doing at implementing procedural-fairness principles and listening skills on the bench.

A good way to approach self-evaluation is to review your performance on videotape. Several years ago, six New Hampshire judges (Gerry Boyle, Sue Carbon, Ned Gordon, James Leary, Deborah Kane Rein, and Mike Ryan) agreed to be videotaped for a half day on the bench. Kevin and I reviewed the videos and used clips for a procedural-fairness presentation to all the judges in New Hampshire. But the six volunteer judges had their own homework assignment—watching their own videotapes and telling us what they had learned.

Their responses (set out below) show that you can learn a great deal by going through such a process. For the New Hampshire videotaping, the judges simply announced at the beginning of a docket or a hearing that they were being videotaped solely for judicial-education purposes and that the camera would be focused only on the judge. No one objected to having their hearings videotaped in this manner. Court staff members simply set up a camera on a tripod in the corner of a courtroom and let it run.

For a judge who wants to go beyond self-assessment, you could give the video to a trusted colleague, to your spouse, to a communications professor or graduate student, or to someone else whose opinion you would respect. The responses of the New Hampshire judges suggest that you can learn a great deal.

RESPONSES OF NEW HAMPSHIRE JUDGES TO QUESTIONS ABOUT THEIR VIDEOTAPES

Question 1: Please give 2 observations of things you noted when watching the tapes that you may not have been aware of or paid sufficient attention to before.

A. Time seems to go faster when you are sitting on the bench than when you are watching the hearing. Parties from other cases who are waiting to be heard are probably bored stiff and must feel that the Court has wasted their time.
B. An enormous amount of time is taken up in completing forms while on the bench, particularly in criminal matters. This diverts the judge’s focus away from the litigants and may make it appear like the judge is not paying attention to what is being said.
C. I was reading and sometimes even writing while defendants were speaking. I was flipping complaints and other paperwork over and reading them while the defendant is presenting his position on bail conditions. Pretty rude.
D. [There] is an appearance of impatience. I say appearance because I believe I am patient but, when presented with dozens of files to get through in a restricted time period, I have a sense of urgency that appears to me to come across as impatience. Rush, rush, rush.
E. I have a tendency to look angry.
F. I nod my head a lot—on the tape it’s annoying. Perhaps in person it’s not as bad (I hope!).
G. I had no idea how much I nod during the course of a presentation. I am not sure whether this is good (because it shows I am affirming that I am listening) or whether it seems that I am agreeing with what they are saying, which can cause some problems.
H. I was already aware of how slow I speak (not just on the bench but generally), but I was not aware of the number of large gaps in time that occur when I am thinking and how much of an opportunity it provides for a litigant/lawyer to fill the gap with unnecessary talk.
I. The first behavior I noted was it appeared as though I was constantly looking down. I have found that in marital cases, the taking of good notes is very important so I look down to write more often than I would in other type cases. I think participants could find my inconsistent eye contact as meaning I was not paying attention.
J. A second behavior was to ask counsel questions before asking the pro se litigant. I do not know how this is perceived by the pro se litigant. I do it only because counsel usually has a better handle on what the issues are.

Question 2: Please list 2 items on which you believe you might be able to improve your on-the-bench performance after viewing the tapes.

A. Don’t call a hearing and then spend 10 minutes trying to figure out the background of the case on the bench. I should read the file in advance or take a recess if necessary in order to appear informed when the hearing begins.
B. I show my emotions easily. I tend to show more warmth toward attorneys I know and respect. I could perhaps be more stoic in that regard, particularly when the other party is pro se.
C. I plan to put the paperwork down and make eye contact with the defendant when s/he is speaking. This change may well further exacerbate the issue of time constraints, but I was truly struck by my putting my head down and doing busy work while someone was speaking to me.
D. I plan to have the courtroom clerk separate those files with multiple or more complex charges so I can review them before the hearing. With such preparation, I will have a better idea of the charges when I address the defendant and not have to read everything for the first time with him/her standing there.
E. It would be helpful to smile and make a more welcoming greeting at the beginning of the case. I always thought I did, but at least from this angle, it seemed very curt.
F. I should try to sound and look more even-tempered. Even though I am questioning the litigant (and suspicious of what he was telling me), it is nonetheless important to appear open-minded and even-tempered.
G. I realized that I need to smile more to make people feel more at ease in the courtroom.
H. I would like to decrease the number of pauses I create. In addition to the problem expressed above, I wonder if it makes people feel that I lack confidence which in turn may make them less confident in me. I am not sure how to do this since it is the way I speak in general, but I might be able to come up with some helpful technique.
I. If I were looking at this tape, I might think that I have all the time in the world to hear these cases because each hearing was longer than probably necessary. It was just an unusual day (generally we are swamped), but each case stayed within the time allowed on the docket (and the last one with the prisoner was just marking time until the plaintiffs (wife and daughter) appeared, which they did right after Gina turned off the camera). I am sure, however, that I am wont to allow people to go on longer than needed. I am not sure that this related to procedural fairness, but it does effect the court calendar. So, I could work on being more efficient while still giving everyone a full opportunity to speak.
J. The first thing I need to work on is to be better prepared before the hearing so that it does not appear that I am unprepared by going through the file to look at the Motion when introducing the case. I try to read the pleadings the morning of the hearings but sometimes when I get to a hearing, I have forgotten what the issues were.
K. The second thing is to remember to explain legal terms to the pro se litigants. I sometimes forget that not everyone speaks legalese.

Ending the Year Right: Building Procedural-Fairness Skills (Part Two)   Leave a comment

For those of you who have watched the procedural-fairness webinar (see our last blog post), you’ve got a good overview of procedural-fairness principles and how they often play out in court. (If you didn’t watch it, you still can—just go here.) Whether you’ve watched it or not, let’s move next to one of the basic skills every judge needs—the ability to be a good listener.

For most of us, our time in school focused to a large extent on developing reading and writing skills; remarkably little time was spent on listening skills. Yet much of the information presented to a trial judge is presented orally in the courtroom—the judge’s ability to do the job well is greatly dependent on the judge’s listening skills.

So what can you do to improve your listening skills? I’ve got a simple suggestion for you, one that you can accomplish with an initial investment of $17 and less than an hour of your time.

The $17 is for an online self-assessment of your listening skills, which comes from a company called HRDQ. The HRDQ Learning to Listen assessment includes both the self-assessment scores of your strengths and weaknesses and HRDQ’s tips for better listening in three areas:
• Staying focused—you can’t effectively listen if you don’t stay focused on what the speaker is communicating.
• Capturing the message—you’re a better listener if you work to hear what the speaker is actually trying to say, not what you expect him or her to say.
• Helping the speaker—you’re more likely to hear what the speaker is really trying to communicate if you avoid behaviors that would distract the speaker and show that you’re open to the speaker’s expression of his or her message.

To be sure, there are constraints in a legal proceeding on the presentation of information to judges. Sometimes, though, we lose track of how difficult it can be in our daily working environment—the courtroom—for others to present information to us. We also can lose focus on how easy it is for us to become distracted or otherwise to miss out on what is being presented.

But in the courtroom, where litigants and lawyers are presenting information to us every day, they have a right to our attention. Spending the time to take the HRDQ Learning to Listen assessment—and then taking a bit more time to think about how the tips HRDQ provides may play out in the courtroom—will make you a more effective judge for 2014.

Posted December 25, 2013 by Steve Leben in Courts

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