| Book Reviews |

The Naked Truth: Investing in they began selling stock for 1/100 of a a share of CMKM, or $15,000 to buy a the Stock Play of a Lifetime penny per share. block of a million shares. By the middle In December 2002, Casavant an- of February, the value of that block of By Mark Faulk nounced the opening of an office in stock had fallen to $3,500. By the end TogiEntertainment Inc., Oklahoma City, OK, Belgium that “would promote the of March, as Faulk puts it, “the cost of 2008. 411 pages, $26.95. ‘Casavant’ diamond brand and assist in a CMKM lottery ticket consisting of a the support of ‘conflict free’ diamonds.” million shares of CMKM stock was an This opening was part of a grandiose incredibly low $400”—or 4/100ths of a e v i e w e d b y h r i s t o p h e r a i l l e R C C. F global plan. According to Casavant, cent per share. For true believers, this “Blood diamonds” began to attract CMKM would “become involved in didn’t mean that they had lost $14,600 international attention in 1997. That the entire sales chain in diamond mer- in two months. No, it simply meant that was the year in which the U.N. Security chandising with the view of becoming it was even easier than before to load Council voted to forbid nations from the largest wholesaler of Canadian dia- up on more such lottery tickets. buying Angola’s diamonds—a vote that monds.” Casavant didn’t concern himself with arose out of the news that diamond ex- minor details, such as filing audited re- ports had financed the escalation of the The Mathematics of Hope ports as required by law. Accordingly, civil war in that country. In July 2000, Between that beginning and spring in March 2005, the Securities and Ex- the World Diamond Congress, meeting 2007, when Casavant lost control of change Commission instituted a pro- in Antwerp, adopted a resolution es- CMKM and returned to Canada, the ceeding pertaining to a delisting of the tablishing an international certification company sold a total of $200 million stock. In connection with that hearing, system for the export and sale of non- worth of stock to the public. It still isn’t Casavant asserted his Fifth Amendment conflict diamonds. By 2006, the stigma- clear where exactly the money went, right to refuse to testify. The reaction tization of the mining of diamonds in but it didn’t go toward mining or mar- of the true believers was—literally— Africa’s war zones in ways that finance keting diamonds. By May 2007, there disbelief. those wars rose to the highest level of was only $558.50 left in the corporate Faulk quotes a posting from an In- visibility on earth: the release of “Blood treasury, and the only noncash compa- ternet stock market message board: Diamond,” a Hollywood movie starring ny asset of significance consisted of an “Anybody that is reporting that Urban Leonardo DiCaprio. interest in another mining venture that has taken the 5th at the hearing is full The history of Casavant Mining Kim- was also quite speculative. of S H I T in my opinion. And I would berlite, or CMKM Diamonds, makes a In the heyday of 2002–2003, Casa- just love to slap around any individual certain melancholy sense against that vant attracted not only investors’ money that reports something like that without background. CMKM Diamonds was but also their conviction. His investors confirmation. He said, she said, it has marvelously successful as a promotion were believers. As Mark Faulk puts it been reported that, etc. etc. Does any- and a hopeless flop as a corporation. in this fascinating and detailed account, body here really think that in a hearing In retrospect, the story of the company Casavant’s “actions seemed to investors like this that Urban is going to take the can be vastly instructive in both re- to encompass the perfect balance be- 5th. That is ridiculous!” spects. tween an aggressive plan for financial In 2002, Urban Casavant accumu- success, and an ethical, moral, and hu- Skipping to the Ending lated claims to mineral rights on more mane approach to business.” I’ll compress facts mightily here than one million acres of land in and Through the period 2003–2004, and simply say that, two years later, in around Saskatchewan, Canada—sure- Casavant and his associates spread the March 2007, Casavant gave up control ly among the places least likely to be notion that there was a big buyer in over what remained of the company, troubled by civil war. Casavant then the wings who was ready to acquire signing over control to a one-time true moved to Las Vegas and encountered CMKM and make its loyal investors mil- believer, Kevin West. According to a two penny-stock promoters, who of- lionaires. Many penny-stock investors third party who was there, “Urban was fered to raise $100 million for him to al- seem to think in straightforward arith- acting like he was anxious and scared low him to develop his mineral claims metical terms, such as the following: “A to death and couldn’t wait to get on and, should his hopes for those claims price of $1 per share seems a modest a plane back to Canada. He said he come to fruition, to enable him to mar- goal. If a stock is today selling for, say, had a meeting with his attorney David ket the diamonds. Together, Casavant $0.01, then I can put my $10,000 of sav- Chesnoff and they were going to indict and his new associates created CMKM ings into it and own 1 million shares. him and he was really worried about and issued press releases informing When the big deal comes through, or that.” shareholders that CMKM had found when a vein of diamonds is verified— Kevin West became the new chair- promising kimberlite pipes (subterra- well, surely the stock’s value will go up man and chief executive officer of nean geological structures with volca- to $1, and I’ll be a millionaire.” CMKM Diamonds, and Casavant took nic origins that often hold diamonds); In January 2003, it cost $0.015 to buy that airplane to Canada. West estab-

72 | The Federal Lawyer | June 2009 lished a new company headquarters in : Corruption, Deceit, and Hofstra University in 1960. He did not Tyler, Texas, and hired an experienced the Making of the World’s Most make a deep impression on his class- litigator as corporate counsel to try to Notorious Ponzi Scheme mates at either of those institutions. It win back through the civil courts some appears that very soon after his gradu- of the value that had been drained out By Peter Sander ation from Hofstra, before 1960 was of the bank accounts of investors over The Lyons Press, Guilford, CT, 2009. 288 pages. out, he had created Bernard L. Madoff the years. $14.95. Investment Securities (BMIS) with seed The book tells a story that may money of $5,000. shock some of those who are unfamil- That was not a small sum of money iar with the netherworld of penny-stock Re v i e w e d b y Ch r i s t o p h e r C. Fa i l l e for a newly minted college graduate. At promotion. It is a story that juxtaposes the time, $5,000 was nearly the annual some of the best of human impulses The subject matter of this book income of the median wage earner in against some of the worst and a tale needs no real introduction. The title the United States; in 2009 dollars, the that has a postmodern twist: Mark alone will surely do that job for any sum would be roughly $35,000. Where Faulk got swept up in the story as he reader of The Federal Lawyer or for al- did the money come from? We don’t researched and wrote this book, and, most anyone conscious in the United know. In his book, Peter Sander rightly in September 2008, West (while re- States over recent months. Let us jump expresses his curiosity and moves on. maining in office as chairman) named right into the subject, then, by enumer- Faulk the new chief executive officer ating seven continuing mysteries of the 2. Peter Madoff: Waves and Chronology of the company. Bernard Madoff affair, each raised in Bernard Madoff’s brother, Peter, is I recommend this book heartily. I the course of this book. I could easily continuing to make waves, even in the should say, though, that I didn’t come adopt a higher number, but I’ll stop at face of his brother’s long sentence and to it as an impartial arbiter. Faulk was a seven to keep the size of this review the continuing criminal investigation. great help to me in sharing the fruits of manageable and also because a num- On April 30, 2009, Peter demanded a his then ongoing research when I wrote ber with such scriptural resonance may half-million-dollar licensing fee for the a story on the CMKM/Casavant case for be appropriate in homage to the Jewish software that was part of the market- my former employer, HedgeWorld, in philanthropies so cruelly devastated by making operation at BMIS. The com- May 2007. Indeed, I provided a blurb Madoff’s swindle. pany’s market-making operation, it for the dust jacket of this book. These questions, presented roughly should be noted, was apparently run As final words, I can offer a caution in chronological order, in accordance separately from the investment-advis- for investors. It is too easy to be tempt- with the point in Madoff’s career in ing operation and on a separate floor ed by a Casavant or, for that matter— which each question becomes press- of the same office building; the vehicle and on an even larger scale—by a Ber- ing, follow and will be addressed indi- of the Ponzi scheme was the latter, not nard Madoff. It is very easy, because vidually in this review: the former. The market-making busi- these types of individuals prey upon ness was legitimate and has become the the best in you. Your honest ambi- 1. Where did Madoff get his initial property of the estate of BMIS under tion, your desire to provide a comfort- seed money for the start of his Wall the administration of its trustee, Irving able retirement for yourself and your Street career? Picard, who auctioned off the business spouse and an education and a good 2. When did his brother Peter come in order to generate some cash with future for your children, your sense of on board, and what role, if any, did which to compensate the victims. Pe- social responsibility (remember that Peter play in the eventual criminal ter Madoff’s demand for $500,000 may these were nonconflict diamonds, an activity? disrupt or delay that process—at the alternative to the inadvertent funding 3. Did the Madoffs receive any benefit further expense of those victims. of African strife)—all these are handles by virtue of the romance and marriage Is Peter insisting on his rights under by which the unscrupulous can get of Peter Madoff’s daughter, Shana, to the law, or is he just acting like an es- a hold of a money tree and shake it. securities regulator ? pecially brazen co-conspirator? I leave There is no such thing as “too much” 4. Does “payment for order flow” hurt that to the reader, except to note, as due diligence. TFL the retail customer? does Sander, that much in these two 5. What did Bernie’s wife, , brothers’ relationship is unclear—even Christopher Faille, a member of the know and when did she know it? the question of chronology. When Connecticut bar since 1982, writes on 6. How did Frank DiPascali spend his did Peter start working with his older a variety of financial issues, and is the workdays? brother Bernard? Some accounts have co-author, with David O’Connor, of a 7. Are there any ticked-off Russian Peter starting in 1965, but one story has user-friendly guide to Basic Economic mobsters in the picture? it that he did not join up until 1970. Principles (2000). At least two important events trans- 1. Not a Small Sum pired in Peter’s life between 1965 and Let’s begin at the beginning. Ber- 1970: his graduation from Fordham nard Madoff graduated from Far Rock- away High School in 1956 and from reviews continued on page 74

June 2009 | The Federal Lawyer | 73 reviews continued from page 73

Law School and the birth of his daugh- Financial Times ran a story by Greg ing the series had decided to move on. ter, Shana. That brings us to the third Farrell under the headline “SEC inac- The show’s real-life analog on Park Av- quandary. tion that helped fuel scheme.” The sec- enue, if that is what it was, ended be- ond paragraph of this story reads: “But cause of the sharp decline in the stock 3. Eric Swanson it was the SEC’s decision in the 1990s market in the second half of 2008—a joined BMIS (as a “com- not to take a stand on the controversial decline that meant that a lot of people pliance attorney”—hold that thought) in issue of ‘payment for order flow’ that and institutions felt strapped for cash 1995. As such, part of her job was to helped fuel the rise of … the success- and decided to liquidate those assets handle contacts between the firm and in- ful broker-dealer operation two floors that they thought they could count on terested regulatory agencies, such as the above Mr. Madoff’s private fund opera- to pay expenses, to meet margin calls, Securities and Exchange Commission. tion in Manhattan.” or just to have cash on hand. These in- In 1996, a fellow named Eric Swanson Putting the issue in these terms im- vestors’ phonied-up account statements went to work as a lawyer with the SEC. plies a government-centered way of from BMIS assured them that they had He was still working for the SEC when looking at the world. There are lots of lots of money with Bernie, so they did he first met Shana in October 2003. parties other than the SEC who missed what came naturally. Swanson left the SEC in 2006 and this point and should have gotten it— As a consequence of these decisions married Shana the following year. His like the folks responsible for due dili- to liquidate, at some point in the first final title at the SEC had been assistant gence at the various institutions than in- week in December 2008, Bernie told director of the Office of Compliance, vested in Madoff’s operations. Still, I do one of his sons that he had approxi- Inspections, and Examinations. Note think the whole idea of payment for or- mately $7 billion in redemption de- the word “compliance” in both job der flow stinks. If the Madoff meltdown mands pending and that he was strug- titles—Shana’s and Eric’s. It was their does help finally discredit the practice, gling to raise the money to meet them. job to deal with each other—at arm’s that will be a slender silver lining. Sand- His son had apparently been under the length of course—on behalf of their re- er raises the issue, ponders it for four or impression that the firm had between spective entities. During the period be- five paragraphs, then drops it. $8 billion and $15 billion of assets un- tween 2003 and 2006, a fellow named der the firm’s management. So, even if was doing his best 5. Ruth as Carmela Soprano the actual amount was at the bottom to alert the SEC to the fact that some- Bernard Madoff’s wife, Ruth, has sur- of that range, there should have been thing was fishy at BMIS. Why, then, did rendered her passport, but, thus far, as enough to pay the reported demands no one at the SEC pay much attention long as she remains within the United and leave $1 billion in the kitty. In De- to the reports? And could that have States, her movements are of her own cember 2008, the financial situation had something to do with a budding choosing. Her assets have been frozen, was such that many investment firms relationship between Madoff’s niece— however, and she has been granted a would have regarded a mere $1 billion and BMIS’s compliance attorney—on monthly living allowance. If she was an as an enviable cushion. the one hand and the SEC’s assistant innocent dupe, her situation may seem Consequently, Bernie’s statement director of compliance on the other? It sympathetic to some. If she was a co- seemed odd to his son, and this son, seems a plausible suspicion. conspirator in the largest financial crime along with his brother, went to their in history, then it seems that justice calls father/boss’ office on Dec. 10 to learn 4. Pondering and Dropping for a punishment that is more severe. more. Their father said that he had Now I have to turn my attention— Sander can’t sort this out for us. He wanted to tell his sons the truth, but he and that of the reader—to a more ab- writes, “Prosecutors have seen some was not sure he’d be able to “hold it to- stract-sounding concern: payment for evidence that she was involved in dis- gether” in the office, so he asked them order flow (POF). POF is the practice bursing funds, but have not to date to come to his apartment that evening. whereby an exchange—or a market- found anything specific enough to maker such as BMIS—pays a broker for press charges.” The blogosphere is full 7. What About Frank? passing along its orders. An investor tells of comparisons between Ruth Madoff Madoff’s sons met him in his home his broker, “Buy X,” and, if there are two and Carmela Soprano, the female lead as requested, and he told them “it’s all or more markets from which the broker in the recent HBO series, “The Sopra- just one big lie,” and that the invest- can buy X, then the broker can legiti- nos.” As fans will remember, Carmela ment-advising portion of BMIS was mately (with some constraints) look to knew in a general way that her hus- “basically, a giant Ponzi scheme.” He see who will pay him or her—and pay band Tony was involved in nasty busi- actually had about $200 to $300 mil- the highest price—for executing that or- ness, but she kept her gaze averted and lion under management. He expected der in one market rather than another. enjoyed the lifestyle that Tony’s busi- to surrender to authorities, but not until The practice is extremely contro- ness allowed her. he could distribute that money to de- versial, because the broker’s loyalty “The Sopranos” ended when the serving employees as bonuses. should be to the customer/investor, not television screens went black, because Bernie’s sons (wisely, given their own to the exchange. On Dec. 24, 2008, the the creative people writing and produc- legal situation) did not give him that

74 | The Federal Lawyer | June 2009 time, but quickly contacted the Federal a critical employee. Because Madoff That said, the rumors are sufficiently Bureau of Investigation. FBI agent, The- was not pursuing that strategy, it seems common to make them a puzzle in this odore Cacioppi, along with a colleague, almost certain that DiPascali was aware affair. One variation of the story has spoke to Bernard Madoff the follow- of that. How could he not have noticed it that shadowy “Russian oligarchs” in- ing day. Madoff said that he knew why how empty of work his desk always vested their money not with Madoff di- they were there, and Cacioppi replied, was? Many observers have wondered rectly but with an Austrian investment “We’re here to find out if there’s an in- about this lack of work, especially after manager named Sonja Kohn and her nocent explanation,” to which Madoff the Wall Street Journal in January quot- operation, Bank Medici, and that Kohn replied, “There is no innocent explana- ed an SEC memorandum that indicated in turn invested the money in, and lost tion,” and repeated in essence the state- that SEC investigators who questioned it to, BMIS. An article published in the ments he had made to his sons. DiPascali soon after Madoff’s arrest had New York Times on Jan. 7, 2009, stated Later investigations confirmed those found his answers both “evasive” and that she had “dropped out of sight” and dramatic confessions. Not only was it “incomprehensible.” quoted an unnamed “Viennese banker “all just one big lie” as of December On April 24, 2009—too late for in- who knew Mrs. Kohn and her husband 2008, but it had been one big lie for a clusion in Sander’s book—Fortune socially.” The Viennese fellow said, long, long time. In February 2009, the reported that DiPascali is negotiating “With Russian oligarchs as clients, she bankruptcy trustee, , an- a plea deal with federal prosecutors. might have reason to be afraid.” Kohn nounced that Madoff had not been do- The story claimed that DiPascali “has has denied that she is hiding from any- ing any actual investing on his clients’ no evidence that other Madoff fam- one. Sander writes that Kohn maintains behalf since 1994 or earlier. ily members were participants in the “that Bank Medici had institutional cli- This leads us to ask how Frank Di- fraud” but is willing to testify that there ents only, not once-wealthy individual Pascali had been spending his work- were co-conspirators among the appar- investors of the type who might be out ing days during those years. DiPascali ent victims. In his blog entry on the for revenge.” started with BMIS in 1975, researching day that the Fortune story appeared, Until a good deal more has been stock. Over time, he became an assis- Gary Weiss, a journalist who has cov- said and done, though, some of us will tant to Bernie’s brother Peter on the ered white-collar crime for many years, have to wonder what—if anything—is market-making side of the business. said that the account might be baloney. the flame behind all this dangerous-an- But then, intriguingly, in 1986 DiPascali There is a greater stigma, in some cir- gry-Russians smoke. The one certainty was named director of options trading cles, on those who “rat up” and incrim- in all the above, surely, is that a good for the investment-advising operation. inate their boss than on those who “rat deal more will be said and done. We don’t know whether BMIS has a down,” as DiPascali is said to be doing. legitimate investment-advising opera- In the Madoff case, to rat up (because Summing Up tion in 1986, but we can say that ei- the boss has already confessed and As for Sander’s book, I can say that ther DiPascali stepped into a key role begun serving his prison term) would it is a quick read and, given the speed as mayor of a Potemkin village, or he mean to rat out other Madoff family with which it was evidently compiled became the mayor of a real village that members. It is conceivable, then, that, for the sake of a red-hot market, com- was transformed into a Potemkin vil- even if Madoff’s brother Peter or wife petently written. Sander has written 18 lage while he held that office. Ruth is guilty in connection with the books, but this one is a departure for DiPascali was director of options Ponzi scheme, DiPascali would prefer him. His usual beat is personal finance, trading at BMIS, an activity that his boss to “see no evil” in that direction and with titles such as The Complete Idiot’s was telling the world was at the heart point prosecutors elsewhere—namely, Guide to Day Trading Like a Pro. of the firm’s success. Madoff claimed downward. The DiPascali enigma re- On second thought, perhaps there to be using what is known as a split- mains. is a connection between this book and strike options strategy—a strategy in Sander’s earlier work. The usual riposte which a trader buys a basket of stocks, 7. Mobster/Oligarch: “Tomayto” or to amateurs who wish to “day trade like then sells options to buy those stocks “Tomahto” a pro,” is that a wise amateur will find a at a strike price above their value, then Finally, we come to the hypothetical professional to whom he can entrust the buys options to buy the same stocks at Russian mobsters. There are persistent task. Yet that is what Madoff’s victims a strike price below their present val- rumors that Russian high rollers are did. They could hardly have done worse ue. If you find all this rather too com- among Madoff’s victims, and that this had they become day traders. TFL plicated to follow, that is the point: Ma- is the real reason that Madoff’s sons doff wanted investors who would find turned him in: they thought that their Christopher Faille, a member of the his strategy too complicated to follow, father would have to be imprisoned in Connecticut bar since 1982, writes on because their confusion deterred them order to be safe. Just to preserve my a variety of financial issues, and is the from asking questions. own reputation and that of this estima- co-author, with David O’Connor, of a Another point is that, if Madoff had ble publication, I should be very clear user-friendly guide to Basic Economic been pursuing the strategy he claimed about the following: These are rumors. Principles (2000). to be pursuing, then DiPascali, as direc- I have no substantiation for them— tor of options trading, would have been none whatsoever. reviews continued on page 76

June 2009 | The Federal Lawyer | 75 reviews continued from page 75

A Promise to Ourselves: A Jour- nothing wrong. After being hit with a doctrine.” Prior to this time, early ney Through Fatherhood and $9 million judgment, she sought bank- English common law always gave Divorce ruptcy protection, after which, Baldwin custody to fathers. The passing of writes, “[w]e entered a new phase, with the Custody of Infants Act of 1839 By Alec Baldwin with Mark Tabb attorneys intruding into every aspect of changed this and established a St. Martin’s Press, New York, NY, 2008. 224 our daily lives as a bankruptcy trustee presumption of maternal custody pages, $24.95. took full control of her seized assets.” for children in the tender years, The press furthered shattered what that is, under the age of seven…. should have been the conjugal idyll of In 1873, the presumption of mater- Re v i e w e d b y Ge o rg e W. Go w e n the early days of marriage. Even the nal custody was extended to the The blurb on the dust jacket of Alec staid New York Times chimed in with age of sixteen. American courts Baldwin’s book tell us that he “is one a spread on those who use bankruptcy and legislatures followed suit. … of the best-known, most successful ac- to avoid paying their debts; the article By the late 1970s, courts began tors in the world.” If we are still not featured Basinger and included a photo to throw out the tender-years pre- sure who he is, the blurb adds that he of Baldwin’s East Hampton estate. sumption as sexist, thus opening was an Academy Award and a Tony After his marital bliss had ended, the door for fathers to seek joint Award nominee as well as the recipi- Baldwin had occasion to encounter or sole custody of their children. ent of the Golden Globe and Televi- more lawyers, and he was not im- Rather than automatically award sion Critics Association Awards in 2007. pressed. Baldwin describes Basinger’s custody to mothers, courts began More relevant to this book, however, counsel in the couple’s divorce and operating on the “best interests of Baldwin was married to Kim Basinger, custody proceedings as “a caricature of the child” principle. the star of the James Bond film “Never the avaricious, inhumane, garden slug Say Never Again” in 1983; she was also of a divorce lawyer ... a simian-looking Despite this trend, and despite the featured in a nude pictorial for Playboy man who looks like a cross between fact that today’s fathers, during mar- that year. She went on to win an Acad- Gabe Kaplan and Chuck Norris.” I as- riage, spend much more time with their emy Award as best supporting actress sume that Baldwin is equating Kaplan children than they did in the past, cus- in “L.A. Confidential” and has appeared and Norris with—for those of my vin- tody battles frequently continue to be a in some 30 movies. tage—celebrated eyesores such as Bo- battle of one parent (often the mother) A Promise to Ourselves is Baldwin’s ris Karloff and Peter Lorre. pillorying the other in an effort to alien- take on what happened, California Baldwin’s dislike of lawyers is not ate the child from that parent. style, when his and Basinger’s eight- limited to this alleged garden slug, Baldwin, however, had a self-inflict- year marriage cratered. More specifi- however. Describing another lawyer, ed problem. In 2007, a tape of his voice cally, the book is about the four-year, he writes, “He had a bad case of the mail message berating his daughter Ire- multimillion-dollar custody battle for intellectual vanity that afflicts most at- land was somehow given to a media their daughter, Ireland. torneys I had known. Since my own outlet, which, ignoring that the tape Those who approach this book in the college days, most lawyers had always was probably privileged, released it to hope of finding a lot of Hollywood dirt struck me as men and women who the world. Baldwin admits that he had will be disappointed. Instead, they will were not sufficiently smart enough to “snapped” and, unable to contact Ire- find an anguished plea for the reform of become doctors or engineers. There- land by phone, had left the damning the country’s divorce and custody laws fore, they opted for a career wherein message. The recording is still available as well as reform of our family courts. rote recitation of the legal code and a on the Internet for all to hear. The book is also a strident condemna- gift for bullshitting people amounted Baldwin has 13 suggestions for tion of the judges, custody evaluators, to a profession.” Nevertheless, Baldwin those contemplating marriage and the special masters, therapists, bureaucrats has kinder words for one of his law- divorce that now so routinely follows: of the California Department of Child yers: “Overall, however, I am grateful Services, lawyers, and members of the for having met her and for having her • Get a prenuptial agreement before press who populate those courts. serve as my attorney.” marriage (not a total solution if chil- Early in the book we are given a Baldwin is understandably offended dren are involved). clue to contentious litigation to be de- by the courts’ inclination to favor the • File for divorce first. scribed. It seems that Basinger alleg- mother in custody battles. Indulging in • Don’t hire a lawyer based on word edly reneged on a movie deal because history, he writes, of mouth. of its required nudity and physical con- • Have your lawyer explain what lies tact with other actors. She was sued From the mid-nineteenth century ahead. for breach of contract, and her lawyer through the first three-quarters of • Participate in mediation only if your recommended that she settle. Baldwin the twentieth century, family law spouse is amenable to mediation. writes that she refused to do so, be- in the United States and Britain • Place a time limit on the mediation cause she believed that she had done subscribed to the “tender years process.

76 | The Federal Lawyer | June 2009 • Demand that you and your soon-to- appears on Great Britain’s £10 note. Of his years of delay in publishing The Or- be ex-spouse attend a minimum of the new books that have been published igin of Species, and the triumphant re- 12 sessions of co-parenting counsel- to mark the bicentennial of Darwin’s ception of the book when it was finally ing. birth, as well as the 150th anniversary issued. In 1858, another 19th-century • Do not hide your assets. of The Origin of Species, the best book scientist, Alfred Russel Wallace, wrote • Set up sessions with a therapist who for the general reader is Evolution: The to Darwin about his own study of evo- specializes in family law. First Four Billion Years. Encyclopedic in lution, and Wallace’s letters convinced • Find a therapist you can trust. scope and providing multiple references Darwin to publish The Origin of Species • Don’t make your home a shrine to for further study, the book contains 16 in 1859 so that he would share credit your child. lengthy essays as well as an alphabeti- with Wallace as the first scientists to • Put you and your ex-spouse’s drug cally arranged compendium of person- formulate evolutionary principles. and alcohol problems on the table. alities and topics. Most of the subjects of the short bi- • Ask the court to provide flexibility Evolution: The First Four Billion ographies in Evolution: The First Four as to visitation rights. Years explains its scientific subjects in Billion Years are modern-day academ- understandable language. These sub- ics who modified Darwin (some merg- I am reminded of a stratagem, which jects include, of course, the root Dar- ing genetics into the theory), and a few Baldwin does not mention, that an ac- winian concept of natural selection (or, of them add human interest to the story. quaintance of mine used after experi- as Herbert Spencer more crudely put Nikolai Timofeeff-Ressovsky, for exam- encing a couple of divorces (including it, “survival of the fittest”), which holds ple, was a Soviet biologist who spent one when his wife flew off with his pi- that species adapt over time to meet World War II working in Germany. His lot): Keep the most prominent divorce environmental challenges. An interest- son took part in anti-Nazi activities and lawyer—loosely referred to in the trade ing example that the book discusses was executed at Mauthausen. Timo- as “a bomber”—on retainer immediate- is the emergence of seed plants that feeff-Ressovsky returned to the Soviet ly upon marriage so that, when the day required pollination at the same time Union after the war, spent time in the comes, you will have pre-empted your that bees were developing a demand gulag, and was partly rehabilitated by spouse from hiring the best. TFL for pollen. A chilling matter explained the Soviets in the post-Stalin years. in the book is David Raup’s proof that Evolution: The First Four Billion George W. Gowen is a partner with dinosaurs were rendered extinct by Years also contains a biography of the New York law firm of Dunnington, a meteor that crashed into Yucatan, Pierre Teilhard de Chardin, a French Bartholow & Miller LLP. His areas of Mexico, 13 million years ago. Raup be- Jesuit priest, who wrote The Phenom- practice are trust and estates, corporate lieves that there was a pattern to the enon of Man. His work inspired many law, and sports law. He has taught at formation of this meteor and predicts by showing life as an upward climb, New York University Graduate School a similar collision with the Earth in an- progressing through various stages, of Business and has served as a mem- other 13 million years. notably the “geosphere” (the physical ber of United Nations commissions, as The reader will also learn about Ernst world) and the “biosphere” (the living counsel to leading sports organiza- Haeckel’s famous, but erroneous, “bio- world) until it reached the “noösphere” tions, and as an officer of in organi- genic law”: “ontogeny recapitulates phy- (the world of human consciousness). zations involved in environmental and logeny,” which refers to the principle Evolution: The First Four Billion humane issues. that the “evolutionary history of a spe- Years discusses the impact of Darwin- cies is replayed during its embryologi- ism on Western society outside of sci- Evolution: The First Four Billion cal development.” Haeckel was one of ence, as, for example, in the cases of Years Darwin’s chief proponents, and a recent social Darwinism and the efforts to pre- biography of him by University of Chi- vent the teaching of evolution in pub- Edited by Michael Ruse and Joseph cago Professor Robert J. Richards, The lic schools. Social Darwinism reached Travis Tragic Sense of Life, shows his struggles its height at the beginning of the 20th Harvard University Press, Cambridge, MA, to overcome the death of his wife and century, in part through the writings of 2009. 948 pages, $39.95. that of a subsequent lover, as well as Herbert Spencer. “Spencer envisioned unfounded accusations against his sci- society as a natural organism, analo- entific methods. The evolutionist Steven gous to a living body and subject to Re v i e w e d b y He n r y S. Co h n J. Gould accused Haeckel of support- the same evolutionary laws. ...” Spen- ing racism, but the author of an essay cer left an impression on Justice Oliver While the United States was celebrat- in Evolution: The First Four Billion Years Wendell Holmes, who wrote in his fa- ing Abraham Lincoln’s 200th birthday contests Gould on this point. mous dissent in Lochner v. New York, on Feb. 12, 2009, England was feting The short biographies of the scien- 198 U.S. 45, 75 (1905), that “[t]he Four- its native son Charles Darwin, also born tists in Evolution: The First Four Billion teenth Amendment does not enact Mr. on Feb. 12, 1809. The English are very Years include one of Charles Darwin Herbert Spencer’s Social Statics,” and proud of the man who, along with Al- himself, of course, and it relates his who, in his heavily criticized majority fred Russel Wallace, discovered evolu- wealthy family background, his trip to tion by natural selection; Darwin even the Galapagos Islands on the Beagle, reviews continued on page 78

June 2009 | The Federal Lawyer | 77 reviews continued from page 77 opinion in Buck v. Bell, 274 U.S. 200 Four Billion Years concludes with this authors seem to have little grasp of (1927), endorsed Spencer’s concept of assessment: “It may be that the legal the daily reality of our courthouses, negative eugenics. safeguards that have until now discour- jails, and prisons (or so it seems to this Darwin’s “bulldog,” Thomas Henry aged the inclusion of various forms of practicing criminal defense attorney). A Huxley threw down the gauntlet to the creationism in the public school sci- couple of essays in When Law Fails fall fundamentalists when he wrote in 1859 ence classroom will be more difficult into this category, but, happily, the rest that “we humans are modified mon- to muster by the scientists and teach- are penetrating and insightful. keys rather than modified dirt,” and ers and parents who support evolution When Law Fails begins with a lively the alleged conflict between evolution- education.” historical essay, entitled “The Case of ary theory and religious belief has, of Despite that gloomy conclusion, ‘Death for a Dollar Ninety-Five,’” by course, entered the courtroom, most Evolution: The First Four Billion Years Mary L. Dudziak, a professor of law famously in State v. Scopes, 278 S.W. 57 constitutes a birthday party celebrating at the University of Southern Califor- (Tenn. 1926), which was a prosecution the explosion of thought that emanated nia. Dudziak tells of how, in 1957, an based on a statute forbidding the teach- from Darwin’s creative endeavors. TFL all-white jury in Alabama sentenced ing of evolution in public schools. Al- Jimmy Wilson, a young African-Amer- though the Supreme Court of Tennes- Henry S. Cohn is a judge of the Con- ican male, to death for allegedly rob- see upheld the statute (but set aside a necticut Superior Court. bing an elderly white woman of $1.95. fine against Scopes), the U.S. Supreme That the evidence was scarce and the Court later struck down similar statutes penalty absurd gained the attention in Epperson v. Arkansas, 393 U.S. 97 When Law Fails: Making Sense of of the international community. The (1968). Clarence Darrow’s role in the Miscarriages of Justice United States was embarrassed by the Scopes trial is set forth in The Essen- coverage, as, in the midst of the Cold tial Words and Writings of Clarence Edited by Charles J. Ogletree Jr. and War, other nations were quick to point Darrow, which includes the transcript Austin Sarat out America’s racial inequalities. Ulti- of Darrow’s examination of his expert New York University Press, New York, NY, 2009. mately, Alabama’s governor commuted witness, William Jennings Bryan. 349 pages, $70.00 (cloth), $22.00 (paper). Wilson’s sentence to life in prison. The Another legal battle involved statutes matter quickly disappeared from the that require public schools to give equal headlines. And, as Dudziak points out, time to both evolution and “creation Re v i e w e d b y El i z a b e t h Ke l l e y so did Jimmy Wilson. science”—the version of the creation in “Margins of Error,” an essay by Rob- Genesis. The Supreme Court held these Although it is a rich and provocative ert Weisberg, a law professor at Stan- statutes unconstitutional in Edwards v. book, When Law Fails: Making Sense of ford University, is a masterful discus- Aguillard, 482 U.S. 578 (1987). The cur- Miscarriages of Justice, does not fulfill sion of the absurdity of the concept of rent religious challenge to evolution, the mission it sets forth in its subtitle. harmless error. Weisberg uses a series known as “intelligent design,” has not The book does not make sense of the of Socratic dialogues between a hypo- yet reached the Supreme Court. Stat- countless injustices that it details but thetical defendant and the legal system utes that invoke intelligent design re- leaves the reader to wonder how our to underscore the flesh-and-blood con- quire schools to teach that evolution is system of justice became so broken sequences of the intellectual analyses flawed and that intelligent design is an and what can possibly be done to fix in which judges engage. alternative explanation for the origin of it. Then, again, maybe this is precisely “Miscarriages of Mercy,” by Linda life. In Kitzmiller v. Dover Area School what the editors intended. Ross Meyer, a law professor at Quin- District, 400 F. Supp. 2d 707 (M.D. Pa. When Law Fails is more than a col- nipiac University, is especially timely 2005), the court struck down such a lection of essays by professors of law because of the heightened interest in statute, finding that intelligent design and psychology about much-chronicled military justice brought about by the was creationism in disguise. wrongful convictions. The book is also wars in Iraq and Afghanistan. Meyer On Feb. 4, 2009, the Pew Forum re- a critique of a system that has made argues that, unlike in the civilian jus- leased what it called a “research pack- huge assumptions because of race, has tice system, there is the opportunity for age that explores the religious debate overcriminalized conduct, has overin- discretion and mercy at every stage of a over evolution” (www.pewtrusts.org/ carcerated individuals, and has become legal proceeding in the military: news_room_detail.aspx?id=48692). The so bogged down with technicalities that package finds that, in several states, liti- fundamental fairness has been lost. All Military culture at its best pro- gation is in progress over such matters of this, the editors hope, will “force us motes and depends on relation- as mandating that stickers be placed to articulate the value of ‘justice’ in our ships of teamwork and mutual in textbooks questioning evolution or society.” responsibility. In turn, both are supplementing textbooks with mate- The danger of works by academics supported by the gratitude and rial that opposes the theory of evolu- is that they can be deadly theoretical trust created in allowing room for tion. An essay in Evolution: The First and horribly frustrating, because the mercy. Reacting to sentences in

78 | The Federal Lawyer | June 2009 war-related crimes by eliminating that, although true justice is a worthy as- judge and having to deal with our case? mercy from the military justice piration, our system can rarely achieve Not much, I suspect. And those of us system would ignore the fact that it. Or, as Markus Dubber, a professor at who practice mainly in federal courts mercy extended in soldier versus the State University of New York at Buf- probably think even less about what it soldier cases actually promotes, falo, School of Law, notes in “Miscar- is like to be any of the many types of rather than destroys, responsibil- riage of Justice as Misnomer”: state court judges, especially the types ity for others. Mercy enables the who preside over matters other than defendants to make a fresh start, Here it might be useful to con- ordinary civil trials. reflects the community’s grati- sider the relationship between Judge James P. Gray has thought tude for prior service, and recog- the rule and the exception in the about these things in depth, and he nizes communal and command penal process. As long as mis- addresses them in Wearing the Robe: responsibility for crime. The mer- carriages of justice are regarded The Art and Responsibilities of Judging cy-givers are themselves potential as exceptions to the rule of jus- in Today’s Courts. The book is essen- future victims, and they accept tice delivery, then their expo- tially a textbook for new judges and the risk of the defendant’s future sure does little to challenge the those seriously thinking about becom- conduct. Mercy is not cheap and legitimatory complacency of the ing a judge, so its intended audience is easy but reflects the mercy-giv- penal process. The problem with a relatively narrow subset of the legal er’s willingness to take risks on miscarriage of justice is not that profession. Nevertheless, the book will the strength of the relationship they are miscarriages or even be of wider interest because, in addi- with the defendant. Defendants miscarriages of justice. They are tion to offering advice to judges and are already in close relationship not miscarriages at all because would-be judges, Gray offers his per- with their victims and their com- the system does not seek to do spective on the role judges should play manding officers, responsible to justice in the first place. TFL in and out of the courtroom, and he and for them in the future, and makes important points that can ben- bonds of gratitude, trust, and Elizabeth Kelley is a criminal defense efit the practicing lawyer as well. mutual commitment are formed attorney in Ohio. She has a special Gray knows life as a judge. The son and strengthened by the mercy- commitment to representing individu- of a former federal district court judge, giving. als suffering from mental illness and Gray has been a California state court mental retardation. She frequently judge for almost 25 years. He has sat Thus, when we consider the light provides legal commentary for TruTV, on a variety of courts, ranging from sentences given to soldiers who have CNN, and MSNBC, among other media traffic court to probate and family court committed serious—or even unspeak- outlets, and can be contacted at Zeal- to criminal court. He notes that, al- able—crimes (such as Lt. William Cal- [email protected]. though being a judge has the benefit of ley, who served only four months in not having to have to bill your time in prison for his role in the My Lai mas- Wearing the Robe: The Art and six-minute increments or worry about sacre), we must realize that this is not Responsibilities of Judging in bringing in business, wearing the robe a case of institutional denial or a cover- Today’s Courts also has its drawbacks—including low- up, but, rather, it is part of a culture in er pay, increased scrutiny of one’s life, which soldiers protect one another and By James P. Gray and the inability to defend oneself from understand that the violence of war Square One Publishers, Garden City Park, NY, public criticism. Gray also notes that sometimes causes aberrant behavior. 2008. 326 pages, $21.95. judges are required to be generalists Much has been written about wrong- in an age when lawyers are becoming ful convictions and the reasons behind more and more specialized—a fact that them, but this is not the focus of When Re v i e w e d b y Am y B. Au t h is well-known to those of us who have Law Fails. Instead, whether describing worried about appearing in a complex how thousands of African-American res- “Who is the judge on the case?” As commercial or patent case in front of a idents of Tulsa, Okla., were never able a lawyer, how many times have you judge who may have spent his or her to collect compensation for damages asked that question or had another law- career as a criminal lawyer. As Gray caused by the rioting of a white mob yer ask it of you? Consider the amount aptly points out, civil cases “involve in their neighborhood (discussed in of time, and thus money, we lawyers factual patterns that are limited only by “When Law Fails: History, Genius, and spend thinking about the judges as- humankind’s creativity, emotion, negli- Unhealed Wounds after Tulsa’s Race signed to our cases. We consult other gence, carelessness, and stupidity.” He Riot,” by Charles Ogletree), or the clem- lawyers who have appeared before the not only understands the day-to-day ency petitions that were summarily de- judges or perhaps even seek out former practicalities of being a judge but also nied in the name of finality (discussed law clerks to gain insight into a particu- has thought about the role of a judge in “Memorializing Miscarriages of Jus- lar judge, and then we use this insight in the community at large. tice: Clemency Petitions in the Killing in planning our litigation strategy. But Gray believes in activist judges, not State,” by Austin Sarat), the thread unit- how much time do any of us spend ing the 10 essays in When Law Fails is thinking about what it is like being that reviews continued on page 80

June 2009 | The Federal Lawyer | 79 reviews continued from page 79 necessarily in the political sense that advice on mediating and settling cases, Massachusetts, for example, Magistrate comes up in election years, but rather and he himself mediates his own cases. Judge Leo Sorokin is heavily involved with respect to their day-to-day, in-the- Lawyers may disagree as to whether in the Court Assisted Recovery Effort trenches role in the courtroom. He be- the judge assigned to the case, who (CARE) program, which is an intensive lieves that, regardless of the type of case will ultimately preside over the trial, one-year program designed to assist before a judge, and regardless of wheth- should participate in settlement confer- those on supervised release or probation er the case is just beginning, in the midst ences, but Gray offers perceptive in- to lead sober, employed lives. Sorokin of discovery, in trial, or in the process sights into the settlement process. He himself presides over weekly sessions of being settled, judges should be ac- notes that settling is the only way that a with the probation officers, prosecu- tivists in moving the case along and, in party, particularly a plaintiff, can main- tors, defense attorneys, representatives particular, in trying to settle the case. tain control over the outcome of his or from treatment contractors, and the par- Moving the case along means not allow- her case. Gray also notes that, often, ticipants themselves. (For more informa- ing counsel to play “procedural gotcha” for corporate defendants to authorize tion on the CARE program, see www. or otherwise cause unnecessary delay. settlement, the corporate officers in- mad.uscourts.gov/outreach/recovery. Delay, he notes, more often benefits volved in the dispute will need some htm.) The success of Massachusetts’ lawyers than it does clients. The judge “political cover”; they will want the de- CARE program supports Gray’s belief should anticipate potential discovery is- cision they made that led to the lawsuit that individuals listen and respond to sues at the outset and ask the parties to be viewed as a “plausible mistake the individual wearing the robe and that what the court can do to help move the that ‘could have been made by any- positive interaction between individuals case along in addition to setting settle- body under the circumstances.’” Gray and the court will promote greater re- ment conference and trial dates. understands that some cases will not spect for our judicial system. Judge Gray also believes that judges be settled and that some parties will As noted, Wearing the Robe contains should take an active role in the discov- insist on their day in court, but he be- tips for practicing lawyers, and, even ery process, including identifying and lieves that only a small number of cases though many of those tips may seem sanctioning lawyers who act unreason- fall into this category. self-evident, it is for that very reason ably, addressing discovery disputes re- A considerable portion of Wearing that they are worth repeating. Gray tells quest-by-request with all the attorneys if the Robe is devoted to the variety of us, for example, that, although motions necessary, offering the courthouse as a different types of courts in our judicial to dismiss may impress the client, they location for depositions, and reminding system, including the various levels of rarely move the case forward. With re- counsel that Saturdays are available for criminal courts, family courts, juvenile spect to trials, he considers opening depositions as well. Gray’s suggestions courts, drug courts, probate courts, traf- statements to be of fundamental im- for moving discovery along, which are fic courts, and others. In many of these portance, even in bench trials. He ad- probably not appealing to most lawyers courts, the judges deal directly with the vises lawyers to resist the temptation to (can you imagine sitting down with the parties themselves and not with attor- dump every document produced dur- judge as he or she goes through your neys. Many people come before a court ing discovery into evidence during the document requests one by one?), ad- only one time in their lives, and they trial; instead, they should focus on the mittedly are likely to cut down on the will judge the entire judicial system on documents they plan to use in closing number of discovery disputes brought the basis of that experience. Therefore, arguments. With respect to settlements, before the court. Gray also believes in Gray believes that judges should en- to which Gray devotes a significant por- drafting and issuing tentative decisions sure that all parties feel that they were tion of the book, he says that lawyers in order to focus the parties on the criti- able to tell their side of the story and should keep in mind the psychologi- cal issues. At first, the idea of a tenta- were treated fairly, so that even losing cal impact of their offer and consider tive decision may seem disconcerting, parties will accept the results and leave using a neutral business accountant but lawyers should welcome a preview with a favorable view of the judicial to reach a fair settlement. In addition, of how the judge intends to rule—the system. Gray genuinely believes that once a settlement is reached, he tells knowledge gives the attorneys an op- people listen to and respect the man lawyers to get the settlement recorded portunity to change the judge’s mind. or woman wearing the robe and that right away. Not surprisingly, Gray also believes in judges can have a significant impact on For the most part, Gray is proud of firm trial dates and no continuances, people’s lives, especially in courts such the American judicial system and be- because continuances are a means of as traffic court or probate courts. lieves that it works. He notes that, al- delay that, again, more often benefit According to Gray, judges can pro- though lay people often cite the Mc- the lawyers than the parties. mote a greater understanding of and re- Donalds hot coffee case as an example Gray’s belief in judges’ taking an spect for our judicial system by partici- of an outrageous verdicts and the court active role in moving a case along is pating in community activities such as system run amok, few people know aimed primarily at moving the case to- inns of court, teaching, engaging mem- that the evidence at the trial indicated ward settlement. Indeed, he devotes bers of the media as much as possible, that there had been multiple similar in- an entire chapter to his thoughts and and creating community programs. In cidents that had resulted in severe inju-

80 | The Federal Lawyer | June 2009 ry without the company’s having taken legalization of drugs. His other recom- in prison simply did not belong there. any corrective action. Nor do critics mendations with respect to the crimi- After his experience, the legislator was of the verdict realize that the court re- nal justice system stem from the idea quoted as saying, “We should reserve duced the plaintiff’s award because of of “restorative justice.” As Gray notes, our prison space for people we are her own negligence. 95 percent of all prisoners will be re- afraid of, not people we’re mad at.” But Gray also recognizes the prob- leased, and prisons do not adequately Coming from a judge who has worn lems of our judicial system, and he of- prepare these people for this eventual- the robe for so long, his suggestions fers suggestions for improving it, includ- ity. He recommends not only helping are at least worth considering. ing adopting a modified English rule prisoners address why they were sent Wearing the Robe compels us, as law- for attorneys’ fees, which would give to prison in the first place but, more im- yers, to look beyond our own interests the trial judge the discretion to award portant, the need to provide them with in our particular cases and to consider reasonable attorneys’ fees to prevailing basic skills training, including reading, for a moment the important role played parties. Under this approach, the judge writing, and job and parenting skills, as in our judicial system, at all levels, by would be able to award attorneys’ fees well as drug and alcohol treatment, so the person wearing the robe. TFL in cases that should never have been that these people do not end up back brought or should have been aban- in prison. Gray also recommends that, Amy B. Auth is an associate with Dw- doned once relevant facts were dis- given the cost of keeping convicts in yer & Collora LLP in Boston, where her covered, but judges should not award prison, especially with respect to an practice areas include civil business fees in a way that would make it “ruin- aging prison population that results litigation and white-collar criminal de- ous for parties to pursue the righteous from longer and longer sentences, we fense. Auth is a graduate of the College prosecution or defense of appropriate should also reconsider whom we send of the Holy Cross and Boston College cases.” Gray also recommends more in- to prison. Gray points to the case of Law School. After receiving her law de- teraction between the judiciary and the a former California legislator who had gree, Auth clerked for two years for Hon. media, including allowing cameras in routinely voted for longer and longer Ernest C. Torres, U.S. District Court for the courtroom. prison sentences, until he himself had the District of Rhode Island. His most important recommenda- to spend two years in prison for elec- tions relate to the criminal justice sys- tion fraud. Once in prison himself, the tem, and he suggests considering the legislator realized that many people

Environment continued from page 64

focusing specifically on the unique insights of the senior mate Change Science—A Brief Overview,” which is well- officer featured on the page. The sidebars support what is written. In this section, the authors specifically state that in the text, as opposed to distracting from it. At the same they sought out scientific experts to determine both the time, as with Michaels and Balling’s book, the best way consensus and range of views within the scientific com- to follow the text and to get maximum benefit from the munity. They showed that the current consensus is that the sidebars is to read the text first, then go back and read the significant increases in average global temperature over the sidebars. But reading the sidebars included is valuable. last half-century can be attributed to human activity (with This paper is worth reading for three specific reasons. a certainty of more than 90 percent); that those increases First, the discussion does not fall anywhere in the left-vs.- have already affected many natural systems on Earth; and right, environment-vs.-economy spectrum and thus pres- that future climate change is inevitable (page 56). At the ents a unique perspective on global warming. Like Lom- end, they also briefly discuss abrupt climate change, point- borg’s book, this paper takes a truly global view of climate ing out that were abrupt change to occur, it would be a change. At the same time, the authors do not lose their per- significant challenge even for well-developed countries. spective on the issue of just why the United States should Each of the works reviewed here can help lawyers im- care about the problem. Second, the authors acknowledge prove their understanding of the current discussions about and tackle head-on a vital issue: making decisions and tak- global warming. TFL ing action in the face of imperfect knowledge. The authors have spent their entire adult lives working on important John K. Harms is the treasurer of the FBA Environment, and complex problems and have succeeded in positions Energy, and Natural Resources Law Section. He is an associ- of tremendous responsibility. They acknowledge that they ate general counsel at Headquarters, Defense Logistics Agen- do not know everything about climate change but have cy, Fort Belvoir, Va. The views and opinions expressed in this concluded that the evidence and the consensus within the article are those of the author and should not be attributed to scientific community are strong enough that we need to the Defense Logistics Agency or the U.S. government. act now. As they state on pages 9–11 of their paper, it is a question of managing risk not of arriving at absolute cer- tainty. Those pages alone make this work worth reading. The third reason to read this paper is Appendix 2, “Cli-

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