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Distributism and Capitalism: Some contrasting features

This article is part of my posts on the economic system of distributism.  This is from practicaldistributism.blogspot.com which you can find here:

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G. K. Chesterton’s younger brother, Cecil, gave what is probably the most succinct definition of distributism, or rather of a distributist in an article he wrote in 1917.

A Distributist is a man who desires that the means of production should, generally speaking, remain private property, but that their ownership should be so distributed that the determining mass of families – ideally every family – should have an efficient share therein. That is Distributism, and nothing else is Distributism. … Distributism is quite as possible in an industrial or commercial as in an agrarian community. …[1]

This is an excellent definition of the formal economic arrangements of distributism, and moreover it points out the fact that distributism does not require that everyone become a farmer and that it will not hinder the progress of technology, as our critics sometimes assert. But while this definition highlights the structural aspect of well- distributed property ownership, which is the heart of distributism, there is more to distributism than that. For if distributism were simply a rearrangement of who owns what, but to be carried on in the same spirit with which capitalism is carried on, then eventually it would lead to the same economic and social ills that capitalism has produced. Rather, distributism requires a very different approach to mankind’s economic activity, an approach that is focused on providing for our legitimate needs but not on inflaming our fallen appetites for more and more consumer goods.

Capitalism, as Pope Pius XI characterized it in his encyclical Quadragesimo Anno, #100, is the separation of ownership from work. In other words, in a capitalist economy some people own the means of production and hire others to work for them. Now, strictly speaking, as Pius XI points out, there need not be anything unjust about such an arrangement, provided that a just wage is paid and the other stipulations of justice are observed. But in actual practice capitalism has rarely if ever observed the demands of justice. And it is not hard to understand why. An owner of capital has at least three strong temptations to exploit the economic process by turning it away from service to the common good toward merely his own enrichment.

First, since he is not directly the producer of a product, not himself a maker, he tends not to be focused on quality products out of pride of workmanship, but rather on producing by means of his workforce something that will sell. Attention to quality is governed by considerations of expenses versus profits, and even by consideration of possible product liability costs versus profits. In the most extreme form of capitalism, the corporation, most shareholders, although legally owners of the firm, have absolutely nothing to do with what it makes or sells, and hence are interested merely in their dividends or in rising share prices. And in one step even further removed, mutual funds, owners often do not even know what companies their funds invest in, and such investments are often short-term and change rapidly. It is true that in some old-fashioned capitalist enterprises the owner is involved in the business and may have some pride of craftsmanship. But as long as the owner is actively involved in the business, then there is still a distributist element in the firm, however small.

Secondly, because he is chiefly and directly interested in sales, not production of a quality product, if something will sell, that is pretty much the only question he considers. By means of advertising capitalists engage in persuasion to convince people to buy their products. In cases of authentic need, people know they need something and will go to seek it. If they are hungry, they will buy food, if they want something to read, they will buy a book. But advertising attempts to convince people that they need things they had no previous idea they needed. It directly stimulates people’s acquisitive appetites, and thus helps create a society preoccupied with consumer goods.

The third temptation which capitalist enterprise puts before an owner is to withhold justice from his workers. Workers are always a negative item in a capitalist balance sheet, and hence a strong temptation to reduce labor costs by holding down wages, laying off workers, moving jobs overseas, or even replacing the workforce with robots, if that is possible. For a capitalist all these choices can seem entirely rational. And they are all rational according to the logic of capitalism. But they all miss the point with regard to the logic of man’s economic activity, which is not about making unlimited profits for those who happen to hold economic power. If all workers could be replaced by robots, the workers might legitimately ask, Hey what about us? How are we supposed to obtain what’s necessary for us and our families if we are replaced by robots? How are we even supposed to buy what you yourself produce in your factories? But the actual trajectory of capitalism has too often seen workers replaced by machines, laid off, or underpaid, so that they cannot procure what they and their families need.

With distributism, however, while certainly social and economic difficulties would exist, the pathologies fostered by capitalism would be eliminated or at least reduced. A small business owner generally takes pride in his work and his customer service, and sees his craft or trade as more than merely a means of moneymaking. He usually derives from his work more than merely an economic return, for, as John Paul II pointed out in his first social encyclical, Laborem Exercens, the “various actions belonging to the work process…must all serve to realize [the worker’s] humanity, to fulfill the calling to be a person that is his by reason of his very humanity” (#6).

In addition, a distributist economy would not be complete without guilds or occupational groups, whose purpose is to orient economic activity toward fulfilling human needs rather than toward selling products of dubious quality or usefulness. And lastly, the employer\employee divide would be largely done away with under distributism. Larger enterprises would be run as worker cooperatives, and so decisions about automation or new equipment which could potentially replace workers would be made with more than an eye on profits alone. Certainly technological development would continue, but we should note that technology can take more than one direction. When capitalists make the decisions and directly or indirectly determine what kinds of technological research is done, then new inventions will often be of the kind which increase profits by making workers unnecessary. But in a distributist society research will focus on other ways to reduce costs or increase efficiency without necessarily reducing the need for workers – who, after all, will now themselves be the owners.

Because of this altered focus of the economic system, and of the society as a whole, many things that are taken for granted in a capitalist system would hardly exist under distributism. A short time ago I pointed out here why this would be the case with unemployment, certainly one of the perennial scourges of capitalism. In the next part of this article I will take up the subject of business cycles, and show how in a distributist economy their presence and importance would be considerably lessened.

There are many supposed facts of economic life that any student of economics, or even any observer of political and economic news, is familiar with, matters such as unemployment, corporate mergers and acquisitions, labor relations, business cycles, and so on. I call these supposed facts, not because they do not exist, but because their existence is contingent upon man-made economic arrangements, such as laws and tax structures or even cultural norms. Contrary to the impression one takes from writings both of professional economists as well as from journalists, these things and events are not natural and necessary facts like the changing of the seasons or the daily rising of the sun. They need not exist, certainly at least not to the extent that they do in a capitalist economy. Let us take one of the items from the above list, business cycles, and consider it more carefully.

What are business cycles? “A business cycle is a swing in total national output, income, and employment, usually lasting for a period of 2 to 10 years, marked by widespread expansion or contraction in most sectors of the economy,” is how the economist Paul Samuelson defines business cycles in his macroeconomics textbook.[2] Although everyone living in a capitalist economy is familiar with such cycles, or their effects, one might wonder why, apart from the special and external factors I will note below, such cycles exist. Consumer demand for necessary and reasonable goods normally will not fluctuate much – demand for food, clothing, housing, books and the like. Nor will the size of the workforce, and hence of the economy’s ability to provide consumer goods, usually experience short-term major decreases or increases. Thus there is no reason to expect the two most important factors in moving an economy, demand and the ability to supply that demand, to change significantly in a short period of time. Of course, external factors, such as famines, natural disasters, wars, migrations, and so on can cause a sudden and large increase or decrease in either demand or the capacity to supply that demand. As such, a distributist economy will be as subject to such external dislocations as is a capitalist economy. They are simply an inescapable part of life on this earth. But there are other factors which are peculiar to capitalism which have caused probably the majority of business cycles, at least the majority of those which have occurred in recent decades.

Capitalism is fueled by an imperative of production for the sake of sales, regardless of consumers’ needs or of their spontaneous desires for the goods or services in question. As such, it always rests upon foundations which are liable to be shaken. Distributism, on the other hand, rests upon the solid foundation of human nature and its natural needs and reasonable desires. But capitalist demand, which is usually artificially stimulated by advertising, is necessarily fickle or fragile. The artificial desire for larger and larger houses or cars, for example, tends to drive up prices of those goods, and can lead to so-called bubbles in which prices rise exponentially. Eventually these bubbles will burst. Such extreme up and down movements of prices can cause numerous related economic dislocations, such as panics or depressions, which are simply instances of severe business cycles.

History is marked by bubbles in which speculative prices were driven up far beyond their intrinsic value…. Speculative bubbles always produce crashes and sometimes lead to economic panics.[3]

In addition, although criminal greed is a characteristic of postlapsarian mankind in general, it is capitalism that has institutionalized such greed, and even praised and rewarded it. So, for example, exploitative or risky financial practices by banks are not always illegal, and even when illegal, those engaging in such practices often go unpunished or lightly punished because of the overall climate of opinion in a capitalist society, which tends to take a benign view of economic misdeeds. In the Middle Ages in Europe usurers were popularly regarded as among the most heinous of sinners, and this popular judgment was based on the teachings of society’s intellectual elite, theologians, canon lawyers, philosophers and so on. The popular climate of opinion in contemporary America, on the other hand, reserves whatever moral animus it still has for other types of misdeeds, and too often among Christians believers it is only sins against the 6th or 9th commandments which are seen as really worthy of condemnation. All this is the result of the pervasive commercial mentality which affects most Americans.

The point of all this is that the natural end of mankind’s economic activity is to supply our necessary and reasonable need for external goods and services. This is why God has given us the capacity to engage in economic activity. Given the fallen state of mankind, however, it is usually necessary to erect laws and institutions to guide our conduct toward its intended end. This distributism seeks to do in the economic realm. Capitalism, on the other hand, not only has done away with the safeguards against economic misdeeds which the Catholic civilization of an earlier age set up, but suffers from an inherent tendency toward economic exploitation and dislocation. And the commercial cultural climate which capitalism has produced fails to understand that any other way of carrying on economic activity is possible or feasible. But this is not the case. Catholics, in particular, who have a developed critique of economic conduct available in the Church’s social teaching, have an especially grave responsibility to form their thinking according to this teaching. Capitalism is not inevitable. There are other real possibilities. It is chiefly a matter of our having the will to bring about the changes that are necessary in our economic activity. But it can be done.

Notes:
1: Shaw and My Neighbour’s Chimney,” The New Witness, May 3, 1917, p. 13.

2: Macroeconomics, 16th ed., 1998, p. 125.

3: Ibid., p. 177.

You can find the original publications here and here.

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Why Unemployment is a Pseudoproblem

This article is part of my posts on the economic system of distributism.  This is from practicaldistributism.blogspot.com which you can find here:

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Unemployment a pseudoproblem? By calling it that, I do not mean that unemployment does not exist, or that it is not a very serious concern for the unemployed, their families and for society as a whole. What I mean and will argue here is that unemployment is not something natural to economic life, but is a problem created almost entirely by the capitalist arrangement of our economy, one that would largely disappear under a distributist economy, and that is taken for granted by the academic discipline of economics only because that discipline has long been captive to the ideology of capitalism.

The study of economics, especially in its neoclassical and Austrian forms, developed as a theoretical elaboration of capitalism and industrialism as they came to maturity in Europe in the 18th century and afterwards. Most often economic thought has not only assumed capitalism, but has been a mouthpiece for capitalism, in fact, a sophisticated attempt to provide a justification for the disparity in incomes and for the social dislocations that are such notable characteristics of the capitalist world. In face of this complex structure of thought, it can be helpful to return to the basics of human behavior upon which economic life is based in order to discover a different and more accurate way of conceptualizing mankind’s economic activity.

Let us first look at the three different types of economic unemployment as these are enumerated and acknowledged by economists.[1] First, and of little importance for our discussion, there is voluntary or otherwise short-term unemployment of people between jobs, between school and a job, and so on. This is sometimes referred to by economists as frictional unemployment. If the other two types of unemployment are eliminated or reduced, this type will be of little concern.

Then there is what economists call structural unemployment, which Paul Samuelson describes as

a mismatch between the supply of and the demand for workers. Mismatches can occur because the demand for one kind of labor is rising while the demand for another kind is falling, and supplies do not quickly adjust…. [For example], the demand for coal miners has been depressed for decades because of the lack of geographical mobility of labor and capital: unemployment rates in coal-mining communities remain high today.

Thirdly, there is cyclical unemployment, which Samuelson explains as occurring “when the overall demand for labor is low. As total spending and output fall, unemployment rises virtually everywhere.”[2]

These latter two types of unemployment require separate discussion. First let us look at the question of structural unemployment. It arises chiefly because of new technology or on account of some external cause, such as, in the case of coal miners, heightened concern about air pollution. The former cause, new technology, is the more common occurrence. In an economy dominated by capitalists, people who own the means of production, new technology presents an opportunity for higher profits achieved via lower costs. A new or improved device makes a certain number of workers unnecessary. Since labor is a cost item in a capitalist’s balance sheet, there is rarely any conflict in the capitalist’s mind about what to do: if he can save money by eliminating workers and buying machines he will do so. But in a distributist economy this would not be such an open and shut decision. When workers themselves control the enterprises in which they work, either individually or cooperatively, there are other considerations besides merely increased profits. New technology can and will be adopted, but its adoption will be balanced against other equally important economic and social needs, job and family security, social stability, and the like.

Moreover, we should recognize that technology can develop in many ways, and that replacing men by machines is not the only way to secure improved production. In any case, if we remember that the economy is an important but subordinate part of human social life, we will not regard technological improvements as the summum bonum. Right now, with capitalists mostly calling the shots in the economy, their view usually prevails, and what we like to call economic efficiency wins against any of the human concerns and needs that an economy is supposedly subservient to. If an economy could do without workers altogether and produce more cheaply and quickly solely by means of robots, would this really be a benefit to mankind? Would not the fact that the now unemployed workers could no longer afford to buy any of the robot-produced goods signify that such an economy had entirely inverted means and ends?

What if technological advances across the board make it possible for our consumption needs to be supplied by merely a portion of the labor force? The obvious answer to that is, if it is no longer necessary for everyone to work eight hours to supply mankind’s needs, let everyone work a little or a lot less, enough so that mankind’s needs are taken care of. If this can be done with everyone working six hours instead of eight, well and good. Here, though, we run into one of the shibboleths of neoclassical economics, the so-called “lump of labor fallacy.” Samuelson explains this notion as follows:

Whenever unemployment is high, people often think that the solution lies in spreading existing work more evenly among the labor force. For example, Europe in the 1990s suffered extremely high unemployment, and many labor leaders and politicians suggested that the solution was to reduce the workweek so that the same number of hours would be worked by all the workers. This view – that the amount of work to be done is fixed – is called the lump of labor fallacy.

What is wrong with this idea, according to Samuelson?

[T]he lump of labor argument implies that there is only so much remunerative work to be done…. A careful examination of economic history…shows that an increase in labor supply can be accommodated by higher employment, although that increase may require lower real wages.[3]

What is one to make of this argument? If we examine it, Samuelson appears to mean that if workers are willing to work for lower wages, some capitalist will employ them to produce something that he thinks he can sell, and thus absorb the unemployed workers. This is no doubt often true, but this says nothing about the relationship between the total amount of goods being produced at a certain point in time, the total number of workers existing at that time, and how that work is to be apportioned among them. At the point when the unemployment in question arose, why was it not a reasonable policy to distribute the work more evenly? If the economy hitherto has been producing a sufficient amount of goods to supply consumption needs, and then unemployment increases due to technological changes and a reduced need for human labor, clearly the total quantity of potential workforce effort is now greater than is needed. Thus reducing everyone’s hours seems like an entirely reasonable response. Society possesses the productive capacity to satisfy consumer needs but no longer requires the same amount of labor. Thus both the amount of work, as well as the product of work, can be distributed among the total labor force, taking into account the new technology.

The fact that Samuelson thinks that only by employing workers at lowered wages can this problem be addressed, shows that he is assuming as a fact of nature the position of dominance by capitalists and the corresponding subordinate position of workers. Of course, capitalists are not likely to pay workers the same wage they previously received if they now work fewer hours. But both the productive capacities of the workers remain the same, society’s need for goods and services remains the same (in the short run), and the economy’s capacity to produce has increased. Any mismatch is in the connection between the worker and the means of production. A response that has regard both for the purpose of an economy and its connection with the social fabric as a whole would see reduced work hours as a logical response to the situation.

Next let us look at the question of cyclical unemployment, that type which comes about “when the overall demand for labor is low” because of a business cycle downturn. I am afraid my argument will seem hopelessly naive to most economists. But that does not mean that it is wrong, only that the elaborate superstructure that economists have erected over the past couple centuries tends to obscure some obvious economic facts.
God created human beings with both the capacity for work and the need to consume. In fact, these two characteristics balance one another in that anywhere there are people, there are both producers and consumers. Thus it would seem that everywhere people can do the work which supplies them with the goods they need. The human capacity for work corresponds roughly with our need for the products of that work. The more people, the more workers, the fewer people, the fewer workers. What does this have to do with the question of unemployment? If in general each person is able to perform productive work sufficient to supply at least his own needs, then why should anyone be idled, unable to work? Does not each person create his own demand and at the same time provide the means for supplying that demand?
The reason that any particular person’s capacity for work cannot be the means of his supplying his needs is usually because he is denied access to the means for production, to land or tools, for example. On occasion a harsh environment makes it difficult to take advantage of mankind’s capacity to produce, but in general this is rare. This is not a problem, then, that arises from the nature of human economic activity, it is an organizational problem, one ultimately occasioned by the question of who owns or controls land or tools. The more complicated the relationship between individuals and the means of production, the more likely is some sort of organizational or structural difficulty which impedes people’s ability to work and produce. Capitalism heightens this tendency not only by the complexity of its structure, but by creating a class of owners whose primary and direct interest is not in producing for the needs of mankind, but in convincing people to buy their product, whether needed or not, whether well-made or not.
Hence in capitalism there exist business cycles, those alternating periods of boom and bust which are the causes for the cyclical decrease in the demand for labor, and which come about because of capitalism’s propensity toward overproduction and speculation. Since the tendency in capitalism is simply production for the sake of sales, not production for the sake of reasonable use, the tendency to overproduce is always present because the capitalist class, people one step or more removed from actual production, have little or no interest in production as such. But under a well-functioning distributism, with a healthy structure of intermediate occupational groups (guilds), part of whose aim is to match economic activity with society’s needs, business cycles would either not exist or would be milder and less disruptive.
We can see how the complexity of a capitalist structuring of the economy contributes to the imbalances that create cyclical unemployment if we contrast that with a very simple distributist economy. In such an economy, one in which all workers owned their land and tools and produced whatever was needed for themselves and their families, the immediate connection between work and consumption would be obvious, since each person would be the primary producer of most or all of what he and his family needed, and the one-to-one correspondence between a worker’s need to consume and his ability to produce would be obvious. Of course such an economy is hardly possible outside of a primitive level of culture, and in any case is not desirable. The division of labor, though it can be extended too far, has obvious benefits to humanity, and I know of no distributist who opposes it. Indeed, the medieval urban distributist economy assumed and fostered the division of labor up to a point. But what we should note here is that the more complex the connection or relationship between workers and the means of production, the more possibility that a worker will be hindered in the exercise of his ability to produce. Distributism tries to keep that connection as simple as the division of labor and other necessary factors will allow, while capitalism needlessly elaborates that by shifting emphasis from production for fulfillment of human needs, to production oriented toward sales, toward new products that often have little utility, together with a constant preoccupation with higher profit margins, so that capital seeks not merely a sufficient return, but an ever higher one.
Any society and economy that is structured toward man’s genuine welfare ought to seek to make use of the obvious connection between the human need to consume and the human ability to work and produce.
This must be kept front and center in our economic thinking, and any needless elaborations and complexities which are introduced into the economy must be eliminated or at least watched carefully lest they create conditions, such as unemployment, which are socially or economically harmful. In a distributist economy the natural relationship between production and consumption would be one of the fundamental principles of its economic organization.
But in addition to the three types of economic unemployment that economists note, there is another type which they are reluctant to acknowledge, or at least to regard as a significant problem. This is unemployment caused by trade agreements. Although the trade facilitated by agreements such as NAFTA can be called free only with numerous qualifications, still it is usually in the direction of freer trade that such agreements lead. Such trade pacts are based on the neoclassical doctrine of comparative advantage, which Paul Samuelson calls “one of the deepest truths in all of economics.”[4]
Comparative advantage is based upon a fact, to be sure, that countries excel better at some products than others, and from this it is argued that it is in the interests of all countries to specialize in the products that they can produce most efficiently in order to increase the overall living standard of all countries. While superficially plausible, in fact there are major objections against the theory. In the first place, it treats each country as if it were merely a site for production, ignoring cultural or legal factors. For example, the unique cultural and legal situation of Mexico included Indian villages which held land in common and which in consequence were able to be self-supporting in food. Trade agreements which require land to be freely bought and sold destroy such communities, despite any elegant graphs that economists concoct purporting to prove that everyone will be better off under these agreements. More fundamentally, the theory of comparative advantage assumes that more and more stuff, what is called economic growth, is the summum bonum of human life. Consider Samuelson’s discussion of objections to international trade agreements.

    But this does not mean that every individual, firm, sector, or factor of production will benefit from trade…. Recent studies indicate that unskilled workers in high-income countries have suffered reductions in real wages in the last three decades because of the increased imports of goods from low-wage developing countries….

    The theory of comparative advantage shows that other sectors will gain more than the injured sectors will lose. Moreover, over long periods of time, those displaced from low-wage sectors eventually gravitate to higher-wage jobs…. Nations that disregard comparative advantage pay a heavy price in terms of their living standards and economic growth.[5]

Unfortunately, “over long periods of time” most of those unskilled workers will be dead long before they manage to “gravitate to higher-wage jobs,” and in the meantime the towns and cities in which they live will be devastated, their families often hurt, social problems will develop, and in general the real standard of living – which is not measured in terms of how much stuff we possess – will decline. The overall amount of available commodities might increase, at least for some people, such as economics professors, but at the cost of buying goods produced by poorly-treated workers in “low-wage developing countries.” International trade can be beneficial to all parties, but only if many more factors besides the total quantity of goods produced and sold are considered. Distributism, since it is more than an economic system, would tend to create a society which did not give material goods a greater value than they deserve. As St. John Paul II wrote in his encyclical Centesimus Annus,

It is not wrong to want to live better; what is wrong is a style of life which is presumed to be better when it is directed toward “having” rather than “being,” which wants to have more, not in order to be more but in order to spend life in enjoyment as an end in itself. (no. 36)

Mainstream economic thought is based on the idea that human life is not about “being,” but about “having,” about, as Samuelson avers, producing enough stuff so that “the average American could live at the level of the average doctor or big-league baseball player.”[6] This is nothing other than the philosophy of Hell, a point of view opposed to any Christian conception of life. International trade need not create unemployment, but it will do so if it is based on the notion that any increase in the amount of commodities produced, sold or traded, is a good thing, regardless of any effect it has on human life, individual or social.
Unemployment need not exist, or at least, need not be the problem that it so often is in a capitalist economy. If we are willing to rethink economic principles in the light of fundamentals, then we will see that distributism offers a way out of the capitalist orientation of economic activity which diverts it from its natural end of providing for the genuine consumption needs of mankind.
Notes: 
1: Note that I am dealing with unemployment as an economic question only. It is arguable that there exists what might be called cultural unemployment, but this is outside of the scope of this article.

2: Quotations from Paul Samuelson, Macroeconomics, 16th ed., 1998, p. 259.

3: Paul Samuelson, Microeconomics, 17th ed., 2001, pp. 257-58.

4:  Paul Samuelson, Macroeconomics, 16th ed. 1998, p. 388.
5:  Paul Samuelson, Microeconomics, 17th ed. 2001, p. 306.
6:  Ibid., p. 4.
You can find the original publications here and here.

VA Updates Guidelines On Religious Exercise At Its Facilities

This is from religionclause.blogspot.com which you can find here:

On Aug. 19, the Veterans Administration issued an internal memorandum (full text) updating its Policy Guidance on Religious Exercise and Religious Expression In VA Facilities.  The memo revises a 2014 Guidance.  A press releaseyesterday from the Chaplain Alliance for Religious Liberty welcomes the revision, saying in part:

This should make clear that churches may sing Christmas carols and distribute Christmas cards at VA hospitals. Further, veteran organizations may set up MIA/POW tables that include a sacred text.

You can learn more about this issue here.

Parties in Dependency: Proper Notice and Participation Is Essential

The stakes in a dependency matter are extremely high.  Indeed, one’s parental rights over his child could be forever terminated in such a matter, so it is imperative that the parties involved receive sufficient notification of the hearings which take place and are given a full opportunity to participate.  The trial court, in In the Interest of K.S., a Minor, Appeal of: A.L.W., 2017 WL 1162449, has made it clear that proper notice and participation of the parties is absolutely essential in a dependency case.

In K.S., the child-at-issue (“Child”) was placed into a series of homes due to mistreatment and/or an inability of the Child’s parents to care for the Child.  Due to the instability of the Child’s housing, Children and Youth Services (“CYS”) eventually filed a Shelter Care Application requesting temporary placement of the Child into the custody of CYS.  A hearing was scheduled for the Shelter Care Application, however the Child’s mother (hereinafter “Mother”) and father were both incarcerated at the time of that hearing.

The attorney for Mother appeared at the hearing and requested a continuance of the same because, while Mother wanted to attend the hearing, she was unable to do so due to her incarceration and, perhaps more importantly, the prison in which she was incarcerated refused to allow her to participate at the hearing by telephone.  CYS opposed the continuance request on the basis that Mother, regardless of whether she could participate at the hearing, could not receive custody of the Child due to her incarceration.  In other words, as placement was the subject of the hearing, and Mother could not receive placement, her participation would not result in her receiving placement regardless of whether she appears and/or participates.

The trial court agreed with CYS and denied the continuance.  CYS then proceeded to request an Adjudicatory Hearing, with Mother’s attorney objecting again due to her unavailability.  The trial court overruled Mother’s attorney’s objection and granted CYS’s request to adjudicate the Child dependent.

The trial court, at the conclusion of the hearing, adopted CYS’s recommendations, issued a Shelter Care Order, granted CYS custody of the Child, and issued a Dependency Order.  Mother subsequently filed a timely notice of appeal of the above-described court orders.  Mother raised two issues on appeal: (1) she believed the trial court erred in denying her ability to participate in the above-described hearing; and (2) she believed the trial court erred in determining that the best interests of the Child would be served by denying her due process.  Mother pointed out that there were no exigent circumstances which required an immediate adjudication of the case before affording her opportunity to participate.

On appeal, Mother argued that the clear operation of the relevant procedural rules regarding notice and service were violated which justifies vacating the trial court’s adoption of CYS’s recommendation.  In making her argument, pointed out three procedural rules.  First, Mother argued that there was a lack of compliance with Pennsylvania Rules of Juvenile Court Procedure Rule 1331.  Rule 1331(A) states that “[u]pon the filing of a petition, a copy of the petition shall be served promptly upon the child, the child’s guardian, the child’s attorney, the guardian’s attorney, the attorney for the county agency, and the county agency.”  Furthermore, even if the parent is not a child’s guardian, she still must receive service of a Dependency Petition.  Second, Mother points to a failure to abide by Pa.R.J.C.P. 1361 which requires the following: “[t]he court shall give notice of the adjudicatory hearing to…(4) the parents….”  Third, Mother also argues that the requirement of the terms of Pa.R.J.C.P. 1360(A), namely, “[t]he court shall issue a summons compelling all parties to appear for the adjudicatory hearing” was not complied with by the trial court.  Rule 1360 goes on to say: “[t]he summons shall: (1) be in writing; (2) set forth the date, time, and place of the adjudicatory hearing; (3) instruct the child and the guardian about their rights to counsel, and if the child’s guardian is without financial resources or otherwise unable to employ counsel, the right to assigned counsel; (4) give a warning stating that the failure to appear for the hearing may result in arrest; and (5) include a copy of the petition unless the petition has been previously served.”  Fourth, pursuant to Pa.R.J.C.P. 1406(A)(1)(a), the trial court was to specifically ascertain whether the notice requirements of Pa.R.J.C.P. 1360 and 1361 were met (the Rule specifically states “(1) Notification. Prior to commencing the proceedings, the court shall ascertain: (a) whether notice requirements pursuant to Rules 1360 and 1361 have been met….”

Upon the Superior Court’s review of the underlying matter, it observed that the trial court failed to comply with the Rules noted above.  First, the Dependency Petition in this case was filed the same day as the Shelter Hearing and appears in the record after the entry of the Shelter Care Order.  Obviously Mother could not have received service of the Petition per Rule 1331.  Second, due to the timing of the Petition, as compared to the applicable Shelter Care Order, Mother simply could not have received service per Rule 1331.  Third, the notice of the Adjudicatory Hearing was, strangely, entered on the same day as the hearing itself, and therefore obviously could not have provided Mother notice per Rule 1361.  Fourth, while there appears to have been a summons issued per Rule 1360, no affidavit of service was filed for the same pursuant to Pa.R.J.C.P. 1363.  As a result, there is nothing in the record suggesting Mother was properly served with the summons.  Furthermore, nothing in the record reflects any reasonable efforts to notify Mother of the above were made (see Rule 1363(E)).  To that end, Superior Court observed that due to the prison’s inability to provide Mother with the opportunity to telephonically appear at the hearing, she could not have been provided notice during the hearing itself.  Finally, the trial court never even took the opportunity to ascertain if the service requirements of Rules 1360 and 1361 were met before moving forward with the Adjudicatory Hearing.

Based on the above, the Superior Court held that the trial court abused its discretion by holding an Adjudicatory Hearing without ensuring strict compliance with the service rules noted above.  Consequently, the Superior Court vacated the trial court’s order and remanded the case for a new hearing ensuring Mother can participate.  Ultimately, for practitioners, this decision makes it abundantly clear that the service requirements noted above will be strictly enforced requiring that ensuring compliance is paramount.

Originally published in The Legal Intelligencer on July 11, 2017 and can be found here and republished in the Pennsylvania Family Lawyer in its October 2017 issue and can be found here.

Inmate Has Broader Damage Remedy Under RFRA Than Under RLUIPA

This is from religionclause.blogspot.com which you can find here:

In Crowder v. Lariva2016 U.S. Dist. LEXIS 122966 (SD IN, Sept. 12, 2016), an Indiana federal district court permitted a Hebrew Israelite inmate to move ahead against one of the prison chaplains on his complaint that he was denied a kosher diet. Because plaintiff was a federal inmate, he sued (in addition to his 1st Amendment claim) under RFRA instead of RLUIPA, and the court held that he had broader remedies as a result:

Jones [the chaplain] also argues that because the Seventh Circuit in Nelson v. Miller, 570 F.3d 868, 887 (7th Cir. 2009), held that the similarly-worded RLUIPA does not allow for the collection of money damages against individuals, the same reasoning should apply to RFRA. But there are at least two important differences between RLUIPA and RFRA that compel a different conclusion. First, … the statutory language of RFRA defines “government” as, among other things, an “official (or other person acting under color of law).” …Congress thus envisioned at least some individual-capacity suits under RFRA…. Second, RFRA, which applies to federal action, and RLUIPA, which is applicable to state action, arise from different principles.,,, [T]he portion of RFRA that authorizes lawsuits against the states was held unconstitutional because such an application exceeded Congress’s power under the Enforcement Clause of the Fourteenth Amendment in City of Boerne v. Flores…. RLUIPA was enacted in response to City of Boerne … as an exercise of Congress’s spending power[.] …[I]nterpreting that statute to allow damages actions against state officials in their individual capacities would ‘raise serious questions regarding whether Congress had exceeded its [constitutional] authority.'” … [S]uch considerations are not at issue when applying RFRA because RFRA’s application to federal action is not based on the Spending Clause…. For these reasons, the Court concludes that RFRA does allow for the recovery of monetary damages against officers in their individual capacities

You can learn more about this issue here.

Title VII’s Religious Organization Exemption Protects Salvation Army

This is from religionclause.blogspot.com which you can find here:

In Garcia v. Salvation Army(D AZ, Sept. 12, 2016), an Arizona federal district court dismissed a Title VII religious discrimination claim brought against the Salvation Army by a former social services coordinator for the organization.  Plaintiff claimed that she was subjected to discrimination, retaliation, and hostile
work environment after she stopped attending services at the Salvation Army’s Estrella Mountain Corps where she was employed.  The court held that Title VII’s religious organization exemption applies to plaintiff’s claim, and that the Salvation Army did not waive the defense by failing to assert it as an affirmative defense.

You can learn more about this issue here.

Company Settles With EEOC Over Firing of Seventh Day Adventist

This is from religionclause.blogspot.com which you can find here:

The EEOC announced last week that North Carolina-based Greenville Ready Mixed Concrete, Inc., has agreed to a $42,500 settlement in the EEOC’s suit (see prior posting) against it for firing a Seventh Day Adventist employee who refused a Saturday work assignment. The company has also agreed to a 5-year consent decree requiring it to create an anti-discrimination policy, engage in employee training, post notice about the lawsuit and submit periodic reports to the EEOC.

You can learn more about this issue here.

 

Church’s RLUIPA Claim Dismissed, But Defamation Claim Moves Forward

This is from religionclause.blogspot.com which you can find here:

In Riverside Church v. City of St. Michael, (D MN, Aug. 31, 2016), a Minnesota federal district court dismissed a church’s RLUIPA and free exercise claims, but allowed the church to proceed on its free speech and defamation claims. A Christian and Missionary Alliance congregation attempted to purchase a building formerly used as a movie theater but could not obtain city zoning approval.  Eventually the city amended its zoning ordinance to allow religious assemblies, among others, in the relevant zoning district.  The Church however sued over the past zoning denials, and over an allegedly false public statement the city made as to why the Church withdrew from negotiations with the city.  In dismissing the Church’s RLUIPA claim, the court concluded that neither the substantial burden nor equal terms provisions of the law were violated.  The court also pointed to a less-often used safe-harbor provision in RLUIPA that allows the city to “avoid the pre-emptive force” of the statute by taking action to eliminate the substantial burden imposed by a policy.  In allowing the Church’s free speech claim to proceed, the court concluded that questions remained as to whether the ban on religious assemblies in the relevant zoning district was narrowly enough tailored to the city’s traffic safety concerns.

You can learn more about this issue here.

What is the purpose of our economic activity?

This article is part of my posts on the economic system of distributism.  This is from practicaldistributism.blogspot.com which you can find here:

____________

Based on a talk given at
The American Chesterton Society Conference
5 August, 2016
When we look at the economic conduct of mankind and ask ourselves why the human race engages in such activities, I suppose that everyone would admit that we do so in order to produce goods and services for our use. So far, so good. But I submit there are two contrasting ways of looking at this activity and the products that result from it. This contrast can become clear if I juxtapose two quotations that exhibit two very different attitudes toward the economic activity of mankind. The first is from St. Thomas Aquinas, who wrote that “…the appetite of natural riches is not infinite, because according to a set measure they satisfy nature; but the appetite of artificial riches is infinite, because it serves inordinate concupiscence….” (1) St. Thomas was here contrasting real economic goods – “natural riches” – with “artificial riches” – money and other surrogates for real wealth. The former serve us, they “satisfy nature,” and we desire only enough of them as we can reasonably use, for there is only so much stuff which any person can actually use, and if we acquire more than that, we must resort to devices such as renting storage bins in order to keep our extra and unnecessary possessions, something which in St. Thomas’ time happily did not exist. But even in the thirteenth century it was easier to store up money than actual physical things, and today this is incomparably easier, since bank statements and stock certificates take up very little space. But these sorts of goods can serve “inordinate concupiscence,” for there is a constant temptation to acquire and retain more than we really need or that can possibly serve any genuine human need.

My second quote is from the late Paul Samuelson, winner of a Nobel prize in economics, who wrote

An objective observer would have to agree that, even after two centuries of rapid economic growth, production in the United States is simply not high enough to meet everyone’s desires. If you add up all the wants, you quickly find that there are simply not enough goods and services to satisfy even a small fraction of everyone’s consumption desires. Our national output would have to be many times larger before the average American could live at the level of the average doctor or big-league baseball player. (2)

Here we have two opposed conceptions of the purpose of economic activity, one which is focused primarily on what is natural to humanity, which fulfills human needs, and the second which deliberately abstains from any moral consideration of human desires. If someone wants something, that’s all that matters. The economy exists to satisfy any and all desires.

Now I should note that Aquinas is not asserting that it’s only our basic needs for food or shelter or clothing that are natural. The purposes for which we need material goods can be broadly divided into two parts: first, the absolutely necessary goods, sufficient food, water, shelter, to keep the human race alive. But if we stopped there we would be like ants or bees. They also engage in work to provide for themselves these necessities of life. Human beings, however, are rational animals, that is, our capacities surpass the merely material level, and hence for us a proper human life is not limited simply to survival. We need objects of beauty, music, books, even, in some measure, devices and inventions that make life easier or save time and effort. Without these a properly human life is impossible or difficult. But all the same, St. Thomas sets up human nature as the standard against which man’s economic activity must be measured, whereas Samuelson simply takes each and every demand for a good or service as a given.

I trust I don’t need to belabor which of these two attitudes toward economic activity and material things ought to characterize a Christian, whether Catholic, Protestant or Orthodox. Holy Scripture itself is quite clear on this point:

…if we have food and clothing, with these we shall be content. But those who desire to be rich fall into temptation, into a snare, into many senseless and hurtful desires that plunge men into ruin and destruction. For the love of money is the root of all evils; it is through this craving that some have wandered away from the faith and pierced their hearts with many pangs. (I Tim. 6:8-10)

In Centesimus Annus St. John Paul II speaks of “the right to possess the things necessary for one’s personal development and the development of one’s family” (no. 6). And in the same encyclical he writes in another passage (no. 36),

It is not wrong to want to live better; what is wrong is a style of life which is presumed to be better when it is directed toward “having” rather than “being,” which wants to have more, not in order to be more but in order to spend life in enjoyment as an end in itself.

Now I realize that it’s not always easy to say how much is “necessary for one’s personal development and the development of one’s family.” In fact, there is apt to be disagreement about what is a reasonable standard that satisfies nature. And to some extent such disagreement is to be expected, for it’s impossible to calculate such a standard with mathematical exactness. But the important thing, and certainly the first thing to do, is to recognize that mankind’s economic activity and the products that result therefrom do have a purpose, to “satisfy nature,” and not to satisfy simply any and every desire prompted by the wish “to spend life in enjoyment as an end in itself,” so that everyone can live in the manner of a major-league baseball player. At some point, any sensible person will have to admit that the needs of nature have been satisfied, and that anything beyond that is simply excess.

Now, If we accept what I have said so far, what logically follows? We can apply the teaching of St. Paul and St. Thomas and St. John Paul not only to individuals and families, but also to societies.  I am aware that many individuals and families do seek in some degree to acquire and use material goods according to these stipulations and warnings. In a society such as ours this is not easy to do, and, as I just said, it’s often very difficult to decide what is a reasonable standard of living that will satisfy nature, especially since American society can make it difficult to live a countercultural life. In this regard I will note only two things.

First, as Benedict XVI wrote in his encyclical Caritas in Veritate (no. 37), “every economic decision has a moral consequence.” Since the kinds of stores we patronize, the kinds of products we buy and use, have consequences that are both economic and environmental, therefore they have both moral and spiritual consequences for each of us. Someone who desires to “live at the level of the average doctor or big-league baseball player” is making decisions which not only have moral consequences but unavoidably shape that person’s soul according to a particular pattern. A lifetime of our economic decisions will determine whether we have shaped ourselves according to the image of Samuelson’s economic man or to the opposite pattern suggested by Holy Scripture and the writings of the saints.

Secondly, just as it’s very difficult for someone raised in a society saturated by pornography and sexual promiscuity to realize what a sane and healthy sexuality is, so it’s hard for us who were raised in a commercial society, a society which more or less makes riches and material goods an idol, to realize what a sane attitude toward work and material goods is. In both cases we have to strive, using all the means of grace available, to form sound judgments. But now I want to turn our attention to the question of society as a whole, that is, about how a society that seeks to orient its productive activity toward satisfying nature might conduct itself.

The following is a description, from Richard Tawney’s seminal book, Religion and the Rise of Capitalism, of the outlook of Medieval Europe toward work and material goods.

Material riches are necessary; they have a secondary importance, since without them men cannot support themselves and help one another; the wise ruler, as St. Thomas said, will consider in founding his State the natural resources of the country. But economic motives are suspect. Because they are powerful appetites, men fear them, but they are not mean enough to applaud them. Like other strong passions, what they need, it is thought, is not a clear field, but repression. There is no place in medieval theory for economic activity which is not related to a moral end, and to found a science of society upon the assumption that the appetite for economic gain is a constant and measurable force, to be accepted, like other natural forces, as an inevitable and self-evident datum would have appeared to the medieval thinker as hardly less irrational or less immoral than to make the premise of social philosophy the unrestrained operation of such necessary human attributes as pugnacity or the sexual instinct.

And he continues with his description of medieval economic ethics:

At every turn, therefore, there are limits, restrictions, warnings, against allowing economic interests to interfere with serious affairs. It is right for a man to seek such wealth as is necessary for a livelihood in his station. To seek more is not enterprise, but avarice, and avarice is a deadly sin. Trade is legitimate; the different resources of different countries show that it was intended by Providence. But it is a dangerous business. A man must be sure that he carries it on for the public benefit, and that the profits which he takes are no more than the wages of his labor. (3)

And another historian wrote along similar lines,

We can, therefore, lay down as the first principle of mediaeval economics that there was a limit to money-making imposed by the purpose for which the money was made. Each worker had to keep in front of himself the aim of his life and consider the acquiring of money as a means only to an end, which at one and the same time justified and limited him. When, therefore, sufficiency had been obtained there could be no reason for continuing further efforts at getting rich,…except in order to help others. (4)

The questions I’d like to consider now concern how a truly Christian society would implement these ideals. Many people, certainly most Americans, would think that adherence to such standards must be something purely voluntary. At most, the Church would seek to persuade people of its desirability via her preaching and catechesis. And certainly that is the first thing to be done, to create a social consciousness that the pursuit of riches beyond what one needs is both criminal and stupid. Criminal because it helps create a society that upholds false ideals and corrupts all of our souls, stupid because it detracts from what life in this world is about, and above all, because it makes more difficult our attainment of eternal life. I am not asserting that it is a sin simply to be rich, but I do assert that riches are almost always a near occasion of sin, and therefore we’d better be pretty sure we have a genuine justification for our riches. And especially do we need a very good justification for seeking more riches if we already have enough so that the demands of nature are satisfied.

But there is more. You’ll notice what Tawney said in the passage I just quoted, “At every turn, therefore, there are limits, restrictions, warnings, against allowing economic interests to interfere with serious affairs.” A Christian society will not be content to simply use moral persuasion in order to correctly orient out attitude toward work and material goods. If nothing else, such a society will make it rather hard for someone to get rich. It will certainly do nothing to facilitate such acquisition of riches, and it will try to structure its laws, tax code and general economic arrangements so that it is easy to earn enough to support one’s family, but hard to do more.

Many are familiar with the taxation scheme suggested by Hilaire Belloc in his 1936 book, The Restoration of Property, according to which any enterprise which exceeded a certain size would be taxed at such a high rate that no one would expand his business beyond a modest size. I know that many people have an instinctive violent reaction against such proposals, but those who do should ask themselves a couple questions. How is this an unjust restriction? How is anyone’s true good harmed by such laws? Until recently we as a society in the United States saw this clearly with regard to that other great human appetite, sexual satisfaction. Within the lifetime of many of us divorce was in most states difficult to obtain, pornography was strictly regulated or even prohibited, homosexual activity illegal. And laws on the books even forbade adultery, even if they were rarely enforced. Even today prostitution is illegal in nearly every state.  We justified these restrictions by saying that such activity was contrary to both the natural law and the revealed law of God, harmful to individuals and to the social order, and that therefore the free choices and desires of individuals could justly be limited in such matters.

If we are serious about conforming our lives to the norms of morality with regard to money and property, the same argument applies: “those who desire to be rich fall into temptation, into a snare, into many senseless and hurtful desires that plunge men into ruin and destruction.” The disordered striving after riches is as hurtful to the common good as is the disordered striving after sexual pleasure.  Both material wealth and sexual pleasure are true goods, but they are goods only in their rightful places. No one’s genuine freedom or legitimate rights are infringed upon if the pursuit of wealth is hindered and directed toward legitimate channels, even by use of state power, just as no one’s genuine freedom or legitimate rights are infringed upon by legal restrictions on disordered sexual behavior.

There is a wonderful quote from G. K. Chesterton in What’s Wrong With the World that juxtaposes so well these two areas of human behavior.

I am well aware that the word “property” has been defiled in our time by the corruption of the great capitalists. One would think, to hear people talk that the Rothchilds and the Rockefellers were on the side of property. But obviously they are the enemies of property; because they are enemies of their own limitations. They do not want their own land; but other people’s…. It is the negation of property that the Duke of Sutherland should have all the farms in one estate; just as it would be the negation of marriage if he had all our wives in one harem. (5)

If it is proper to prevent the Duke of Sutherland from obtaining all of our women as his wives, why is it not proper to prevent him from obtaining all the property as his own?

Let me go one step further, or one level deeper, in our exploration of this topic. Most people who would object to what I just said about the use of social or legal power to restrict our acquisitive appetites, would object, I think, because, usually unknowingly, they hold an idea about social or political authority which is grounded not in classical philosophy or Holy Scripture, but in the Enlightenment of the 18th century, most notably in the writings of John Locke. Government, according to this notion, is merely a necessary evil, necessary because of mankind’s tendencies toward anti-social conduct. “If men were angels,” wrote James Madison in Federalist no. 51, “no government would be necessary.” Implicit in such a notion is the idea that man’s natural state is a-social, and that every restriction we accept as part of living in society is a restriction on our natural freedom, justified usually by the benefits which sociey brings, but still, something essentially unnatural, something which inhibits our natural freedom. Most political discourse in the United States, of both liberals and conservatives, simply assumes such an understanding of freedom and society.

Here again, though, we find Thomas Aquinas teaching a different view. In the Summa Theologiae (I, q 96, art 4) he asks whether there would have been subordination of man to man in the state of innocence, i.e., without Adam’s fall into sin. And he answers his question clearly, saying Yes.  Although there would not have been the domination (dominium) characteristic of the slave (servus), who is “ordered to another,” there would still have been the kind of subjection proper to the free man, when someone directs him to his own good or to the common good. And the primary reason given by Aquinas for this is because man is “naturally a social animal” and “social life cannot exist unless someone presides who aims at the common good.” In other words, according to Aquinas, even if our first parents had never sinned and lost the state of original justice, we still would have required a sort of government, a government that would not have needed to punish anyone, but was still there to coordinate and direct our efforts toward the common good.

I submit that this difference between St. Thomas and Locke manifests the fundamental error of almost all political discourse in the Anglo-Saxon world, especially the United States. But Locke is simply wrong: man is by nature a political animal, our natural state is one of community, with all the necessary restrictions that such community requires and implies. This is not to justify tyranny or to deny that personal political freedom is a good, but it is to insist that such political freedom is far from the highest political virtue.  Justice is more important than freedom, and in fact, any understanding of freedom which regards it as primarily the right to do anything which one pleases, is a disordered understanding. Just as marriage vows do not limit our true sexual freedom, but actually allow for human sexuality to flourish in proper freedom, so society, including government, is not a restriction on man’s legitimate freedom, but the precondition for a true flourishing of such freedom. We do not trade a certain amount of freedom for a certain amount of security, as in the Lockean myth of the social contract, but we are placed by God and nature into society, without which freedom would be a meaningless exercise in randomness.

As a result, then, if a society attempts to channel its economic activity toward the common good, it in no way infringes on real economic freedom. Rather it provides the necessary means by which economic activity can attain its true end: not the goods and services that satisfy everyone’s consumption desires, but the appetite for natural riches which according to a set measure satisfy nature. This is true Christian wisdom, this is the teaching of the Church, the command of Holy Scripture, and the sure way toward our eternal salvation.

Notes:
(1) Summa Theologiae, I-II, q. 2, a. 1 ad 3.

(2) Microeconomics, 17th ed., 2001 p. 4.

(3) Richard H. Tawney, Religion and the Rise of Capitalism, New York, 1926, pp. 31-32.

(4) Bede Jarrett, Social Theories of the Middle Ages, pp. 157-158.

(5) Part I, chapter 6.

Moorish-American Religious Defense To False Identity Charge Fails

This is from religionclause.blogspot.com which you can find here:

Thomas v. Commonwealth, (VA App., Aug. 16, 2016), involved an appeal by defendant of his conviction for providing a law enforcement officer a false identity with intent to deceive.  Defendant, who was driving with a suspended license, told police during a traffic stop that his name was “Barry Thomas-El.” Police were unable to locate information on anyone with that name from the Department of Motor Vehicles, and only later identified him as “Barry Nelson Thomas, Jr.”  At the trial court level, defendant attempted to raise a religious free exercise defense, arguing that use of the suffix “El” was an exercise of his religious beliefs as a Moorish-American national. The trial court excluded evidence relating to this defense.  The Virginia Court of Appeals affirmed, largely on procedural grounds, saying in part:

At the motion in limine hearing, appellant’s counsel argued that adding the suffix “El” to appellant’s name was an act of free exercise noting his “rebirth” within the Moorish American community…. However, appellant’s counsel failed to properly proffer what appellant’s testimony would have been at trial.

The court also upheld the trial court’s exclusion of several documents relating to defendant’s claim of Moorish-American citizenship, saying:

As the documents are political, rather than religious, in nature, they lack any tendency to make the existence of a religious imperative more or less probable. As such, they are irrelevant and thus not admissible.

You can learn more about this issue here.

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