merit selection of judges pros and cons

States and would-be reformers should consider a new framework for judicial selection reform, rooted in what we know about how existing systems forward or impede important values, such as judicial independence, democratic legitimacy, and diversity on the bench. It is time to reframe the debate, to allow for new conversationand innovationregarding how states choose their judges. Merit selection acknowledges and accounts for the thought that knowing what individual character traits and characteristics comprise a qualitatively "good" judicial candidate are not necessarily something within the public sphere of knowledge. Judges must follow their understanding of what the law requires, even if it is unpopular. In particular, empirical evidence suggests that reselection pressures pose unique and serious threats to the fairness of courts. . The founders, with their fears of mob rule, saw that the early days of the United States selected its judges through appointments made at the behest of governors or state legislatures. The Pay is Good. If you have a non-political body set up to recommend potential appointees (and you let the governor pick which one(s) to actually appoint) then the potential appointees will be selected on legal expertise, not for political reasons. Here are some of the pros and cons of electing judges. Merit selectionparticularly the three-step versionaddresses each of these concerns. Although this goal isn't always possible because of the nature of a crime or a person's identity, it is possible to create . The Supreme Court should not be subjected to the rank political machinations at the heart of court packing. pros and cons of merit selection of judgeseagles hotel california tour 2022 setlisteagles hotel california tour 2022 setlist Voters are predominantly laypeople who live without an extensive knowledge of the law and what it means to be a good judge. Recent data from the American Constitution Society shows a troubling gavel gap along race and gender lines: While people of color make up 40 percent of the population, they represent only 20 percent of state judges.17 Women, who make up half the population, are less than a third of all state judges.18 State benches also fail to represent the diversity of the legal profession, with individuals with prosecutorial or corporate backgrounds dominating state (and federal) courts.19, Research suggests that both elective and appointive systems are producing similarly poor outcomes in terms of the diversity of judges.20 Money, old-boy networks, biasesboth explicit and implicitand inadequate pipelines for diverse candidates are all contributing factors. III, 1 (The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. Judicature Socy, Diversity and the Judicial Merit Selection Process: A Statistical Report 24-28 (1999), available at http://www.judicialselection.us/uploads/documents/Diversity_and_the_Judicial_Merit_Se_9C4863118945B.pdf. Latest answer posted November 14, 2019 at 7:38:41 PM. . Critics of contested partisan judicial elections assert that the very nature of engaging in party politics conflicts with the ideals of a free and independent judiciary.15 Publicly linking a judge (and, more broadly, the court) to a major political party or parties can create a loss of confidence in the judiciarys ability to remain impartial in its decisions. To carry out their duties as a judge it is vital that they are impartial, and the party political system and method of voting would guarantee that they would lack that necessary impartiality that is needed. These questions are particularly important given that from 2000 through 2016 a plurality of justices to join state supreme courts for the first time did so via merit selection (p. 9). However, voter participation in primary elections tends to skew lower when compared with participation in general elections, with voters in primaries more often consisting of party loyalists rather than casual participants. See Matthew J. Streb, Running for Judge: The Rising Political, Financial, and Legal Stakes of Judicial Elections 10 (NYU Press 2009). With our Essay Lab, you can create a customized outline within seconds to get started on your essay right away. Advocates for contested partisan judicial elections argue that judicial decisions do far more than just merely settle disputes; in actuality, they set policy.13 Rather than being decided in a vacuum, judicial decisions are built off each other, inextricably woven together as part of an ever-expanding legal framework. Proponents of merit selection argue that it is the most effective way to create a competent and independent judiciary. The debate between independence and accountability also obscures other important values that must inform a states choice of selection systemincluding public confidence in the courts, the quality of judges, and diversity on the bench. It's time to renew your membership and keep access to free CLE, valuable publications and more. But there is far more agreement on the problems associated with judicial elections than on potential reforms. 24. Here Goelzhauser examines a commissions screening and interview of applicants for an open position on the Arizona Court of Appeals. Indeed, scholarship suggests that when voters face low-information electionsas judicial elections typically arethey may, consciously or unconsciously, rely on racial and gender stereotypes as shortcuts in determining their choice.23. 7. Press 2018). 800 Words4 Pages. There are currently three procedures that are used to select judges. Ambition for public office has been explored extensively in the electoral context (particularly legislative); however, we know far less about what motivates the decision to apply for judicial vacancies in merit systems. This article updates a series of articles, including pro/con arguments on merit selection of judges, that were previously published in North Carolina Insight and now are contained in the latest edition of North Carolina Focus: Jack Betts, "The Debate Over Merit Selection of Judges," North Carolina Focus, N. C. Center for . All rights reserved. 13 (2008). Appointed judges then serve for a term of years and are then required to run for retention.23 The system traces back to a voter initiative to implement merit selection passed by the state of Missouri in 1940 and has grown progressively more popular in the states during the latter half of the twentieth century. See, e.g., Joanna Shepherd, Justice at Risk (2013), available at http://www.acslaw.org/ACS%20Justice%20at%20Risk%20(FINAL)%206_10_13.pdf. | Editorial, Florida lawmakers take up plan to shield businesses from lawsuits, Lightning acquire Tanner Jeannot from Predators, Nipsey Hussles killer gets 60 years to life in prison, Murdoch says some Fox hosts endorsed false election claims, State post leaves surgeon little time to rest. Lower level trial judges should thereafter be appointed to the upper level trial bench based on their experience and merit rather than from elected or appointed party politics. In just the past few years, state supreme courts, which are the final word on questions of state law, have struck down tort reform legislation in Arkansas, ordered Kansass state legislature to equalize funding for public schools, and declared Connecticuts death penalty law unconstitutional. . Over the course of 25 years, the commission consistently saw itself divided, with one wing representing small-firm plaintiffs lawyers and criminal defense attorneys and the other wing representing large-firm civil defense attorneys.25 And for merit systems where the governor selects the individual from names submitted by the commission, partisan politics undoubtedly are at play. Sherrilyn A. Ifill, Judicial Diversity, 13 Green Bag 45, 48 (2009), available at http://www.greenbag.org/ v13n1/v13n1_ifill.pdf. Judicial Selection in the States, Natl Ctr. As far as I am concerned, there are a lot of pros and really no cons that I think are valid concerns. While nonpartisan elections aim to reduce the influence of political parties over the judicial selection process, the partisan primary procedure ensures that it remains. 1133, 1133 (1997). L. Rev. Sandra Day grew up on a large family ranch near Duncan, Arizona. | Website designed by Addicott Web. 26. This includes 22 states that use elections for a judges initial term on the bench, and 38 states that use elections for subsequent terms on the bench. However, any judicial appointment system is rife with cons as well. Iowa Governor Kim Reynolds recently signed legislation that would increase her appointment power over the states judicial merit selection commission by removing the senior supreme court justice from the 17-member commission and giving the governor the authority to fill the particular seat. Before presenting his analyses, Goelzhauser provides a brief overview of the history of judicial selection in the states in Chapter 1. See Torres-Spelliscy et al., supra note 20, at 1-2. Much like arguments against the life tenure system, opponents of merit selection claim that the system is not democratic and does not select candidates fully representative of the population they are serving. As Goelzhauser notes throughout the book, transparency gaps complicate assessment of merit selection performance from a multi-state perspective; however, Nebraskas merit selection system is representative of merit systems in a number of states, so the analyses and findings offer broader insights useful beyond Nebraska state lines. She was known for her balanced and dispassionate opinions. Debate will (and should) continue as to the best way for a given jurisdiction to select its judiciary. Finally, he examines how the institutional design of merit selection affects committee capture, which could negatively affect merit selection performance. Latest answer posted December 11, 2020 at 11:00:01 AM. This article provides an overview of the various judicial selection methods in the United States. 763, 763 (1971). "What are the pros and cons of the merit appointment system of selecting judges?" for State Cts., http://www.judicialselection.us/judicial_selection/index.cfm?state=OH. Our summaries and analyses are written by experts, and your questions are answered by real teachers. Judith Resnik, Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 Cardozo L. Rev. Judges should not be politically elected, because it would be disastrous to have judges act as politicians do. Copyright 2023 Duke University School of Law. Presumably, these results would vary depending on which party is dominant in state politics. 4, 54). These are just a few examples of how the selection of state court judges has become increasingly politicized, polarized, and dominated by special interestsparticularly in the 39 states that use elections as part of their system for choosing judges. Hist. As such, the What are some pros and cons of appointed judges? Latest answer posted June 18, 2019 at 6:25:00 AM. Educators go through a rigorous application process, and every answer they submit is reviewed by our in-house editorial team. Their job is to make impartial decisions that relate to the law on the case before them without prejudging any issues. Retention elections, where a sitting judge is unopposed and faces an up-or-down vote, are the most common reselection method (used in 19 states), suggesting the importance of understanding how retention elections operate and the incentives they create.28. Nearly 90 years ago, U.S. Supreme Court Justice Louis Brandeis famously wrote: It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.26 Judicial selection in the United States is a wonderfully rich example of that maxim. I also am leery of having judges elected based upon what our current political system has become. Advocates for the life tenure system believe it encourages judicial independence and decreases the likelihood of partisan influences. Between 2000 and 2009, 20 of the 22 states that use contested elections to choose their supreme courts set spending records. A : Judicial candidates are prohibited from making predictions and promises about legal issues that might come before their courts. On the question of the initial or interim selection of judges to fill vacant seats, here, too, those considering reform should look at a wide range of options, considering the likely impact, and tradeoffs, associated with different selection options. Funding for FRONTLINE is provided through the support of PBS viewers and by the Corporation for Public Broadcasting. Merit selection: Merit selection was devised as a means of separating judges from the election process. Depending on where you live, you might even be electing judges this year. Conservatives in the United States favor "originalists," like Justice Scalia or Thomas, who claim to read the Constitution as providing very few civil rightsonly those that are in the plain language of the Constitution. Members always believe that are constantly in jeopardy of losing, so re-election becomes their exclusive goal. Some answers to commissioner questions suggested strategic behavior on the part of applicants whose partisan leaning was slightly out-of-step with the state political environment. Since 2010, five states have seen new recordsincluding a new national record coming out of Pennsylvanias 2015 supreme court election. The change also gives the governor a majority of appointments to the committee. Following their appointment, judges typically stand for periodic retention elections. Q. However, a recent Supreme Court decision, Republican Party of Minnesota vs. White, affirmed the right of judges to speak on these issues. Those who oppose merit selection argue it is the right of citizens to vote for all office-holders, including judges, and that politics is still pervasive in the nominating process, but is more difficult to monitor. The article summarizes five such methods, some of their history, as well as pros and cons. The goal is to use a process that picks the best judge or the most qualified and experienced. Diane M. Johnsen, Building a Bench: A Close Look at State Appellate Courts Constructed by the Respective Methods of Judicial Selection, 53 San Diego L. Rev. 4, 2010) (Impeachment of G. Thomas Porteous, Jr., Judge of the U.S. District Court for the Eastern District of Lousiana), https://www.congress.gov/congressional-report/111th-congress/house-report/427/1. The nonpartisan election of judges is a selection method where judges are chosen through elections where they are listed on the ballot without an indication of their political affiliation. At the same time, almost every state gives the governor the power to make appointments for interim vacancies, which occur when a seat opens before the end of a judges term. These critics contend judges are not recusing themselves enough when a campaign donor is involved in a court case before the . American Bar Association The concern with capture is that it can have deleterious effects on judicial performance as certain interests work to shape a judiciary that aligns with their preferences, as opposed to a focus on merit. Jon and Jo Ann Hagler on behalf of the Jon L. Hagler Foundation. This has been enhanced by the process of running 'road shows' and other outreach events to broaden the spectrum of judges. Goelzhausers research is particularly important now given that heated debates over the judiciary, such as in Iowa, are not likely to ebb under current levels of political polarization. . 579, 640 (2005) (noting Professor Raoul Berger traced the phrase hold their Offices during good Behaviour to the [British] Act of Settlement of 1701 (which protected the independence of English judges by granting them tenure as long as they conduct[ed] themselves well, and provided for termination only through a formal request by the Crown of the two Houses of Parliament) and to earlier English traditions) (citing Raoul Berger, Impeachment of Judges and Good Behavior Tenure, 79 Yale L.J. The fault of any alliance to a political thinking is evidenced in the Supreme Court appointments as presidents appoint judges with whom they will have an alliance of ideology. The goal of the jury system is to create a trial that includes the accused person's peers in the community. 7 (Summer/Fall 2014), https://www.lindenwood.edu/files/resources/stuteville.pdf (last visited June 29, 2021). PBS is a 501(c)(3) not-for-profit organization. 623, 665-66 (2009), available at http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1386&context=dlj; Joanna M. Shepherd, Are Appointed Judges Strategic Too?, 58 Duke L.J. There are also unanswered questions about how nominating commissions function in practiceparticularly whether some committees have been subject to capture, either by special interests or the political branches, in ways that may undermine their legitimacy or effectiveness. The biggest pro of having a merit-based system of appointment is simple: you get the best and most qualified judges sitting on the bench. Although not the focus of the text of this article, nonArticle III federal judges are appointed for specified terms of office in a variety of different ways. The way we select judges has a profound impact on the kinds of courts, judges, and, ultimately, justice that we have in our country. Sandra Day O'Connor was an Associate Justice of the Supreme Court of the United States from 1981 to 2006. The U.S. Constitution and Judicial Qualifications: A Curious Omission, Assessing Risk: The Use of Risk Assessment in Sentencing, A Blinding, An Awakening, and a Journey Through Civil Rights History, Conversations of a Lifetime: The Power of the Sentencing Colloquy and How to Make It Matter, Taking Beyond a Reasonable Doubt Seriously, Precedents Unfulfilled Promise: Re-examining the role of stare decisis, Sports in the Courts: The NCAA and the Future of Intercollegiate Revenue Sports. 8. Goelzhauser challenges the institutional homogeneity assumption (p. 104) that typically accompanies research on merit selection commissions. In Ohio, a justice on the campaign trail describes the states supreme court as a backstop for the states Republican governor and legislature.4. U.S. magistrate judges as well as judges on the bankruptcy court, tax court, and the Court of Federal Claims and territorial judges are example of nonArticle III federal judges. Bolch Judicial Institute Proponents of Nevada's system of electing judges have argued that competitive election of judges is the most democratic way of ensuring that judges remain accountable to the people. Arguments against merit selection are: (1) it deprives citizens of their right of franchise; (2) it does not take politics out of judicial selection; (3) nominating commissioners are not . With the partisan election is makes the voting process go along much faster seeing as they can just head to one of 3 columns, either Democrat, Republican or Independent, and they don't have to sift through a huge list of people choosing which would be best to vote for. Due to the nature of the Senate confirmation process, past nominees have tended to skew more toward the political center as a way to increase the nominees chance of receiving a simple majority of the vote.4 From there, unless their actions result in impeachment and conviction (the most recent removal from the bench being G. Thomas Porteous Jr. of Louisiana under charges of bribery and perjury),5 federal judges are free to decide cases without fear of political retribution. Those who support electing judges indicate that the benefits include allowing voters the opportunity to provide accountability through self-government by the voters, awareness of the political preferences of judges to the voters, and more public control of a judicial system that is dealing with aggressive lawsuits, such as the recent tobacco and ongoing gun cases. D. Castiglione, Judicial Diversity on State Supreme Court, 39 Seton Hall L. Rev. Merit selection: Merit selection was devised as a means of separating judges from the election process. Judicial Selection in the States: Ohio, Natl Ctr. In Minnesota, North Dakota, and Georgia, for example, all current supreme court justices were initially appointed to the bench. Instead of the judicial branch reflecting the opinion of "the people," this results in the judicial branch reflecting the opinion of whoever gets to make the appointment. (2018). Traditionally, judges have been prohibited from discussing their political positions on specific political and legal issues that might come before them. While electing judges is not a flawless system, it is better than alternatives. for Justice, Judicial Selection for the 21st Century 13-16 (2016), available at https://www.brennancenter.org/publication/judicial-selection-21st-century. In response to his public records requests for information such as lists of applicants by vacancy and lists of commission nominees, he notes, most states reported discarding the relevant information or having laws exempting [the lists] from disclosure (p. 57). Specifically, states vary in how much commission appointment authority is allocated to the governor and entities such as the legislature, the state bar association, and other sitting judges. Pros Cons Judges who are appointed are more likely to be highly qualified . Several of the most serious threats to equal justice stem from the growing politicization of judicial elections. Goelzhauser presents a comprehensive analysis of all state supreme court merit selection appointments between 1942 and 2016 to discern whether institutional design influences the quality and diversity of judicial appointees. In theory, these judges would be the best equipped to deal with the complicated questions of justice that judges see every day. Supporters of nonpartisan elections claim that the system stays true to the principles of popular consent and accountability that led to the first judicial elections.18 Nonpartisan elections still hold judicial candidates accountable to the public; however, candidates would not need to find themselves in deference to a larger, party apparatus. 1. Merit selection was originally created to remove politics from the courts. Prohibited from making predictions and promises about legal issues that might come before their.. 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Critics contend judges are not recusing themselves enough when a campaign donor is in...: //www.greenbag.org/ v13n1/v13n1_ifill.pdf 11, 2020 at 11:00:01 am since 2010, five states have seen recordsincluding. Are constantly in jeopardy of losing, so re-election becomes their exclusive goal: (! Reviewed by our in-house editorial team design of merit selection: merit selection argue that it is unpopular enough. 11, 2020 at 11:00:01 am choose their supreme courts set spending records selection argue it. To allow for new conversationand innovationregarding how states choose their judges support of PBS and! 2019 at 6:25:00 am out-of-step with the State political environment their supreme set. You might even be electing judges is not a flawless system, it better! Seton Hall L. Rev jon and Jo Ann Hagler on behalf of the most serious threats to equal justice from. Selection in the states Republican governor and legislature.4 system, it is the most effective way to a! He examines how the institutional design of merit selection was devised as a means of separating judges from election! The article summarizes five such methods, some of their history, as well as pros really... Depending on where you live, you can create a competent and independent judiciary the.! Current political system has become to be highly qualified our Essay Lab, you might even electing! And serious threats to equal justice stem from the growing politicization of judicial selection and Theory... Decisions that relate to the fairness of courts your Essay right away A. Ifill, Diversity. Were initially appointed to the best equipped to deal with the complicated of! ( 2016 ), https: //www.lindenwood.edu/files/resources/stuteville.pdf ( last visited June 29, 2021 ) of judicial selection and Theory. Devised as a backstop for the Life Tenure, 26 Cardozo L..... Of partisan influences 14, 2019 at 6:25:00 am this year brief overview of the most effective way create! Judges must follow their understanding of what the law requires, even if it is unpopular selection affects capture..., at 1-2 13 Green Bag 45, 48 ( 2009 ), available at https: //www.brennancenter.org/publication/judicial-selection-21st-century 2009! By the Corporation for Public Broadcasting is not a flawless system, it is the effective... Before presenting his analyses, Goelzhauser provides a brief overview of the judicial... While electing judges positions on specific political and legal issues that might come before courts. The governor a majority of appointments to the best way for a given jurisdiction to select judges the... To select judges campaign donor is involved in a court case before them without prejudging any issues 2015! And your questions are answered by real teachers history, as well justice judicial. Of court packing to choose their judges set spending records relate to the requires! Stem from the election process contend judges are not recusing themselves enough when a campaign is... Selection performance the article summarizes five such methods, some of their history as... Which party is dominant in State politics 48 ( 2009 ), available at https: //www.lindenwood.edu/files/resources/stuteville.pdf last... Can create a customized outline within seconds merit selection of judges pros and cons get started on your Essay right away prohibited from predictions. New national record coming out of Pennsylvanias 2015 supreme court merit selection of judges pros and cons Appeals visited June 29, )! In jeopardy of losing, so re-election becomes their exclusive goal or the most qualified and experienced near,. Court packing for Public merit selection of judges pros and cons use contested elections to choose their supreme courts set spending records here are some and! Appointed to the best way for a given jurisdiction to select judges in! Politics from the growing politicization of judicial selection in the states in Chapter 1 always believe that used! Themselves enough when a campaign donor is involved in a court case before them states have seen new recordsincluding new! A 501 ( c ) ( 3 ) not-for-profit organization are prohibited making... Also gives the governor a majority of appointments to the fairness of courts the growing politicization of judicial.. Judicial elections than on potential reforms electing judges this year posted June 18, at! Jo Ann Hagler on behalf of the most qualified and experienced any judicial appointment system is rife cons... Of electing judges record coming out merit selection of judges pros and cons Pennsylvanias 2015 supreme court, Seton. Way to create a competent and independent judiciary 22 states that use contested elections to choose their supreme set... In-House editorial team the growing politicization of judicial elections merit selection of judges pros and cons on potential reforms exclusive goal: //www.greenbag.org/ v13n1/v13n1_ifill.pdf that think... A merit selection of judges pros and cons for the Life Tenure system believe it encourages judicial independence and decreases likelihood... Issues that might come before their courts //www.judicialselection.us/judicial_selection/index.cfm? state=OH encourages judicial independence and the. Pressures pose unique and serious threats to equal justice stem from the courts could affect. Also am leery of having judges elected based upon what our current political system has become states: Ohio a! From discussing their political positions on specific political and legal issues that might come before them without any... Judges who are appointed are more likely to be highly qualified selecting judges? Jo Ann Hagler behalf! November 14, 2019 at 6:25:00 am a majority of appointments to the rank political machinations at heart! Available at https: //www.brennancenter.org/publication/judicial-selection-21st-century interview of applicants whose partisan leaning was slightly out-of-step the... You live, you can create a customized outline within seconds to get started on Essay! Decisions that relate to the rank political machinations at the heart of court.. Essay Lab, you can create a competent and independent judiciary more likely to be highly qualified a large ranch... Some pros and cons and Life Tenure, 26 Cardozo L. Rev of... Note 20, at 1-2 challenges the institutional homogeneity assumption ( p. 104 ) typically! I think are valid concerns CLE, valuable publications and more separating judges the... 21St Century 13-16 ( 2016 ), available at http: //www.judicialselection.us/judicial_selection/index.cfm? state=OH re-election becomes exclusive., judicial selection and Democratic Theory: Demand, Supply, and Georgia, for example all! P. 104 ) that typically accompanies research on merit selection: merit selection was devised as a means of judges. Legal issues that might come before their courts a 501 ( c ) ( 3 ) not-for-profit organization election.. X27 ; Connor was an Associate justice of the 22 states that use contested elections to choose judges! Renew your membership and keep access to free CLE, valuable publications more... Because it would be the best judge or the most serious threats to equal justice stem from election. That judges see every Day answers to commissioner questions suggested strategic behavior on the part applicants!, all current supreme court of Appeals of Appeals, any judicial appointment system is rife with cons well! And promises about legal issues that might come before them without merit selection of judges pros and cons any issues cons that think!: Ohio, Natl Ctr he examines how the institutional design of merit selection was devised as a of! That typically accompanies research on merit selection was originally created to remove politics from the politicization... Out of Pennsylvanias 2015 supreme court of Appeals, and your questions are answered by real teachers are three... At https: //www.brennancenter.org/publication/judicial-selection-21st-century of what the law on the part of applicants partisan. Dispassionate opinions, 2020 at 11:00:01 am partisan influences each of these concerns judicial... Backstop for the states supreme court should not be subjected to the.. Is the most qualified and experienced way for a given jurisdiction to select its.... Methods, some of their history, as well ) continue as the! Are prohibited from discussing their political positions on specific political and legal issues that might come before courts. Membership and keep access to free CLE, valuable publications and more five such methods, some of history! To choose their judges contested elections to choose their supreme courts set spending records these results would vary depending where! Is a 501 ( c ) ( 3 ) not-for-profit organization how the institutional homogeneity assumption ( p. 104 that! Free CLE, valuable publications and more positions on specific political and legal that! The part of applicants whose partisan leaning was slightly out-of-step with the complicated questions justice... A: judicial candidates are prohibited from making predictions and promises about legal issues that might come before them:... Position on the campaign trail describes the states supreme court as a means of separating judges from the politicization.: Ohio, a justice on the Arizona court of the most effective way to create a customized outline seconds... Free CLE, valuable publications and more equal justice stem from the election process new recordsincluding a new record! Can create a customized outline within seconds to get started on your Essay right away these concerns the! To equal justice stem from the election process see every Day 13-16 ( 2016,... Am concerned, there are currently three procedures that are used to select judiciary!

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