Dan Epps
@danepps
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Professor of Law, @WUSTL . Con law 📜, crim law/pro 👮, SCOTUSology 🏛. Cohost 🎤 @DividedArgument . A "smarter legal mind than mine." — @PeteButtigieg .
⚜️ St. Louis, MO ⚜️
Joined December 2010
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I'm excited that my and
@Alan_Trammell
's new paper "The False Promise of Jurisdiction Stripping" will be published in
@ColumLRev
. We've just posted it to
@SSRN
. A quick thread about the paper:
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To her grave, my grandmother always insisted she was just a government secretary during WWII but her children always suspected she was one of the “Code Girls.”
After her death, we found this in her papers.
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Alito's speech is actually making the best argument for Court reform. There's just no good justification for a system that gives an angry partisan like this a veto on legislation.
Without saying the words “court-packing,” Alito warns about Democratic efforts to “bully” the court with threats to “restructure” it. Tells a story about a foreign judge threatened with death if he didn’t rule for the government.
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Wow this win would nicely set Ossoff up for the 2068 presidential race
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What I genuinely don’t understand: Hawley, Cruz, &c seem to think that whichever of them shows the most fealty to Trump can inherit the mantle of Trumpism. But Trump will never bless them as his successor; the point of Trumpism is that it’s about *Trump*. /1
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Justice Sotomayor says the majority's decision in Trump v. Hawaii is like Korematsu, the Japanese internment decision. Strong words.
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As my Criminal Law students learn, committing a crime for “sport” negates the required mens rea and thus provides a complete defense
....you would get it by building, or even buying. You always wanted to show losses for tax purposes....almost all real estate developers did - and often re-negotiate with banks, it was sport. Additionally, the very old information put out is a highly inaccurate Fake News hit job!
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Amazing—
@adamliptak
found an example of obstruction of justice based on “I hope”!
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Hawley whines about the “woke mob” while the rest of us shudder in horror at the *actual* mob that stormed the Capitol and caused the death of a police officer.
Hawley calls a book publisher “Orwellian” while we recoil *actual* authoritarianism.
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Had RBG retired under a D president (or had Garland been confirmed) Democrats would likely have retaken control by 2029, and would control the Court for about half of the next century.
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For people who aren’t part of the elite legal world, it’s hard to understand just how rare it is for former clerks to speak out against the interests of their former boss, in even the slightest way. The professional incentives all run strongly against it.
In related news, three former Kavanaugh clerks who previously said he was great just wrote to the Judiciary Committee to clarify that they are "deeply troubled" by the allegations against him.
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I am familiar with this STL neighborhood and I can confirm that MS-13 does not live next door
In Joe Biden’s America your job is illegal, you are locked in your home, borders don’t exist, MS-13 lives next door and the police aren’t coming when the mob arrives.
This is all of us.
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5 words or FEWER
In 5 words or less, start a fight without politics
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American “conservatism” 2020: Diamond & Silk are headliners at CPAC; former Republican Presidential candidate Mitt Romney isn’t invited.
BREAKING: The "extreme conservative" and Junior Senator from the great state of Utah,
@SenatorRomney
is formally NOT invited to
#CPAC2020
.
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*UPDATED PRESIDENTIAL IMPEACHMENT RECORDS (ALL-TIME)*
1. Donald Trump (2)
2. (tie) Andrew Johnson (1)
2. (tie) Bill Clinton (1)
4. (tie) Everybody else* (0)
*Richard Nixon resigned while impeachment proceedings were underway
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So...Civil Appellate?
Asked who they’re with, these guys say only that they’re with “The Department of Justice.”
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Wow. SCOTUS clerks are being asked to turn over their cellphone records in the leak investigation. If I were a clerk, I might refuse even if I weren’t the leaker.
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A first-rate legal education will leave you unable to answer basically any concrete legal question other than by saying "it depends" or "I'd have to do some research."
What‘s something that seems obvious within your profession, but the general public seems to misunderstand?
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I wasn't a big
@AndrewYang
supporter during his run, but he's killing it as a post-debate commentator on CNN! Insightful and funny.
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In memoriam: my mother, Cornelia Spencer "Spencie" Love, died tonight after a long illness. A loving mother to me and my sister Maggie, she is also survived by 5 grandchildren. Bye, Mom. I miss you.
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My hypothesis: Yale is planning to significantly change its admissions strategy in the wake of the expected SCOTUS affirmative action decisions, and they are doing this proactively rather than dealing with any rankings implications later.
Big news out of Yale Law School: Dean Heather Gerken has announced that YLS will no longer participate in the influential
@USNews
rankings.
Will other top schools follow suit?
Article by
@melissakorn
for
@WSJ
:
@YaleLawSch
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This FBI investigation is really looking like a sham. While
@JeffFlake
is insisting on the investigation in order to avoid damage to SCOTUS's legitimacy, it looks like his stand will not prevent that but will instead cause yet more tarnishing of the FBI's reputation.
Blasey Ford is not on The White House approved list of four people FBI is allowed to interview, according to
@nytimes
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Our findings have a lot of relevance for policymakers interested in Court expansion. But one particularly salient one: without Court expansion, Democrats are unlikely to retain control of the Court until...2065.
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An organization that *literally changes its name* from "Judicial Crisis Network" (D) to "Judicial Confirmation Network" (R) whenever party control of the White House changes accuses "The Left" [?] of politicizing the courts.
The Left cannot accept that they lost control of the Supreme Court.
That's why they're calling to pack it with liberal politicians in robes.
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Voters should demand every Republican Senator in a competitive election to pledge not to allow hearings until there’s a new President.
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My local bookstore seems to have a whole “Children’s SCOTUS” section...
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Renovating the kitchen in our new house and found this mysterious small door behind the old kitchen cabinets. What do you think is back there?
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Contrary to McConnell’s assertion, a Democratic Senate confirmed President Reagan’s nominee, Anthony Kennedy, in 1988—a presidential election year.
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<me, in my Dean's office for my annual review, sweating>
What do you MEAN generating muppet SCOTUS Justices doesn't count as scholarship—
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Voicing concerns about partisan perceptions of the Court in a speech that's a victory lap for *the Senate Majority Leader who pushed through your confirmation on partisan lines* is some real next-level trolling
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As an academic, I spend some whole days crafting single paragraphs.
And then there are other days, when I don’t accomplish much at all.
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I spent my legal education and early career studying, obsessing over, working at, practicing before, teaching people about, providing commentary on, and generally revering, the Supreme Court.
I fear that much of the rest of my career will involve fighting against the Court.
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Didn’t then-judge Kavanaugh tell Dem Senators they would reap the whirlwind? Don’t remember JGR responding to that...
Chief Justice Roberts responds to Senator Schumer’s “threatening” statement about Justices Gorsuch and Kavanaugh
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Kavanaugh's not withdrawing. Trump is not pulling him. Most Senate Republicans are going to stick with him.
This will come down to 2-3 R senators.
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I wouldn’t put it past Republicans to say they won’t name someone this year to avoid criticism during the election—and then to ram someone through in the lame duck period after voters can’t do anything about it.
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Yes—whatever the answer to the constitutional question, the right *remedy* cannot possibly be disenfranchising 100,000 legitimate voters.
Putting aside the legal question of what the rules should be going forward, imagine trying to get a judge to throw out 100,000 ballots *already cast* by people who were just following the announced legal rules for voting. And asking for that 3 days before the voting will end.
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If he’s ever going to pass the baton to anyone, it will be one of his children. And I’m not sure he’d even be willing to let them steal the limelight. Essentially every politician who has tried to make a devil’s bargain with Trump has ended up paying for it in the end. /2
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People in our neighborhood Facebook group complaining that they got < 24 hours notice from the City of STL for their vaccine and how they have conflicts w/ the appointments. People—if you get a slot, there is almost NOTHING on yr schedule you shouldn't drop to go get vaccinated!
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In the
@washingtonpost
,
@WillSOrtman
and I lay out the argument from our forthcoming
@VandLRev
article, "The Informed Jury."
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RBG is mad. 30 page dissent in Epic Systems with some strong language about the majority.
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No Constitution can possibly specify every detail about how political actors should behave in order to make the system work.
And no constitutional system can endure in which political actors’ only constraint on action is what the Constitution explicitly forbids.
The Constitution did not require the Senate to hold a hearing or vote on a judicial nominee in 2016, and the Constitution has not changed. Both the President's and Senate's power here are in their respective discretion.
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If recusal law doesn't treat statements like this as creating an appearance of bias for, at least, the justice the President and Senate put on the Court *eight days before the election,* there is something deeply wrong with our judicial ethics system
Trump just said it at Reading PA rally:
“If we win on Tuesday or — thank you very much, Supreme Court — shortly thereafter…"
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But this extremely partisan speech by a supposedly impartial judge isn't...?
Alito brings up a brief filed with the Supreme Court by five Democratic senators in a gun case warning that the court is becoming too political. He calls the brief “an affront to the Constitution and the rule of law.”
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Chief Justice Roberts is no longer in control.
BREAKING: A new conservative majority at the Supreme Court reverses course on Covid restrictions on houses of worship. Before RBG’s death, the court approved restrictions by 5-4 votes. Now, also 5-4, court goes the other way, with ACB in majority.
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The point of law school isn’t primarily to fill your head with a body of knowledge known as “the law.” Law changes, it’s fuzzy, and you’ll have to look up answers to all but the most simple legal Qs.
Law school teaches you how to answer legal Qs.
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This seems wildly inappropriate for a sitting justice
Alito now condemns Washington State for requiring pharmacies to carry Plan B, “which destroys an embryo after fertilization.”
He also criticizes the Colorado civil rights commissioner in Masterpiece Cakeshop who said “freedom of religion” can be used for discrimination.
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My take is that the Chief knows what dangerous ground SCOTUS is on—all the talk of Court-packing, etc.—and is being very careful with his votes not to jeopardize the Court's status
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What I find puzzling about Gorsuch is that he seems invested in selling himself and his methodology as apolitical yet he won’t do easy, symbolic things that would make him look like less of an extreme partisan
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In one day on the bench, Justice Kavanaugh has now hired as many African-American Supreme Court clerks as Justice Ginsburg has in her entire SCOTUS tenure (and her 13-years on the DC Circuit, too). (One)
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A day later I’m still stunned by this hateful, childish statement by the author of “The Vanishing American Adult” and “Why We Hate Each Other—And How to Heal”
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And however much part of the R base loves Trump...the public as a whole doesn’t. Shouldn’t smarter R politicians be trying to position themselves whatever will come after Trump, rather than trying to please a defeated 1-term president? /3
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He was saying this at the exact moment Republicans filibustered the commission to investigate the Jan 6 insurrection
"If you need Republican support, talk to them. 'My friend, what do you think?' Get them talking and they'll eventually say something you agree with."
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Advocates who built their oral argument preparation strategy around questions from CT were no doubt scrambling this morning.
Biggest surprise of the first day of the SCOTUS term: Justice Thomas not on bench. He is "indisposed due to illness," Roberts says.
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When you’re at a crim conference and whoever made the name tags didn’t read the schedule *quite* carefully enough... w/
@ProfSamKamin
aka Prof. Stop
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Now imagination the next generation of Republican officeholders, all of whom will have been raised on this insanity. The future is frightening.
It's hard to tell whether GOP leaders are being strategic and cynical (e.g. hoping to keep their base excited) when indulging claims of election-rigging, or are just wholly disconnected from reality. But in some ways I wonder if it's even possible to distinguish between the two.
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It begins.
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Sure, Trumpism is unprecedented. But I’d be betting that the country as a whole, and R primary voters too, will have different concerns in 3-4 years than they do at this exact moment. R Senators might be wise to reflect on that. /end
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🚨🚨🚨House and Senate Democrats Plan Bill to Add Four Justices to Supreme Court 🚨🚨🚨
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Instead, they’re just running across the field to where the ball was three minutes ago. First they were chasing the Tea Party, now it’s Trumpism; who knows what fad they’ll be chasing next. /4
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tips for evaluating SCOTUS nominees:
THINGS THAT DON'T MATTER:
1. whether they are nice
2. whether they coach youth sports
3. how many kids they have
etc.
THINGS THAT DO MATTER
1-99. how they'll vote in the most consequential issues
100. how smart they are
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I'm confused. SCOTUS is livestreaming an oral argument for the first time, but the institution's legitimacy hasn't been completely destroyed and One First Street hasn't been swallowed up by the earth. What am I missing?
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Can a Smart Person explain to me why there is still no nominee for Solicitor General nearly 3 months into the Biden presidency
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On SCOTUS livestream arguments:
1. This is pretty cool
2. There is no good reason not to do this for every oral argument in the future, even once in-person arguments resume
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I’m thrilled to announce the latest judicial nomination by President Trump! Lewis Epps, Yale Law ‘45, Mizelle (M.D. Fla.)/Walker (D.C. Cir.)/Gorsuch OT47.
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Lots I disagree with here, but the key problem is the idea that a progressive lawyer "just happens to work for a corporate law firm, with its corporate clients."
No one "just happens" to work in BigLaw. It's a *choice*. And it's entirely fair to ask questions about that choice.
On the phenomenon of attacking Supreme Court counsel for the legal positions of their clients —
@neal_katyal
and the silly caricature of him defending child slavery.
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Chief Justice Roberts apparently told his colleagues the Court should delay hearing the case expressly because of concerns about public perceptions of the Court, also consistent with frequent critiques of his approach.
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3-year-old said “OK boomer” so I’m undertaking a thorough contact tracing effort to identify the vector of transmission
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Entry-level Law prof job seekers: AALS FAR submissions are due in 10 days. As my procrastination today, I thought I'd provide some tips as I come off of two years as hiring chair here at
@WashULaw
. Here, in no particular order, some advice and thoughts, big picture + small bore:
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Respectable Republican lawyers/law profs: Going forward, will any of you argue with a straight face that Kavanaugh told *no* lies yesterday? That is very hard to believe (Renate, drinking, etc.).
And if you concede he lied, how do you justify those lies?
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If you’re counting, among those to to at least implicitly repudiate Hawley’s actions this week include:
—His key political mentor (Sen. Danforth)
—His major campaign donor (David Humphreys)
—The judge he clerked for (Michael McConnell)
—Book publisher
—Leading MO newspapers
"Inciting a crowd to disrupt the certification of election results is an impeachable offense, and so also is pressuring state officials to override election results when proper forums for adjudicating those claims have rejected them."
via
@StanfordLaw
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I, for one, *do* know whom to trust if the choice is between Trump and the media.
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The analysis in this OLC opinion allowing Treasury to refuse to hand over President's tax returns creates quite a contrast w/ SCOTUS's reasoning in the Travel Ban case. DOJ closely scrutinizes House Dems' stated reasons for demanding returns for pretext.
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NEW:
@adamschilton
@kyle_rozema
@maya_sen
and I have made *major* revisions to "The Endgame of Court-Packing," now up on SSRN. Lots of important new findings relevant to folks interested in Court reform, but I'll highlight just one below:
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I'm with Steve on this one. I'm not sure I agree with fully 100% of the Robinson piece, but I think he ably documents a significant number of lies and distortions during Thursday's hearing, and I haven't heard plausible counters.
If there’s a serious response to this compelling must-read analysis by
@NathanJRobinson
, I’d love to hear / read it...
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Us, dumb: Trump’s call may have violated criminal law and in any event was inconsistent with the spirit of the U.S. Constitution and with basic democratic norms
You, an intellectual: the real problem is that *Raffensperger* violated Title 11, § 243(b)(ii)(3)(D) of the “Man Code”
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Why? What’s wrong with a judge who faithfully applies precedent but then questions its soundness in a concurrence? What norm does that violate? The Supreme Court itself has often favorably cited lower court opinions pointing out problems with SCOTUS precedent.
I also have concerns with qualified immunity. But if judges want to criticize the Supreme Court's decisions, they should express their personal opinions in law review articles instead of the F.3d.
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Genuinely brave and smart politicians would be making a gamble about where the country will be in a few years, and hoping that Trump isn’t still calling the shots for the party. If he is, I don’t see much room for Cruz, Hawley, etc, no matter what. /5
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Even putting aside the content, I can’t get past the inexplicable use of passive tense in the subtitle.
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Former SCOTUS shortlister Judge J. Michael Luttig weighs in again on ACB's possible recusal in upcoming election cases!
@JessBravin
@danepps
@nytimes
@adamliptak
Adam Liptak’s piece is a superb assessment of what is going on at the Supreme Court in the election cases. I add my compliments to the many Adam is receiving, with the further post below. More insight coming, depending on whether Minnesota appeals the Eighth Circuit decision.
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This would violate the unlawful command influence doctrine, right?
Trump says the military should look at disciplinary action against Lt. Col. Vindman, who gave testimony in impeachment hearings about the president
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Sri Srinivasan is great, but I’m struggling to see how one could say he’s objectively *more* qualified than Leondra Kruger, whose resume is extremely similar and who’s also younger and thus capable of serving on the Court longer.
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Or not. As a wise man once said: “You sowed the wind for decades to come. I fear that the whole country will reap the whirlwind.”
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