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I'm not so sure that there is no social benefit from across-the-board increases in the abilities of professional athletes. Most sports fans prefer watching the highest level of competition available. Professional games are generally more popular than college games, which are generally more popular than high school games. Men's games are almost always more popular than women's games. Continuously increasing the general level of play will tend to lead to more new records and more new stars, which I think increase fan interest. I'm also unconvinced that steroid use is particularly dangerous compared to legal training methods. It's probably safer to use steroids than to play professional football and it's definitely safer than boxing. Responsible steroid use under a doctor's supervision is really not that dangerous.

I also disagree with your bank robbery analogy. We've never declared a war on bank robbery. The term "war on drugs" is intended to suggest complete intolerance of drug use and the rhetoric of drug warriors often includes words like "eradicate" and "eliminate." You're correct though that the drug war is a failure even if we assume that it has a more modest goal. The only standard by which the drug war is a success is its ability to get tough-on-crime politicians elected. By that measure it's quite successful.


I will post a broad reply to this issue in response to Becker but I would like to address the narrow point about performance enhacing drugs. In particular I think a clear analysis of the situation suggests that government legalization is not only compatible with anti-doping programs in professional sports but actually helpful to this end.

It is clearly naieve to suppose that government laws against performance enhancing drugs can be effective in preventing their use in sports. The bill of rights prevents government mandated drug tests in general (the specific case of sports exempted from monopoly laws will be addressed below) and thus the governments role is reduced to restricting supply and increasing the cost of these drugs. While this might be effective in reducing usage in many contexts in the case of pro sports when the rewards for steroid use can be million dollar salaries and other impressive monetary benefits it is absurd to suggest that supply restrictions can ever increase the price to the point where the monetary benefit is not worth the monetary cost. Quite simply the monetary cost of the drugs is trivial to professional sports players and so we should expect supply restrictions to be totally ineffective.

Of course this does not deny the worry which Posner posed about the cost steroid use poses to other atheletes. So if supply restrictions will not solve the problem what might? The obvious answer is rigorous screening of players along the lines of the anti-doping campaigns for olympic sports. This however is an action which must be taken by the sport and can't be solved by general anti-drug laws.

In fact I would suggest that general drug laws interfere with the goal of effective performance enhancing drug bans. Given that many baseball players no doubt use marijuanna and other recreational drugs they are forced to the position of opposing drug tests in general (on privacy grounds or the like) out of fear that steroid tests will be used to expose their marijuanna usage. Once they are already being tested for drugs in some effective manner it is effectively impossible to protect their harmless use of recreational substances without admiting to the use of an illegal drugs.

If you are unconvinced imagine a future where baseball players are regularly giving urine samples to test for steroids and the baseball commisioner proposes testing for marijuanna as well. It would be nigh impossible to object to this policy without supporting illegal drug use. Instead these players are forced to oppose drug testing in general on privacy grounds and as a result we can't conduct any effective test for performance enhancing drugs.

One might think the government should legislate effective steroid testing in professional sports, or at least those which enjoy special legal benefits. This is a plausible position and deserves discussion however it is important to seperate this from the question of drug illegalization in general. In short we should consider the problem of dissuading performance enhancing drugs in pro-sports and the question of general drug laws seperately.


"We were somewhere around Barstow on the edge of the desert when the drugs began to take hold."
-- Hunter S. Thompson

I agree completely with Posner.

It is good to know that there is at least one
issue in the world of socio-politics and law that I can agree with him on.

Marijuana makes me happy, conservatives should support legalization so that people like me will be preoccupied and incapable of opposing their drive towards universal privatization.

Support the free market! Put the cocaine back in Coke!


I wonder, though, if drugs might increase the rate at which people discount the future, thus making them less responsive to criminal sanctions generally. If that's the case, we might have a strong law-enforcement reason for keeping drugs illegal. Of course, that's only true if drug laws actually reduce the level of consumption which, as Becker points out, might not be true.

One other consideration is whether people will substitute less healthy drugs for the healthier ones currently available. This decision involves a degree of paternalism, but that might be appropriate given the high discount rates of drug consumers. Again, this depends on a crucial assumption: that currently legal drugs are healthier than their illegal substitutes. This is by no means clear, especially in the case of alcohol and marijuana.


I have given this matter thorough consideration, and have come up with a couple interesting opinions that help explain prohibition. First off, I believe the goal of the war on drugs is similar to a war on a desease. If we can erradicate everyone with the desease (knowledge of the existence of drugs) then we will have a society where nobody takes drugs because nobody has taken or heard of them. This is why drug education and treatment is frowned upon in favor of criminalization.

1. America is a industrius society. Any drugs make that make people less productive are villified. Drugs that enhance productivity are encouranged for consumption in mass quantities; caffiene, anti-depressents. I am not being critical of this, it is simply a fact. We work hard.

2. We play hard. We consume hard. America is the land of "binge drinking." Compare our use of tobacco to the Native American use. Moderation is not in our vocabulary. Combining a mind-altering drug with consumer marketing will lead to a tremendous amount of people engaging in said drug to a tremendous degree. It could cripple our society, this is just the nature of our society.

3. Culture wars. The drug revolution that took place in the 1960's had less to do with drugs than with rapid progressivism. Terrence McKenna addressed many of my points in this statement:

"I can't imagine them ever being really legal unless there's a total social transformation because my analysis of it is, the reason everybody from a Marxist state to a Christian oligarchy to a high-tech industrial democracy can get together and agree that psychedelics are a terrible terrible thing is because the social effects of psychedelics being taken by large numbers of people is a kind of deconditioning from the cultural myths, whatever they are. It's no knock on any given society, it's just that if people start taking psychedelics, they start questioning what they've been told about reality. And culture is in the business of keeping you inside a set of predetermined answers to those questions."

4. It is one thing to make drugs illegal, but the ban that is placed upon research is paranoia. Politicians, not medical professionals, have deemed an entire class of substances worthless in any capacity. A similiar decision was made by a sixteenth-century goverment with regard to the telescope.


The traditional argument is that drug use is not truly "victimless" -- that, for example, cocaine makes it more likely that users are going to attack people, and that it's more effective to police the drug as well as the crime itself. HOWEVER, I'd like to float three additional possible rationales for a general prohibition on "strong" drugs, subject to the caveat that the definition is rather arbitrary.

Politically #1: whatever the merits of the traditional libertarian-economic argument (that all the current regime does is effectively impose a high cost on drug users to obtain drugs, and that since this cost is deadweight loss, i.e. wasted activity, it would more efficient simply to impose a high monetary cost for drug use and not waste the resources), it wouldn't play politically. The minute you do this, the entire spectrum of left-right populists who object on principle to anything which "discriminates" against the poor would undermine such a regime. I ask those who objected to the "pay-to-immigrate" plan how, hypothetically, they would react to a regime where only the rich could afford hitherto illegal drugs. Without making any judgment on the merits of these arguments, I do think that this is an accurate prediction, and accordingly I can see why someone whose goal was to suppress drug use would be wary of any legalization whatsoever.

Politically #2: Making drugs illegal gives the government one more way to convict people it believes to be "criminals." Just as the feds got Al Capone on tax, the feds are also often able to bust criminal gang members (who might be involved in criminal activities other than drug-running, since this as Judge Posner pointed out would be a circular argument) for drug-selling or possession. Is this a good thing? That would probably be related to your opinion of the tendency of government to expand both the scope of criminality as well as the number and discretionary nature of exceptions thereto.

Economically: here's an argument in favor of continued prohibition, which I'm not totally sure I agree with. If our primary concern (as a society) is with talented and potentially productive people using drugs, becoming addicted (losing rationality or having a shortened time horizon or however you want to phrase it), and then becoming less valuable to society (basically, what Judge Posner referred to as self-destructive behavior), then the people we most want to prevent from using drugs are going to be the people more likely to have the resources to buy drugs if they were legalized and taxed heavily. For these people, it is not so much the extra prison time as the very criminality of using drugs that makes it so costly, since being convicted can largely ruin one's career. In fact, the more valuable to society someone is (by his or her own estimation), the greater a penalty is imposed for being caught using illegal drugs -- this "perfect punishment discrimination" is achieved automatically and without any administrative cost.


But what about the moral issue that we weave into the political economy? Is it OK to legalize prostitution, abortion, walking naked anywhere one pleases, as long as these (and other non-victim) activities are taxed at an "appropriate" rate?

Jaffer Qamar

When the society prohibits an activity, because it's against our common morality, the goal is to purge it. For example, we do not tolerate perjury or when one doesn't cooperate with govt. agencies (like what Martha Stewart was accused of doing). Becker and Posner seem to be defining prohibition to be something the society wishes to discourage, rather than to mean "ZERO" tolerance. The fact that we can't afford to spend infinite resources towards the goal of zero tolerance does not imply, therefore, we ought to tax the activity, instead of prohibiting it, so that the equilibrium level of the activity under the tax regime is equal to what it's under prohibition!

Jaffer Qamar

If illegal drugs were legalized there would be at least a hundred million more people who'd consume them but who do not do so presently simply because the drugs are ILLEGAL - one is afraid to lose one's job and status in society if one were caught consuming it. Moreover, as soon as the drugs are legalized, the firms that would produce and distribute them will lobby the pols to keep the tax rates similar to the rates on alcohol and cigerettes. Anyone who thinks otherwise, is thinking from an altered state of mind. :-) If an activity is legal, what's the justification to tax it at 200%? Indeed, there is none. The tax rate will be determined by the political reality - i.e., whatever the pressure groups can drive it down to, via political battles!


I pretty much agree w/ Becker and Posner, so first I'll respond to a few of the comments. There is nothing immoral about using drugs. Everyone uses drugs. Foods are drugs, some healthy, some not. Eating a big-mac, french fries, and a coke every day for lunch will make you fat, and thus less helpful economically, yet no proposes proposed banning McDonalds. The reason some drugs are morally frowned upon, such as marijuana, and not alcohol, has more to do with tradition, habit, and ignorance than logic.

I do think it's certain that most harmful drugs, including alcohol, have significantly higher negative externalities than drugs in sports. People who use crack-cocaine will tend to pose a major health risk to society, which gives it a strong reason why it should be heavily regulated. But this is a good example of why the free market needs a big brother to guide it. There could be significant health benefits for simple things like putting filters on Marijauna cigarettes. The free market itself, left alone, would never produce an idea beneficial so beneficial to society.

Also, it is well known that certain terrorist groups profit off of the drug-trade, which opens another argument for legalization -- as an anti-terror measure.

One argument against that hasn't really been mentioned is that legalizing drugs would make them seem quite different in the eyes of many Americans, who might thus be persuaded to try them. (After all, they'd be legal!) In addition, as mentioned, the "cost" of doing illegal activity would also be negated. Thus there could be an increase in the number of people who try drugs such as cocaine just to see what it is like, who perhaps formerly would not have known where to get it (like me, i'd have no idea where to buy. This means the potential market would certainly be increased). This increase in demand could of course be tempered by raising the price, but as Becker noted, demand for addictive drugs is inelastic. Raising the price doesn't cut consumption so much. If you try cocaine once thinking you'll just do it once since the price is ridiculously expensive, you'll find that when you have a craving a couple days later, that you'd (quite irrationally) pay anything for it. And, if the price is set too high, then a black market will emerge, which is a worst case scenario for the legalization of drugs (you've thus increased demand and have failed to put drug dealers out of business). Yet, the case of cocaine is far different from that of marijuana, which is less addictive and more price elastic than cocaine and in many ways less harmful than alcohol. Yes, it fries your brain if you smoked too much, but there are several positive arguments one could make for Marijauana that you couldn't make for harder drugs (aside from the fact it doesn't do as much damage).
As someone who knew drug dealers in high school, I can attest that marijuana is usually the first drug sold by dealers, who then plow their profits back into other, often more harmful, drugs. It seems like legalizing marijuana could also do good by reducing investment in harder drugs.
A higher price would actually reduce demand (although demand would certainly still be inelastic). While it could be argued that if the taxes are set too high, demand for other, worse drugs might increase (or demand for alcohol), I don't think this will happen b/c of the way that addiction works. People b/c addicted to a certain drug, not drugs in general. People who smoke cigarettes rarely change brands.
The aforementioned filters...
The real damage from Marijuana comes from those who smoke too frequently, so there could be curbs set. Marijuana usually comes in 1/8th ounce bags. Kids who buy "an eighth" usually have trouble preventing themselves from smoking the whole bag in one sitting. Changing the size in which marijuana comes in alone could zillions of brain cells worldwide.
Yet, as a liberal democrat and a supporter of reducing marijuana usage and of its legalization (not sold on harder, more addictive drugs like crack-cocaine), I don't want to see this issue come up nationally any time soon, since it cuts hard against the Democrats culturally, who get slaughtered on all cultural issues, especially abortion, gay rights, and gun control. It's hard to argue that the issue is worth more than having the Republicans in power.


"If illegal drugs were legalized there would be at least a hundred million more people who'd consume them but who do not do so presently simply because the drugs are ILLEGAL - one is afraid to lose one's job and status in society if one were caught consuming it."

This comment ignores Posner's point about substitutes. I don't see how the number of drug users would increase as much as you predict (100 million!) - because many who would use illegal drugs are already using quite harmful legal ones. They might just switch from alcohol to say, marijuana. What's wrong with that?


"the principal effect of illegal drugs is to impair the health and productivity of the consumer of the drugs"

Do you see the creeping paternalism here?

In general, you assume that people are rational, utility-maximizing actors. But here, you assume a massive breakdown -- that all 100 million or so Americans who have used illegal drugs have done so at the cost of their own utility.

Shouldn't you at least allow for the possibility that some people benefit from drug use (for relaxation, fun, or whatever else)? Shouldn't that utility be built in to the policy equation?

Jaffer Qamar

Both Posner and Richard are incorrect that mind altering drugs are substitutes (and it seems they are including alcohol as a substitute, too.) If that were the case, people would not take enormous risks and pay stiff prices to consume cocoaine, heroine and dope, in the first place. They'd buy the two buck chuck (a california wine) that sells for $2 per bottle.

Kelvin Chen

I have to agree with Jaffer regarding the lack of comparable substitutes for illegal drugs (Posner's comparison of tobacco to marijuana, etc). How else can you explain the inelasticity of demand for illegal drugs?

Outside of my small quibble, I thought the post and this blog as a whole, was very interesting. I've always admired Posner's writings, as a law student and now attorney. Thank you for giving us an opportunity to "pick your brain."


Posner's argument supporting banning steroids would appear to apply as a justification of other forms of government intervention -- such as workplace safety rules, minimum wages (+welfare for those unemployed), and limits on hours worked.

For example if there were no minimum wage and the equilibrium wage for the lowest skilled workers would be just enough to leave their families in marginal health, someone agreeing to work at a wage that is insufficient to maintain the health of his family would pressure others in similar lines of work to lower their wages in order to compete in that industry, just as one player using steroids to compete pressures others to follow suit.


Reply to Xavier (Comment one):

"I'm not so sure that there is no social benefit
from across-the-board increases in the abilities of professional athletes. Most sports fans prefer watching the highest level of competition available."

Well, yes - but that has very little to do with absolute performance levels.

"Continuously increasing the general level of play will tend to lead to more new records"

Well, yes - until the new, steroid-enhanced equilibrium is reached. (Unless we get some serious R&D into new, cool doping methods, of course)

"I also disagree with your bank robbery analogy. We've never declared a war on bank robbery."

No, but that's largely semantic. We most definately have a zero-tolerance policy for bank robbery.

"The term "war on drugs" is intended to suggest complete intolerance of drug use and the rhetoric of drug warriors often includes words like "eradicate" and "eliminate."

True, but this goes for bank robbery and murder as well.


Forget the economic argument. This is an issue of individual liberty. What business does the federal government have in what substances are injested by individuals? If this were such an enormous problem why didn't the government ban dilaudid and cocaine at the turn of the 20th century?

All the drug war has accomplished is the evisceration of our 4th Amendment rights and the justification for the expansion of an intrusive federal government policing our neighborhoods in an area that used to be the exclusive province of our state and local law enforcement agencies.

The economic argument just helps to add in the unproductive dead weight cost of arresting, trying, and incarcerating millions of our fellow citizens for drug crimes.


Very interesting post by Judge Posner. I applaud him for addressing this isssue. His logic makes sense, to a degree - but I posit that the issue of drugs is more complex than Judge Posner suggests.

First, this is not simply an issue of "liberty" versus "paternalism." Even libertarian-leaning folks generally support a certain amount of "paternalism," if it serves a compelling purpose, such as making society reasonably safe for everyone. For instance, we impose building codes on privately-owned structures, the logic being that there is no social utility in having a roof collapse on ANYONE'S head. A true libertarian could call this paternalistic and say that if someone enters a shoddy structure, that is his own choice, and he should bear the risk. But that is an extreme view. The vast majority accept the basic safety rationale of building codes.

The question then becomes whether regulation of mind-altering drugs is a basic societal safety measure that we should support. The system of requiring prescriptions for medications is uncontroversial in America, so there is a widespread notion that individuals should not have absolute choice about what drugs to ingest. Why, then, should cocaine or heroin be readily available if Tylenol 3 is not? Especially when mind-altering drugs have no medical utility and have disastrous effects on many of their consumers? The FDA would not pronounce them "safe and effective" for any reason, so why not ban them?

The counter-point is that we do not ban many things in society that have unhealthy side effects. But, arguably, "hard drugs" pose an exponentially greater sort of risk -- they routinely destroy the lives of users. Alcohol or other legal substances are different, arguably, because the vast, vast majority of users live healthy, productive lives. That is not so with heroin, for instance.

Posner's point about substitutes is a bit misleading because (1) demand shows that they are not perfect substitutes, and (2) Prozac, etc., are not readily available on the street. They require a prescription. So they are "banned" to the casual user just the same as cocaine is. Moreover, Prozac has beneficial medical uses.

The final question is whether criminalizing drugs breeds too much violence, making the net effect of regulation negative. This is an interesting and difficult question. If criminalization keeps hard drugs out of the hands of all but a few potential users, the benefits of the "drug war" might be worth the costs. But it is possible that decriminalization will decrease the violence and drop murder rates in US cities to near zero (aside from the occasional robbery/murder, rape/murder, or crime of passion). Many, many violent crimes are drug-related, in one way or another. Of course, decriminalization in the US will not get the gangs out of the drug trade unless the world follows suit. If cocaine is still illegal in Colombia and Bolivia, where it is grown, it will still be controlled by the criminal element.

In sum, this is a complex problem that gives us much to think about. I would like to see further, in-depth academic discussion of the issue. Not to mention in Congress and in State capitals.


Ah-Yes! "Supply and Demand", the essence of the "Drug War in America". On the supply side of the equation, which seems the tactic of choice, we see the interdiction and disruption of the means of production, transportation, and distribution of this illict product. As this side of the equation has already been covered in some detail, I intend to look at the demand side.

Before actually looking at "demand" a knowledge and understanding of the basic function of societies, government and law needs to be developed. To put it in a nutshell, all societies and their governments have a responsibility, obligation and duty to promote certain behaivors and ban other types of behaivor of its individual citizens. If it were not to do this, society as a whole would breakdown and fall into the abyss of anarchy. As Hobbes put it, "Life becomes short, nasty and brutish." Given this scenario, the U.S. and State governments have used their legitimate power and authority to ban a ceratin behaivor (drug usage and production) as counter-productive and not in the interest of society as a whole. Setting up a social policy enforced by law and the courts.

The question now becomes whether that policy as established, is effective or not. What are we trying to do? Eliminate drug usage or simply control it? To me, these questions raise the real issue that in the establishment of this policy there has been a fundamental failure in Root Cause Analysis. That is, if the policy is to eliminate drug usage. To this end we have seen that the interdiction of the supply side of equation has done little in the way of reducing actual drug demand and so the problem continues.

So is "demand" the actual underlying root cause of the problem? Probably. This demand appears to be the end result of extremely complex psychosocial dynamics. The conditions that set up this dynamic are undoubtedly social, economic, psychological, etc. in nature. Leading to such problems as poverty, angst, anomie, alienation, and boredom to name a few. These in turn lead to an attempt to escape to a better place where reality is not such an ugly overwhelming burden.

To solve this root cause would require a massive program of social engineering and as has been pointed out, would entail the curtailment of many of the liberties we now take for granted. So in the end, perhaps, the best we can do is interdict the supply side of the equation in the hopes that somewher along the road it will eliminate the demand. But, that's unlikely. In the final analysis, perhps the best we can do is try and control it via the law and the courts.

As the saying goes, "it ain' a purfect world and it ain't none to purty either."


Kudos to Richard Posner for your post. This (decriminalization/regulation of "illicit drugs") is a respectable position which has been taken by many principled conservatives, particularly William F. Buckley, Jr. and The Cato Foundation for twenty or thirty years.

Now, as far as you other folks who are doing your illogical flat earth chicken little handwringing which is basically "drugs have to be so bad, otherwise we wouldn't need to throw hundreds of thousands of people in prison for lengthy terms" and all that impiles, stop being insular, puritanical Americans and see what's going on in the rest of the world where the War on (some users of politically incorrect) Drugs isn't so virulent.

You know you can buy pot in Holland and smoke it in coffee bars, right. And kids are carded and kept out. Right. And there aren't bodies in the streets or in the emergency room, right?

So take a deep breath and a reality check. Look at the CEDRO website about Dutch drug policy, in particular the study that says that drug use did **not** vary depending on whether the drugs were illegal or not. http://www.cedro-uva.org/lib/ (Reinarman, et al., 2004)

john smith

As I stated before, inelasticity is the crux of the matter ("Palooka and his ilk transport cocaine across state borders to enjoy it in the privacy of their exurban homes and nostrils").

I disagree with Palooka's point that inelasticity must deteriorate over time. Highly inelastic drugs can almost always be price-gouged, because the demand is not directly linked to free choice and the ability to save, but rather physiological dependency and brute bad luck.

Someone who lives the posh life in an Arizona exurb can afford to allocate disposable income toward recreational drug use ("It is their inelastic lust for cocaine that attracts smuggled china white to our shores like a NASA space magnet"). But improverished Africans ailing from AIDS in nations without developed market economies, basic property rights, stable governments, or suitable roads and healthcare infrastructure to deliver drugs to potential patients cannot freely save a portion of their yearly wealth to support their unprotected sex "habit" (not to mention that infected babies cannot choose their parents or conditions of birth). Nor can they reliably access and use prophylactics, because, again, their markets are failed ones. Even if over time their markets markedly improved and their personal savings compounded, of which there is no guarantee, the physiological need of any indidividual for AIDS medication remains constant and inelastic. Having greater access to portable CD players does not make one more wiling to die from AIDS, and having more money to pay for AIDS medication does not reduce one's willingness to pay for it.

As I said, reducing demand requires two steps:
1. Reducing demand amongst those whose inelasticity is due to social conditions (which could be time-sensitive, if we include cultural norms in the mix; but then, cultural norms may merely reflect personal savings) ("The only solution is to reduce demand amongst those insulated from the homoerotic horrors of the corrections system. Therefore, we must conduct random airstrikes on low-crime neighborhoods with relatively large numbers of Republican voters.").

2. Partial legalization to maximize the benefits Becker suggests ("Coupled with partial legalization of drug-dealing and prostitution in inner-city public schools, this solution would dramatically decrease demand for drugs in the continental United States"). I would disagree with 'doug' on the narrow point that a change in the law must be accompanied by a a change in social behavior. The quantity of drug use under a regimes of legalization and taxation may be equivalent to the quantity of drug use under a system of prohibition. Cultural norms may reflect personal savings, or ability to pay, rather than personal philosophy (or, personal philsophies can be bought off).

Another benefit of legalization and regulation is that it may force drug dealers to improve the potency of their drugs. The more lethal the drugs are known to be, the less of it people will use.

Paul Deignan

Let me offer this answer: 49.

That is the number of angels able to dance on the head of a pin.

That said, do you know the question you are avoiding?


"Every American president since before Nixon has engaged in a war on crime. And every president without exception has lost this war. The explanation lies not in a lack of effort- indeed, I believe there has been too much effort- but rather in a basic property of the demand for the fruits of crime, and the effects of trying to reduce consumption of a good like those fruits by punishing persons involved in its trade.

"The war on crime is fought by trying to apprehend criminals, and then to punish them rather severely if convicted. The expected punishment raises the price that criminals need to receive in order for them to be willing to take the considerable risks involved in crime. The higher price discourages purchase and consumption of fruits of crime, as with legal goods and services. The harder the war is fought, the greater the expected punishment, the higher is the street price of crime, and generally the smaller is the level of criminality..." You get the idea.

Shall we take the radical libertarian view and decriminalize everything?

And a nit. A victimless crime is NOT "more precisely a crime that consists of a transaction between a willing seller and a willing buyer," unless you think a contract killing is a victimless crime.


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