Three issues I changed my mind about in 2016

This year saw a major, unexpected political upheaval in both the United States and Europe. Most commentators have reacted to these events by arguing that they just reinforce the validity of the pundits’ own previous views. Whether the commentator in question is on the left or the right, they tend to claim that Trump’s strengthens the case for their own longstanding commitments.

The fact that pundits double down on their existing views does not necessarily mean they are wrong. But if you consistently claim that even highly unexpected events as proof that you were right all along, that suggests your judgment might be influenced by “confirmation bias,” the cognitive error of interpreting new evidence to conform to your preexisting views, regardless of whether it really supports them or not.

I am far from being a complete exception to these tendencies. For example, I have long argued that political ignorance is a serious problem. And I believe that ignorance was a major factor in this year’s election, and that it contributed to Trump’s victory.

Still there are some issues that this year’s events led me to change my mind about. Here are three of the most important.

I. The Perils of Polarization.

I have long argued that partisan bias is a serious problem. The body politic suffers when we reflexively support our own party and ignore its faults, while reflexively demonizing the opposition and dismissing ideas associated with it. But I also thought that political polarizationthe growing ideological gap between the two parties – is not a significant problem. So what if the two parties are becoming more extreme? There is no good reason to think that extreme positions are necessarily worse than moderate ones.

I still see little inherent virtue in moderation. But polarization is much more of a problem than I thought. The more polarized we are, the greater the partisan bias, and the greater the tendency to reject anything associated with the opposition. Polarization also makes voters and political activists more willing to tolerate bad behavior by their own party and its leaders. The greater the degree of polarization, the higher the stakes of political conflict. When your opponent wins in a highly polarized environment, policy will turn against your values in a big way, not just a small one. That makes it all the more imperative to avoid doing anything that might give ammunition to the opposing party.

For that reason, among others, partisans become even more willing than usual to turn a blind eye to the flaws of their own leaders, and tolerate behavior they would never accept if the other side did it. Also, it’s easy to assume that our party leaders can’t be all that bad so long as they are fighting against the really evil people in the other party.

This sort of dynamic is one key reason why the vast majority of Republican voters ultimately “came home” to Trump, despite the fact that many had severe reservations about him. But while the Trump phenomenon helped catalyze my rethinking on on this issue, the risks of polarization go well beyond it.

II. Should We Bring Back the Smoke-Filled Rooms?

Until this year, I tended to dismiss Jonathan Rauch’s argument that the political “establishment’s” loss of control over candidate nomination processes is a bad thing. As I saw it, presidential candidates selected under the more populist process adopted in 1972 do not seem to be, on average, worse than those previously chosen by party elites meeting in proverbial “smoke-filled rooms.” In addition, the influential “party decides” school of political science argued that party elites still retained effective control over the process. As a libertarian, I am no great fan of conventional major-party elites. Why give them more power?

Nonetheless, Rauch was closer to the truth than I was. Even some advocates of the “party decides” theory now recognize that the Trump experience shows that party elites’ power over the process is a lot more limited than was previously thought.

It may still be true that modern popularly elected presidential candidates are,generally speaking, no worse than those of the pre-1972 era. But even if the average quality is similar, the Trump phenomenon suggests that the variance is higher. Party elites support plenty of flawed candidates. But it is unlikely they would choose someone as authoritarian and poorly qualified as Trump, or for that matter a Castro-loving socialist like Bernie Sanders, who attracted strong support in the Democratic primary.

We need to give party elites a greater say in the process; not because they will select truly great candidates, but to reduce the danger of ending up with horrendously awful ones. Despite their many flaws, party elites have strong incentives to choose candidates who can appeal to a broad swathe of general election voters, and who are not likely to be dangerously incompetent or unhinged.

Admittedly, a more elite-driven process could screen out some really good candidates who might otherwise win the support of primary voters. But given widespread political ignorance and ideological bias in the electorate (the latter especially common among primary voters),I think it is more likely that anti-establishment populist candidates will be unusually bad than unusually good.

Canada has avoided the wave of dangerous xenophobic populism that has swept many other countries in part because their candidate-selection process is more elite-driven than in the US and some European countries. We would do well to learn from our neighbors on this score.

Perhaps we don’t need to go so far as to fully return to the “smoke filled room” era. I am not sure what the precise optimal mix between elite and voter control over nomination processes should be. But I do now think it should be more elite-driven than the status quo.

III. Rethinking the Unitary Executive.

Like many constitutional originalists, I have long supported the theory of the “unitary executive”: the idea that the president should have more or less complete control over the executive branch. Because Article I of the Constitution gives all “executive” power to the president, he should be free to hire, fire, and issue orders to executive branch officials as he sees fit, so long as he does not order them to do anything specifically banned by law our outside the scope of executive authority altogether.

I still think that the unitary executive is a sound interpretation of the text and original meaning of the Constitution. But, under modern conditions, a fully unitary executive would give a single person sweeping control over a vast federal bureaucracy that regulates and monitors nearly every aspect of our lives. Many of the functions of that bureaucracy are themselves unconstitutional under the original meaning. Thus, a unitary executive today means an executive who exercises a wide range of powers that the Founding Fathers never gave the federal government at all.

So long as the executive branch has such enormously broad power, it is dangerous to concentrate it in the hands of any one person. If it cannot be pared back, it should at least be dispersed. The prospect of Trump wielding such power has helped lead me to rethink this issue. But, in truth, no one person should be trusted with such enormous power. Both Barack Obama and George Bush also pushed the limits of executive power in dangerous ways.Had Hillary Clinton won the election, it would not have been desirable to let her control a fully unitary executive either.

The theory of the unitary executive focuses on the distribution of executive power, not its scope. A unitary executive can, in theory, be a strictly limited one if the overall scope of executive authority is kept within tight bounds.

But unless and until we can substantially reduce the overall extent of executive power, Congress should have the option of at least partially insulating many executive branch agencies from complete presidential control. Before we can restore the unitariness of the executive, we should first cut back some of its substantive powers.

Obviously, this leaves open many hard questions about exactly which agencies Congress should be allowed to cordon off from presidential control and to what extent. But it does indicate that we should not try to institute a fully unitary executive – at least not for a long time to come.

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Silencing professor speech to prevent students from being offended — or from fearing discrimination by the professors

People often support disciplining and even firing professors who say things that are perceived as racist on the grounds that 1) those professors can’t be trusted to evaluate minority students fairly, 2) students will be afraid that they won’t be judged fairly, or 3) students will more broadly lose confidence in the professors (or just couldn’t stand to be in the room with them) or even in the institution, and won’t learn as effectively. I’ve seen these arguments made often, most recently as to the University of Oregon controversy. One response to my Oregon post, for instance — a tweet by @TimothyWright3, “What does the institution say to students of color by allowing [Prof. Nancy] Shurtz back into a classroom?” — seems to be implicitly making these arguments (though it seems to focus most clearly on No. 3. But, again, this is just one example among many.

I appreciate the force of these arguments, and indeed, if all you care about is maximum teaching effectiveness and reliability, you might take such a view. But, if accepted, these arguments really will be the end of freedom of expression — both casual and more formally academic — on university professors’ part, because they reach far beyond black makeup in Halloween costumes.

Imagine, for instance, a professor who says — at a party, in an op-ed, at a debate, in a scholarly article, or wherever — that she thinks that Catholicism is a foolish and evil religion, because it oppresses women and gays.

Presumably many devoutly Catholic students will be quite upset about that statement, which expressly derogates the faith that is such an important part of their identity. Indeed, they may worry that a professor who is militantly anti-Catholicism might discriminate against students who are known to be Catholic. (Many students might publicly self-identify as Catholic, for instance by prominently participating in Catholic campus programs, or mentioning their Catholicism when relevant to in-class discussions. They may also wear broader Christian symbols, such as crosses on chains or ashes on their foreheads on Ash Wednesday; if the students’ last names or accents also identify them as people likely to come from a Catholic culture, some observers might infer that the students are likely practicing Catholics.) They may lose respect for the professor, because they feel the professor lacks respect for them.

True, anti-Catholicism doesn’t always mean hostility to all individual Catholics; but wearing black makeup doesn’t always mean hostility to blacks. The argument against Shurtz is that wearing black makeup was offensive even if it wasn’t motivated by hostility to people — likewise, sharply anti-Catholicism statements can be offensive to Catholics, too, even if they are motivated by disapproval of the religion and not specifically of the religious. People might well ask, “What does the institution say to [Catholic students] by allowing [the professor] back into a classroom?” Is such a question then reason to suspend or even dismiss professors who condemn Catholicism?

Or say a professor says that President-elect Donald Trump is a charlatan and a bigot and that Trump voters were therefore either fools or bigots themselves. Again, this could be in a conversation at a party where students may be present, or in an op-ed, or in a scholarly article.

Many Trump supporters might be upset at the statement, which directly insults them. And they may worry that the professor might discriminate (deliberately or unconsciously) against students who have publicly expressed their support for Trump. (Federal and state statutes generally don’t ban discrimination against students based on their votes or political party membership, but the First Amendment does ban such discrimination by public universities, and certainly university rules and ethical principles ban professors from grading students worse just because of whom the students voted for.) People might well ask, “What does the institution say to [pro-Trump students] by allowing [the professor] back into a classroom?” Is such a question then reason to suspend or even dismiss professors who condemn Trump voters?

Likewise, say a professor sharply condemns certain streams of Islam (e.g., Wahhabism), or for that matter just posts the Muhammad cartoons when writing about them on his blog. Some Wahhabi students may be offended by the former. Many Muslim students of various denominations may be offended by the latter. All might worry that the professor may discriminate against them. “What does the institution say to [Muslim students] by allowing [professors who post the Muhammad cartoons] back into a classroom?”

Or say a professor publicly identifies as a hard-line Marxist, who thinks that the capitalist class has blood on its hands from its oppression of the workers. The professor might have praised Marxist mass murderers, such as Stalin or Mao, and talked of the justifiability of violent revolution. Or he might have just been seen wearing a Che Guevara T-shirt.

Students whose families belong to the capitalist class — the class that was targeted for oppression and murder by the people the professor praises — might be offended by this and might worry that the professor will be prejudiced against them. Cuban American students whose parents may have fled Guevara and his partners in crime might be especially offended and worried. Maybe some of them had family members who were killed by Che’s firing squads. “What does the institution say to [Cuban American students] by allowing [the Che-shirt-wearing professor] back into a classroom?”

And the list could go on: The same arguments could be made against professors who say that homosexuality is immoral, or even just publicly say that they believe in the teachings of a certain church, if those teachings condemn homosexuality. They could be made against professors who express doubt that gender identity should be defined by a person’s self-perception, as opposed to a person’s anatomical sex. They could be made against professors who argue that the military is a shameful career; many antidiscrimination policies (including at the University of Oregon) apply to discrimination based on veteran status as well as based on race, religion, sexual orientation and so on.

They could be made against professors who broadly condemn whites as racists or men as rapists (even if they only argue that this is just a strong tendency among those groups, and not a universal certainty). They could be made against professors who sharply condemn Israel and Israelis, or the Palestinian Authority and Palestinians.

Indeed, they could even be made against professors who make all these statements mildly and thoughtfully. Say, for instance, that a professor’s condemnation of, say, Catholicism — or evangelical Christianity or Mormonism or Islam or capitalism or Socialism or Trump or Clinton or gun rights supporters or abortion opponents — calmly and politely argues that those beliefs are evil, and that rank-and-file adherents of the religious or political belief system are morally responsible for the evil that the belief system produces.

Could students reasonably worry that the professor — however polite — will be subconsciously (or intentionally) biased against people who, he has just said, are responsible for such evil? Could students reasonably worry that the professor will grade them more harshly (or discriminate against them in other ways, even if the grading is anonymous)? Could they feel unwanted in class, and in turn not want to take the class? Could they feel the loss of the perceived mutual respect that is often so useful to learning, especially in small classes or in one-on-one projects? The answer in all these cases has to be “yes,” I think, to one or another degree.

Yet I take it that universities’ (especially public universities’) general answer to the student who complains about a professor who made anti-Trump-voter or anti-Catholicism or anti-capitalist or anti-American statements at a party or in a blog post will be, more or less, “tough.” Professors are entitled to express their views, including controversial ones; indeed, they’re supposed to express such views, however controversial, as part of their scholarship and their public commentary. And that applies to condemnation of religions, economic classes and political belief systems, as well as debate on less heated topics. “[F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom.” If you disagree with the professor, express that disagreement, the universities would say; but we won’t shut the professor up in order to prevent you from feeling offended or alienated.

Now discrimination by professors against students is a serious concern. It’s wrong for professors to grade students down because they are black or white or pro-Trump or anti-Trump or Catholic or Muslim or atheist. It’s wrong even when the professors aren’t deliberately saying “bwahaha, here’s my chance to strike back against privileged whites or terrorist-loving Muslims or Trump yahoos or Palestinian-oppressing Israelis,” but are just subconsciously undervaluing the work of those groups for which they have contempt — regrettably, a common human tendency.

And such discrimination by professors is also bad because the fear of such discrimination can drive students into the closet: It can discourage them from revealing that they’re gay, or Christian, or Muslim, or Trump supporters, or abortion opponents, or whatever else. And that can undermine the quality of public debate as well.

Yet, again, I take it that the university’s response to such complaints about professors who made anti-Trump-voter, anti-Catholicism, anti-capitalist or anti-American statements at parties or blog posts would still be some version of “tough.” “You need to be confident that our professors will judge you fairly,” the university would presumably say (however credibly). “And we can’t just shut up our professors on all these subjects; they’re supposed to express themselves on controversial topics. The university is all about learning from people who sharply disagree with you, even when those disagreements go to important parts of your identity.”

I think that, on balance, this university approach, with its traditional support for freedom of expression, is the better one, if universities are to be places for fostering debate and inquiry. But if professors like Shurtz are barred from the classroom for their speech, then all this speech will be threatened. To the extent that any would be protected, it would be protected only when those who are in power — some mix of university administrators, state legislators, faculty senates, student majorities, student activists and wealthy donors — happen to agree with the potentially offensive speech.

There would be no principle to which dissenting voices could appeal for protection. Once a professor’s public speech — or even speech in a relatively private setting, so long as some students are there or some students hear about it — is seen as sufficiently offensive to enough students, that would be seen as justification for suspending or firing the professor.

And the lack of this principle would be felt not just by Shurtz but also by those who talk about alleged white privilege, the evils of Catholicism, the folly or bigotry of Trump voters, the immorality of choosing the military as a profession, or the depravity of capitalists or Israelis — as well as those who post Muhammad cartoons, criticize homosexuality or transgender rights theories, or discuss possible biological differences between male and female cognition and temperament. Indeed, as groups see that claims of group-based offense can be tools to fire professors they dislike (or pressure those professors into silence), the result would be more and more such claims of offense: Behavior that gets rewarded gets repeated.

Again, maybe some may support all this, on the theory that any such controversial statements undermine classroom instruction (and perhaps even grading fairness), and that maximally effective classroom instruction on those topics and with those viewpoints that the university administration chooses should be our main goal. That is more or less the view in the military, for instance (to oversimplify somewhat), because the military understandably prizes effectiveness above self-expression or open debate (except insofar as debate is needed to better accomplish specifically military goals).

But if people do endorse this view, they should endorse it with their eyes open, realizing what a vast range of academic speech — left, right and otherwise — it would potentially affect.

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Political ignorance, partisan bias, and belief in conspiracy theories

Conspiracy 2
A recent YouGov survey confirms what we know from numerous previous polls: Many Americans believe dubious conspiracy theories. Washington Post columnist Catherine Rampell highlights some of the more disturbing results.

Some 38 percent of Americans, including 49 percent of Republicans and 46 percent of Trump supporters, believe that the ridiculous “Pizzagate” theory that Clinton staffers sent coded e-mails suggesting involvement in pedophilia and Satanic ritual abuse is at least “probably true.” Despite Trump’s own belated disavowal of birtherism, 36% of all respondents and 55% of Trump voters still believe that it is “definitely” or “probably” true that President Obama was born in Kenya. Similarly, 37 percent of all respondents and 52% of Democrats believe it is at least “probably true” that “Russia tampered with vote tallies in order to get Donald Trump elected President,” an improbable claim for which there is no evidence (though there is extensive evidence that Russian operatives hacked Democratic National Committee e-mails for the purpose of helping Trump).

Not all of the conspiracy theories addressed in the YouGov poll actually have a big impact on public opinion. I suspect, for example, that many of the respondents had never even heard of Pizzagate until they saw it in the survey. But it is still notable that so many are credulous enough to believe such claims when they do hear them.

What causes such extensive belief in conspiracy theories? One key cause is widespread political ignorance. Most of the public knows very little about politics and public policy, in large part because such ignorance is rational behavior for most voters. If your only reason to become informed about politics is to make better decisions at the ballot box, that isn’t much of an incentive at all, given the very low probability that your vote will make a difference to the outcome. People who don’t know much about how the political system works find it more difficult to separate plausible claims from implausible ones.

Rational ignorance helps explain why people are much more likely to believe outlandish political conspiracy theories than similar ones about their personal lives. Most of us have very strong incentives to be well-informed about issues in our lives where our choices are likely to make a difference. The person who falsely believes that his family members or co-workers are conspiring against him will impose tremendous costs on himself if he acts on that assumption. By contrast, individual voters suffer no such obvious penalties when they embrace political conspiracy theories. That’s one reason why millions of people who embrace absurd conspiracy theories about political events are generally rational in their everyday lives.

But belief in conspiracy theories is not just the result of simple ignorance. Partisan bias also plays a major role. It is no accident that Republicans are more likely to believe conspiracy theories that make Hillary Clinton and the Democrats look bad, while Clinton supporters are more likely to believe those that reflect negatively on Trump. Many people evaluate political information not as truth seekers, but as “political fans” cheering on Team Red or Team Blue. They are all too ready to accept anything that supports their preexisting views, while ignoring, skewing, or rejecting contrary evidence. Such tendencies have become more severe in an age of increased polarization where partisan bias and hatred of the opposing party and its supporters have grown.

The perverse incentives that cause political ignorance also help exacerbate partisan bias. Because there is so little chance that any one vote will make a difference, voters have little incentive to evaluate political information objectively, and carefully consider opposing views. Unlike in many other aspects of their lives, they can afford to indulge political biases with very little chance of of suffering any adverse consequences. Just as it is rational for most voters to be ignorant about politics, it is also rational for them to make little effort to control their biases in evaluating new political information.

Sadly, however, rational behavior by individuals can lead to terrible collective outcomes. It makes little difference whether any one voter is ignorant or believes ridiculous conspiracy theories. But when millions do so, it degrades the quality of government and political discourse.

There is no quick and easy fix for the interlinked problems of political ignorance and partisan bias. But it is long past time that we start taking these problems seriously, and consider various systemic changes that might reduce their impact.

There is also much that individual voters can do to improve their reasoning and reduce bias. Given the perverse incentives of the political process, I am not optimistic that many will do so. But even modest movement in the right direction might help.

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Fatal shootings of police up from 2005-2015 average, below the peaks in 2007 and 2011

I blogged in July that fatal shootings of police for the year, though up from last year, were still at the 2005-2015 average. I regret to say that they seem to have risen substantially from that rate, though they’re still below the high points of 2007 and 2011.

The AP (Lisa Marie Pane) reports:

Ambushes in Dallas and Baton Rouge, Louisiana, and other shootings around the country led to a sharp increase in the number of police killed in the line of duty this year.

From Jan. 1 through Wednesday, 135 officers lost their lives. Some died in traffic accidents, but nearly half were shot to death. That’s a 56 percent increase in shooting deaths over the previous year.

Of the 64 who were fatally shot, 21 were killed in ambush attacks often fueled by anger over police use of force involving minorities.

In July, such fatal shootings were at an annual rate of 50 per year, a bit below the 2005-2015 average of 53 per year:

(From the National Law Enforcement Officers Memorial Fund; rows corresponding to causes of death other than shooting deleted)

This year’s 64 (which statistically might rise to 65 in the remaining days of the year) is now well above the average, though still below the 70 we saw in 2007, and 73 in 2011. The much greater sharpness of the increase from last year stems from the fact that last year’s total, 41, was fairly low by recent standards.

It’s possible, then, that the increase stems from “anger over police use of force involving minorities.” But it’s also possible that this is normal year-to-year variation, which can be very high — for instance, I know of no evidence that the still-higher 2007 and 2011 totals stemmed from such anger or that the dramatic declines in 2007-08 and 2011-12 (and the two-year plummet from 2011 to 2013) stemmed from any great decrease in such anger.

These murders are of course awful, and, as with shootings of unarmed citizens by the police, they can cause great indirect harms as well: For instance, as police officers feel more threatened, they may be more likely in close cases to shoot at people whom they perceive as threatening, and they may also be more likely to avoid threatening situations, even if that means cutting back on effective law enforcement. And, unlike in July, we now do see an increase over the medium-term average, not just an increase over an unusually low year. Still, there is so much yearly variation in the numbers that I’d be hesitant to draw confident conclusions based on just this year’s data, just as there was no reason to draw such conclusions in 2007 and 2011, or draw conclusions about dramatic improvements in underlying social conditions in 2008, 2013 and 2015.

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Is it drunken driving if your ‘vehicle’ is a motorized wheelchair?

No, the Oregon Court of Appeals held on Thursday (in State v. Greene). Its rationale was pretty narrowly focused on the Oregon statutory text — check out the opinion for more details. Thanks to Howard Bashman (How Appealing) for the pointer.

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Annapolis stun gun ban challenged on Second Amendment grounds

Hulbert v. Pantelides, just filed today in federal district court, claims that the Annapolis ban on stun guns violates the Second Amendment; I’m pleased to say that I’ll be consulting a bit on this litigation. For more on recent developments in stun gun law, see this post; for more on the general Second Amendment issue, see this article and, of course, the Supreme Court’s decision in Caetano v. Massachusetts.

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Highly recommended: ‘Guns of the Dawn,’ by Adrian Tchaikovsky

I just finished “Guns of the Dawn,” by Adrian Tchaikovsky, and liked it a great deal. The best way to summarize it is “Elizabeth Bennett goes to war”: A heroine in a fictional world that has a similar social structure to early 1800s England goes to war — the social structure is different enough that, once the fighting-age men are all drafted, some women are drafted, too, and for real combat. The tone is of course much darker than Jane Austen, or even than Naomi Novik’s superb Temeraire series (that’s “Horatio Hornblower, with dragons”). But the social setting, the language and the deep attention to characters’ inner lives rather than their physical adventures are Austenesque.

There’s some fantasy to the book — enough to be integral to the story — but (unlike in the Temeraire books) it’s distinctly a secondary feature. The reward is in the characters and in the details of the writing, not in the fantasy world-building.

I also very much enjoyed the protagonist being a woman. Readers of the blog will know that this isn’t for some grand ideological reasons; I just like female characters, and Tchaikovsky’s Emily Marshwic is exceptionally well-crafted. There have been some very interesting female leads in recent fantasy fiction that I’ve read, as in Daniel O’Malley’s Checquy series — “The Rook” and “Stiletto” — and Charles Stross’s “Family Trade/Merchant Princes” series; but “Guns of the Dawn” is better written than the Family Trade books and emotionally richer than the Checquy books. (Charles Stross’s “Laundry Files” series, one of which has a woman as a lead, is much better executed than “Family Trade”; but I enjoyed “Family Trade” enough to read through the books, which get better as Stross matures as a writer.)

There are also some excellent woman fantasy writers who have written first-rate stories with male leads. I particularly like Novik’s “Temeraire” series, Martha Wells’s “Raksura” series, and Lois McMaster Bujold’s “Vorkosigan” books and “Chalion” books have their moments, though I think Bujold tends to paint her characters as rather too wise and wonderful. Yet, unsurprisingly, I’ve always found that the sex of the authors isn’t terribly relevant to the story — live long enough, with your eyes and heart open, and you can get to understand and care about the opposite sex and not just your own, at least as well as anyone can understand anyone — but the sex of the characters is often relevant indeed, especially when the books are set in societies with generally sharply defined sex roles. (I would love it, for instance, if Novik wrote a “Temeraire” novel from the perspective of her most interesting female character, Jane Roland, though I can see why, after nine books, Novik might be tired of that world.)

In any event, try “Guns of the Dawn”; I hope you enjoy it as much as I have.

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