Political Mythology at the California Bar
It is not surprising that the state, with its vast and expanding surveillance and police power, requires a mythology, literally. In democratic states and even in “constitutional democracies” that are more democratic than constitutional, a pillar of this mythology is “the will of the people.” It was just invoked by the chief trial counsel of the State Bar of California, which is trying to revoke the license of John Eastman, a former lawyer of president Donald Trump (“California Bar Seeks to Revoke Trump Adviser John Eastman’s Law License,” Wall Street Journal, January 26, 2023):
Mr. Cardona said in a statement that Mr. Eastman violated his duties to the U.S. Constitution “in furtherance of an attempt to usurp the will of the American people and overturn election results for the highest office in the land—an egregious and unprecedented attack on our democracy—for which he must be held accountable.”
The non-existence of the “will of the people” can be apprehended in different ways (see my Regulation review of William Riker’s Liberalism Against Populism, as well as my Independent Review article “The Impossibility of Populism”). From Condorcet, a 19th-century mathematician and philosopher, to Nobel economist Kenneth Arrow in the 20th century, a long line of thinkers have discovered that the majority can reach logically incoherent decisions, even if each voter remains logically consistent. Each individual has his own preferences, circumstances, and will. Individual preferences and values cannot be “aggregated” into a sort of superindividual. More intuitively, it seems obvious that a victory with 51% of the popular vote, as Joe Biden achieved in 2020 (Donald Trump won with 46% in 2016), only means that, at best, the result represents the will of half the people.
Moreover, different democratic voting methods can achieve widely different results. Interpreting the work of Donald Saari (“Millions of Election Outcomes from a Single Profile,” Social Choice and Welfare, 1992), Gordon Tullock wrote (in Government Failure: A Primer in Public Choice, Cato Institute, 2002, p. 22):
Many different voting rules are used in the world and each leads to a somewhat different outcome. Saari has produced a rigorous mathematical proof that for a given set of voters with unchanged preferences, any outcome can be obtained with at least one voting method.
Classical liberals, especially in the Anglo-Saxon tradition, were correct to see the democratic state not as an expression of the “will of the people,” but simply as an institution that could assume some important functions that private cooperation could not efficiently fulfill.
That both Mr. Trump and his political opponents can hide behind the “will of the people” only provides another confirmation of the mythological nature of the concept.
A sophisticated or contrarian reader might object that we can make sense of the “will of the people” if we take it as referring to a unanimous social contract à la Buchanan. While the result of an American election does not per se represent the “will of the people,” the argument would go, the constitutional rules under which the election is legitimately held could presumably be unanimously agreed to by all the people. But a presumption of unanimity and methodological individualism have precise requirements in the context of a classical-liberal social contract. I don’t think that neither James Buchanan nor Gordon Tullock (including in their seminal joint work The Calculus of Consent) ever whispered the mythological and loaded expression “the will of the people.” Even “the people” does not exist, except if it is taken to mean “the people as individuals,” which is what legal theorist Randy Barnett argues it means in the Declaration of Independence and the Constitution (Our Republican Constitution: Securing the Liberty and Sovereignty of the People [HarperCollins, 2016]).
Jan 30 2023 at 12:45pm
Pierre: “A sophisticated or contrarian reader might object that we can make sense of the “will of the people” if we take it as referring to a unanimous social contract à la Buchanan.” It seems individuals can achieve unanimous social contract on a restricted scale.
Often, juries made up of twelve randomly selected individuals reach the correct decision more often than not. In the case of first degree murder, a unanimous decision of guilty must be achieved.
Jan 30 2023 at 4:18pm
David: I think that in all states now and for all criminal offense, a unanimous jury is needed (Louisiana, I think, and perhaps another state were holdouts until recently). But it is one thing to have 12 juries agree on the facts of one criminal prosecution of somebody else, and another thing for millions of individuals to agree on something that may impose an obligation or a prohibition to any of them.
Jan 30 2023 at 5:12pm
Pierre: “and another thing for millions of individuals to agree on something that may impose an obligation or a prohibition to any of them.” I see your point. Don’t millions agree to the imposition of an obligation as regards traffic rules? To wit. David agrees with Pierre and other drivers to stop at a red light so that Pierre and others can proceed through a green light without fear of a collision. Pierre and others do the same for David.
Jan 31 2023 at 3:59pm
David: On unanimous juries, see this recent Reason story: https://reason.com/2023/01/24/ron-desantis-says-florida-shouldnt-require-unanimous-juries-in-death-penalty-cases/?utm_medium=email. I understand from this article that the exceptions until recently were Florida (not Louisiana) and Alabama, but apparently only with regard to imposing the death penalty; there would be no exception regarding the verdict of culpability. The case for Alabama’s unanimity in imposing the death penalty is not crystal clear in the article, apparently despite the Supreme Court ruling.
Jan 30 2023 at 10:34pm
Bad metric, most studies on it show a juries are wrong roughly a quarter of the time and we have something like a 1% genuinely innocent rate in prison which is pretty insane when you think about. Do you think we would legalize drugs or celebrate any other institution which significantly injures 1 in a 100, especially once with no recourse, very few damages, and can be lifelong.
Feb 1 2023 at 9:54am
“most studies on it show a juries are wrong roughly a quarter of the time”
Well, maybe we should just have a study instead of a trial?
Jan 30 2023 at 4:33pm
The “will of the people” is a fictional construct of law and politics. Its most tangible form is reflected in our constitution through the long and arduous process of adaptation and amendment.
Jan 30 2023 at 6:09pm
Monte: But hasn’t this fiction been generally used, in both America and other countries, to mean there should be no obstacle to the will of the people or, in practice and at best, to what the majority decides?
Jan 30 2023 at 9:40pm
Absolutely! Sadly, “the will of the people” (Rousseau’s General Will) has become a hackneyed phrase used by jurists and politicians to hide behind a legal decision or policy that may, or may not, represent a consensus of opinion among the general public. Its original intent was beautifully expressed by Jefferson:
There are what we call moral absolutes (ie. capital murder, sexual exploitation of children, voting for Trump) incorporated into laws or policies where we can argue that “the will of the people” in some abstract sense is truly being served. But, as you say, individual preferences and values cannot be “aggregated” into a super-individual.
Jan 31 2023 at 1:53pm
“There are what we call moral absolutes (ie. capital murder, sexual exploitation of children, voting for Trump)”
Thanks for a good chuckle, you win Econlib today.
Jan 31 2023 at 2:42pm
Well, as they say, many a true word spoken in jest. Watch your six!
Jan 31 2023 at 11:28am
I can attest that there absolutely are economic consequences to simply being a Republican. I wonder if my support for #nationaldivorce would lead to further ostracization?
Jan 31 2023 at 3:45pm
Craig: What does it mean to “simply be a Republican”? To vote Republican even if a wheelbarrow is candidate? Or to adhere to a specific political philosophy? If the latter, what is that philosophy?
Feb 1 2023 at 1:54pm
He means that if you let the beans spill in certain workplace or academic settings that you are a registered Republican, that can have significant negative consequences for your future career. Fact check: true.
Feb 1 2023 at 2:42pm
Craig: What does it mean to “simply be a Republican”?
In this line of thought simply being identifiable as a Republican would be enough, no? Simply being on the list was enough to cause a problem for me.
To vote Republican even if a wheelbarrow is candidate?
Well, I like wheelbarrows and I don’t like Democrats at all, but I digress. In Eastman’s case it was his ‘zealous advocacy’ for his client, no? I personally know little of the man, but the reason I commented is I was essentially wondering aloud if I were to take a case with any political import if such advocacy would result in retaliation?
Or to adhere to a specific political philosophy? If the latter, what is that philosophy?
In my case it would be support for #nationaldivorce #americafirst #outofnato
How dare I, right? For sure, I must be a misogynistic racist Putin puppet rapist advocating overthrow of the US government contrary to 18 USC 2385?
Feb 2 2023 at 7:59am
That seems a pretty big simplification of Eastman’s case. He’s not being accused of “zealous advocacy.” He’s being accused of violating his duties under the Constitution. There are lines one cannot cross in advocacy of one’s client; they question is whether he crossed those lines.
Feb 2 2023 at 9:37am
“the(…) question is whether he crossed those lines”
The question is always if the “people” (this time for real) who have the privilege / the duty to decide if he crossed those lines, pretend to think whether he crossed them or not.
Another democracy original sin is the belief that those lines (“Constitutional or not”, “separation of powers”, etc…) are “hard / unambigous lines”, well there are not. There are more like “figures of speech” and subject to interpretation (look what F D Roosevelt did with those “lines”).
Thinking that, for instance, the “lines” drawn in the Constitution (which are suppossed to be the key, less ambigous ones) have any value preventing the Government from doing things the Government is not supposed to do is, quoting Huemer, “childishly naïve”
Feb 2 2023 at 10:43am
Just another cold civil war anecdote. Bottom line is that the Democrats are a threat to me through the policies they espouse and actually implement (taxation in aggregate > 50%) and as well as direct interactions (economic discrimination). This isn’t illusory, its happened, and that is why I support #nationaldivorce. They’re more dangerous than people realize.
Feb 2 2023 at 11:13am
Personally, I do not think the lines are unambiguous. That’s why courts exist: to work through the ambiguities. Some rules are precise and accurate. But there are even ambiguities there.
But whether a point is clear or ambiguous, my point remains: Eastman is not being accused of zealot advocacy. He’s being accused of violating his duty. It is ambiguous, thus the reason for court intervention.
By way of metaphor: a football player who is flagged for an unnecessary roughness penalty is not being accused of playing too hard for his team. He’s being accused of unnecessary roughness.
Feb 2 2023 at 11:42am
What we have today bears little resemblance to a limited government of enumerated powers, a government whose powers are ‘few and defined’ as opposed to the reserved powers of the state said by Madison to be ‘numerous and indefinite’
“Personally, I do not think the lines are unambiguous. That’s why courts exist: to work through the ambiguities.”
Indeed and Madison actually wrote as such in the Federalist Papers and of course he also noted that the decision must be impartially decided by a court system, which didn’t exist yet, that would exist at the ‘national’ level.
See? But that actually IS the flaw, ultimately the great flaw of the Constitution of 1787 is that the federal government was empowered to be the sole arbiter of the extent of its own powers and the result is a fiscally incompetent war mongering government that has no respect for the limits imposed on its own authority.
Feb 2 2023 at 12:14pm
Yes Craig, I do believe the Founding Fathers would deem the actual Federal Government “unconstitutional” if judged against the idea(l) of a “Constitution compliant Federal Government” they had in their minds (if it was the same for each one of them, which it wasn’t)
Jon, if they are unambiguous, why the SCOTUS sentences depend so heavily on the political leaning of its judges? To the point that, the main predictor of a particular judge vote on a controversial issue is which party has nominated that judge.
If they are unambiguous, why was FDR threat of packing the court a) a credible threat and b) so effective?
Feb 2 2023 at 1:03pm
“Yes Craig, I do believe the Founding Fathers would deem the actual Federal Government “unconstitutional” if judged against the idea(l) of a “Constitution compliant Federal Government” they had in their minds (if it was the same for each one of them, which it wasn’t)”
I agree, honestly I’m at the point where I’d suggest I wouldn’t give the federal government mental deference at all. Naturally one would be wise to heed the federal government’s de facto authority.
Feb 2 2023 at 2:02pm
What’s the “they” referring to?
Feb 2 2023 at 3:13pm
Feb 3 2023 at 6:45am
Jose: Interesting post that you linked to by Mike Huemer. I think he suffers from a Buchanan deficit, though (although Buchanan’s approach is not totally waterproof).
Feb 1 2023 at 1:26pm
I know we keep going back and forth on this “will of the people” thing. But here goes again. For one thing the term “will” is unfortunate and misleading because it’s too anthropomorphic. But isn’t the idea pretty much akin to Adam Smith’s “Invisible Hand”? There is a sort of “wisdom-of-the-crowd” in a free market, is there not? Ideally, quantities supplied and quantities demanded will match up. It seems to work. But it doesn’t depend on unanimity: some consumers will disagree with the market price and say it’s way too high; others will laugh all the way to the bank because they think the price is a steal. Is it always rational? The numerous historical examples of Tulip-mania-style asset bubbles suggests not, but overall, it’s not a bad system for making collective decisions, or so it seems to me…
Feb 1 2023 at 1:34pm
Some people will argue that using the “will of the people” is a lesser evil compare with using the “will of God”.
And some nowadays American politicians still resort, believe it or not, to the “will of God” as relevant to justify a course of action
Feb 1 2023 at 11:13pm
Sorry Warren, it was not intended to be a comment on your comment but an independent one … my bad!
Feb 1 2023 at 4:20pm
The concept of will of the people, invisible hand, and wisdom of the crowd are three distinct concepts. One cannot blend the three.
The “will of the people” is no more an Invisible Hand story nor a wisdom of the crowd story because it is typically invoked as a singular thing. It’s more akin to the collectivist idea of “the nation” rather than the decentralized “wisdom of the crowd,” or the metaphorical “invisible hand.” “The People” are used as a singular: “The people voted for me,” or “the people demand this,” or “the election was stolen from the people,” or “I will return power to the people.”
Furthermore, the “will of the people” is often given as the motivating agent. It’s not an emergent phenomenon the way the wisdom of the crowd is or the invisible hand is.
Feb 2 2023 at 9:23am
Sorry, I couldn’t resist.
Anyways, if you’re right, then you guys are wasting your time arguing against a straw man because nobody who is serious argues there is a “Will” of “the” people that is remotely analogous to a human’s will (that is in turn a problematic posit that unfortunately most economists don’t delve into very deeply; philosopher Dan Dennett has written several books on the subject).
Feb 2 2023 at 10:12am
Except we see it all the time from all sides of the political spectrum. Far too often people dismiss methodological individualism in favor of a conception of a collective will, a “super organism” if you will.
If it were merely a case of poorly designed or misunderstood language, I could agree with you. But it’s a prominent interpretation that “the will of the people” is something akin to a human will. Really, more akin to divine will, as it is often subject to the interpretation of priests called “politicians.” Just look at the rhetoric of Trump and his supporters.
Feb 2 2023 at 5:27pm
What does Trump have to do with anything? Anyway, here is what Biden has to say:
Is Biden saying he thinks that it’s true that the will of the people is a collectivist motivating agent akin to a human will, and that MAGA Republicans are rascals because they refuse to believe in a quasi-psychological collective consciousness? You’d have to be a mind-reader to believe that. Biden’s merely saying MAGA Republicans are deplorable extremists because they refuse to accept the results of an election.
Indeed, it is hard to think of a better example of a whole that is exactly equal to the mere sum of its parts than a vote count. Thus the very idea that people who say that an election represents the will of the people are guilty of the collectivist thought-crime of believing in spooky, superorganismal minds is odd, to say the least.
As for an election result not telling us anything about individual wills: Who cares? Voting for a candidate is just like buying a car: you’re buying a bundle of qualities and it’s no doubt rare when a car consumer is 100% happy with every single aspect of that bundle. There is very little difference between a free election determining a winning candidate and a free market determining the price of TSLA. Voters are consumers in the sense they incur a real economic cost when they vote. Thus an election is merely an auction where the group that has the highest willingness to pay wins that auction. Libertarians who complain about this process are like people who complain TSLA is overpriced.
Feb 2 2023 at 11:24am
It’s also worth noting that, even if I am attacking a straw man, the alternative you propose doesn’t work either. Even as a metaphor, the “will of the people” doesn’t make sense. Collective results doesn’t tell us anything about individual wills, especially in politics. In politics, you vote for a bundle of promises, but the voters may not support any of them.
For example: in 2016, I voted for Trump because I wanted the Supreme Court to remain conservative, especially once Neil Gourch’s name was floated.
I staunchly opposed virtually all of Trump’s other policies. But on that singular margin (supreme court), I cast my vote. Multiply these marginal voters throughout the election, and one cannot come up with a coherent aggregation that in any way constitutes a “will,” either literally or metaphorically.
Feb 2 2023 at 1:22pm
Jon, if the rules are unambiguous, why was so important having Trump nominating the next Supreme Court appointee?
Feb 2 2023 at 2:03pm
Not all rules are unambiguous. The ambiguous ones end up before the Court. That’s the point of a court
Feb 2 2023 at 12:44pm
But isn’t the idea pretty much akin to Adam Smith’s “Invisible Hand”? There is a sort of “wisdom-of-the-crowd” in a free market, is there not?
I don’t see why these concepts are akin to “the will of the People”. The “will of the people” is just a travesty of a “price system” (or an “invisible hand” or a “wisdom of the crowd”)
Prices are defined by individual voluntary transactions of which are plenty. Even for the same good or service. Even for the same commodity!
The “system of prices” than emerged as the aggregate of these voluntarily individually agreed prices, is a “reality” to be observed and analyzed. A bottom-up construction. And the desires and personal interests of the “observer” cannot significantly alter that “reality” (even if the observer pretends so).
The “will of the people” pretends to be a bottom-up aggregation of the individual “wills”, but this pretense is false. As Pierre points out, this “aggregation” is just impossible. The “will of the people” is summoned by the interested “observer” just with the intention of supporting his/her personal agenda and, which is worse, his/her intention of imposing it in every individual (no matter what the actual “will” of this individual is).
The “will of the people” is in politics just the modern version of “God’s will”. These two are the ones that are “akin”.
Nobody would confuse “God’s will” (used as a reason to support a given policy) with the “price system”. They are closer to be precisely the opposite, I would say.
Feb 2 2023 at 6:15pm
You guys are being way too clever, by half. An election is literally a price system. For example, in the stock market, every day there is a battle between Bulls and Bears over the price of TSLA. The Bulls believe the price is too low and vote with their dollars that the price will go up; the Bears believe the opposite and vote with their dollars that the price will go down. Say the price goes up? Do people complain that the individual wills of the Bears were thwarted? Nope.
But a U.S. Congressional election is exactly the same, except instead of Bulls and Bears, they have Donkeys and Elephants. The Donkeys believe the number of Donkey/Elephant ratio in Congress is too low, and they vote with their dollars that that number will go up and vice versa for the Elephants. Because, after all, voting incurs economic costs for voters. They have to spend time looking up candidates, researching issues, watching debates, maybe even contribute campaign dollars, then there’s the gasoline and wear ‘n’ tear and even more time required to drive to the voting booth. Thus an election is literally an auction, just like the stock market is.
Feb 3 2023 at 12:31pm
“An election is literally a price system”
Maybe the same way that my Condo Association Annual Meeting is, literally, a price system
Or the same way that my wife and I deciding where to go on vacation is a “price system” (although in this particular case, the, very peculiar, “price system” is clearly a monopoly)
Should I conclude that you expend the same diligence deciding your vote that deciding your offer for a new house?
Anyway, I would remember your “literally” the next time I decide to ignore my tax rate the same way that I can ignore the TSLA price. Hope you come to visit me in jail: it was your “literally” fault!
Feb 3 2023 at 2:54pm
It’s like if the JV cheeleading squad, instead of holding a bake sale to raise money, they instead decide to hold a beauty contest between Bob and Alice in the form of a collective auction. People interested in the JV cheerleading squad would get to buy one vote each for $1. Thus the candidate who wins the beauty contest is the one whose supporters collectively bid the most dollars.
Feb 4 2023 at 5:17pm
No. That an election is not akin to a price system was mathematically proven decades ago by Kenneth Arrow, and known intuitively to be false at least since Condercet in the 1700s.
One either has to fundamentally misunderstand what the price system is or what an election is to make that claim in modern days.
Feb 3 2023 at 11:48am
Be careful here. The price system is not an aggregation, strictly speaking. The equilibrium price & quantity that emerge are not aggregations or even averages. It’s a marginal price. Everyone pays that price* but the price emerges through the actions of the marginal consumer.
*Except in the case of perfect price discrimination
Feb 3 2023 at 6:56am
Warren: You will find answers to your quandaries (in your several comments) if you follow the links in my post above. On your comparison of the market and politics, see further my EconLog post on Individual and Collective Choices in Cars.
Feb 3 2023 at 2:58pm
Interesting article Pierre, although I can think of worse worlds than one where everyone drives F-150s!
Agree it would be absurd to vote for a national car. But it seems to me the main difference between the auto market and an election is that transactions in the car market are mutually beneficial, but in an election, it’s a zero-sum game: when one side wins, the other side loses.
However, I want to say there is a free market that’s quite analogous to a democratic election: and that’s the stock market. The Bulls want the market to go up; the Bears want it to go down. When the Bulls win, the Bears lose, and vice versa. Transactions are not mutually beneficial; yes, for every transaction there is a willing buyer and seller, but they are really making bets against each other — and like all bets, there will be a happy winner and a sore loser.
At the end of the day, whatever the price of AMC is at is pretty much a collective choice. Thus several of the criticisms of elections would apply to the market for AMC. For example, each individual trader has an infinitesimal ability to affect the price. Thus the “rational ignorance” problem also applies as people buy AMC just because of something they saw on Reddit thus leading to “collective irrationality.” Hence the PR Department objection would also apply to AMC (and to the auto market as well seemingly implying there’s no special rationality to individual choices either). Also there’s rent-seeking as well as when big investment banks get bailed out when they go broke.
Thus since we don’t complain about collective choice problems in the stock market, then why complain about such problems in democratic elections, especially considering there are no plausible alternatives?
Feb 3 2023 at 5:13pm
whatever the price of AMC is at is pretty much a collective choice.
No. First, the price of AMC is at, is a “two person choice” (calling that “collective” is a stretch of the term). Only the marginal buyer and the marginal seller set the price of AMC at any given time. And second, the price I pay (or I get) for AMC (which is the relevant one) is my choice (and only mine); I can always disregard any other price (hardly the case in elections).
But let’s take your analogy seriously. How would a “stock market like an election market” look like?
1.- The buyers would have only two “baskets of shares” to choose (maybe 3 but the third one would not be seriously considered by most of the buyers). The buyer would not be able to pick an individual share (let’s say “abortion” at $3 or “gun control” at $45.67 or “75% marginal tax rate” at $10.26). Only baskets of them (let’s say all the above bundled together)
2.- The buyers would be forced to hold this basket for 4 years. After this 4 years they will be forced to sell the basket. If they try to hold on the “previous basket” by, for instance, storming the Congress, they will go to jail for that.
They will have the opportunity to choose again among two “new” baskets of shares. The baskets will “sound” similar but there would be differences.
3.- The two “baskets of shares” would be very poorly defined. Something to the like of: we are going to buy 500-700 Teslas the day after inauguration day, AND 1,000-1,500 AMCs one year down the road (although we are willing to settle for less if we find strong opposition to buying this number). We will be selling right away the 700 AMZN that the previous management bought without taking into account its awful CSR policies
4.- The buyers would have no clue of the price they are going to pay for the basket. There would be some vague statements linking what you are going to pay to your income. An arcane structure of rates would be applied to your income to work out how much you are going to pay for the basket.
The system would be so arcane, that you will need the help of a very expensive specialist that only do this for a living.
In any case, an independent professional body will state that this “arcane structure of rates to apply on the buyers income” will not suffice to buy the basket of shares. There would be a general understanding that the shortfall will be make up with debt (the details on who, when and how this debt is going to be repaid would be left unclear, to say the least)
5.- Every buyer older than 18 will vote for the basket he/she wants to buy (remember there were just two alternative baskets).
A significant percentage of the buyers would not even bother to vote. In any case, the basket getting the majority of votes would be forcefully delivered to every buyer/voter (even to the ones that did not bother to vote).
Yes, you are right, once I think about this carefully, it become pretty clear that elections “literally” are like pricing in the stock market.
Feb 1 2023 at 1:27pm
“the will of half the people”.
Actually, the “will” of half the people voting for Biden face exactly the same conceptual problems that “the will of the people”.
Since only makes sense talking about the “will of half the people” regarding a particular topic (let’s say abortion, or top marginal rate, or gun control) it is very unlikely that “half the people” has the same “will” on these very unrelated topics. Even leaving apart the fact that they don’t have the same “will” on this individual topics taken one by one, since all of them have a myriad of possible political “solutions”.
Even the people hating the Romans in Judea back in time didn’t seem to have “A will” … and looking at House Republicans of today, the Monty Python gag seems to be timeless …
Feb 2 2023 at 6:16pm
Yes. The founders intended for the people to be the ultimate arbiter of government, what Jefferson called “the peculiar wisdom and felicity of our Constitution, to have provided this peaceable appeal, where that of other nations is at once to force.” Over time, the government has learned to short-circuit our ability to place checks on its power in several ways:
By delegating many of its legislative powers to administrative agencies, like the EPA, the FTC, and the DOL.
By stacking the courts, which over time have loosened, rather than tightened, constitutional restraints on state and federal jurisdiction.
By federal encroachment on the authority of the states.
By violating the Separation of Powers doctrine in abrogating the power to declare war, a power explicitly reserved to the Congress, to the Executive branch.
Madison said it best:
Pray very hard for this nation to reverse course.
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