Week 3 judicial process

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Judicial Process – Week 3 Assignment

Your State’s Judicial Selection System

Research the judicial selection method in your state.  Discuss the following:

1.  Are judges elected in partisan or nonpartisan elections?

2.  Are judges appointed?

3.  Is there a form of merit selection such as the Missouri Bar Plan?

4.  What are the advantages and disadvantages of your state’s judicial selection method?

Your submission should adhere to the following guidelines:

·  The total length of your paper should be a minimum of 3 full pages in length.

·  Use APA style for general formatting, including margins, font type and font size, spacing, and cover page.

·  Include Bluebook formatted citations within the body of the paper and on the References page.

View your assignment rubric.

Chapter 5: Lawyers and Legal Representation

Judicial Process: Law, Courts and Politics in the United States

Copyright © Cengage Learning. All rights reserved.

1

Chapter Topics

Legal Education

Licensing Requirements

Legal Ethics and Discipline

Bar Associations

The Work of Lawyers

Diversity and Stratification of the Legal Profession

Access to Legal Services

Copyright © Cengage Learning. All rights reserved.

Legal Education before 1870

lawyers were scarce in the Colonies

entry into the profession was open – trained through self-study, often combined with an apprenticeship

start of University based American legal education at William and Mary (1779)

legal education connected to philosophy, political economy and ethics

proprietary law schools (for-profit) emerged for practitioners (Litchfield 1784)

Copyright © Cengage Learning. All rights reserved.

The Modern Law School

Harvard Law School and Dean Christopher Columbus Langdell changed legal education

introduced the case method – reading appellate court opinions

the case method is now the standard form of instruction

night law schools were founded as an alternative to University education

in 1900 32 prestigious law schools founded the Association of American Law Schools

Copyright © Cengage Learning. All rights reserved.

Law School Admission

119,775 law students

based on Law School Admission Test (LSAT) and undergraduate performance

Law School Admission Council (LSAC) develops and administers the test

applicants use the Law School Data Assembly Service (LSDAS) to send their application materials to schools

2014-15, 101,689 LSAT tests compared to 1963-64, 37,598

Copyright © Cengage Learning. All rights reserved.

women are 50% of enrolled law students, but only 34% of attorneys

minorities earn 26% of the degrees

Law School Curriculum

early curriculum was 2 years today a standard curriculum is 3 years

train students as generalists

teach students to “think like lawyers”

Copyright © Cengage Learning. All rights reserved.

Curriculum

distinctive feature is the case method

casebooks organize appellate court decisions

few references to other disciplines (history, economics, public policy, etc.)

employs the Socratic method – professor challenges student to explain the logic of their thinking

no correct way of analyzing opinions, it is the process that counts

Copyright © Cengage Learning. All rights reserved.

Curriculum

critics of legal education argue:

method of instruction is confrontational which does not suit many learning styles

some argue too focused on knowledge needed to pass the bar exam

others say not enough attention to the actual practice of law

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Differences in Law Schools

204 American Bar Association (ABA) approved law schools in 2014

most are affiliated with a university

the rest are free standing (proprietary)

law schools differ in prestige, elite national law schools, public and private university schools, and local/night schools

ranked by U.S. News and World Report every year but not without controversy—the LSAC encourages applicants to find the “best law school for them”

Copyright © Cengage Learning. All rights reserved.

Law School Costs

90% of law students rely on loans

2012 survey showed typical debt for public law schools of $66,627 and for private law schools, $126,723

2/3 of students report that law school debt keeps them from considering public sector jobs

law school has always been expensive, but the cost is rising faster than lawyer salaries

Copyright © Cengage Learning. All rights reserved.

Licensing Requirements

passing the bar exam is required to practice law

historically lawyers were admitted to the bar by courts and judges

bar associations worked to improve the quality of the legal profession

most bar exams include:

(1) basic areas of law, (2) knowledge of state law, (3) legal ethics

Copyright © Cengage Learning. All rights reserved.

Licensing Requirements

the Multistate Bar Examination is used 48 states and offered twice a year:

2010, 79,953 tests administered with a passage rate of 68%

NY & CA administer the most tests

other tests include the Multistate Professional Responsibility Test and the Multistate Essay Test

many students take a bar review course

Copyright © Cengage Learning. All rights reserved.

Legal Ethics and Discipline

are lawyers dishonest, unscrupulous, and conniving?

increasingly law schools focus on ethics

bar associations work to improve the public image of lawyers

state high courts establish the standards of conduct for the legal profession—based on the ABA’s Model Rules of Professional Conduct

Copyright © Cengage Learning. All rights reserved.

typically a state bar association disciplinary committee handles discipline

common complaints include:

(1) misuse of client funds, (2) acceptance of money for services never rendered, (3) felony conviction

complaint is filed, investigation performed, recommendation made

most complaints are dismissed, very few result in sanctions

dissatisfied clients can also file a malpractice lawsuit

Copyright © Cengage Learning. All rights reserved.

Bar Associations

created to try and improve the professional standing of the legal profession

traditionally elitist and conservative

State Bar Associations

30 states have adopted an integrated bar, requiring all attorneys to join the state bar association

American Bar Association – 600,000 members, attempts to speak for the legal profession

Copyright © Cengage Learning. All rights reserved.

Bar Association Activities

attempt to upgrade the quality of the legal profession

try to remove dishonest lawyers

promote the public image (by conducting assessments of public confidence)

activities aimed at the unauthorized practice of law — lawyers traditionally have a monopoly over legal services

Copyright © Cengage Learning. All rights reserved.

advocates argue that legal education is necessary to represent clients

researchers have found that “experience” not legal training is the best predictor of success in court (Kritzer 1998)

many legal tasks are routine (uncontested divorces, adoptions, name changes, wills)

these tasks are being made easier by computer programs and handbooks

Copyright © Cengage Learning. All rights reserved.

The Work of Lawyers

many think of lawyers and trials together but the reality is that most lawyers do not spend their time in court

England draws a formal distinction between:

Solicitors – office attorneys who advise clients but argue only minor cases,

Barristers – litigators who argue case in major trial courts

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The Work of Lawyers

Litigating – presenting cases before judges or juries

trial attorneys must organize a case and the facts for presentation to the judge or jury

only a small number of attorneys are full-time litigators

Representing – helping clients with securing a license, dealing with administrative regulations, requesting variances, etc.

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The Work of Lawyers

Negotiating – most lawsuits are settled through negotiation. Lawyers work to settle a dispute in the most favorable way for their client. Negotiations in criminal court are frequently referred to as plea bargaining.

Drafting Documents – lawyers spend a great deal of time writing documents. A properly drafted document can help a client avoid a lawsuit in the future. Documents are required at every stage of a lawsuit.

Copyright © Cengage Learning. All rights reserved.

The Work of Lawyers

Counseling Clients – lawyers advise clients about the dictates of the law. They are expected to provide sound, dispassionate advice about the law.

this role sometimes creates tension between the lawyer and client. Lawyers must sometimes give advice that the client would rather not hear—for example, the evidence will likely lead to a conviction or your not going to be able to get that much money in a settlement.

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The Work of Lawyers

Cause Lawyering – involves the mobilization of the law combined with political calculations.

emerged in the 1960s with civil rights and consumer safety initiatives

includes both the political left and right

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Where Lawyers Work

Private Practice – nearly 75% of lawyers work in private practice

number of solo practitioners is declining

economies of scale make working in a firm—an association of lawyers—more and more desirable

Business – many business hire lawyers

house counsel – employed by the business as salaried employees

outside counsel – a lawyer or firm hired by the business but not a employee

Copyright © Cengage Learning. All rights reserved.

Copyright © Cengage Learning. All rights reserved.

Government – nearly 10% of the nations lawyers work for government.

typically we think of government lawyers prosecuting criminals

but many other lawyers are employed by the federal, state and local government

Law Clerks – provide legal research and writing for judges. Judicial clerkships are highly prized by law students and seen as prestigious by future employers.

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Diversity and Stratification of the Legal Profession

there are many differences among lawyers and law firms

Heinz and Lauman and Nelson found in a Chicago study:

lawyers range from general to specific in their practice with less than 25% considering themselves specialists

lawyers consistently represent either plaintiffs or defendants

lawyers tend to represent either large corporations or individuals

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Diversity and Stratification of the Legal Profession

they concluded that lawyers are either part of the

corporate sector—representing large corporations, regulatory agencies, or governmental bodies, or

personal client sector attorneys—representing individuals

corporate sector lawyering has been growing faster than the private client sector

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Large Law Firms

Often referred to as Wall Street Lawyers

Largest is Chicago’s Baker & McKenzie, 3,774

small number of “large law firms” but they have a great deal of influence

represent mostly corporate clients

offer coordinated, highly specialized legal services

lawyers are

associates—recent law school graduates who provide legal assistance

partners—hold permanent positions and contribute to firm management

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Large Law Firms

firm lawyers are sometimes described as: finders (finding new clients), minders (managing the firm), and grinders (doing legal research and work)

participate in bar association leadership

expanded rapidly in the 1980s, but number of super large firms has been declining

Solo Practitioners

individual attorneys

represent one-shotters—individuals who rarely make legal claims

have modest incomes and focus mostly on criminal, personal injury, divorce, real estate, etc.

Copyright © Cengage Learning. All rights reserved.

Lawyer Employment and Salaries

geography is important, most all new lawyer jobs are in the largest 20 cities!

fastest growth in large states, NY, CA, TX

2014 median salary $114,970

10% make less than $55,400

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Legal Services

there are many lawyers in the U.S. (>1M) but individual citizens still report difficulty obtaining legal services, why?

many lawyers work for business

lawyers can be expensive

but they are often necessary

in criminal prosecutions, legal representation is a right (Gideon v. Wainwright 1963)

Copyright © Cengage Learning. All rights reserved.

Legal Services

legal services are provided—if you cannot afford them. There are two systems:

assigned counsel – lawyers are assigned cases by a judge on case by case basis and paid hourly for their work

often young and inexperienced lawyers

used by half of the counties in the U.S.

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Legal Services

public defender—salaried lawyers working for the state or local jurisdiction who are assigned cases by an administrative professional

intended to bring professionalism to criminal representation of the poor

used frequently in urban areas

proponents argue that lawyers can focus on the cases because they are salaried, critics charge that because they receive a salary they will not be as passionate advocates

Copyright © Cengage Learning. All rights reserved.

Civil Representation for the Poor

in civil matters, free legal representation is a privilege, not a right

mostly offered by a legal clinic, the Legal Services Program or on a contingency fee basis

Contingency Fee—the lawyers agrees to be paid only if the case is won

very controversial, but

increase the availability of lawyers to the poor

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Civil Representation for the Poor

distinctive feature of U.S. law

opponents charge that (1) unfair to clients because winning lawyers take a large portion of the settlement, (2) lawyers make too much for their time spent, (3) the chance of winning big causes reckless behavior by the attorneys.

proponents counter that (1) lawyers that use the contingency fee do not benefit all that much, (2) they turn away plenty of cases, (3) may not cause higher verdicts

Copyright © Cengage Learning. All rights reserved.

Civil Representation for the Poor

Advertising and Legal Clinics

most advertising is modest, but accident victims often do receive letters from attorneys. States may place restrictions on advertising

legal clinics may be run by community based organizations or law schools. They often specialize in uncomplicated matters: uncontested divorce, wills, bankruptcy, etc.

the number of clinics has been declining

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Civil Representation for the Poor

Legal Services Program—created in 1965 by President Lyndon Johnson to offer civil legal services to the poor

precursors were small, largely urban organizations trying to provide professional legal services

the LSP created neighborhood offices, government funded, independent, advocated for the poor

replaced by the Legal Services Corporation in 1974

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Civil Representation for the Poor

Legal Services Corporation – is a private, nonprofit corporation established by Congress in 1974

overseen by an 11 person committee appointed by the president and confirmed by the Senate

FY 2005 budget, $330.8M

provides aid to >1M annually

subject of partisan debates in Congress, but support is bi-partisan and budgets have been steady

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Conclusion

legal representation is very important

legal education is rigorous

lawyers belong to bar associations and attempt to police themselves for ethical violations

the legal profession is diverse

legal services for indigents in criminal matters is a right, but for civil matters it is a privilege

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Chapter 6: Judges

Judicial Process: Law, Courts and Politics in the United States

Copyright © Cengage Learning. All rights reserved.

1

Chapter Topics

Judicial Selection

Appointment of Federal Judges

Judicial Elections

Merit Selection

Which Selection System is Best?

Judges at Work

Judging the Judges

Copyright © Cengage Learning. All rights reserved.

Characteristics of a Good Judge?

no agreed upon set of criteria that make up the personality of a good judge

judges are expected to be fair, honest, patient, wise, legal wisdom, etc…

but they are also expected to be good managers—keep the docket moving, organized

what are the characteristics of a good judge?

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Who Should Select Judges?

no consensus on whom we should trust to select judges

the choices include, lawyers, elected officials or the voters

a case can be made for and against each of these actors

because of disagreement about who should select judges, judicial selection is a highly unstructured process that includes many different actors depending on the jurisdiction

Copyright © Cengage Learning. All rights reserved.

Judicial Independence or Political Accountability?

judicial independence is viewed as vital for neutral and impartial decision making, but

elections are viewed by many as the best method of guaranteeing the popular accountability of judicial policy makers

a tension is created between judicial independence and accountability

judges typically enjoy longer terms than elected officials

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Varying Roads to a Judgeship

three principle methods of judicial selection are used in the United States

appointment – selection by either the executive or legislative branch of government

election – either partisan or non-partisan

merit selection – typically involving appointment with retention elections

political geography matters

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Appointment of Federal Judges

determined by the Constitution

nominated by the President

confirmed by the Senate

serve during good behavior (i.e., life)

the process appears simple but it is complex and political

varies by the level of court (District, Circuit, Supreme)

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Appointment of Federal Judges

The President has considerable power

only the President can nominate

vacant judgeships are highly valued

present opportunities to purse political objectives and reward party faithful

however, the president has very little control over when vacancies will occur

lifetime appointment and Congress rarely authorizes additional judgeships

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Appointment of Federal Judges

Historically the Senate played a greater role in the confirmation process

suggested nominees

the home-state Senator had to approve of the nomination “senatorial courtesy”

Today the role of the Senate is diminished, observers agree that there is less consultation and there has a been decline in “senatorial courtesy”

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The Demise of Senatorial Courtesy?

The Senate is granted the power of “advice and consent”

Senatorial courtesy is the unwritten tradition whereby presidents allow Senators to be consulted before the president nominates a person to a federal judicial vacancy in their state

a Senator from the president’s party could place a hold on the nominee, preventing their consideration

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The Demise of Senatorial Courtesy?

the influence of senatorial courtesy has been diminished in recent years

its impact varies depending on the:

political party of the president and Senators, Senators of the same party have more influence

the level of Court, Senators have more influence at the District level, less at the Circuit level and virtually none when the vacancy is on the Supreme Court

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Interest Group Involvement

interests groups are focusing on judicial selections

the American Bar Association (ABA) has historically been very influential—recently that influence has been diminished

interest groups focus on:

promoting possible nominees

influencing the confirmation votes of Senators

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Presidential Political Goals

federal judges have been selected to:

reward the party faithful (e.g., Presidents Harding and Theodore Roosevelt)

maximize the professionalism of the judiciary (e.g., Presidents Taft and Harding)

influence public policy (e.g., Presidents Wilson and Franklin Roosevelt)

modern presidents clearly focus on the political nature of appointments

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The Obama Judiciary

In just over six years President Obama has left his imprint on the Federal judiciary.

he has appointed the most diverse judiciary ever

over 50% of his District Court nominations have been women

he has appointed the largest number of judges with a net worth >$1,000,000

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Backgrounds of Federal Judges

Political scientists often study the background characteristics of appointed judges

there are some common characteristics regardless of the appointing president’s party, those appointed:

were members of the president’s party

prior judicial/prosecutorial experience

frequently involved in party politics

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Backgrounds of Federal Judges

But there are differences too. Recent presidents have appointed more women and the net worth of nominees has steadily increased.

Does it matter who gets appointed? YES

an impressive body of research demonstrates that judicial behavior is related to the president who made the appointment

President Bush’s appointees were very conservative (Carp, Manning and Stidham 2004)

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Judicial Elections

the majority of state judges are initially selected or retain their position through popular elections

election types include:

nonpartisan elections – judicial candidates run for office without a party affiliation listed on the ballot

partisan elections – judicial candidates are listed on the ballot with party

retention elections – where the voters are asked whether to keep the incumbent judge

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Judicial Campaigns

judicial elections have traditionally been low-key, low-visibility, low-turnout affairs

ethical rules and culture prevented candidates from discussing how they would decide cases

campaigns were about personal integrity and character

the result is that the public knows very little about judicial candidates, a poll found that just 13% of voters knew a great deal about judicial candidates

Copyright © Cengage Learning. All rights reserved.

Copyright © Cengage Learning. All rights reserved.

Judicial Campaigns

few incumbent judges are challenged and even fewer are voted out of office

but note that this is not terribly different from other political branches, Representatives in the US House are reelected at a 95% rate

however, changes are in judicial elections are beginning to occur

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Nastier, Noisier,and Costlier

judicial elections are becoming costlier, in 2000, candidates for State Supreme Court raised 100% more than those in 1994

research is finding that money raised in judicial elections is more important to winning that other traditional factors such as partisanship, incumbency and coattails

judicial elections are getting noisier—more money is being spend on advertising than ever before

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Merit Selection

an effort to remove courts from politics

judicial reformers believe(d): a) elections discourage qualified lawyers from running, b) popular elections suggest impropriety, c) voters do not know how to choose among candidates

the propose merit selection aka: non partisan selection, or Missouri Bar Plan

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Merit Selection

judicial nominating commission recommends a list of qualified candidates to the governor, the governor makes a final selection, and the after a period of service the judge faces a retention election

a retention election simply asks the voters “Should Judge x remain in office?”

the process is designed to reduce the influence of politics, but it has consequences

retention elections are not without critics

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Merit Selection

voters routinely return incumbent judge (although there are signs it is becoming slightly more competitive)

to aid voters states are creating judicial performance evaluation programs

a growing number of states use some or all of the components of merit selection

politics is still involved, who makes it on the nominating commission list, who the governor chooses, etc.

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Which System is Best?

there is a serious and important debate about how we should choose justices.

selection methods give heighten or diminish the role of certain political actors (and voters)

Evaluating the Systems

which system produces better judges?

but, better is a “normative” concept

we can ask “who gets appointed?” and “what do they do on the bench?”

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Similarities in Judges’ Backgrounds

judges are more alike than different, regardless of selection method.

evidence points to changing trends, more women, less emphasis on former elected experience

but it is difficult to link these changes to the type of selection system

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Diversity and the Judiciary

the judiciary has traditionally been white, male and Protestant, but this is changing

Presidents have been appointing more diverse judges—37% of federal judges can now be considered nontraditional

but there is far less diversity among state judges, where women and minorities still lag behind

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Trial Judges at Work

at trial judges serve as umpire

expected to be neutral

judges exercise considerable discretion

helping parties negotiating is important

rarely write opinions

must be good administrators—manage their dockets—the calendar of cases

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Benefits of the Job

a high level of prestige and respect

control patronage positions, e.g., bailiffs, clerks, commissioners, reporters, assistants, etc.

judicial salaries are higher than the national average

but salaries are a major source of controversy because many lawyers can make more in the private sector

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Frustrations of the Job

trial judges often face staggering caseloads

face pressure to move cases

judge’s have limited control over lawyers, jails, prosecutors, etc.

some judicial positions have low prestige—criminal court judges

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Judging the Judges

What should be done with unfit judges?

judicial misconduct can include many things, e.g.,

corruption—taking bribes or fixing cases

but it can also be the result of old age or senility

formal methods of removal include

recall elections

impeachment proceedings

Copyright © Cengage Learning. All rights reserved.

Copyright © Cengage Learning. All rights reserved.

State Judicial Conduct Commissions

created as an arm of the state’s highest court

include judges, lawyers, prominent citizens

investigate judicial misconduct and make recommendations to the State Supreme Court

investigate in secret and often use informal pressure to get judge off the bench without resorting to public disclosure

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Federal Conduct and Disability Act

establishes formal procedures for acting on complaints of misconduct by federal judges

initially heard by judicial councils, sends a report to the judicial conference, which can recommend impeachment to the US House of Representatives

since 1803 only 5 judges have been formally removed from the bench

resignations are a far more likely result of misconduct investigations

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Conclusion

there is considerable debate about whether judges should be elected or appointed

judges are selected both ways

judges are more alike than different, regardless of system

interest groups are playing an increasing role

elections are becoming more competitive and expensive

Copyright © Cengage Learning. All rights reserved.

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