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Wednesday, April 20, 2005

Most important law-related articles of all time?

If we had to choose 25 law-related articles of all time, what would they be?  What should every law student and legal thinker read?

For the purposes of this exercise, law-related articles include anything published in a legal journal or anything from a non-legal journal that has strongly impacted legal academia and the legal profession.

To start, I nominate a classic: Coase's The Problem of Social Cost.

Please post your nominations in the comments section, and I will collect, edit, and post excerpts later.

And please, serious nominations only.  In other words, don't nominate your friend Sandy's 1L Note, no matter how good it is.

Posted by Hillel Levin on April 20, 2005 at 02:59 PM in Article Spotlight | Permalink

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Comments

Coase's The Nature of the Firm.

By the way, the commenter above is an example of a common misunderstanding. If I recall, Coase did not say that the law doesn't matter, let alone predict that there are never transaction costs. Quite the contrary. He summed up his work in these words:Transaction costs were used in the one case to show that if they are not included in the analysis, the firm has no purpose, while in the other I showed, as I thought, that if transaction costs were not introduced into the analysis, for the range of problems considered, the law had no purpose.In other words: (1) If there were no transaction costs, the law wouldn't matter and the firm wouldn't exist. (2) But the law obviously does matter, and firms do exist. (3) Therefore, there must be transaction costs, and economists are misguided if they assume transaction costs away.

Posted by: Stuart Buck | Apr 21, 2005 6:16:48 PM

It's time the crits got some love, so can I nominate Gerry Frug's "Decentering Decentralization?"

In the non-crit area, how about Post/Johnson, "Law and Borders: The Rise of Law in Cyberspace" & Lessig's "What Things Regulate Speech."

Posted by: Paul Gowder | Apr 21, 2005 3:20:52 PM

I think I would add a few more that are very persuasive:
the Hofstra LR symposia on efficiency and wealth maximizing was very good: if i'm not mistaken, it was Dworkin, Coleman, Kennedy, and some others involved. Though I could be completely wrong about that.

In the IP world, I remember being wowed by Terry Fisher's piece: Reconstructing Fair Use in HLR, and I thought he did a great job in theory-building there more generally.

Posted by: Dan Markel | Apr 21, 2005 1:58:11 PM

And 4. I'm not sure I'd replace any of the articles so far mentioned. It's hard to deny that any of them are important.

Posted by: dan levine | Apr 21, 2005 1:14:52 PM

A couple of thoughts (and note that my last comment was composed in response to Dan's):

1. My mistake to conflate this blog's self-desribed identity (see Ethan, today) and readership's. I just thought the selections interesting, though analysis of this thread might have been more appropriate for another.

2. AA1, please look back to my last post. I did not mean to exclude the academic judges.

3. Regarding the representation of self-described conservatives and liberals in legal academia. I just don't know the numbers on that one, but what I will say is that if there is anti-conservative bias, we should expect the conservative articles to be (per conservative professor) more influential than the liberal ones -- because the conservatives would have had to be really good to get a job at all. Also, to be really controversial, if "conservatives" are more business-inclined (or perhaps wealth-inclined), they face a greater opportunity cost by entering academia. They'll only make the move to be professors if they think they'll really succeed at it, and this self-selection ensures that they're on average more influential than liberals.

Posted by: dan levine | Apr 21, 2005 1:12:01 PM

Ahh, Dan Levine beats me to the punch.

I wouldn't go so far as to put Forbidden Grounds on any lists. It's not bad, but if we're making lists, it's far inferior to the Posner-Donahue debates on the same topic (economic efficiency of antidiscrimination laws).

Also, Posner's piece on statutory interpretation (the tank commander analogy) is pretty important (though not nearly as important, I would say, as Easterbrook, Eskridge, and some others).

Posted by: Kaimi | Apr 21, 2005 12:51:22 PM

Dan: With reference to your comments about the legal affairs poll, I think you are grasping at straws. You refer us to the "academic" side of the ledger, thus requiring us to exclude "non-academic judges." Among those whom we must exclude, therefore, are Scalia, Posner, and Easterbrook, Kozinski, all of whom can be said to be extremely influential in the world of legal academia, before they became judges and afterwards. Try this on for size: if Easterbrook, Posner, and Scalia had never ascended to the bench, I imagine we'd all recognize them on the "academic" side.

(And that is after we put aside Rehnquist, O'Connor, and Thomas--conservatives all, but perhaps not academically inclined).

If, instead of your odd approach, you tally up both sides of that list, you'll find more self-identified conservatives than you will liberals. And that even assumes that you count people like Amar and Lessig as classic liberals.

Finally, even if we are willing to accept your challenge, consider the fact that, for a variety of reasons, there are fewer conservatives in legal academia than there are liberals. It naturally (but of course not necessarily) follows, then, that there will likely be fewer "most influential" conservative academics than liberals.

Oh, and by the way: among those over-represented liberal academics, whom would you replace, and with which conservative?

Posted by: amosanon1 | Apr 21, 2005 12:44:48 PM

Well, one disadvantage is that both Posner and Epstein -- and for that matter, Sunstein a bit too -- are creatures of the book.

Epstein's most important contribution, hands down, is his Takings book. You can't discuss the Takings Clause without it. It's also (unlike other important Takings sources like Michelman, Sax, Treanor) a book rather than a law review article. So it doesn't qualify under the criteria.

Similarly, Posner's Economic Analysis of Law is a huge, huge contribution. It's also a book. Many of Posner's early antitrust pieces helped shape the field. But I don't know enough about antitrust jurisprudence to proclaim any one of them as the definitive, must-read. Posner tends to analyze discrete issues in his articles. Many of them are very good, but they are sharply focused.

As for Sunstein, I'm not sure. Minimalism, perhaps? I hesitate to put that in the top-25 because I don't think I buy it.

Posted by: Kaimi | Apr 21, 2005 12:44:15 PM

Well, one disadvantage is that both Posner and Epstein -- and for that matter, Sunstein a bit too -- are creatures of the book.

Epstein's most important contribution, hands down, is his Takings book. You can't discuss the Takings Clause without it. It's also (unlike other important Takings sources like Michelman, Sax, Treanor) a book rather than a law review article. So it doesn't qualify under the criteria.

Similarly, Posner's Economic Analysis of Law is a huge, huge contribution. It's also a book. Many of Posner's early antitrust pieces helped shape the field. But I don't know enough about antitrust jurisprudence to proclaim any one of them as the definitive, must-read. Posner tends to analyze discrete issues in his articles. Many of them are very good, but they are sharply focused.

As for Sunstein, I'm not sure. Minimalism, perhaps? I hesitate to put that in the top-25 because I don't think I buy it.

Posted by: Kaimi | Apr 21, 2005 12:42:44 PM

Touche, but my point was broader: check out the academic and judicial selections in the legal affairs poll (http://www.legalaffairs.org/poll/) -- and ignore the non-academic judges (like Thomas). Is there any reason why there is such dissonance with our list? Are influential academics today not "important?"

Here are some additions:
Epstein -- Theory of Strict Liability; the entire Takings book (if Jeffrey Rosen is to be believed); Forbidden Grounds (at least in making him the bete noire of employment discrimination buffs).

Easterbrook -- Statutes Domains; the corporate law book with Fischel; and there's another major interpretation piece...

Posner -- Economic Analysis of Law (no doubt); Antitrust (and whatever articles preceded that); the IP articles w/ Landes?

Sunstein -- any of the articles preceding (and included in) Partial Constitution; Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405 (1989), which is later inclued in another book; etc.

Posted by: dan levine | Apr 21, 2005 12:28:53 PM

Perhaps most oddly, someone has suggested that the lack of nominations for Posner and Epstein is due to this being a self-identified center-left blog.

Let me point out that the first nomination was for a piece by Coase. Let me further point out that this blog has featured opinions from all over the political spectrum, and not just a few have accused us of being more "center" and perhaps even "right" than "center-left."

But most of all let me note that the comments section of this blog belongs to its readers. We have no control over the political self-identification of our readers and commenters, and I should think it self-evident that we invite participation from any- and everyone, so long as comments are kept civil.

Perhaps nothing has been offered by Posner because it is difficult to find a single article, among all of his many important and stimulating works, that is truly an all-timer. Or perhaps he has simply been overlooked. Or perhaps the people who have written comments don't like him much.

But it just seems weird to blame the blog for that.

Posted by: amosanon1 | Apr 21, 2005 12:26:08 PM

I've noticed that a number of people have posted comments like "I can't believe no one nominated X," or "how can it be that no one nominated something by Y?"
That doesn't seem to be very productive. Instead, if you think X is so important or something by Y qualifies, by all means, please nominate away.

By all means, though, go ahead and spar over the merits of pieces that have been nominated.

Posted by: amosanon1 | Apr 21, 2005 12:25:12 PM

Levine, buddy, the list is building. Grow it with your rec's!

Posted by: Dan Markel | Apr 21, 2005 12:12:40 PM

Fascinating to me that (so far) no one has cited any articles by Richard Posner or Richard Epstein -- and only one by Sunstein. Granted that this is a center-left legal blog, but wouldn't we concede that some of their work has been "important?"

Posted by: dan levine | Apr 21, 2005 12:02:46 PM

Kaimi,

I should've known you'd be tainted by that mean and nasty place for which you work! (totally just kidding: I logged too much time at S&C, and I still get off on mocking them all)

One good result of yesterday, though: I read, really admired, and thoroughly enjoyed, Nullificatory Juries. Great, great work.

Sorry all, off topic

What about Unconscious Racism, by Derrick Bell? I could not disagree with it more - but it really made me reassess my views (always a good thing with law students, no?)...

Posted by: Tiger | Apr 21, 2005 11:55:23 AM

Two important articles by Judge Friendly:

Is Innocence Irrelevant? Collateral Attacks on Criminal Justice, 38 U.Chi.L.Rev. 142 (1970)
Some Kind of Hearing, 123 U.Penn.L.Rev. 1267 (1975) (great piece on due process)

Posted by: CBH | Apr 21, 2005 11:42:18 AM

Too much public law stuff here.

Fuller & Purdue, "The Reliance Interest in Contract Damages" needs to be on the list. (Shame on you Ethan for not putting on earlier.)

I am also surprised that no one has nominated the Hart-Fuller exchange on the seperation of law and morals in the HLR.

Posted by: Nate Oman | Apr 21, 2005 11:34:28 AM

Tiger,

Sorry about the tone. I was writing at midnight, after a full day of reading (and writing) nasty discovery correspondence with all sorts of veiled barbs (theirs, mostly).

Some combination of the late hour and the fact that I'd been reading veiled barbs all day made me see your earlier comment as an attack. But looking at it now, I misread it. I apologize.

And yes, I think that Shapiro is a helpful data point.

Posted by: Kaimi | Apr 21, 2005 9:36:26 AM

Kaimi,

I ASKED what you thought. ("D'ya think? Genuinely curious.")

That means I wanted to know what you thought.

Now I see you thought the list is a useful starting point. Thank you. That is responsive.

Posted by: Tiger | Apr 21, 2005 1:01:14 AM

I think this discussion would be better if recast as "Which year would you have most wanted to be a law review articles editor?"

I choose 1986, based on the previous entries, and

Cover's Violence and the Word (1986)

and
(of special interest to young professors)

Balkin and Levinson, How to Win Cites and Influence People, Chicago Kent Law Rev. (1986)

Posted by: Dave Hoffman | Apr 21, 2005 12:24:12 AM

Lon L. Fuller, The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353 (1978);
John Rawls, The Idea of Public Reason Revisited, 64 U. Chi. L. Rev. 765 (1997).

Posted by: Micah Schwartzman | Apr 21, 2005 12:05:55 AM

Tiger,

I'm not sure where you're finding me make that assertion. First, the thread isn't even about most influential, it's about most important. Second, I haven't made any assertions that Shapiro's list is a direct answer to the original question. I do think that it's a helpful piece of data. But many of my own picks aren't completely correlated with the list. Some (like Hohfeld and Thayer) aren't even _on_ the list, though that's probably just a quirk of timing more than anything, since they're older articles.

So, my position is not that Shapiro's list is the answer to the query. But it's a useful starting point because it collects some of the most important articles.

Posted by: Kaimi | Apr 20, 2005 11:58:15 PM

An underrated gem in the world of law and economics:

Demsetz, Towards a Theory of Property Rights (AER, 1967)

Posted by: Joshua Wright | Apr 20, 2005 9:41:38 PM

No one mentions Brandeis's The Right to Privacy. That is the most influential law review article of all time.

Posted by: Grudgingly Affirmed | Apr 20, 2005 7:33:42 PM

(1) For IP law geeks:

I think Breyer's The Uneasy Case for Copyright was not only influential but also unbelievably prescient. It was written in, what, 1970? And it anticipates every important debate about copying, disseminating, and sharing info you can imagine.

I think that's kind of amazing.

(2) Not an article, but still:

The Structure of Scientific Revolutions, by Kuhn

Ok, I'm too lazy to google the actual name. But my dad gave it to me when I was way to young to get it - but I appreciated it, somehow, and will always be grateful (yeah, fac brats suck). Even when corporate-drone family/friends say "paradigm shifts" I manage not to gag and smile instead, thinking of the way that book had legs...

Kalmi:
Most cited = most influential? D'ya think? (genuinely curious)

Posted by: Tiger | Apr 20, 2005 7:29:01 PM

My first thought looking at Shapiro's list, was this:

-I was going to suggest Michelman's Takings Clause piece earlier, but I thought that it was only an article that property geeks like me found important. Umm, I guess not.

Other than that, there are a _lot_ of good articles on this list (of course). Some that I would particularly think ought to be on a reading list:

Hart, Positivism
Fuller
Frankfurter
Sax on the Takings Clause (not just for property geeks anymore!)
Grey

Posted by: Kaimi | Apr 20, 2005 5:34:39 PM

If I had to assign one thing by Kahn, I'd put Community in Contemporary Constitutional Theory, 99 Yale LJ 1 (1989), which became the last chapter in Legitimacy and History. Since it's conclusion heavily indebted to Cover, though, I'm not sure I'd keep it on the list if we already had Nomos and Narrative.

Holmes, The Path of the Law, has got to be on the list.

Posted by: Chris | Apr 20, 2005 5:26:51 PM

Wechsler, Neutral Principles.
Reich, The New Property.

(Lots to disagree with in both of them, but very important pieces).
Also --

Thayer, Judicial Review
Hohfeld on property

There have been a few law review pieces charting the most-cited articles. They're dated, but helpful.

E.g., 73 Calif.L.Rev. 1540 (1985). The chart of top articles, grabbed straight off of Westlaw (so the formatting is horrible, apologies) is:

---

1. 600 (240)* Gerald Gunther, The Supreme Court, 1971 Term--Foreword: In
Search of Evolving Doctrine on a Changing Court: A Model
for a Newer Equal Protection, 86 HARV. L. REV. 1 (1972).
[FN42]
2. 572 (175) Herbert Wechsler, Toward Neutral Principles of
Constitutional Law, 73 HARV. L. REV. 1 (1959). [FN43]
3. 365 (81) William L. Prosser, The Assault upon the Citadel (Strict
Liability to the Consumer), 69 YALE L.J. 1099 (1960).
[FN44]
4. 337 (90) Charles A. Reich, The New Property, 73 YALE L.J. 733 (1964).
5. 262 (152) John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v.
Wade, 82 YALE L.J. 920 (1973).
6. 252 (69) Joseph Tussman and Jacobus tenBroek, The Equal Protection of
the Laws, 37 CALIF. L. REV. 341 (1949).
7. 250 (30)* Archibald Cox, The Supreme Court, 1965 Term--Foreword:
Constitutional Adjudication and the Promotion of Human
Rights, 80 HARV. L. REV. 91 (1966).
8. 243 (101) Frank I. Michelman, Property, Utility, and Fairness:
Comments on the Ethical Foundations of 'Just Compensation'
Law, 80 HARV. L. REV. 1165 (1967).
9. 241 (73) William L. Prosser, The Fall of the Citadel (Strict
Liability to the Consumer), 50 MINN. L. REV. 791 (1966).
10. 230 (55)* Frank I. Michelman, The Supreme Court, 1968 Term--Foreword:
On Protecting the Poor Through the Fourteenth Amendment, 83
HARV. L. REV. 7 (1969).
11. 229 (163) Abram Chayes, The Role of the Judge in Public Law
Litigation, 89 HARV. L. REV. 1281 (1976). [FN45]
12. 225 (40)* Charles L. Black, Jr., The Supreme Court, 1966
Term--Foreword: 'State Action,' Equal Protection, and
California's Proposition 14, 81 HARV. L. REV. 69 (1967).
13. 219 (54) William W. Van Alstyne, The Demise of the Right-Privilege
Distinction in Constitutional Law, 81 HARV. L. REV. 1439
(1968).
14. 191 (135) Richard B. Stewart, The Reformation of American
Administrative Law, 88 HARV. L. REV. 1667 (1975).
15. 187 (56) H. L. A. Hart, Positivism and the Separation of Law and
Morals, 71 HARV. L. REV. 593 (1958).
16. 184 (85) John Hart Ely, Legislative and Administrative Motivation in
Constitutional Law, 79 YALE L.J. 1205 (1970).
17. 181 (41) Henry M. Hart, Jr., The Relations Between State and Federal
Law, 54 COLUM. L. REV. 489 (1954).
18. 177 (45) Joseph L. Sax, Takings and the Police Power, 74 YALE L.J. 36
(1964).
19. 176 (52) Charles Fairman, Does the Fourteenth Amendment Incorporate
the Bill of Rights?--The Original Understanding, 2 STAN. L.
REV. 5 (1949).
19. 176 (112) William J. Brennan, Jr., State Constitutions and the
Protection of Individual Rights, 90 HARV. L. REV. 489
(1977).
21. 174 (54) Lon L. Fuller, Positivism and Fidelity to Law--A Reply to
Professor Hart, 71 HARV. L. REV. 630 (1958).
22. 169 (84) Henry M. Hart, Jr., The Power of Congress to Limit the
Jurisdiction of Federal Courts: An Exercise in Dialectic,
66 HARV. L. REV. 1362 (1953).
22. 169 (91) Guido Calabresi and A. Douglas Melamed, Property Rules,
Liability Rules, and Inalienability: One View of the
Cathedral, 85 HARV. L. REV. 1089 (1972).
24. 167 (58) Arthur A. Leff, Unconscionability and the Code--The
Emperor's New Clause, 115 U. PA. L. REV. 485 (1967).
24. 167 (127) Robert H. Bork, Neutral Principles and Some First Amendment
Problems, 47 IND. L.J. 1 (1971).
26. 163 (38) Thomas I. Emerson, Toward a General Theory of the First
Amendment, 72 YALE L.J. 877 (1963).
27. 162 (60) Felix Frankfurter, Some Reflections on the Reading of
Statutes, 47 COLUM. L. REV. 527 (1947).
27. 162 (36) Henry M. Hart, Jr., The Aims of the Criminal Law, 23 LAW &
CONTEMP. PROBS. 401 (1958).
29. 161 (60) Alexander M. Bickel, The Original Understanding and the
Segregation Decision, 69 HARV. L. REV. 1 (1955).
30. 156 (3) Henry M. Hart, Jr., The Supreme Court, 1958 Term--Foreword:
The Time Chart of the Justices, 73 HARV. L. REV. 84 (1959).
31. 153 (50) Dallin H. Oaks, Studying the Exclusionary Rule in Search and
Seizure, 37 U. CHI. L. REV. 665 (1970).
31. 153 (39) Joseph L. Sax, The Public Trust Doctrine in Natural Resource
Law: Effective Judicial Intervention, 68 MICH. L. REV. 471
(1970).
31. 153 (89) Anthony G. Amsterdam, Perspectives on the Fourth Amendment,
58 MINN. L. REV. 349 (1974).
34. 150 (48) William L. Prosser, Privacy, 48 CALIF. L. REV. 383 (1960).
35. 148 (25) Roger J. Traynor, Is This Conflict Really Necessary?, 37
TEX. L. REV. 657 (1959).
36. 147 (24) Harry Shulman, Reason, Contract and Law in Labor Relations,
68 HARV. L. REV. 999 (1955).
37. 146 (79) Lawrence H. Tribe, Unraveling National League of Cities: The
New Federalism and Affirmative Rights to Essential
Government Services, 90 HARV. L. REV. 1065 (1977).
38. 145 (96) Harry H. Wellington, Common Law Rules and Constitutional
Double Standards: Some Notes on Adjudication, 83 YALE L.J.
221 (1973).
39. 144 (24) Louis H. Pollak, Racial Discrimination and Judicial
Integrity: A Reply to Professor Wechsler, 108 U. PA. L.
REV. 1 (1959).
39. 144 (41) Henry J. Friendly, In Praise of Erie--and of the New Federal
Common Law, 39 N.Y.U. L. REV. 383 (1964).
41. 143 (113) Thomas C. Grey, Do We Have an Unwritten Constitution?, 27
STAN. L. REV. 703 (1975).
42. 141 (17) Joseph Goldstein, Police Discretion Not to Invoke the
Criminal Process: Low-Visibility Decisions in the
Administration of Justice, 69 YALE L.J. 543 (1960).
43. 140 (39) Guido Calabresi, Some Thoughts on Risk Distribution and the
Law of Torts, 70 YALE L.J. 499 (1961).
43. 140 (85)* Henry P. Monaghan, The Supreme Court, 1974 Term--Foreword:
Constitutional Common Law, 89 HARV. L. REV. 1 (1975).
45. 139 (81) William L. Cary, Federalism and Corporate Law: Reflection
Upon Delaware, 83 YALE L.J. 663 (1974).
46. 137 (27) Derek C. Bok, Section 7 of the Clayton Act and the Merging
of Law and Economics, 74 HARV. L. REV. 226 (1960).
47. 135 (109) Duncan Kennedy, Form and Substance in Private Law
Adjudication, 89 HARV. L. REV. 1685 (1976).
48. 134 (32) Albert A. Ehrenzweig, The Transient Rule of Personal
Jurisdiction: The 'Power' Myth and Forum Conveniens, 65
YALE L.J. 289 (1956).
49. 133 (32) Sanford H. Kadish, Methodology and Criteria in Due Process
Adjudication--A Survey and Criticism, 66 YALE L.J. 319
(1957).
49. 133 (38) John W. Wade, Strict Tort Liability of Manufacturers, 19 SW.
L. REV. 5 (1965).

Ohh, another note: There's a follow-up article, at 71 Chi.-Kent L. Rev. 751, 10 years later. The list is pretty similar, but has some new additions. In particular, Coase is the #1 article on the list.

Posted by: Kaimi | Apr 20, 2005 5:11:13 PM

Hi Chris, I remember our fun times with Paul Kahn! Should we nominate something of his, for old times sake? I'd like to add Oliver Wendell Holmes, The Common Law (1949), though technically it's not an *article.*

Posted by: Laura | Apr 20, 2005 4:47:51 PM

Calabresi & Melamed, One View of the Cathedral.

Hi Laura, we were in Paul Kahn's small group together.

Posted by: Chris Green | Apr 20, 2005 4:24:32 PM

Hmm. I think the list could be broken down in all sorts of different ways. Here's a handful to start, in no particular order, with titles and/or journals potentially mangled. These are contemporary classics but they are not canonical pieces that are read in everyone's classes.

David Rosenberg's HLR piece on the Causal Connection and a Public Law view of tort law
Balkin and Levinson's HLR piece on Constitutional Canons
Balkin's review of Sunstein's book on free speech is hilarious too.

Lessig's JLS piece on the New Chicago School
Anything by Jeffrie Murphy or Jean Hampton or Herb Morris
Pildes and Sunstein 1996 Columbia (or Penn?) piece on expressivism

Posted by: Dan Markel | Apr 20, 2005 4:18:30 PM

Ethan, you beat me to the Bob Cover piece! Curses. I guess I'd nominate Robert C. Ellickson, "Of Coase and Cattle: Dispute Resolution Among Neighbors in Shasta County," 38 Stan. L. Rev. 623 (1986). Not sure whether the article or the resulting book is more famous, but both were groundbreaking.

Posted by: Laura I Appleman | Apr 20, 2005 4:18:20 PM

I nominate Dworkin's "Hard Cases"--very important read for a grounding in legal theory.

Posted by: Marc O. DeGirolami | Apr 20, 2005 4:10:34 PM

I suppose I'd nominate Robert Cover's "Nomos and Narrative."

Posted by: Ethan Leib | Apr 20, 2005 4:02:52 PM

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