AuthorTitleCitationSummaryYearKey Terms in Title or Summary
Mark A. Graber THE CLINTONIFICATION OF AMERICAN LAW: ABORTION, WELFARE, AND LIBERAL CONSTITUTIONAL THEORY 58 Ohio State Law Journal 731 (1997) President Clinton's policy priorities, particularly his commitment to abortion rights and neglect of rights to basic welfare, are becoming entrenched in the American legal system. These priorities are mirrored by the past twenty-five years of Supreme Court precedent and increasingly shared by liberal constitutional theorists. Whereas Clinton's... 1997  
Tanya Katerí Hernández THE CONSTRUCTION OF RACE AND CLASS BUFFERS IN THE STRUCTURE OF IMMIGRATION CONTROLS AND LAWS 76 Oregon Law Review 731 (Fall 1997) In the midst of current anti-immigration sentiment, which is motivating dramatic changes in the United States' immigration laws, there exists the myth that prior immigration laws were more equitable and humanitarian. Yet historical analysis reveals that immigration law has been put to uses far from idyllic, and has always been concerned with the... 1997  
Mark S. Brodin THE DEMISE OF CIRCUMSTANTIAL PROOF IN EMPLOYMENT DISCRIMINATION LITIGATION: ST. MARY'S HONOR CENTER v. HICKS, PRETEXT, AND THE "PERSONALITY" EXCUSE 18 Berkeley Journal of Employment and Labor Law 183 (1997) Since the enactment of Title VII of the Civil Rights Act of 1964 the courts have struggled to define the burdens of proof surrounding the central issue of an employer's alleged discriminatory intent. What evolved was the McDonnell Douglas framework, premised upon established concepts of circumstantial proof and inference. The approach permits... 1997  
Chris K. Iijima THE ERA OF WE-CONSTRUCTION: RECLAIMING THE POLITICS OF ASIAN PACIFIC AMERICAN IDENTITY AND REFLECTIONS ON THE CRITIQUE OF THE BLACK/WHITE PARADIGM 29 Columbia Human Rights Law Review 47 (Fall 1997) My six-year-old half-Asian son has just had his first Ching Chong Chinaman taunting in school. I was expecting it, but it threw me off-balance nevertheless. He said it hurt his feelings and asked me for answers. I, of course, had none. I thought about what the appropriate response was for a six-year-old whose new consciousness of racism had begun... 1997  
Leonard M. Baynes THE HAYWOOD BURNS/SHANARA GILBERT AWARD 31 New England Law Review 967 (Spring 1997) In 1996, the Planning Committee for the First Annual Northeastern People of Color Legal Scholarship Conference had asked Professor Haywood Burns of City University of New York (CUNY) Law School to serve as moderator of a panel focusing on the relationship between, and the various roles of, lawyers, judges, and law faculty of color. Several days... 1997  
Peter Margulies THE IDENTITY QUESTION, MADELEINE ALBRIGHT'S PAST, AND ME: INSIGHTS FROM JEWISH AND AFRICAN AMERICAN LAW AND LITERATURE 17 Loyola of Los Angeles Entertainment Law Journal 595 (1997) My grandfather Severin on my father's side was always very kind to me. I remember when I was five or six years old, my father would drive us down from our apartment in the Bronx to meet grandfather on the Upper West Side of Manhattan. We used to meet in a large cafeteria on Broadway and Ninety-Sixth Street, which served jello, pie, and soup to a... 1997  
Bruce J. Winick , University of Miami THE JURISPRUDENCE OF THERAPEUTIC JURISPRUDENCE 3 Psychology, Public Policy, and Law 184 (March, 1997) In less than a decade, therapeutic jurisprudence, which began as a scholarly approach to mental health law, has emerged as a mental health approach to law generally. In this essay, one of the founders of this new field offers a further elaboration of the theory of therapeutic jurisprudence and a response to the key issues raised by commentators and... 1997  
Enid Trucios-Gaynes THE LEGACY OF RACIALLY RESTRICTIVE IMMIGRATION LAWS AND POLICIES AND THE CONSTRUCTION OF THE AMERICAN NATIONAL IDENTITY 76 Oregon Law Review 369 (Summer 1997) the ongoing struggle of defining what it means to be American has infected public policy and political debates in a manner that almost defies characterization. The rhetoric about the threats to the American way of life posed by noncitizens is linked to immigration policy because of a heightened awareness of the increased presence of noncitizens... 1997  
Larry Catá Backer THE MANY FACES OF HEGEMONY: PATRIARCHY AND WELFARE AS A WOMAN'S ISSUE 92 Northwestern University Law Review 327 (Fall 1997) In Under Attack, Fighting Back, Professor Mimi Abramovitz distills a long and formidable life of work for the dignity of women generally, and poor women in particular, within our culture. She succinctly details the feminization of poverty in modern times in the United States, offers a theoretical basis for this state of affairs, and then melds... 1997  
Elissa Krauss , Martha Schulman THE MYTH OF BLACK JUROR NULLIFICATION: RACISM DRESSED UP IN JURISPRUDENTIAL CLOTHING 7 Cornell Journal of Law & Public Policy 57 (Fall 1997) In recent years, African-American (and other minority) jurors have regularly been accused of judging cases on preconceived race-based notions about justice rather than on the evidence. Anecdotal accounts of a handful of allegedly race-based acquittals are bolstered by statistics claiming to show higher rates of acquittal and hung juries in... 1997  
Paul Horwitz THE PAST, TENSE: THE HISTORY OF CRISIS--AND THE CRISIS OF HISTORY--IN CONSTITUTIONAL THEORY 61 Albany Law Review 459 (1997) [W]hen I most want to be contemporary the Past keeps pushing in, and when I long for the Past . . . the Present cannot be pushed away. --Robertson Davies In the recent book A Matter of Interpretation, Justice Antonin Scalia offers his latest gloss on the virtues of originalism and textualism in the interpretation of statutes and the Constitution.... 1997  
  THE PATH AS PROLOGUE 110 Harvard Law Review 1023 (March, 1997) To: Justice Holmes From: Martha Minow Re: Developments Since The Path of the Law When you argued in The Path of the Law that the object of legal study is prediction, you may not have realized how effectively you were predicting the subsequent course of American legal scholarship. Of course, your own influence as well as prescience might be at work,... 1997  
R. Richard Banks THE POLITICAL ECONOMY OF RACIAL DISCOURSE 9 Yale Journal of Law & the Humanities 217 (Winter 1997) Much of contemporary legal scholarship expresses a narrative impulse. Eschewing the traditional norms and forms of legal scholarship, many professors have turned to storytelling to capture issues not easily elucidated through more conventional approaches. Although the narrative approach has recently come to prominence through the writings of... 1997  
Blake D. Morant THE RELEVANCE OF RACE AND DISPARITY IN DISCUSSIONS OF CONTRACT LAW 31 New England Law Review 889 (Spring 1997) Teaching contracts to eager first-year students comprised my primary goal upon entry into the legal academy. This decision not only sprung from the realization that contract law comprised a dynamic course which greatly accommodated the socratic style of teaching so suited to my pedagogical preference, but it also conjured significant fascination as... 1997  
Francisco Valdes UNDER CONSTRUCTION: LATCRIT CONSCIOUSNESS, COMMUNITY, AND THEORY 85 California Law Review 1087 (October, 1997) C1-3Table of Contents Introduction. 1089 I. Race, Ethnicity & Nationhood: Latina/o Position and Identity in Law and Society. 1096 A. The Utility of LatCrit Narratives. 1097 B. Beyond the Black/White Paradigm. 1103 II. Policy, Politics & Praxis: Latinas/os Under the Rule of Anglo-American Law. 1111 A. Equality in Law and Life. 1111 B. Immigration,... 1997  
Carrie Menkel-Meadow WHAT TRINA TAUGHT ME: REFLECTIONS ON MEDIATION, INEQUALITY, TEACHING AND LIFE 81 Minnesota Law Review 1413 (June, 1997) Trina Grillo and I trained together as mediators, met together as law teachers, commiserated together as women and civil rights activists, and laughed and cried together as friends. I shall miss her wise counsel, her sensible judgment, her measured indignation, her gentleness and her razor sharp perceptions about the world, across, through and with... 1997  
Leonard M. Baynes WHO IS BLACK ENOUGH FOR YOU? AN ANALYSIS OF NORTHWESTERN UNIVERSITY LAW SCHOOL'S STRUGGLE OVER MINORITY FACULTY HIRING 2 Michigan Journal of Race and Law 205 (Spring 1997) Prevalent constructions of race and identity have oversimplified complex issues about how people of color identify themselves and are identified by others. Identifying people of color in absolute and essential terms only compounds this problem. In 1994, Northwestern Law School decided not to hire Maria O'Brien Hylton, a female professor of color... 1997  
Timothy Davis WHO'S IN AND WHO'S OUT: RACIAL DISCRIMINATION IN SPORTS 28 Pacific Law Journal 341 (Winter, 1997) In Black and White: Race and Sports in America. By Kenneth L. Shropshire. New York and London: New York University Press, 1996. Pp. xxvii, 212. $24.95. Professor Kenneth Shropshire's important book In Black and White examines the controversial issue of racism in professional sports. Like scholars before him, Professor Shropshire argues that sports,... 1997  
Kellye Y. Testy WOULDN'T IT BE NICE: LINKING STRUGGLES FOR JUSTICE 33 California Western Law Review 209 (Spring 1997) When I first heard it, it sounded comforting--familiar and pleasant--much like a well-worn Beach Boys' song. I was drawn to it and it washed over me in all of its melodious harmony: Oh, wouldn't it be nice. Oh, and it was nice. Nice like just the right breeze on a day full of sun, a cleansing, uplifting breeze. The kind that can take you to... 1997  
Alfred C. Yen A STATISTICAL ANALYSIS OF ASIAN AMERICANS AND THE AFFIRMATIVE ACTION HIRING OF LAW SCHOOL FACULTY 3 Asian Law Journal 39 (May, 1996) Law schools have long implemented affirmative action faculty hiring practices to remedy past discrimination, increase diversity, and provide role models for students of color. However, there is a growing sense among the relatively few Asian American law faculty that Asian Americans are not included in affirmative action hiring efforts. The author... 1996  
Daral Woerle ADARAND v. PENA: STRICT SCRUTINY AND THE AFFIRMATIVE ACTION PENUMBRA 25 Capital University Law Review 731 (1996) This nation was founded on the premise that all men are created equal. Today, in the eyes of the Constitution, we are all the same. We are neither men nor women, white nor black, young nor old. In the eyes of the Constitution we are simply Americans. We are to be treated by the courts of this land in the same way. And the United States Supreme... 1996  
John Henry Schlegel ALAN AND I: OF COMMUNITY, CRITICAL LEGAL STUDIES AND ALL THAT 44 Buffalo Law Review 636 (Fall 1996) Prosper, raise strong families, remembering that all you will leave behind is your good works and your children. Colin Powell It is painful to speak of friends in the past tense. Indeed, I would have been perfectly happy to put off writing this piece for twenty or thirty years. Not forever mind you; I prefer to be the one who gets to put out the... 1996  
Robert W. Gordon AMERICAN LAW THROUGH ENGLISH EYES: A CENTURY OF NIGHTMARES AND NOBLE DREAMS 84 Georgetown Law Journal 2215 (June, 1996) For a glorious brief moment a hundred years ago, American jurisprudence experienced the thrill of trans-Atlantic recognition. The leading British jurists looked to America, and especially to the Harvard Law School, as the new Athens of legal thought. From then on things have mostly gone downhill. British legal theorists have generally regarded... 1996  
Hawley Fogg-Davis AN ARGUMENT AGAINST A HISTORICAL "DIFFERENCE" IN FEMINIST POLITICAL THEORY 4 Circles: Buffalo Women's Journal of Law and Social Policy 2 (1996) In the afterword to her book, Women in Western Political Thought, Susan Okin offers one possible explanation for the frustration that seems to accompany any attempt to talk about feminist political theory these days. That frustration has to do with the relationship between theory and practice. What should this relationship look like? Okin observes,... 1996  
Larry Alexander BANNING HATE SPEECH AND THE STICKS AND STONES DEFENSE 13 Constitutional Commentary 71 (Spring, 1996) Black college students are the targets of racial epithets from fellow students. Members of the American Nazi Party march through the heavily Jewish Chicago suburb of Skokie, wearing brownshirts and swastikas. Female employees encounter various expressions of misogynistic or otherwise female-degrading views from fellow employees or supervisors in... 1996  
Joan R. Tarpley BLACKWOMEN, SEXUAL MYTH, AND JURISPRUDENCE 69 Temple Law Review 1343 (Winter 1996) Power at its peak is so quiet and obvious in its place of seized truth that it becomes, simply, truth rather than power. Dateline: Richmond, Va., September 4, 1995: Three students have won the right to wear braids to work at Wendy's Old Fashioned Hamburgers after a manager banned the hairstyle as prone to bugs and lice. . . . Franchise President... 1996  
Judith Butler BURNING ACTS: INJURIOUS SPEECH 3 University of Chicago Law School Roundtable 199 (1996) The title of J. L. Austin's How to Do Things with Words poses the question of performativity as what it means to say that things might be done with words. The problem of performativity is thus immediately bound up with a question of transitivity. What does it mean for a word not only to name, but also in some sense to perform and, in particular,... 1996  
Larry Cata Backer BY HOOK OR BY CROOK: CONFORMITY, ASSIMILATION AND LIBERAL AND CONSERVATIVE POOR RELIEF THEORY 7 Hastings Women's Law Journal 391 (Summer, 1996) He who gives, dominates. The theory of the donor works not only at the level of individuals and societies but also for civilizations. I suspect that my role today is to play the part of Cassandra, not the Cassandra whose prophecies go unheeded, but rather the Cassandra who tells people what they may not want to hear. That, after all, is the central... 1996  
Jennifer A. Di Toro CASTING THE OUTSIDER 48 Stanford Law Review 1469 (May, 1996) In this book note, Jennifer Di Toro examines Patricia J. Williams' The Rooster's Egg, a compilation of essays in which Williams exposes the stereotypes about race, class, and gender that dominate American culture. Ms. Di Toro explores two aspects of Williams' challenge to cultural stereotyping: her use of storytelling and her use of empirical... 1996  
Christopher A. Ford CHALLENGES AND DILEMMAS OF RACIAL AND ETHNIC IDENTITY IN AMERICAN AND POST-APARTHEID SOUTH AFRICAN AFFIRMATIVE ACTION 43 UCLA Law Review 1953 (August, 1996) I. Affirmative Action in South Africa. 1960 A. Constitutional Law. 1961 B. Positions of the Parties. 1964 1. The African National Congress. 1964 2. The National Party. 1965 3. The New Constitution. 1967 C. Affirmative Action in South African Practice. 1969 1. The Public Sector. 1970 2. The Private Sector. 1973 3. Resource Constraints. 1975 D. Some... 1996  
Margaret Chon CHON ON CHEN ON CHANG 81 Iowa Law Review 1535 (July 1, 1996) You know, it's hard enough for guys like us who've been here so long to find an identity, I can imagine Chan Hung, somebody from China coming over here and trying to find himself. Aw, that's a bunch of bullshit, man. That identity shit, man, that's, that's old news, man. That happened fuckin' ten years ago. It's still going on. Bullshit. That don't... 1996  
Enrique R. Carrasco COLLECTIVE RECOGNITION AS A COMMUNITARIAN DEVICE: OR, OF COURSE WE WANT TO BE ROLE MODELS! 9 La Raza Law Journal 81 (Spring, 1996) Affirmative action is under renewed attack. Students, university administrators, academics, politicians, workers, and business owners are asking whether affirmative action is still a viable way of pursuing integration, job opportunity, and social stability. Critics argue that affirmative action is a form of reverse discrimination and that it leads... 1996  
Richard Delgado COUGHLIN'S COMPLAINT: HOW TO DISPARAGE OUTSIDER WRITING, ONE YEAR LATER 82 Virginia Law Review 95 (February, 1996) AUTOBIOGRAPHY can be engrossing, sobering, poignant, even inspiring. Professor Derrick Bell's recent Confronting Authority, for example, is all of these. Autobiography can also be edifyingrecent scholarship teaches that one cannot begin to understand the situation of others until one also understands one's differences from them and how this... 1996  
Edward Rubin , Malcolm Feeley CREATING LEGAL DOCTRINE 69 Southern California Law Review 1989 (September, 1996) The old, self-justificatory bromide that judges do not make the law, but only find it, is generally rejected--even scorned--these days, but it continues to exercise a powerful effect on legal theory. It still whispers to us from the dark corners of legal formalism that there is no such thing as judicial lawmaking, and that, if there is, it is a... 1996  
David R. Penna CULTURAL DOMINANCE 90 American Society of International Law Proceedings 193 (March 27-30, 1996) The panel was convened at 10:45 a.m., on Thursday, March 28, by its Chair, Winston P. Nagan, who introduced the panelists: Yael Tamir, Professor, Tel Aviv University; David Wippman, Professor, Cornell University School of Law; Johan van der Vyver, Professor, Emory University School of Law; and Nathaniel Berman, Professor, Northeastern University... 1996  
Mark Tushnet DEFENDING THE INDETERMINACY THESIS 16 QLR 339 (Fall, 1996) In Determinacy, Objectivity, and Authority, Jules Coleman and Brian Leiter address what they describe as attacks on analytic jurisprudence from critical legal studies and other forms of modern American legal thought. Although Coleman and Leiter agree that there are important ways in which the set of legal reasons will be indeterminate, and that... 1996  
Nancy Levit DEFINING CUTTING EDGE SCHOLARSHIP: FEMINISM AND CRITERIA OF RATIONALITY 71 Chicago-Kent Law Review 947 (1996) All Too Often, Attempts to Define or Evaluate Good Scholarship Tend Toward the Development of Criteria of Meritocracy That Reinforce Existing Hierarchies. Some of the Efforts to Identify Quality Scholarship Are Quantitative. They May Involve Cataloguing the Top Articles in Terms of Popularity as Measured by Overall Citation Rates, ; Ranking Law... 1996  
Kimberly E. O'Leary DIALOGUE, PERSPECTIVE AND POINT OF VIEW AS LAWYERING METHOD: A NEW APPROACH TO EVALUATING ANTI-CRIME MEASURES IN SUBSIDIZED HOUSING 49 Washington University Journal of Urban and Contemporary Law 133 (Summer 1996) During the past decade, this country's subsidized housing residents have seen incidents of violent crime increase dramatically in their communities. Across the country, local law enforcement and housing authorities have joined together to develop a variety of anti-crime measures. At the federal level, the Department of Housing and Urban Development... 1996  
Jim Chen DIVERSITY AND DAMNATION 43 UCLA Law Review 1839 (August, 1996) I. Unforgiven. 1839 II. Affirmative Action Talk. 1846 A. The Structure of a Free Speech Revolution. 1846 B. Quid Est Diversitas?. 1850 III. Red, White, and Through. 1853 IV. Two Doctrinal Dilemmas. 1860 V. It's Academic. 1867 A. Words to the Wise. 1867 B. Academic Areopagitica. 1871 C. Diverse Yearnings. 1877 VI. Race Universitatis. 1883 A. Telling... 1996  
Beverly J. Ross DOES DIVERSITY IN LEGAL SCHOLARSHIP MAKE A DIFFERENCE?: A LOOK AT THE LAW OF RAPE 100 Dickinson Law Review 795 (Summer 1996) I. Diversity in Legal Scholarship: The Debate. 796 II. Rape, Male Perspectives, and the Law. 802 A. Special Considerations. 804 B. A Male Perspective of Sexual Encounters. 806 C. How Perspective Shapes the Law. 812 1. The Definition. 812 2. Nonconsent, Resistance and Force. 814 a. Consent. 814 b. Resistance. 816 c. Force. 820 d. Overall Effect of... 1996  
James U. Blacksher DRED SCOTT'S UNWON FREEDOM: THE REDISTRICTING CASES AS BADGES OF SLAVERY 39 Howard Law Journal 633 (Spring 1996) As I would not be a slave, so I would not be a master. This expresses my idea of democracy. Whatever differs from this, to the extent of the difference, is no democracy. Abraham Lincoln In four cases decided over the last three terms, the Supreme Court has held that congressional districts drawn for the predominant purpose of producing black voter... 1996  
Louise G. Trubek EMBEDDED PRACTICES: LAWYERS, CLIENTS, AND SOCIAL CHANGE 31 Harvard Civil Rights-Civil Liberties Law Review 415 (Summer, 1996) The ideology and institutions underlying lawyering for social justice are in a transitional period characterized by academic debate and innovative practices. Diminished funding for lawyers for subordinated people and challenges to the lawyer-client hierarchy are contributing to the uncertainty; out of uncertainty, however, can come innovation. The... 1996  
Marc R. Poirier ENVIRONMENTAL JUSTICE AND THE BEACH ACCESS MOVEMENTS OF THE 1970S IN CONNECTICUT AND NEW JERSEY: STORIES OF PROPERTY AND CIVIL RIGHTS 28 Connecticut Law Review 719 (Spring, 1996) I. Introduction II. Setting the Stage: Some Theoretical Predicates Concerning Beach Access and the Rhetoric of Law and Social Movements A. Property and Civil Rights Frameworks for Beach Access Narratives 1. The Property Approach 2. The Civil Rights Approach B. The Uses of Counternarrative C. The Importance of Studying the Interplay of Stories III.... 1996  
Robert S. Chang ESSAYS THE END OF INNOCENCE OR POLITICS AFTER THE FALL OF THE ESSENTIAL SUBJECT 45 American University Law Review 687 (February, 1996) I Black. You, me, same. We same. In the climactic scene of Spike Lee's film Do the Right Thing, after Sal's Pizzeria is set on fire, a group of Blacks and Latinos turn to the Korean grocery store across the street. One member of the crowd, ML, tells the Korean immigrant grocer that he's next. The grocer responds, I Black. ML explodes, telling him... 1996  
Judith E. Koons FAIR HOUSING AND COMMUNITY EMPOWERMENT: WHERE THE ROOF MEETS REDEMPTION 4 Georgetown Journal on Fighting Poverty 75 (Fall, 1996) Litigation as a Tool and Site of Empowerment in Preserving a Historic African-American Community from Municipal Destruction I. Introduction. 77 A. Miss Olivia's Dream. 77 B. The Struggle for Civil Rights. 78 1. From Canaan to Cocoa. 78 2. The Enduring Problem of the Color-Line. 79 3. Law as Tool and Terrain of Spiritual Change. 79 C. Overview of... 1996  
Frank H. Wu FROM BLACK TO WHITE AND BACK AGAIN 3 Asian Law Journal 185 (May, 1996) Ian Fidencio Haney Lopez has written a great book. White By Law: The Legal Construction of Race deserves the highest praise that his colleagues in the academy can give a scholarly study: sympathetic readers and reviewers may be prompted to say, I wish I'd written that. Haney Lopez's book is perhaps one of the finest works yet produced by the... 1996  
Robert R.M. Verchick IN A GREENER VOICE: FEMINIST THEORY AND ENVIRONMENTAL JUSTICE 19 Harvard Women's Law Journal 23 (Spring, 1996) The sequence of women's moral judgment proceeds from an initial concern with survival to a focus on goodness and finally to a reflective understanding of care as the most adequate guide to the resolution of conflicts in human relationships. Carol Gilligan Now you have touched the women, you have struck a rock. Song by women organizers protesting... 1996  
Jean Stefancic , Fred R. Shapiro INTRODUCTION 71 Chicago-Kent Law Review 743 (1996) As readers of this Symposium know, the last few years have seen a veritable ferment over the politics, form, and direction of legal scholarship and publishing. Eminent judges complain that what they find in the law reviews is largely irrelevant to their work. Critics charge that the prevailing mode of scholarship is too normative--empty,... 1996  
Michael J. Saks, , Howard Larsen, , And Carol J. Hodne IS THERE A GROWING GAP AMONG LAW, LAW PRACTICE, AND LEGAL SCHOLARSHIP?: A SYSTEMATIC COMPARISON OF LAW REVIEW ARTICLES ONE GENERATION APART 30 Suffolk University Law Review 353 (1996) The mathematician G.H. Hardy, a pioneer in number theory, once wrote with some pride that his work was entirely impractical and that he doubted it would ever be put to use. Years later, his work would prove essential to the theory and development of modern cryptography, an eminently practical branch of study. Tension between theoretical and... 1996  
Deborah J. Merritt , Melanie Putnam JUDGES AND SCHOLARS: DO COURTS AND SCHOLARLY JOURNALS CITE THE SAME LAW REVIEW ARTICLES? 71 Chicago-Kent Law Review 871 (1996) Fred Shapiro's updated compilation of The Most-Cited Law Review Articles demonstrates that legal scholarship commands respect--or at least high citation rates--among other legal scholars. An attention-getting article will attract hundreds of academic citations during its lifetime. Indeed, the most-cited articles may garnish the footnotes of close... 1996  
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