Eugene Volokh's Blog, page 2727

August 18, 2011

Rick Perry Questions Evolution, Endorses the Teaching of "Creationism"

(David Bernstein)

USA Today:

The Texas governor was responding to a question from a little boy in New Hampshire, who was prompted by his mother to ask the Republican candidate about the age of the Earth and evolution.

"I hear your mom was asking about evolution," Perry said today. "That's a theory that is out there — and it's got some gaps in it."

Perry then told the boy: "In Texas, we teach both creationism and evolution [the former is actually not part of the Texas curriculum]. I figure you're smart enough to figure out which one is right."

A perfectly good answer to any question about evolution would have been "I'm running for president, and my views on the matter are irrelevant, because I think education should be left to state and local authorities." Instead, Perry has disqualified himself from winning the non-ignoramus vote. Unfortunately, the ignoramus vote is quite substantial.






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Published on August 18, 2011 19:31

Sarah Leah Whitson of Human Rights Watch and the Arab Spring

(David Bernstein)

It's fascinating to listen again to this talk by HRW Middle East and North Africa director Sarah Leah Whitson (starting at 16:53) from the Summer of 2009. The topic was "Human Rights in the Middle East." Syria and Libya get barely a mention. Yemen isn't mentioned at all. Israel gets by far the most negative attention, followed by Egypt and Jordan–apparently singled out because they are U.S. allies and have peaceful relations with Israel. The Palestinian Authority comes in for some criticism for "not representing all the Palestinians," i.e., not being anti-Israel enough. While Israel is accused of engaging in "apartheid" and routinely violating international humanitarian law, such that the U.S. should rethink its support of its government, Hamas is referred to as the "elected government" in Gaza, which the U.S. shouldn't try to undermine.

The weirdest moment in the talk, though, is when Whitson points out that no Arab country allows freedom of speech, the cornerstone of a free society. What one example, of all possible examples, does she use to illustrate the lack of freedom of speech? That Arab governments tried to prevent their populations from protesting Israel's actions in Gaza in the war against Hamas in late 2008/early 2009. Just, WOW!

NGO Monitor comments on now HRW's obsession with Israel left it unprepared to deal with the emerging events in the Arab world here.






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Published on August 18, 2011 19:13

Cato Institute Constitution Day Events

(Orin Kerr)

On Thursday, September 15, the Cato Institute will be celebrating Constitution Day and the publication of its annual Supreme Court Review with a day-long series of panels and lectures. I'll be speaking, as will my co-bloggers Jonathan Adler and David Post. Many friends-of-the-VC will be panelists or moderators, too, including Walter Olson, Ilya Shapiro, Roger Pilon, and John Eastman. A panel on the upcoming Term will feature Greg Garre, Tom Goldstein, and Adam Liptak. Judge Kozinski will conclude with a lecture, "On Privacy and Technology." It's all lots of good stuff. You can register here.






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Published on August 18, 2011 16:20

Legal Policy Arguments (Post 2 of 2) — Morality, Efficiency, and Questions to Ask Yourself

(Eugene Volokh)

(As I mentioned in post 1, I'm posting again some thoughts that I had about making effective policy arguments, in law school, in legal articles, and in briefs.)

3. The best policy arguments generally combine moral and practical arguments.... [P]eople often debate whether the law should be aimed at efficiency or at justice. But whatever you think is the right answer, your audience (for instance, a multi-member court) will often have mixed views. Some might think the law should be aimed chiefly at one, some at the other, and most will likely care about both. So try to reach both, by arguing that your proposal is better along both dimensions.

Also keep in mind that economic arguments are not the opposite of moral arguments. Economic arguments can often be relevant to figuring out how a moral argument applies: For instance, if our moral argument is that "everyone should be free to exclude others from their property, so long as such exclusion doesn't cause unreasonable harm to others," the question of what harm is "reasonable" may well be informed by economic analysis.

Moreover, economic efficiency itself has a moral dimension: As society gets richer, people on average tend to get more of the things (education, health care, and such) that we may think they morally deserve. And this is true for more specific economic effects as well: If, for instance, imposing liability on cities for accidents in public swimming pools leads to closing such pools, then poor children will have less opportunity to enjoy the activities enjoyed by middle-class and rich children (who have access to private swimming pools). That may itself have moral relevance — though one can of course also argue that it's morally good for poor children to be protected from dangerous pools by the deterrent effects of liability.

Likewise (though this example isn't directly relevant here), an economic analysis of whether some policy will cause aggregate social harm or benefit will often be premised on moral judgments about whose interest count: Should you aggregate the harm or benefit to all Americans? To all humans alive today? To all humans alive today and in the future? To all primates?

* * *

Now a few words about the specific kinds of policy arguments that are often made in a wide range of cases, though especially tort cases. (I initially wrote this for students in my Torts class.) People often talk about various fields of law as being aimed at compensating those who are injured (physically, emotionally, or psychologically), and deterring future injuries. And that's true as far as it goes. But let's get a bit more detailed, and point to some (often interrelated) questions that you might ask yourself with regard to any proposed liability rule:

A. Questions Focused Immediately on What Has Happened:

1. Does the plaintiff deserve to be compensated? Sometimes the answer seems obviously "yes," for instance if the plaintiff was hit and injured by a drunk driver. Sometimes it's less clearly "yes," for instance if the plaintiff had his past drunk driving conviction revealed to the public, and is now suing for the disclosure of private facts.

2. Does the defendant deserve to pay compensation to the plaintiff? Again, sometimes the answer seems obviously "yes," for instance if the defendant is the drunk driver who hit the plaintiff. But sometimes it's less clearly "yes," or perhaps even clearly "no," even when the defendant was one of the but-for causes of the plaintiff's injury (i.e., but for the defendant's actions, plaintiff would not have been injured) — for instance, if the plaintiff is suing the company that manufactured the drunk driver's car, simply because it manufactured the car.

Note, though, that "deserve" here need not mean that the defendant is culpable, only that we think he has incurred an obligation as a result of his action. For instance, one might conclude that a mining company should be strictly liable for all damage that its blasting does to neighboring properties — because it bears the profit from the mining and should thus also bear the loss — even though the mining company isn't morally culpable for blasting.

B. Questions Focused on What Will Happen in Litigation:

3. Are there particular reasons to think this proposed rule will cause problems in actual litigation, such as undue litigation expense, undue intrusion on privacy, or undue risk of error on the part of the judge or jury? Some such expense, intrusion, and risk is inevitable; but sometimes the cost or risk might be so high — especially compared to the alternatives — that it's worth shifting to a different rule.

For instance, some argue that no-fault insurance is better than negligence liability at dealing with auto accidents, both because it's cheaper and because many auto accident lawsuits devolve into swearing matches in which it's hard to tell who's telling the truth. Likewise, one argument against "alienation of affections" lawsuits (in which a cheated-on spouse sues the person with whom the other spouse was unfaithful) could be that it's unusually hard or intrusive to get at the truth of such allegations.

C. Questions Focused on How the Risk of Liability May Change Future Behavior:

4. How would this rule affect behavior by this defendant and similar defendants — for better and for worse? If a business is told that it will be held liable for injuring people, it's likely to take precautions that diminish the risk of such injury. These precautions may well be good for society generally.

But some of these precautions may cause social harm. To return to a classic example given above: If you hold newspapers strictly liable for false and reputation-injuring statements that they publish about people, they might be deterred not just from publishing false (and thus socially harmful) statements but also from publishing true (and thus socially valuable) statements. Your task in evaluating an argument, and in thinking about policy arguments for and against it, is to consider all of its possible effects, good and bad.

5. How would this rule affect behavior by this plaintiff and potential future plaintiffs — for better and for worse? Might imposing or increasing liability on the defendant diminish potential plaintiffs' incentives to behave safely, or encourage plaintiffs to fake injuries or exaggerate their extent?

On the other hand, might giving defendants free rein to do something dangerous cause plaintiffs to be more cautious than we want them to be? An example from contract law: If certain kinds of defendants could easily evade their contracts without liability, other people might choose not to do business with those defendants at all, or only do it on a cash-up-front basis. Such caution would be rational from those other people's perspective, but would be bad for society as a whole. Assuring potential plaintiffs that they can recover damages if the defendant breaches a contract thus advances social efficiency.

6. How would this rule affect behavior by people other than prospective defendants, again for better and for worse? Rules also affect not just prospective defendants, but others whose behavior will be affected by the prospective defendants' behavior. That could often be good: For instance, imposing liability on bars for accidents by their customers may prevent misconduct by the customers. Or it could be bad: For instance, as I suggested above, if employers are deterred from hiring ex-felons, then ex-felons might end up unable to get jobs, and thus might end up more likely to turn to a life of crime.

7. Would this rule unduly interfere with defendants', prospective defendants', or others' liberty or privacy? Deterrence of some behavior may be bad not because the behavior is socially useful, but because we think the behavior is an important aspect of political liberty or personal liberty. For instance, if libel law unduly deters even accurate reporting, then that might affect newspapers' freedom of the press.

And these liberty concerns need not be limited to constitutional rights. For instance, say liability on skydiving companies were imposed on the grounds that skydiving is so dangerous and so lacking in social value that it's inherently unreasonable to offer such services. (That's not the legal rule, but say such a legal rule is proposed.) This might make skydiving so expensive that most people couldn't afford it, and this would in turn affect their liberty to choose to engage in this risky behavior. Perhaps the intrusion on liberty is justified, for instance on the grounds that people shouldn't risk their lives in such activities — but the intrusion has to be recognized, and considered in analyzing the merits of the proposed rule.

Likewise, if parents who are hosting a party for teenagers are held liable for negligence if two teenagers have sex in a bathroom (see Doe v. Jeansonne, 704 So. 2d 1240 (La. Ct. App. 1998)), parents would have to more closely patrol such parties, and check the bathrooms in case they have reason to think something might be amiss. Again, that might be a reasonable privacy cost, given the harms that teenage sex can cause, but we should consider it as a cost.

8. Are there policy choices involved in this rule that we'd feel uncomfortable having made by juries and judges? Or might we prefer that they be made by juries, rather than by legislators? Say a plaintiff who was hit by a 21-year-old drunk driver sues a store for selling alcohol to the 21-year-old. Because 21-year-olds are more dangerous drivers than 25-year-olds (though not as dangerous as 18-year-olds), the plaintiff argues, it's unreasonable for the store to sell to 21-year-olds, even though there's no criminal statute prohibiting such sales. The store — and all other sellers of alcohol — should (the argument would go) set a cutoff age at 25.

One might object to this proposal on various grounds (and endorse it on various grounds). But one possible objection might be that the tradeoff between liberty and safety involved in setting the drinking age should be made by the elected representatives of the people, and not by judges or juries. On the other hand, some might argue that unelected judges and (more or less) randomly selected juries are better decisionmakers than legislators, who are more likely to be captured by special interests or distracted by other matters on their legislative agenda.






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Published on August 18, 2011 16:10

Symposium on Same-Sex Marriage

(Dale Carpenter)

This week and next, SCOTUSblog is hosting an online symposium on various aspects of the litigation challenging California's Proposition 8 and the Defense of Marriage Act.  The expected contributors are well-known combatants in the ongoing national debate over gay marriage:  Carlos Ball, Bob Barr, Thomas Berg, Erwin Chemerinsky, David Cruz, William C. Duncan, John Eastman, William Eskridge, Maggie Gallagher, Charles Fried, Andrew Koppelman, Pamela Karlan, Robert Levy, Laurence Tribe, Brian Raum, Ruthann Robson, Robin Wilson, Kenji Yoshino, and me.  My first contribution is here.  It should be an interesting couple of weeks.






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Published on August 18, 2011 15:21

Discrimination Against Student Religious Speech

(Eugene Volokh)

Schools, including K-12 schools, generally can't discriminate against religious speech by students, outside the school curriculum (such as class assignments) or school-organized programs (such as graduations). If they allow extracurricular nonreligious clubs to form, they must let religious clubs form. If they allow nonreligious flyers to be distributed, they must allow religious flyers to be distributed. They may be able to limit a wide range of flyers (say, all flyers that aren't directly related to school events), but they may not impose that limitation based on the religious content of the flyers. All this, I thought, had been well-settled by a long line of cases such as Lamb's Chapel v. Center Moriches School Dist., Rosenberger v. Rector, Good News Club v. Milford Central School, and many lower court cases.

But many schools — even schools in very religious parts of the country — still haven't gotten the message. The latest example I saw was Wright v. Pulaski County Special School Dist. (E.D. Ark. Mar. 25, 2011, just posted on Westlaw in the last few days). An excerpt:

Wright filed this case on her own behalf and on behalf of her child, A.W., a third grade student at Sherwood Elementary School. In October 2009, Wright contacted A.W.'s teacher and requested permission to send home with students and post in the school's literature rack, flyers for a church-sponsored swimming event. Wright was directed to contact Brazil, the Principal of Sherwood Elementary, to obtain permission. Brazil denied Wright's request because the flyers were "church related." This position was affirmed when Wright contacted Harnish, the Director of Elementary Education. Wright then contacted McGill, the Acting Superintendent of Pulaski County, who maintained that A.W. could not send students home with the flyers or post them in the literature rack.... Defendants cited to their district wide policies for support of this position.

Three school district policies are at issue. The first is Article V, Section M.2 of the Pulaski County Handbook for Student Conduct and Discipline, which states: ["]Students have the right to distribute or post-printed [sic] material (pamphlets, posters, leaflets, newspapers, brochures, circulars and petitions) subject to individual building procedures and accordance [sic] with Board of Education policies....["]

The second policy in question is Policy KHA/KHB, "Public Solicitation/Advertising in the Schools," which states in pertinent part: ["]The Board directs schools to avoid exploiting students and employees whether by advertising or otherwise promoting products or services, soliciting funds or information, or securing participation in non-school related activities and functions. At the same time, schools should inform and assist students and employees to learn about programs, activities or information which may be of help or service to them. Therefore, the principal may approve bulletins announcing programs or services by a nonprofit local agency or charitable organizations that are operated on a nation-wide basis.["]

The third policy at issue is Policy KHC, "Distribution/Posting of Promotional Materials," which states "[s]pecial interest materials submitted for grade level, school-wide or District-wide circulation are not to be distributed to students, used in classrooms or sent to homes unless authorized by the Superintendent."

Wright maintains that under [school] policies, Pulaski County has permitted birthday invitations, end of year party invitations, community group flyers, business flyers, and advertisements to be distributed to students. Attached to Wright's motion are several examples of such materials, including, but not limited to, a 4-H summer camp flyer, a Chick-Fil-A family night flyer, a Scholastic books advertisement, an invitation to the Sherwood Elementary PTA spring luau, a Humane Society newsletter and a Dell computers advertisement....

The motion for preliminary injunction is granted because A.W. and Wright are likely to succeed on the merits of their First Amendment free speech and expression claims....

Wright is likely to succeed on the merits of the First Amendment claims brought on behalf of A.W. because it is very clear that neither students nor teachers "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Moreover, "students are entitled to freedom of expression of their views" absent a "specific showing of constitutionally valid reasons to regulate their speech. "Clearly, the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible." ... Defendants have presented no evidence that disseminating flyers regarding church sponsored activities will substantially interfere with the work of the school. In fact, the record is devoid of anything showing how the work of the school will be affected at all by the dissemination of flyers regarding church-sponsored activities, especially considering the vast array of materials presently circulated....

Wright is also likely to succeed on her own First Amendment claims based on viewpoint discrimination. Regardless of whether Sherwood Elementary School is classified as a nonpublic forum or limited public forum, defendants may not discriminate based on viewpoint....

Defendants maintain that the policies preventing Wright and A.W. from circulating flyers regarding the church-sponsored swimming event are unambiguous and reasonably related to the necessary and appropriate educational function of limiting the number of flyers distributed, and ensuring the distribution of only those flyers that deal with a special or symbiotic relationship to the school or school district. The record, however, does not support defendants' argument because defendants seem to permit almost any organization, with the exception of churches, to circulate material. Indeed, the record clearly shows that defendants' regulations, as presently enforced, merely stamp out certain viewpoint-based speech....






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Published on August 18, 2011 15:07

The Rating Agencies

(Kenneth Anderson)

One way to carve up the categories of failure of past and continuing financial regulation is complexity, conflicts, and complacency.  That's taking cupidity for granted.  The rating agencies appeared to offer a way to outsource the agency problems inherent in investors seeking to evaluate complex financial instruments that, in any case, trucked in assets a long ways from the ultimate investors.  It didn't work so well — the rating agencies both participated in and ratcheted up the already-existing tendencies to greater complexity of instruments, ever deeper conflicts of interest among players, and especially a tendency to complacency about the other two on the part of everyone else.

Everyone knows this by bitter experience now, of course, but the problem is, what to do about it.  The Economist has a short and informative article on the on-g0ing debate concerning the role of the rating agencies, with respect to corporate debt (the original product), complex financial instruments (whoops), and sovereign debt (hmm ...).  The main questions in the article are about whether and how to sever the "opinion" role of rating agencies from their current "outsourced gatekeeper" role.

By the latter term, I mean the role that regulation in the US assigns to selected rating agencies (effectively the big three) by using them as official proxies for (non)-risk.  The creation of official proxies both leads to cognitive failures, as investors instead opt for the ratings in lieu of their own assessments, and to regulatory arbitrage, as investors implicitly figure that if enough investors have relied upon officially sanctioned ratings, then they are effectively offered an official guarantee.  There is general agreement that the rating agencies should be shunted back into the merely "opinion" role — though that role is weightier than "mere" opinion sounds, given that these opinions have not just a regulatory assignment but a private contractual one in so many contracts.  Easier said than done:

Unfortunately, finding alternatives to ratings is proving difficult. Some suggest using credit-default-swap prices, but these too can exacerbate market swings. Others propose a minimum volume of past debt issuance, but this discriminates against smaller entities. Regulators remain open to suggestions for how to assess risk in bank-capital rules without ratings.

I understand the article's point — particularly that credit default swaps are useful instruments so long as they are not the sole, effectively tautological, mechanism assessing risk — but think it slightly misstates the issue.  The problem is not so much how to get by without ratings, but instead what methods should be applied to reach whatever conclusions are reached, whether expressed as ratings or analysts' reports or any other way.  In the case of corporate bonds, the risk-rating methods of the agencies have worked reasonably well, are well understood, and those using those conclusions can, if they really care, run the analysis themselves; that's a question of trusting not the method but the agency.

In the case of complex financial instruments, no such confidence exists in either the methods or the agencies.  Every serious financial journalist I've read, examining the role of the agencies in the run-up to the crisis, treats the agencies as not having understood the instruments, let alone the models proposed by the banks for measuring their risks; those ratings were not proxies for knowledge but instead proxies for government guarantees.  What matters is agreement on the methods and agreement that whoever is assessing the risk applies them adequately; the rest is simply how complex or simple the expression of those conclusions in the markets.

In the case of sovereign debt, the article says that ratings have been reasonably good at predicting sovereign default:

On the debt of countries, however, their record is considerably better. In a study last year, the International Monetary Fund concluded that ratings were a reasonably good indicator of sovereign-default risk. All countries that have defaulted since the mid-1970s had their grade cut to junk by ratings agencies at least a year beforehand. In the current European crisis, ratings firms had begun to downgrade peripheral euro-zone countries years before bond markets woke up to default risk.

This is right as far as it goes, I suppose, but I have reservations that it will work so well in the global financial environment emerging now and running into the next ten or fifteen years.  Rating agencies might well have problems anticipating, for example, issues with the hegemon-in-decline, still the issuer of the world's reserve currency, but engulfed in gyrations around its own unsustainable debt path and liable to political and monetary actions by its government and central bank.  They might also have problems anticipating issues with a sui generis creature such as the Eurozone, with its fractured monetary and fiscal authorities, its untested and unfinished supranational political structures.  They might have problems figuring out the far-from-transparent balance sheets of a China, India, or Brazil.

I doubt this is a smoothly marginal world, in other words; balance sheets rise by asset and instrument, but collapse by institution.  And in those environments, the "at least a year" that the Economist mentions seems to me cold comfort if we would like to see any possibility of an orderly unwinding of market positions in fantastically large quantities of sovereign debt.  Where's it going to go, anyway?  The political structures and sheer size, political and economic, at issue in today's markets are not as they were for the sovereign defaults (Argentina, etc.) that the Economist seems to have in mind.






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Published on August 18, 2011 15:06

Deterrence or Retribution Theory of Punishment?

(Kenneth Anderson)

From the Guardian:

Monks at the 15th century church of San Salvatore al Monte, which was a favourite of Michelangelo, were irritated when a rare and expensive bible disappeared from the lectern, and they flew off the handle when a replacement bible donated by a worshipper also went missing and within a few hours.  In a note, pinned up in full view of worshippers, the monks say they hope the thief sees the error of his ways. But in case he does not, they add: "We pray to God that the thief is struck by a strong bout of the shits."  This turn of events will, they hope, "encourage him to carry out no further thefts".






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Published on August 18, 2011 14:15

My RegBlog Post on the 11th Circuit Individual Mandate Decision

(Ilya Somin)

My RegBlog post on the 11th Circuit's recent decision striking down the individual mandate is now available here. The post considers the the ruling in more detail than my previous commentary on the subject.

RegBlog is a relatively new website established by the University of Pennsylvania Program on Regulation. For VC readers who may be interested, it has lots of good commentary by scholars and public officials on a variety of regulatory issues.






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Published on August 18, 2011 11:35

The Individual Mandate, Natural Law, and Lochner: A Scholarly Perspective from Ken Cuccinelli

(Orin Kerr)

In the latest issue of the Texas Review of Law & Politics, the Virginia state officials behind the Fourth Circuit challenge to the individual mandate — AG Ken Cuccinelli, SG Duncan Getschell, and Deputy AG Wesley Russell — have written a law review article on the broader jurisprudential context of their lawsuit: Why the Debate Over the Constitutionality of the Federal Health Care Law is About Much More Than Health Care.

The article contains extensive discussions of the Natural Law tradition, the reasoning behind Lochner, the progressive critiques of Lochner, and the "New Deal settlement." It also frequently cites our co-blogger David Bernstein's new book, Rehabilitating Lochner. It then turns to the constitutionality of the individual mandate.

The whole essay is worth reading for those following the mandate debate, but the conclusion is perhaps the most interesting part. A taste from the conclusion:

The public perception is growing that the United States is dangerously in debt and that its social programs – like those in the rest of the economically advanced world – are unsustainable. The votes were not there to finance national health care in the usual way, i.e., via a new or higher tax, so the mandate and penalty were brought in. This violates a foundational bargain of the New Deal era.

The Progressive meliorists had argued that they should be accorded constitutional space in which to make a social experiment, agreeing in turn to be judged by the results. The New Dealers carried the experiment forward. Seventy years later, results are in suggesting that the experiment is living beyond its means. The statist heirs to the experiment say that it cannot and must not be curtailed, so now they claim this new power.

Acknowledging the legitimacy of that newly claimed power would fundamentally alter the relationship between government and the American citizen. For the first time in American history, government would become Hobbes' Leviathan. . . .
. . .
Who does not believe that if the power is granted it will not be employed to its fullest extent? Who can claim to foresee the unintended consequences that will ensue? Who can say what the effect would be on the very notion of private capital, already so lightly protected under the heading of regulatory takings? For example, nothing in principle would prevent a mandate to purchase a government retirement annuity.

What we do know for sure is that economic rights and non-economic rights are mutually reinforcing. There is a sense in which, as F.A. Hayek said, economic rights are the "prerequisite of all other Freedoms."Can we recognize a right to commandeer and regiment citizens who are in a state of repose without unacceptable damage to liberty?






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Published on August 18, 2011 11:25

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