Ethics Observations On The Dobbs SCOTUS Opinion Draft Leak And Reactions To It

Ethics Alarms posted briefly on the stunning leak of what appears to be a draft of a majority opinion striking down Roe v. Wade and the related Casey decision. [The link to the draft is in that article.] The position here is that any analysis based on the draft itself is premature and irresponsible, since the document is 1) a draft 2) not even necessarily the latest draft, and 3) the opinion as well as the support for it on the Court could change materially before the actual opinion is released.

The only ethics issue immediately clear is that regarding the leak itself, and, by extension, the leaker. Leaks always constitute a unethical breaches of trust; only in the rare cases where they reveal actual criminal activity can they be justified. For a lawyer to leak any information related to a professional obligation or representation is grounds for disbarment, and permanent infamy within the profession. This leak cannot be defended, and pundits, politicians or activists who praise the leaker reveal their own ethics bankruptcy. Keep a watch out for the leak apologists. Then relegate them to your “Untrustworthy” file.

Now the focus shifts to the reactions to the draft, and it is fair to say they constitute a freak-out. Prime among them is the hypocritical and hysterical joint statement by Sen. Schumer and Speaker Pelosi. Imagine: these are leaders of the party that has accused Donald Trump of undermining core American institutions.

The statement is breathtakingly dishonest. None of the members of the Court ever stated that they would not vote to overrule Roe. They said it was the law of the land, which is true, and stated their support for the principle of stare decisus. That did not preclude their voting to reverse Roe later based on a case that hadn’t been briefed or argued yet. I have read enough of the draft to know that Justice Alito clearly explains that stare decisus has always had exceptions (but I knew that) where a wrongfully decided Constitutional case had to be reversed, writing.

“We have long recognized, however, that stare decisis is ‘not an inexorable command,’ and it ‘is at its weakest when we interpret the Constitution.’ It has been said that it is sometimes more important that an issue ‘be settled than that it be settled right.’ But when it comes to the interpretation of the Constitution — the ‘great charter of our liberties,’ which was meant ‘to endure through a long lapse of ages,’ we place a high value on having the matter ‘settled right….On many other occasions, this Court has overruled important constitutional decisions. … Without these decisions, American constitutional law as we know it would be unrecognizable, and this would be a different country.”

It should be very easy for Republicans and anyone else to explain the demise of Roe to the public. It was, as Alito says, a bad decision from the beginning, and it was time for the rights of the unborn to be considered, and not just the imaginary right of mothers to have their children snuffed out.

I’m going to spend most of my time devoted to this episode reading the draft, but here are links to various news reports and commentary: ABC News, The Daily Beast, HuffPost, CNN, New York Times, CBS News, Reuters, Washington Examiner, Associated Press, Fox News, NPR, Townhall, Slate, The Guardian, CNSNews, Al Jazeera, Outside the Beltway, Washington Post, De Civitate, Insider, Bloomberg, NewsOne, USA Today, A Lawyer Writes, emptywheel, pjmedia.com, The Nation, Breitbart, Los Angeles Times, The Daily Signal, Vox, Washington Times, The Comity Channel, Deadline, KLAS, The Daily Caller, Men Yell at Me, PennLive, The Hill, The Moderate Voice, littlegreenfootballs.com, NBC New York, Ninja Smith & Friends, WCMH-TV, HotAir, Variety, Deseret News, BuzzFeed News, NBC News, RedState, Mississippi Free Press, Mediaite, Things Worth Thinking About, thot pudding, homeculture, National Review, Big League Politics, WCTX-TV, Twitchy, Talking Points Memo, SCOTUSblog, CNBC, Jill Filipovic, Lawyers, Guns & Money, The Daily Wire, Maxwell’s Newsletter, A Propensity …, Gem State, Louder With Crowder, PharmaHeretic’s Newsletter, First We Think, Vanity Fair, New York Post, Law & Crime, Raw Story, The 19th, The Texas Tribune, Dana Loesch’s Chapter …, Power Line, The Racket News, New York Magazine, Fortune, Hennessy’s View, Trash Chair Thoughts, VICE, UPI, The Gateway Pundit, GC News, Instapundit, Watch Night News, Rolling Stone, Sacramento Bee, The Even Place, Let’s Get Politigal, WPRI-TV, Daily Insurrection, Mother Jones, Super-Probably Relevant …, Mercury News, The Right News, The Western Journal, TheBlaze, Althouse, Unfogged, Ace of Spades HQ, Teresa L’s Newsletter, Boing Boing, CBS Denver, IJR and Progress Report

Further observations:

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Turley On The Democrats’ Open Advocacy For Totalitarian Censorship

That sound Jeff Goldbloom and Sam Neill hear at the end of that clip is a newly freed Tyrannosaurus Rex, which I would much prefer having in my back yard than have what Democrats want to inflict on the nation.

I was all set to vote for Hillary Clinton, disgusting oozing metaphorical warts and all, a few days before Election Day 2016 when some new revelations sunk in, and I concluded that her party was an ideological outlaw, bent on destroying the basic foundations of our nation to ensure their power while using that power to corrupt the culture further. Boy do I hate being right about that—but I was.

The most chilling T-Rex roar yet may be the revelation during a House Appropriations Subcommittee hearing this week by Department of Homeland Security Secretary Mayorkashas. He revealed that his department is setting up a new board designed to counter what it deems to be “misinformation and disinformation” “Our Undersecretary for Policy, Rob Silvers is co-chair with our Principal Deputy General Counsel, Jennifer Gaskell, in leading a just recently constituted misinformation disinformation governance board….the goal is to bring the resources of the department together to address this threat.” New director Nina Jankowicz’s focus will reportedly be on “irregular migration and Russia.” That’s supposedly the “threat.”

Biden’s minions are so stupid, and so contemptuous of the public! True, many of them are as illiterate and badly educated as Democrats want and need them to be, but Mayorkashas might as well have announced that he was setting up a Ministry of Truth. This is why the news media have been almost completely silent on this (except for Fox News). They realize it sounds ominous. Right now what we know is ominous is only that Biden’s lackeys are so casual about throwing around the idea of the State determining what is “misinformation” and acting on the determination. They also didn’t think people would notice that the new “misinformation and disinformation” czar, Jankowicz, pushed the Biden false narrative that “50 national security officials, and 5 former CIA heads” were certain that the Hunter Biden laptop story was “a Russian influence op.”

It’s hard to be terrified of would-be totalitarians who are this incompetent, but what progressives these days lack in brains they make up for in arrogance and ruthlessness.

I’m not going to weigh in on Jankowicz’s ministry until I know what it really will be doing, but Prof. Turley, in his most recent article for USA Today (its there because none of the real newspapers like his focus on the Left’s ethics rot) does a superb job of blowing the whistle on Democrat-driven State censorship efforts that are exactly what they appear to be. Read it all, but here’s an excerpt…

Sen. Elizabeth Warren (D., Mass.) has declared Musk’s pledge to restore free speech values on social media as threatening Democracy itself. She has promised that “there are going to be rules” to block such changes. She is not alone. Former President Obama has declared “regulation has to be part of the answer” to disinformation. For her part, Hillary Clinton is looking to Europe to fill the vacuum and called upon her European counterparts to pass a massive censorship law to “bolster global democracy before it’s too late.”

For years, the First Amendment distinctions have been the focus of liberals who discovered a way to circumvent constitutional bans on censorship by using companies like Twitter and Facebook. Now, that successful strategy could be curtailed as shareholders join figures like Musk in objecting to corporations and media acting like a surrogate state media.

Faced with that prospect, Democrats are falling back to their final line of defense – and finally being honest about their past use of corporate surrogates. They are now calling for outright state censorship…

As is often the case, former Secretary of State Hillary Clinton stripped away any niceties or nuance. Clinton called for the European Union to pass the Digital Services Act (DSA), a measure widely denounced by free speech advocates as a massive censorship measure. Clinton warned that governments need to act now because “for too long, tech platforms have amplified disinformation and extremism with no accountability. The EU is poised to do something about it.”

Clinton’s call for censoring disinformation was breathtakingly hypocritical…her call for censorship came just weeks after special counsel John Durham offered more details about the accusation that her campaign manufactured a false Russian collusion theory. One of Clinton’s former lawyers is under indictment for the effort. Clinton personally tweeted out the disinformation that is the subject of the federal prosecution. And the Federal Election Commission recently fined her campaign for hiding the funding of the Steele dossier. Given that history, it would be easy to dismiss Clinton’s calls as almost comically self-serving. However, the 27-nation EU just did what she demanded. It gave preliminary approval to the act, which would subject companies to censorship standards at the risk of punitive financial or even criminal measures.

If implemented, it might not matter if Musk seeks to restore free speech values at Twitter. Figures like Clinton are now going to the EU to effectively force companies to continue to censor users.

Faced with liability across Europe, the companies could be forced to base their policies on the lowest common denominator for free speech…

Take it, Burnsie… Continue reading

Ethics Quote Of The Month: D.C. Circuit Court of Appeals Senior Judge Laurence Silberman

“The latest events at Yale Law School in which students attempted to shout down speakers participating in a panel discussion on free speech prompts me to suggest that students who are identified as those willing to disrupt any such panel discussion should be noted. All federal judges—and all federal judges are presumably committed to free speech—should carefully consider whether any student so identified should be disqualified for potential clerkships.”

—Judge Silberman in a letter to his fellow judges, in reference to the disruption of a March 10 panel at Yale Law School that was intended as a debate over civil liberties  hosted by the Yale Federalist Society. About a hundred students attempted to prevent the panel and Federalist Society members in attendance from speaking.

Well, you know: Yale. Equally disturbing, perhaps, was that Ellen Cosgrove, the law school’s associate dean, attended the panel, was present the entire time, and did nothing to restrain the protesters nor remind them of their ethical duties.

The school has a policy that specifically condemns such speech-chilling conduct, but more than 10 days after the event, no consequences appear to be forthcoming for the privileged and arrogant thugs who are going to be entrusted with the task of protecting future attacks on Constitutional liberties.

In an editorial endorsing the judge’s suggestion, the Wall Street Journal wrote in part,

Some readers may think these students should be forgiven the excesses of youth. But these are adults, not college sophomores. They are law students who will soon be responsible for protecting the rule of law. The right to free speech is a bedrock principle of the U.S. Constitution. If these students are so blinkered by ideology that they can’t tolerate a debate over civil liberties on campus, the future of the American legal system is in jeopardy.

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A Rittenhouse Verdict Inventory Of Ethics Heroes, Dunces, Villains And Fools, Part I: Not Many Heroes

We should condition ourselves to cherish those public events that lure so many into definitively exposing their character, values and acumen for all to see. The Jacob Blake shooting, the subsequent demonstration and rioting, and the Kyle Rittenhouse trial, all intertwined, constituted such opportunities.

There are very few organizations, publications and individuals who will leave the stage in this annoying act in The Great Stupid drama deserving the designation of Ethics Hero. Rittenhouse certainly doesn’t, and thus the misguided pundits, politicians and others calling him that are dolts. He might be called brave, but bravery without good judgment, skill and experience too often leads to disaster, as it did in this tragedy.

Among the easily identified heroes are, first by several laps, the jury. I thought it was possible that, like the Chauvin jury, the twelve citizens might yield to the unethical public pressure being placed on them and refuse to see the reasonable doubt that made a conviction of Rittenhouse unjust as a matter of law, once the non-felony charges were dismissed. They didn’t yield, and delivered the fair and correct verdict despite irresponsible statements by elected officials who should know better, a less than sterling performance by Rittenhouse’s defense, credible threats of rioting in their community if they refused to follow the Black Lives Matter/Antifa script, and legitimate concerns about their own safety. Continue reading

Friday Ethics Potpourri, 9/24/2021: On PBS, Boeing, A Political Hack Law Dean, And Caring

Lawn sign

Many thanks to reader and commenter Jeff for bringing that lawn sign to my attention. It’s available here. I wish I had thought of it; one of these days I’ll get around to making a “Bias Makes You Stupid” T-shirt as an Ethics Alarms accessory. I would never post such a sign on my lawn for the same reason I object to the virtue-signaling signs in my neighborhood: I didn’t ask to my neighbors’ political views thrust in my face, and I don’t inflict mine of them. However, if a someone living in a house on my cul-de-sac inflicted a “No human being is illegal” missive on their lawn where I had to look at it every day, the sign above would be going up as a response faster than you can say “Jack Robinson,” though I don’t know why anyone would say “Jack Robinson.”

1. Roger Angell on caring…It’s September, and the Boston Red Sox and New York Yankees start a three game series tonight with nine games left to the season. It could well determined which of the two teams will go on to the post-season, with a shot at the World Series. The encounter brings back a flood of memories, wonderful and horrible, about previous Sox-Yankee battles of note, including one from 1949, before I was born. I worked with a veteran lawyer at a D.C. association who was perpetually bitter about all things, and all because the Red Sox blew a pennant to New York that year by choking away the final two games of the season. For me, moments like this are reassuring and keep me feeling forever young: as I watch such games, I realize that I am doing and and feeling exactly what I was doing and feeling from the age of 12 on. Nothing has changed. Roger Angell, one of my favorite writers, eloquently described why this is important in his essay “Agincourt and After,” from his collection,”Five Seasons”:

“It is foolish and childish, on the face of it, to affiliate ourselves with anything so insignificant and patently contrived and commercially exploitive as a professional sports team, and the amused superiority and icy scorn that the non-fan directs at the sports nut (I know this look — I know it by heart) is understandable and almost unanswerable. Almost. What is left out of this calculation, it seems to me, is the business of caring — caring deeply and passionately, really caring — which is a capacity or an emotion that has almost gone out of our lives. And so it seems possible that we have come to a time when it no longer matters so much what the caring is about, how frail or foolish is the object of that concern, as long as the feeling itself can be saved. Naivete — the infantile and ignoble joy that sends a grown man or woman to dancing and shouting with joy in the middle of the night over the haphazardous flight of a distant ball — seems a small price to pay for such a gift.”

A small price indeed.

2. PBS may be a progressive propaganda organ, but the facts will out. A streaming service offers the channel’s documentaries for a pittance, and they are a reliable source of perspective and enlightenment. One that my wife and I watched this past week was about the development of the FDA and other federal agencies that protected the public and workers. When workers at manufacturing plants making leaded gasoline started dying of lead poisoning, the government scientists’ solution was to just ban the product. General Motors and Standard Oil fought back and overturned the ban, assuring Congress that they could make leaded gas safe to produce, and they did. This was a classic example of why we must not let scientists dictate public policy: leaded gasoline transformed transportation and benefited the public. The scientists’ approach was just to eliminate risk; they didn’t care about progress, the economy, jobs or anything else. Science needs to be one of many considerations, and when scientists have been co-opted by partisan bias, as they are now, this is more true than ever.

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Morning Ethics Warm-Up, 9/15/2021: “Having A Hard Time Keeping Up” Edition

Just a housekeeping note…I am struggling to find a way to keep Ethics Alarms reasonably current and informative at a time when the ethics issues are resembling an avalanche from my point of view. Avoiding the trap of letting political matters eat the blog is also a constant chore; it has been for many years, but the problem seems to be getting worse. The daily warm-up format was developed to help me cover more issues, but it has become an amazingly time-consuming project, usually taking me two hours on most days. That’s still less than it would take to cover each of the four or five items in full posts (tagging, proofreading and completing the links now takes longer than ever, thanks to WordPress “improvements). Of course, posting 8 or 9 posts a day instead of just three or four would help traffic, which depresses me, but unfortunately, I have other responsibilities. Then there are the long-delayed but promised Part Twos and Threes that are staring at me like unpaid debts, making me feel guilty. I can’t believe the Ethics Scoreboard would have an essay a week, and sometimes not even that. I’ll figure it out….

1. Well, this makes me feel a little better...it appears that the commentariat on both Ann Althouse’s blog and the home of Professor Turley’s usually excellent analysis have also become overwhelmingly conservative as the progressives have fled except for a few determined souls. Ann and the professor are both left-leaning, but their integrity has led them to be critical of the progressive hive as well as the news media that nourishes it. Being objective is now the mark of an evil conservative, apparently, or so their critics claim. That’s a horrifying cultural development, but at least the flight of the progressives on Ethics Alarms was not an isolated phenomenon.

2. More on “Peril”...

  • The story in Bob Woodward’s latest book about Gen. Milley’s breach of the chain of command because, apparently, he was biased by several Big Lies about his Commander in Chief only rated page 16 coverage in the New York Times, behind, for example, Squaw Valley changing its name because a lifetime petty criminal was accidentally killed by a Minnesota cop. Meanwhile, this is front page, multiple op-ed stuff over at the Washington Post. It the Post’s Bob Woodward’s claims are true, then it should be a front page story in both papers. If it isn’t, THAT’s a front page story. 
  • Of course, the story may be garbage, but the Post won’t consider that. Example: in a piece by Greg Sargent called “Awful new revelations about Trump and Jan. 6 show Mike Pence is no hero,” this excerpt from “Peril” is cited as factual enough to be called an “awful revelation.” Trump and Pence are supposedly arguing about whether Pence should block the certification of the election:
“If these people say you had the power, wouldn’t you want to?” Trump asked.
“I wouldn’t want any one person to have that authority,” Pence said.
“But wouldn’t it be almost cool to have that power?” Trump asked, according to Woodward and Costa.
“No,” Pence said. He went on, “I’ve done everything I could and then some to find a way around this. It’s simply not possible.”
 
How can these quotes be believed? It was a conversation between two people. Trump wasn’t Woodward’s source, and neither was Pence. Yet we are told that these are exact quotes. Unless Woodward was there, which he wasn’t, the account is hearsay at best, and maybe third- or fourth-hand hearsay. Greg Sargent, however, believes them, and a Post editor thinks that’s enough to justify representing a fabricated conversation as real.
 

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“Is We Getting Dummer?” Based On The Mainstream News Media’s Propaganda On The Texas Heartbeat Law, We Is, And That’s What They Want

Texas law hysteria

Op-eds that make American dumber shouldn’t be published. There is an op-ed in today’s New York Times by Jamelle Bouie, adding another fact-free rant to the current freak-out over the so-called Texas freak-out law. Bouie chooses to repeat a theme of his from other columns, that the case proves that the Supreme Court “has too much power.” Bouie was first spotted by Ethics Alarms as Slate’s resident race-baiter, a job at which he was embarrassingly bad. Naturally, this qualified him to be added to the New York Times stable of socialists, fantasists and Trump-Deranged fanatics, since one incompetent and biased black columnist (Charles M. Blow) wasn’t enough in these times of “diversity and inclusion.”

Bouie, on the topic of the Supreme Court, literally (which I mean literally) doesn’t know what he is talking about. He is not a lawyer, and if he ever read a whole Supreme Court decision (or had someone knowledgeable explain one to him), I’ve seen no evidence. of it. Guess which of the (incompetent) dissents to the SCOTUS majority decision not to suspend the Texas law when there is no procedural precedent for doing so. Come on, guess! Why Sonia Sotomayor, speaking of “diversity and inclusion,” of course. She was a cynical choice for the Court by Barack Obama, using approximately the same identity-based standards that made Kamala Harris Vice-President.

Non-lawyers love to quote Sotomayor, because she seldom makes legal arguments, just emotional ones. “The court has rewarded the state’s effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the court’s precedents, through procedural entanglements of the state’s own creation,” she wrote this time, in a snippet being repeated by other pro-abortion hysterics. That’s because the Court doesn’t strike down unconstitutional laws until the government tries to enforce them. What Bouie cites as an example of the Court having too much power is in fact proof that its power is limited.

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Ethics Hero: Prof. Jonathan Turley (And The Indefensible Whitewash Of The Shooting Of Ashli Babbitt)

michael-byrd-ashli-babbitt

Ethics Alarms already noted Jonathan Turley’s accurate and searing condemnation of the outrageous and sinister double standard applied to Lt. Michael Byrd, the Capitol Police officer who shot and killed Ashli Babbitt on January 6. Incredibly, the blatantly partisan wound on the illusion of our justice system’s integrity got worse after Turley’s first post on the topic. The investigation of the mind-meltingly stupid riot concluded that it was not coordinated, was not incited by Donald Trump, and was not an “insurrection,” just as any objective and reasonably informed citizen could have figured out by themselves. Then Byrd, whose identity had been shielded from the public (and oddly unrevealed by the mainstream media, who could have discovered and published it if they were still practicing journalism), gave a nauseating NBC interview in which he pronounced himself a hero, made the absurd claim that he had saved untold lives by shooting an unarmed woman, and, most significantly, revealed that he had no legal basis to use deadly force. (He also revealed himself to be unfit to be trusted with a weapon.)

This prompted Turley to write his second attack on the politicized cover-up. Turley, despite the names he is called by the aspiring totalitarians of the Far Left and the Trump-Deranged, is a Democrat and a lifetime liberal. Because of what can only be an abundance of character, he has not had his values warped by being marinated in the campus culture of his typically uber-woke institution, George Washington University. Not had he shied away from disparaging the illiberal and anit-Democratic antics of the Axis of Unethical Conduct (“the resistance,” Democrats and the mainstream media) during their four-plus year effort to destroy Donald Trump. He has been remarkably consistent, legally accurate, fair, and right in this, and has paid the price.

In the Virtues, Values and Duties page here (Have you ever visited? You should you know…) I list what I call “The Seven Enabling Virtues.” These are character traits that often are necessary to allow us to be ethical:

  1. COURAGE
  2. FORTITUDE
  3. VALOR
  4. SACRIFICE
  5. HONOR
  6. HUMILITY
  7. FORGIVENESS

Turley annoys me sometimes with his professorial reserve (developments that should send American screaming into the streets are just “troubling” or “problematical” in his typical lexicon), but he is well-girded in all of the seven. Every time he goes against the prevailing progressive narrative, he is called a Trumpist, a phony, a Nazi, and worse. His integrity and dedication to truth-telling has undoubtedly cost him speaking gigs, book sales and TV interviews on any network but Fox. Yet Turley has not backed down.

Turley’s recent article in The Hill regarding the Babbitt shooting is superb.

Highlights:

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The Ashli Babbitt Cover-Up

Someone please explain how the closing of the investigation of the shooting of Ashli Babbitt can be reconciled with the sentence just handed down in the case of the Alabama officer who shot an allegedly suicidal man who would not drop his gun.

The US Capitol Police officer who shot and killed pro-Trump rioter Ashli Babbitt on January 6, 2020 will not face any disciplinary action. “USCP’s Office of Professional Responsibility (OPR) determined the officer’s conduct was lawful and within Department policy, which says an officer may use deadly force only when the officer reasonably believes that action is in the defense of human life, including the officer’s own life, or in the defense of any person in immediate danger of serious physical injury,” the department said in a statement. The department will not name the officer out of consideration for the officer’s safety, although his name has been unofficially on the web for quite a while. If this is not a USCP double standard, it is certainly a journalism and political double standard. A black officer who shot an unarmed white women is protected with official anonymity while one white officer after another in police-involved shootings of black men have had their names not only released, but published and made the targets of attacks by elected officials.

Prof. Jonathan Turley, hardly a rabble-rouser, writes in damning prose:

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Scared Yet? I Want To Hear A Legitimate Defense Of YouTube Censoring Senator Paul’s Speech…

Spoiler: There isn’t one.

Senator Rand Paul (R-KY), the U.S. Senate’s most passionate libertarian, was suspended from YouTube for expressing his strong opposition to Wuhan virus mandates and calling for widespread citizen resistance. This is res ipsa loquitur: Big Tech is using its corporate power to support government policies and prevent dissent. The argument that YouTube (that is, Google) is a private entity and not bound by the First Amendment is disingenuous, just as similar arguments defending Facebook, Twitter and other social media banning President Trump as well as posts that offer opinions and positions they don’t want the public to see. When corporations use their massive power and influence to suppress speech and control the flow of information, they pose an existential threat to democracy. When they exercise this power to advance the political agenda of a specific group, individual or party, that threat is worse. When they are censoring and distorting on behalf of the government, the threat is dire.

Paul released a rebuttal and condemnation of YouTube’s indefensible action, and it was also taken down by Our Video Masters. You can view it here, on Rumble. If I could embed it, I would.

Let me turn the floor over to Professor Turley, not as an appeal to authority, but because there is no reason for me to write in different words what he has said persuasively already:

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