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ARCHIVE -- MAY 2000 (I)


May 10 -- Another billion, snuffed.  You don't have to be a Microsoft shareholder to wonder whether antitrust law has become a destabilizing influence on the business world.  In late March a Paducah, Ky. federal jury ordered U.S. Tobacco, the number one maker of snuff and chewing tobacco, to pay a staggering $1.05 billion to its smaller competitor Conwood in an antitrust dispute.  UST, whose annual sales are $1.5 billion -- meaning that the verdict equals the entire gross revenue it takes in over eight months of a year -- makes such brands as Skoal and Copenhagen, while Conwood manufactures the Kodiak brand.  The finding of $350 million in damages will be automatically trebled under antitrust law if not overturned.  "Both companies accused each other of removing display racks from stores, making under-the-table cash rebates to win retailers and holding strategy sessions to plot out how to eliminate the other from the lucrative retail-checkout market."  (No!  Not strategy sessions!)  In addition, "Conwood attorneys accused U.S. Tobacco of spreading rumors that Conwood's snuff contained stems and was stale."  ("U.S. Tobacco Co. Faces $1.05B Payout", AP/Milwaukee Journal Sentinel, March 29; Andrew Edgecliffe-Johnson, "US tobacco group faces possible $1bn payout", Financial Times, March 30

May 10 -- Court okays suit against "flagging" of test conditions.  In San Francisco, federal judge William Orrick Jr. has rejected a motion to dismiss a case in which Oakland-based Disability Rights Advocates is suing the Educational Testing Service, charging that it's discriminatory for ETS to "flag" test scores taken under special conditions.  "Accommodations" such as extra or unlimited time, the right to have questions explained, and the right to use calculators have become common in recent years following the aggressive use of disabled-rights law by test-takers; in a majority of cases the operative diagnosis is not a traditional disability such as blindness or paraplegia, but one such as learning disability or attention deficit disorder.  If the lawsuit succeeds in banishing the loathed asterisk, test-takers will win the right to conceal from downstream institutions, such as medical schools and employers, the fact that a particular result was achieved with extra time or other assistance.  (Michael Breen, "ETS Discrimination Case Goes Forward", The Recorder/CalLaw, April 14). 

DRA director of litigation Sid Wolinsky is also representing parents in a challenge to the state of Oregon's refusal to allow test-takers to use automatic spell-check on statewide exams.  "I see an enormous amount of potential litigation" ahead on such issues, he says.  In Woburn, Mass., some special-needs students are given the whole day to complete a writing exam normally administered in ninety minutes, another indication that "two national movements [are] on a collision course: disability rights and educational standards."  (Daniel Golden, "Meet Edith, 16; She Plans to Spell-Check Her State Writing Test", Wall Street Journal, Jan. 21 (fee-based archive)). 

May 10 -- This side of parodies.  Infant wins one-billionth-litigant prize as America adopts as new motto "It's not my fault" (Paul Campos, "Everyone suits up for latest litigation", Rocky Mountain News, May 2).  Grim news you always feared about "gateway sodas": ("Mountain Dew Users May Go On To Use Harder Beverages", The Onion, April 26).  And the colorless, odorless, tasteless industrial solvent and prominent component in acid rain that kills thousands of people each year, most through inhalation but also from withdrawal symptoms given its evident addictiveness. Contamination is reaching epidemic levels -- the horror must be stopped!  ("Ban dihydrogen monoxide!", Donald Simanek site, undated -- stored Google search). 

May 9 -- Mother's Day special: Arizona unwanted-birth trial.  At a trial under way in Phoenix, Ruth Ann Burns is suing her family physician and obstetrician for failing to diagnose her pregnancy as early as they should have.  She says she'd have aborted her two-year-old toddler Nicholas had she known in time that he was on the way, though he is perfectly healthy and she claims to dote on him now.  The doctors say Burns herself didn't think she was pregnant when she first sought medical attention and say when the pregnancy was discovered she still had time to pursue an abortion, but chose not to.  (Senta Scarborough, "Doctors sued for unwanted pregnancy", Arizona Republic, May 4).  A columnist for the Arizona Republic wonders what the boy will think when he grows up and learns that his mother swore out oaths as to his unwanted, impositional nature (E.J. Montini, "Unwanted boy blooms in the future", May 7). 

May 9 -- Not with our lives you don't.  More evidence that rank-and-file police aren't happy about Clintonites' scheme to skew city gun procurement to punish manufacturers that don't capitulate to lawsuits (see April 14-16).  Many cities presently allow officers a choice of which gun to carry, and Smith & Wesson hasn't been a popular choice in recent years.  "Local officials acknowledge they are reluctant to risk hurting morale by ending officers' ability to choose their weapon," the news-side Wall Street Journal reports -- "morale" being a bit of a dodge here, since the risks at issue go beyond the merely psychological.  In Flint, Mich., the mayor has asked the police department to buy S&Ws, "but the chief's firearm experts have rated the Sig Sauer as more durable and accurate, and the police rank-and-file prefer the better-known and easier-to-shoot Glock."  Miami-Dade is "considering offering a $100 rebate for selecting a Smith & Wesson", in effect establishing the kind of experiment of which cost-benefit analysts are so fond, measuring people's willingness to accept cash payment in exchange for giving up a degree of perceived personal safety.  A second obstacle to the scheme is that most jurisdictions have open-bidding laws aimed precisely at keeping politicos from pitching public business to favored contractors on a basis other than price and quality, but Sen. Charles Schumer (Democrat, New York) helpfully plans to introduce legislation to allow bypass of such laws.  (Vanessa O'Connell, "Plan to Pressure Gun Makers Hits Some Snags", Wall Street Journal, April 11, subscription site). 

Plus:  The gun lawsuits have become an issue in the presidential contest, with Vice President Al Gore, one of their ardent supporters, assailing Texas Governor George W. Bush for not pledging to veto legislation that would curtail them ("Bush, Gore camp trade questions on guns, credibility", AP/FindLaw, May 5).  And: this weekend's pro-gun-control "Million Mom March" in Washington, D.C. has picked up endorsements ranging from President Bill Clinton to plaintiff's class-action firm Bernstein, Litowitz, Berger & Grossmann LLP and the Association of Trial Lawyers of America -- if that's much of a range, politically speaking (March sponsors list, link now dead; ATLA endorsement; Terence Hunt, "Clinton Endorses Million Mom March", AP/Yahoo, May 8, no longer online). 

May 9 -- In Michigan, important judicial races.  Eyes of knowledgeable litigation reformers this fall will be on Michigan where three Supreme Court justices appointed by Republican Gov. John Engler -- Clifford Taylor, Robert Young and Stephen Markman -- are up for election (see Jan. 31).  The trio enjoy a growing reputation as thoughtful jurists who share a skepticism toward expansive new liability doctrines; the state's trial bar is expected to pour almost limitless funds into its attempt to defeat them.  "The head of the Michigan Trial Lawyers' Association has said privately that individual law firms have pledged as much as $500,000 each for the effort". (Abigail Thernstrom, "Rule of Law: Trial Lawyers Target Three Michigan Judges Up for Election", Wall Street Journal, May 8, reprinted at MI site). 

May 8 -- No more Fenway peanut-throwing?  For nineteen years Rob Barry has worked in the stands at Boston's Fenway Park, tossing bags of peanuts to hungry Red Sox fans.  Grown-ups gasp and children cheer at his sure aim in lobbing the bags across intervening rows of spectators, but now he's in trouble with management: "Aramark, the company that provides remarkably mediocre hot dogs and $4.50 cups of beer, has a rule, and that rule prohibits vendors from throwing food in the stadium."  Although admittedly "there are no recorded cases of catastrophic injury caused by a bag of peanuts," you can never be too safe: before long some other food vendor might follow his example, "and soon you'll have a cotton candy spear sticking through some young fan's eye and a cash settlement that could cost the Red Sox Nomar Garciaparra."  Barry says he's thinking of just retiring if he can no longer practice the peanut-tosser's art: his father worked at Fenway for 45 years, while two beer-serving sisters have put in a combined 44 years.  (Brian McCrory, "Vendor tossed from the game", Boston Globe, May 5, link now dead). 

May 8 -- "Lilly's legal strategy disarmed Prozac lawyers".  Little-noted story of how drugmaker Eli Lilly & Co. has managed so far to fight off a wave of lawsuits over its antidepressant Prozac, quietly settling some stronger cases while maneuvering aggressively to win a favorable jury ruling in the relatively weak one arising from the Wesbecker (Standard Gravure) shooting-spree in Louisville.  (Jeff Swiatek, Indianapolis Star, April 22). 

May 8 -- Trial lawyers' political clout.  "Invited Speaker: President William Jefferson Clinton" -- highlight of the brochure in last week's mail promoting the Association of Trial Lawyers of America's 2000 annual convention in Chicago.  (Does not currently appear in online version (PDF)).  Among other scheduled speakers: Sens. Richard Durbin (D-Illinois) and Max Cleland (D-Georgia).  "Who will be the most influential political player making independent expenditures in this yearís presidential election?" asks Wall Street Journal editorialist John Fund.  The AFL-CIO, the religious right, the NRA?  More likely lawyers flush with new tobacco fees:  "a comprehensive study by Citizens Against Lawsuit Abuse found that trial lawyers gave 78 percent of all contributions to the Texas Democratic Party in the 1998 election cycle, when Bush was running for re-election."  ("Invasion of the Party Snatchers", MSNBC, May 2).  Last year by a 4-3 majority, the Ohio Supreme Court tossed out a 3-year-old tort reform package.  Per Ohio Citizens against Lawsuit Abuse, "since 1992 the four justices in the majority received $1,528,054 from personal injury attorneys", compared with $70,704 for the three dissenting justices.  Doug Bandow, "Buying Justice: Plaintiffs' Lawyers Reap Huge Dividends by Investing in Judges and Politicians", syndicated column, Dec. 16, 1999, reprinted in Cato Daily Commentary, Dec. 28, 1999

May 8 -- Atlantic City mulls bond issuance to finance lawsuit payouts.  The New Jersey resort city is so frequently sued, especially in employment and police cases, that it's considering issuing special bonds to cover a possible $12.3 million exposure from 23 lawsuits.  (Henry Gottlieb, "Suit City, Here We Come", New Jersey Law Journal, April 4). 

May 5-7 -- Pro malo publico.  Elite law firms endlessly congratulate themselves on the pro bono publico work they perform, seeing it as the "penance they pay for serving a capitalist system", in Judge Laurence Silberman's words.  Too bad so much supposedly public-interest litigation is in reality actively harmful to the public interest as well as to the persons and institutions on its receiving end, argues Heather Mac Donald.  Despite its reputation for being done gratis, pro bono work often brings in very rich court-ordered fee awards from opposing parties, and it also helps shape the legal profession's continuing impulse to use the courtrooms for feats of social engineering.  Homeless advocate Robert Hayes, who has fought for a new right of shelter-on-demand for the homeless, was asked why he litigated rather than taking his case to the legislature.  "Personally, I don't like politics," he replied. "It's really hard."  (Heather Mac Donald, "What Good Is Pro Bono?", City Journal, Spring). 

May 5-7 -- Lion's share.  Tangled class action litigation against commodities brokerage, now the subject of a petition for review before the Supreme Court, in which plaintiffs' lawyers were accorded $13 million in fees, twice the $6.5 million that their clients wound up getting.  "The system stinks," says Paul Dodyk of Cravath Swaine and Moore.  "The class gets screwed."  Also mentions this website (Bernard Condon, "Conspiracy of Silence", Forbes, May 1). 

May 5-7 -- Comment of the day.  Accepting an award for general excellence at the National Magazine Awards on Wednesday, William L. Allen, editor in chief of National Geographic, said: "I would hug my staff, but our legal department has advised me not to."  (Alex Kuczynski, "Levity Prevails as Awards Are Handed to Magazines", New York Times, May 4, no longer online). 

May 5-7 -- Liked your car so much we kept it.  Last year New York City seized Pavel Grinberg's 1988 Acura, Joe Bonilla's brand-new Ford Expedition, and Robert Morris's 1989 Grand Prix, on suspicion of their owners' drunken driving.  However, all three men were cleared of the charges in a court of law.  So of course the city gave them their cars back, right?  Don't be naive.... (Gersh Kuntzman, "Rudy Driven To Excess in His DWI Crackdown", New York Post, Feb. 7). 

May 4 -- Sports lawsuits proliferate.  "More and more, the sports section looks like the rest of the newspaper. First commerce swallowed chunks and now the law has come along to take a bite. In the last few days, we've read stories about coaches suing players, fans suing players and now another player preparing to sue his league."  Toronto coach Butch Carter has now dropped his suit against Knick forward Marcus Camby (see April 25-26), but it's still "getting tougher by the minute for pro sports leagues to call their own shots.... The chain of command in sports is being yanked at every opportunity, from all sides, often with the aid of the court system." (Jim Litke, AP/Excite, April 27; "Raptors' coach doesn't get apology", AP/ESPN, undated). 

May 4 -- Splash of reality.  A judge has imposed sanctions of $10,000 each against New Rochelle, N.Y. attorney Gordon Locke and client Kenneth Lariviere "for bringing a frivolous breach-of-contract action against members of a board that refused to authenticate a work the two men claimed was painted by Jackson Pollock.  Justice Emily Jane Goodman dismissed the action as a 'laughable and clumsy attempt at fraud, by an individual who, like everyone familiar with the artist's work, wishes he owned a Jackson Pollock painting.'"  Cerisse Anderson, "Lawyer Fined for Frivolous Suit Over Artwork", New York Law Journal, April 12). 

May 4 -- Harassment-law roundup.  "The Internet start-up community is going to be a major target for sexual harassment litigation," says management-side attorney Gregory I. Rasin of Jackson Lewis Schnitzler & Krupman, though the progress of such legal action is for the moment impeded by a job market so robust that would-be plaintiffs are "getting six job offers on the way to their lawyers' offices," as his colleague Garry Mathiason puts it.  (Melinda Ligos, "Harassment Suits Hit the Dot-Coms", New York Times, April 12).  The Equal Employment Opportunity Commission has been filing enforcement actions to back up its position that employers violate the law if they fail to move quickly enough in cleaning up sexually and racially offensive graffiti in employee restrooms and preventing recurrence ("Chicago EEOC Makes Second Move Against On-the-Job Racist Graffiti", Employment Law Weekly, Jan. 20).  The case of Boston bar owner Tom English, subject to charges of "hostile public accommodations environment" by the Massachusetts Commission Against Discrimination for putting up allegedly insensitive seasonal bar decorations, calls attention to a troubling collision between bias law and free speech, writes UCLA First Amendment specialist Eugene Volokh ("Watch What You Say, Or Be Ready to Pay", Jewish World Review, April 13; Federalist Society Free Speech and Election Law Newsletter, sixth March item).  And a jury has awarded Staten Island cop Susan Techky $50,000 after she "testified that male officers wouldn't talk to her, left pornographic magazines in the co-ed bathroom and watched sex videos in her presence in their quarters," as well as keeping nude pin-ups in their locker area, which she had to walk through to get to hers.  "Island cop wins discrimination suit", Staten Island Advance, April 21). 

May 3 -- Ministry of love-discouragement.  Complete bans on dating among office-mates are "unrealistic and difficult to enforce," according to an attorney's advice column on how lawyers representing management can ward off possible harassment-law liability for their firms.  "More practical is to prohibit dating between management and nonmanagement personnel and to discourage, but not completely prohibit, romantic relationships between co-workers.  This may require co-workers to disclose immediately any relationship to their immediate supervisor."  To reduce the likelihood of later invasion-of-privacy claims against the employer, such policies "should put employees on notice that the company reserves the right to inquire into employees' personal lives if necessary to determine whether a relationship exists.... [A]n employer may want to include in its nonfraternization policy a statement indicating that in the event of an office relationship, the company may request that employees execute an agreement attesting to the voluntary nature of their relationship" -- this to forestall the pattern now becoming familiar in which "an employee may decide, after an unpleasant breakup, that the relationship was not consensual after all."  (Nicole C. Rivas, "Employment law: 'love contracts'", National Law Journal, Feb. 7, not online). 

May 3 -- eBay yanks e-meter auctions.  "E-meters" are electrical devices employed by practitioners of the Church of Scientology in counseling church adherents.  Although previously used devices have been resold by private owners for years and were apparently not the subject of licensing agreements that would limit resale, the Church now asserts a copyright interest in the objects that would allow it to legally restrict their distribution, and eBay has recently begun pulling auctions of e-meters to avoid a legal run-in with the church, known in the past for frequent court clashes with its opponents.  Critics say it's another example of how the Digital Millennium Copyright Act encourages online providers to err on the side of timidity when presented with copyright assertions.  ("eBay E-Meter Auctions Yanked", Slashdot, April 28). 

May 3 -- Fee shrinkage.  The Second Circuit U.S. Court of Appeals has upheld a federal court's ruling that two class-action firms representing plaintiffs burned in the Drexel Burnham Lambert fiasco of the 1980s should receive $2.1 million in fees, less than 20 percent of the $13.5 million they sought.  The two law firms -- Milberg Weiss Bershad Hynes & Lerach and Abbey, Gardy & Squitieri -- had argued that it was appropriate to apply a "multiplier" of six to the otherwise going rate for legal fees because a fee recovery of 25 percent was a "benchmark" in the practice of class action law (the recovery for the class was $54 million).  However, the appeals panel upheld Judge Shirley Wohl Kram's reasoning that the case was a promising one with almost certain prospects of a large recovery, so that enhancing rates "would likely result in [counsel's] overcompensation."  (Mark Hamblett, "Cut in Drexel Case Attorneys' Fees OK'd", New York Law Journal, March 31). 

May 3 -- Little League lawsuits.  No, they're not just figments of tort reformers' imaginations.  In Waynesboro, N.C., Nicolas and Alina Rothenberg are suing the national and local Little League, along with local game officials, over an incident where their son was hit in the mouth with a ball, losing two teeth and experiencing "extreme pain and suffering" and emotional distress.  "It was an accident," said Tammy Meissner, the wife of defendant Michael Meissner. "My husband was hitting the ball just like he's been hitting the ball for years and years and years."  ("Accident prompts Little League lawsuit", AP/Winston-Salem Journal, April 23, no longer online).  Another clip from mid-1998, datelined Naugatuck, Ct., describes how two teammates, both 8 years old at the time of the incident, wound up in court after Michael Albert swung his bat in the dugout and hit Brittany Gauvin in the head. ("Little League lawsuit pits 10-year-olds against each other", AP/Danbury News-Times, June 8, 1998). 

May 2 -- "Access excess".   Our editor's May Reason column explores the dangers posed by the Americans with Disabilities Act to the freedom of the Net: countless private websites are currently considered "inaccessible" and will apparently be obliged to undergo systematic redesign, an expensive and cumbersome process that will go far to stifle creative freedom in HTML design (see earlier commentaries).  This column has already drawn one of the biggest reader reactions of anything we've published in a long time -- in future updates we'll try to share highlights from some of the many thoughtful letters that have come in.  (Walter Olson, "Access Excess", Reason, May; also reprinted at Jim Glassman's Tech Central Station). 

May 2 -- North Carolina (& Kentucky & Tennessee) tobacco fees.   The three leaf-growing states were among the last of the fifty to sign onto the Medicaid reimbursement lawsuits against cigarette companies, and by necessity did little of the heavy lifting in developing the case.  North Carolina attorney general Mike Easley picked private lawyer John McArthur to handle the state's grower-advocacy role in the tobacco negotiations, a task McArthur also performed for the other two states; conveniently, he happened at the time to be coming off a stint as counsel to Easley himself.  Now he's rumored to be in line for $1.5 million in fees, concededly far lower than the take of lawyers who represented other states.  Why aren't more precise figures public?  McArthur says it's because of lawyer-client confidentiality.  Easley is favored for the state's gubernatorial nomination in today's Democratic primary, and a spokesman for his primary rival, Lt. Gov. Dennis Wicker, has called for more light to be shed on the fee details: "Certainly the people have a right to know if the attorney general's office is North Carolina's version of 'Who Wants to Be a Millionaire'".  Reporter David Rice of the Winston-Salem Journal writes that "Easley has repeatedly talked about his role in the tobacco settlement, but reporters and others always got the impression that the state hired no outside lawyers in the case"; now Easley says his earlier statements indicating that no outside lawyers had been hired were mischaracterized.  (David Rice, "Wicker aide calls for the disclosure of attorney's fee", Winston-Salem Journal, April 25; Ben White, "Primary Season Resumes in N.C., Ind.", Washington Post, May 1, links now dead). 

May 2 -- IRS drops penny-collection efforts.  "The Internal Revenue Service has stopped collection procedures against a Roswell[, N.M.] businessman who inadvertently came up 1 penny short on his tax return.  Ernest Spence, owner of Valley Glass Co., had been required to pay $286.50 in penalties and interest for the mistake."  Mr. Spence says the error was unintended and resulted from not carrying the fractional penny while doing the arithmetic on the return.  ("IRS backs off man's penalty for 1-cent mistake", AP/Dallas Morning News, April 30). 

May 2 -- Columnist-fest.  More to catch up on: 

* "Itís not about money, most of the plaintiffs or their lawyers will say, itís about the healing process. Baloney."  Anne Roiphe on the prospect of Columbine litigation ("Feeling Tired? Blue? Cranky? Just Sue!", New York Observer, May 1, link now dead). 

*  George Will invokes the many sound arguments against the Victim's Rights Amendment to the Constitution ("Tinkering Again", Washington Post, April 23).  Will has been on a roll recently with columns on death row innocents, campaign regulation and the First Amendment, the Boy Scouts case, and campaign regulation again

* Jacob Sullum on S&W's hapless attempt at a "clarification" of its HUD-brokered settlement: "Perhaps it is dawning on Smith & Wessonís executives that it can be dangerous to show weakness in the face of statist demands. Too bad they didnít pay closer attention to the fate of the tobacco companies, whose efforts at appeasement have only whetted their opponentsí appetites." (syndicated column, April 19). 

May 1 -- Tort city, USA.   Other cities face a handful of slip-fall cases each year, but New York City gets 3,500, paying out $57 million plus large legal defense costs.  When all types of injury litigation are included, the total reaches a staggering $420 million plus defense costs.  What makes the political climate in New York so hostile to the city's interest as a lawsuit defendant?  One reason is the number of powerful Gotham politicians with ties to tort practice, such as Bronx Republican state senator Guy Velella, whose law firm's successful cases against New York City include two separate injury suits on behalf of his parents.  Or Assembly Speaker Sheldon Silver, who rents office space from well-connected tort firm Schneider, Kleinick, Weitz, Damashek & Shoot.  Or Brooklyn Democrat Helene Weinstein, who chairs the state assembly's Judiciary committee and "is of counsel to her father's personal-injury firm ... It's rather like having a Microsoft lawyer in charge of the Congressional committee overseeing antitrust policy."  A jury recently took just an hour to reject a $10 million suit against the city by assemblyman John Brian Murtaugh, who had slipped on ice in a city park while walking his dog and broke his wrist.  (John Tierney, "In Tort City, Falling Down Can Pay Off", New York Times, April 15). 

May 1 -- "Jury flipped coin to convict man of murder".   You think this sort of thing doesn't really happen, but it did happen last week in Louisville:  "A jury unable to decide on a verdict tossed a coin last week to convict a man of murder, prompting a judge to declare a mistrial ... The Jefferson County Circuit Court jury of five men and seven women deliberated about nine hours over two days last week before finding Phillip J. Givens II guilty of murder for killing his girlfriend, Monica Briggs, 29, last May."  Givens faced life in prison on the murder rap, but Judge Kenneth Conliffe declared a mistrial after word reached him of the method the jury had used to break its deadlock: one of the jurors told someone, who told a court employee, who told the judge.  (Kim Wessel, Louisville Courier-Journal, April 25). 

May 1 -- Funny hats and creative drawing.   As part of a discrimination settlement, employees of Detroit Edison now have been given an in-house "Learning Zone" where they can "map out their careers, create personal Web sites and even work on their resumes."  A reporter notes that the room "looks like a preschool for adults," with "puzzles, funny hats, puppets and wall-mounted drawing boards."  One of the plaintiffs in the lawsuit, who has now been installed as "facilitator" of the zone, says that it makes "people feel safe, warm and creative ... It's about the employees."  (Brenda Rios, "Building Careers", Detroit Free Press, April 27). 

May 1 -- In praise of bugs.   "[Computers] should just work, all the time", opines one popular tech columnist, and many others (including advocates of more stringent bug liability) likewise promote the view that "defects are a moral failing, and a complete absence of defects must be assured, whatever achieving this goal does to the cost and the schedule.  But is achieving bug-free software always in the customerís best interest?"  (Gene Callahan, "Those Damned Bugs!", Dr. Dobb's Journal, Dec. 3, 1999, adapted as "In Praise of Bugs", Mises Institute, March 27). 


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