October 2016 – The legal system has long been inhospitable terrain for the study of emotion. The standard model of legal education treats law as a science, legal reasoning as a purely deductive process (Langdell 1871), and emotion as the enemy of reason. In this model, emotions are individual, arbitrary, unanalyzable, and ultimately a threat to the proper functioning of the legal system. They are, in the words of one prominent legal scholar, “inconsistent with the very norms that govern and legitimate the judicial power” (Fiss 1990). This attitude is still pervasive in law. The current Federal Rules of Evidence, for example, declare that evidence should not be admitted at trial if it encourages the jury to decide on an improper basis, “commonly…an emotional one” (Federal Rule of Evidence 403).
This attitude is at odds with the growing consensus in other disciplines that emotions are deeply intertwined with the reasoning process (e.g. Damasio 1984). Until recently, legal scholars and jurists have taken the attitude that knowledge from other disciplines is irrelevant to law—that the legal system is and should be a self-contained system of thought (Langdell 1871). This attitude has helped perpetuate the legal system’s antiquated attitude toward emotion despite all evidence contradicting its accuracy; a state of affairs that is deeply problematic. When legal rules or decisions are based on unsupported or mistaken notions of how people behave, justice may be compromised.
The traditional assumption that those trained in the law should not traffic in emotion has led to large gaps in our knowledge about a whole range of legal actors, including prosecutors, defense attorneys, and legislators. Although jurors are often studied, these studies rarely focus on their emotions, and even more rarely on their emotions as a collective body. As Terry Maroney discusses in this issue, the emotions of judges receive even less attention, in large part because judges, unlike jurors, are viewed as emotionless practitioners of pure reason. The sharp emotion versus reason dichotomy clouds the issue of how arguments persuade (Bandes and Salerno 2014). The belief that emotion plays no good role in reasoning has also had a powerful, and often pernicious, effect on the education of law students (Bandes 2006a).
Lawyering in general raises a host of other emotional issues. For example, client relationships may raise issues of loyalty, empathy, anger, frustration and sadness. Capital defense attorneys must address their clients’ hopes and fears and establish trust under difficult circumstances; they must also deal with their own emotions when a client is sentenced to death or executed (Scheffer 2013). Prosecutors must deal with the emotions of victims and their families and with a community’s anger (Bandes 2006b). These are just a few of the emotions evoked by lawyering, and yet law school and the legal profession, for the most part, proceed on the assumption that the tools of the trade are purely cognitive.
The field of Law and Emotion aims to address the disconnect between legal assumptions about emotion and findings in psychology, neuroscience, sociology and other relevant disciplines. I will first describe the emergence and goals of the field, discussing several current approaches to the study of law and emotion. I will then suggest directions for future study.
The Emergence of the Field of Law and Emotion
In the early twentieth century, the Legal Realist movement argued that the legal system’s insularity blinded it to the political, psychological and social influences that help shape legal reasoning and legal institutions (see e.g. Llewellyn 1962). Although it might seem evident that legal theory and legal practice are influenced by social and political forces, this insight was widely resisted until the 1980’s. By the late twentieth century, particularly in the wake of the influential Law and Economics movement (which uses economic theory to analyze law and to predict the behaviors governed by law), legal scholars were becoming more accustomed to looking toward other disciplines for insight into the workings of the legal system. In addition, feminist scholars (e.g. Minow 1987), critical race scholars (e.g. Bell 1992) and others were mounting powerful challenges to the idea that legal reasoning is a value-free enterprise. These developments coincided with renewed focus on emotion in fields like psychology, neuroscience, sociology, and philosophy. At this juncture, the study of emotion’s role in law at last gained a foothold.
The guiding principle of the field of Law and Emotion is that the law should not rely on untested or inaccurate assumptions about how emotions work, but should make choices, and design institutions, in light of the best available knowledge. In the helpful framework suggested by legal scholars Kathy Abrams and Hila Keren (2010), the project of Law and Emotion scholars is threefold. First, to identify and illuminate the assumptions about emotion that pervade the legal system. Second, to evaluate whether these assumptions are accurate in light of the available knowledge about how emotions work. And third, where legal practice is based on erroneous assumptions, to determine what steps the legal system ought to take in light of the disconnect.
Identifying assumptions about emotion
The legal system is a vast apparatus for predicting, regulating and influencing human behavior. Therefore it is not surprising that legal rules, decisions and institutions rest upon assumptions about how emotions influence human behavior in a wide range of situations. Some of these assumptions are explicit; most are implicit. Some assumptions are borne out by findings in psychology or other fields and some are unsupported by evidence or flat out wrong. This section identifies some of the assumptions about emotion, both implicit and explicit, that pervade the law. The following section discusses the evidence that supports or refutes these assumptions, and also describes a category of normative assumptions that are not susceptible to empirical proof.
Explicit Assumptions about Emotion
At times the legal system makes its assumptions about emotion explicit. For example, a homicide is considered less culpable if it is committed in the heat of passion, instead of after cold calculation (Finkel and Parrott 2006). An excited utterance “made…under the stress or excitement caused by [an] event,” (Federal Rules of Evidence 803 (2)) is considered so reliable that it counts as an exception to the hearsay rule, which bars the admission into evidence of a statement made by someone who is unavailable for cross examination in court. A judge may impose a “shaming punishment,” such as requiring a man who had bullied handicapped children to carry a sign reading “I am an intolerant bully” (Morrison 2014), or require that a domestic abuser attend “anger management” sessions. A judge may instruct a jury not to permit “sympathy” to influence its decision whether to sentence a convicted murderer to death (California v. Brown 1986). In all these examples, emotions are explicitly invoked. The assumptions underlying this invocation may be explicitly stated as well. For example, judges assume (erroneously, as it turns out; see my discussion below) that shaming punishments will deter offenders from repeating their criminal behavior. The drafters of the Federal Rules of Evidence assumed that the emotional nature of “excited utterances” means they are unreflective and therefore less likely to be deceptive. But even if this is so, excitement and stress are known to distort perception and cloud memory (Lempert et al 2000).
Implicit Assumptions About Emotion
Many of the legal system’s assumptions about emotion are implicit rather than explicit. The term “emotional” is frequently used as a code word for “unreasonable” or “unreliable,” in reliance on the implicit assumption that emotion is incompatible with reason, despite the fact that this assumption is out of step with the modern consensus in psychology and other fields. The anti-sympathy jury instruction mentioned above provides an example of this use of the category “emotion.” “Sympathy” is singled out as “emotional” and therefore harmful to the jury’s deliberative process. But there is substantial evidence that juries in death penalty cases experience other strong emotions, including anger and disgust at the defendant (Deise and Paternoster 2013). Notably, the standard jury instructions make no mention of these emotions, likely because they are regarded as natural responses and therefore “rational” rather than “emotional” (Bandes 2009).
Even sympathy is not always viewed as “emotional” and therefore irrational, provided it is directed at the proper target. In one vivid account of a capital jury deliberation, a juror who expressed sympathy for the defendant was berated for being too emotional. The other jurors told her that she should instead direct her sympathy to the victim and his family (Sundby 2005). Sympathy for the victim was regarded as natural and rational. By dismissing the juror’s sympathy for the defendant as emotional, the other members of the jury framed that juror’s perspective as illegitimate (Sundby 2005).
In addition to assumptions about what counts as “emotional,” legal rules and decisions also rest on assumptions about what emotions defendants, victims, judges, jurors and other legal actors feel, and how these emotions ought to be expressed or displayed. And it is not only those in the courtroom, or those explicitly associated with lawmaking, whose emotions need to be scrutinized; it is also those in the institutions law regulates, such as workplaces, hospitals, schools, and even the home.
So for example, sexual harassment law requires legislatures and courts to determine what constitutes harassment in the workplace, or what makes for a hostile work environment (Fisk 2001). One measure of whether a workplace practice or action is prohibited is whether it is humiliating. But, as Fisk argues (described in more detail below), employment law reflects an innaccurate understanding of the dynamics of humiliation, its corrosive effects in the workplace, or the other emotions it engenders, and so it has difficulty determining which sorts of behavior cross the line.
In the criminal law context, the Fourth Amendment to the U.S. Constitution prohibits unreasonable searches and seizures. In determining what is unreasonable, courts often need to evaluate the emotions of either the police officer (or other government agent) conducting the search or seizure, or of the person complaining about it. For example courts may need to assess whether a police officer was in reasonable fear for his safety, and whether the amount of force he used was commensurate with what he feared. Or, as in a recent Supreme Court cases involving the strip search of a thirteen year old female middle school student in the principal’s office, courts may focus on the degradation such a student might experience to determine whether the search was so intrusive it outweighed the school’s interests in safety and security.
Assumptions about emotion pervade every aspect of law—even less obvious areas such as real estate law. For example legal scholar Brent White pointed out that courts view individuals who default on their mortgages very differently from corporations or government agencies who do so. He argued that when individuals find their homes “underwater” (that is, they owe more than the home is worth), it may be in their best financial interests to walk away rather than make good on their mortgage commitments. Nevertheless, courts treat the individual homeowner’s decision to default as one that should elicit shame. At the same time, he argued, courts tend to treat governmental or corporate decisions to default on massive housing projects as purely economic decisions—and therefore no cause for shame (White 2010).
And in the medical realm, the Supreme Court in Gonzales v. Carhart (2007) upheld a rule against late term abortions based on several assumptions about what a woman obtaining such an abortion will—or ought to– feel. Justice Kennedy wrote for the majority that “respect for human life finds an ultimate expression in the bond of love the mother has for her child.” And so although he admitted there was no reliable data supporting his assumption, it seemed to him “unexeceptionable to conclude” that some women will feel regret about their decision, and that severe depression and loss of esteem might follow.
Many such assumptions are taken to be so commonsensical that they don’t need to be mentioned, much less defended. For example, judges and jurors widely believe that defendants ought to feel remorse, and that this remorse will be outwardly visible. When a defendant does not look appropriately remorseful, his sentence is likely to be harsher. In a capital case, perceived lack of remorse is one of the main factors leading juries to sentence a defendant to death (Haney, Sontag & Constanzo 2010).
In jury deliberations, jurors may gain or lose credibility with the group depending on the emotions expressed. As one study found, the rules for emotional expression may be gendered. An angry male juror is regarded as persuasive; an angry female juror as shrill, emotional and therefore unpersuasive (Salerno and Peter-Hagene 2015).
Rape law is a fertile area for the study of implicit emotion norms. Legal actors often have firm beliefs about what a “true” rape victim will feel and how she will express those feelings. For example, investigators often believe a rape victim ought to act hysterical rather than calm shortly after the crime. See, for example, the harrowing account of a rape victim whose account was disbelieved and who was charged with perjury for reporting the rape, based largely on her flat affect (Miller and Armstrong 2015). Once rape victims appear in the courtroom, however, one troubling study found that judges in Minnesota adjudged these victims most credible when they expressed compassion or forgiveness for their assailant, rather than anger (Schuster and Propen 2011).
Evaluating assumptions about emotion
I have considered a number of explicit and implicit assumptions about emotions and their role in the legal system in the previous section. It is important to emphasize that not every use of emotion in law is based on unsupported assumptions. For example, there is a growing body of research showing that apologies by doctors decrease the likelihood they will be sued for malpractice (Korobkin and Guthrie 1994). In light of these findings, a number of jurisdictions have sought to encourage apologies, and presumably to encourage better doctor-patient relations, by passing statutes establishing that a doctor’s apology, which could be construed as an admission of error, cannot be used as evidence of doctor error in a malpractice suit.
Nevertheless, many “commonsense” beliefs about emotion are contradicted by findings in the sciences and social sciences, or at least require further study (Maroney 2009). Law and emotion scholars aim to subject these beliefs to scrutiny, identifying misconceptions and gaps in understanding. Once the legal system’s beliefs about emotion are evaluated in light of knowledge from fields like psychology, many of them turn out to be innacurate. In addition, some assumptions are not empirical in nature at all: they rest on normative views about how people ought to act. These assumptions, too, must be debated and evaluated, but they cannot be definitely proved or disproved.
Let us turn first to some explicit empirical assumptions. As mentioned earlier, courts sometimes impose “shaming penalties” because they believe those penalties will deter offenders from repeating their criminal behavior. The psychological literature shows this assumption to be false: rather than reforming offenders, shaming punishments often have the opposite effect– stigmatizing offenders in ways that discourage them from improving their behavior and instead make them feel worthless and hopeless (Massaro 2000).
I have also discussed how laws governing the workplace prohibit certain types of behavior, such as sexual harassment or creating a hostile environment, in part on the grounds that these behaviors are humiliating. Catherine Fisk (2001) argues that courts have no firm grasp on the concept of humiliation. She draws on psychological literature that views humiliation as an interpersonal emotion involving at least a triad: a humiliator, a victim, and a witness whose good opinion matters to the victim. The victim may experience a range of emotions, including shame, embarrassment, rage and despression. She argues that courts too often underestimate the harms humiliation inflicts upon the victims, do not understand the toxic effects of humiliation on the workplace culture as a whole, unrealistically demand evidence that the humiliating behavior had physically measurable effects on the victim, and do not understand the range of emotions an episode or a culture of humiliation might evoke. In her view, this inaccurate understanding of humiliation protects behaviors that ought to violate laws against workplace harassment.
Carhart v. Gonzales, the late-term abortion case, stands as one of the clearest examples of decision-making based on assumptions that are not only unsupported, but contradicted by the available evidence. In that case, the Court’s decision turned largely on its assumption about the prevalence of post-abortion regret. Chris Guthrie was one of several scholars who argued that the Court misunderstood the dynamics of regret and ignored the available evidence that most women who choose abortion manage their feelings of regret and use them in constructive ways. Their primary feelings are positive emotions like relief (Guthrie 2007-2008).
The empirical assumptions that go unstated are particularly hard to evaluate. We all have expectations, some of them culturally specific and some of them more widely shared, about what emotions should be expressed in various circumstances (happiness at a wedding, joy at a pregnancy, sadness at a funeral). Such subconscious scripts also permeate the courtroom, and many of them are quite harmful.
Consider the assumptions discussed above about the feelings that “real” victims of rape are expected to express. These widespread assumptions often lead investigators to disbelieve claims of rape unless the victim appears highly emotional. Yet rape victims react in a variety of ways; there is no one response that marks a “true” rape victim. For example shock, denial and other common responses may lead rape victims to display outwardly unemotional affects (McKimmie, Masser and Bongiorno 2014).
Consider also the assumption that criminal defendants’ remorse is easily detectable. Capital jurors are not generally instructed about remorse, but they implicitly assume it is important and also that they can evaluate remorse simply by watching a defendant’s facial expression and body language in the courtroom. Defendants who don’t look sufficiently remorseful are likely to be sentenced to death. It is worth noting that since jury deliberations occur in secret and U.S. juries are not required to explain their verdicts, the powerful effect of perceived remorse on juries could have gone undiscovered without the work of the Capital Jury Project, which conducted extensive post-sentence interviews with capital jurors.
Now that the role of perceived remorse has been documented, the U.S. criminal justice system faces a pressing problem: there has been scant investigation of whether remorse can in fact be reliably identified. Or to put the point more directly: there is no evidence that remorse can be identified via facial expression and body language, and a disturbing amount of evidence that evaluations of remorse are distorted by factors like the youth of the defendant (Duncan 2002), the race of both the defendant and the judge or juror (Bowers, Steiner and Sandys 2001); and the mental disability of the defendant (Stobbs & Kebell 2003). Another implicit assumption about remorse that drives both juries and judges is that a remorseful offender is unlikely to offend again (see e.g. U.S. v. Beserra 1992). This too is an empirical assumption with little evidence to support it (Proeve and Tudor 2010: 90). Here is a rich set of research questions, and until these issues are explored, defendants will continue to be sentenced to death and long prison terms based on unexamined assumptions about remorse.
The case I introduced earlier about the strip search of the middle school student demonstrates that at times the legal system can examine and correct its own assumptions—at least if it is open to a multiplicity of viewpoints. At the oral argument in the case, it became clear that many of the judges did not understand how degrading such a search would be to a thirteen year old girl. They assumed it would be similar to the experience—with which they were quite familiar– of male student athletes suiting up in a school locker room. Justice Ginsburg, the sole female member of the Court at the time, emphasized to them the degradation and embarrassment such a search would cause, and “friend of the court” briefs from psychologists, psychiatrists and social workers supported her view. The ultimate decision in the case reflects that the Court came to view the strip search as unduly intrusive and degrading. (Safford v. Redding 2009).
The examples above focus on assumptions about how particular emotions work, or what emotions people display in particular situations. These are empirical questions that can be investigated by pyschologists, criminologists, and others who study human behavior. But not all evaluations of emotion’s role in law are empirically grounded. Some have normative dimensions that may be illuminated by philosophy. Note, however, that the line between the normative and the empirical (or between what courts assume people feel and what courts assume people “ought to” feel) is not always clearly delineated. For example, jurors believe that criminal defendants who feel remorse are less culpable. In part this is an unsupported empirical assumption that such defendants are less dangerous, more empathetic, or less likely to repeat their bad conduct. In part it is a deeply held belief about what people ought to feel after they’ve caused grievous harm.
Attitudes about the meaning of “love” also highlight the intertwining of the empirical and the normative. In Carhart v. Gonzales, the abortion case discussed above, the Court used the emotion of “love” in a troubling way. Although it was a case involving women who sought abortions, Justice Kennedy began with the assumption that the natural feeling between a mother and her child is love—thus portraying the plaintiff’s desire to abort as against nature. To Justice Kennedy, this may have seemed an accurate description about what pregnant women feel, but it also happens to track what he believes pregnant women ought to feel. Notions of romantic love raise similar issues. As Cheshire Calhoun (2000) wrote, many of the opponents of same sex marriage simply could not conceive of the bond between two same sex partners as a bond of romantic love, because to them romantic love and intimacy were possible only for a man and a woman, and only for those who could engender biological offspring.
Some questions about what role emotions should play in the law are more purely normative. For example, as Sam Pillsbury discusses in this issue, the criminal justice system’s reliance on remorse raises the normative question of whether remorse should be part of the punishment calculus at all. This is a question that philosophy can illuminate (see e.g. Murphy 2007), though it is ultimately for the legal system to decide. In a similar vein, the criminal law treats some homicides as more culpable than others. As mentioned earlier, a homicide committed in the heat of passion is considered less serious than a calculated homicide accompanied by no discernible emotion at all. Psychology can inform us about the emotional states that accompany homicides; it cannot determine whether passion or cool calculation should be more serious in the eyes of the law.
One of the early, influential philosophical debates about law and emotion centered on the role of disgust in the law. Legal philosopher Martha Nussbaum (2000) argued that disgust ought to play no role in law (she makes the same case for shame, and, in her most recent work, for most forms of anger as well). To simplify, her view is that disgust misconstrues its objects as animal reminders, revealing a “way of hiding from our humanity that is both irrational in the normative sense, embodying a wish to be a type of creature one is not, and unreliable in the practical sense, frequently bound up with narcissism and an unwillingness to recognize the rights and needs of others” (15). As a result, disgust can lead to discrimination against women and other marginalized groups based on bodily aversions. Dan Kahan (2000) responded that disgust has a useful moral dimension—it helps us identify conduct that the law ought to condemn.
Reforming Law in Light of Improved Knowledge of Emotion and Emotional Dynamics
It is important to emphasize that even when law rests on demonstrably wrong assumptions, it does not necessarily follow that the law must change. Whether reform is necessary is ultimately a legal question. For example, courts recognize an “insanity defense” to murder, but have struggled to align the defense with rapidly shifting knowledge of mental illness (see the article by Aharoni and Vincent in this issue). As a practical matter, legal standards –“insanity,” for example–must be crafted with an eye toward values like equal treatment, predictability and fairness, and these values sometimes conflict with the goal of case-by-case psychological accuracy. And as a normative matter, the question of what counts as a mental illness that makes an accused murderer less culpable (or excused from criminal liability entirely) is ultimately a legal question, not a psychological one.
Nevertheless, the disconnect between folk knowledge and actual knowledge about emotions often matters greatly, and when it does, a variety of corrective actions may be possible. Shaming punishments are a case in point. Since they were adopted in order to encourage criminal offenders to stop breaking the law, and since available evidence shows that they don’t serve this purpose, shaming punishments are indefensible and ought to be discontinued.
In other cases, corrective actions are less straightforward. Consider the remorse example once again. Juries are sentencing men and women to death based in part on their misguided faith in their own ability to read remorse from facial expression and body language. The solution in this case is a bit more complicated. The problem with remorse is part of a larger problem with courtroom decision-making. The U.S. legal system, like many legal systems, places great stock in what is called “demeanor” evidence. It is an article of faith that there is much to be learned about a person’s trustworthiness and credibility by observing his outward demeanor. This assumption is highly questionable (Wellborn 1991), but it persists. And as long as juries are encouraged to observe the demeanor of the accused, they will tend to look for evidence of remorse, and judge harshly when their expectations go unmet. Some possible solutions to this problem include having judges instruct juries not to take remorse into account, or providing expert witnesses to testify to the problems with evaluating remorse generally and in specific situations (such as cases involving juveniles). Whether expert testimony and jury instructions are effective in guiding juries is yet another important research topic.
One barrier to understanding emotion, as Arlie Hochschild pointed out long ago (Hochschild 1983), is the misconception that emotions are private and internal. Studies of the emotions of individuals in labs have yielded many important insights, but they cannot capture the complex dynamics of emotions unfolding in real-life contexts. Mock jury studies that focus on individual jurors cannot capture the interplay of emotions during jury deliberations. For example, studies about how individual jurors evaluate a defendant’s remorse need to be supplemented by studies about what happens in the jury room. Jury deliberation will likely affect the emotions of the individual jurors as they consider the case, their evaluations of one another’s credibility, the emotional climate of the jury room, and their collective assessments of the defendant’s demeanor.
There are promising new studies focusing on the collective dynamics of the jury room, such as work by psychologist Sam Sommers on how the racial composition of the jury affects deliberation (Sommers 2006). There is some work on how the collective setting affects juror emotions, such as the study of angry jurors and gender discussed above. More such work is needed, focused not only on the jury room, but on the courtroom and the myriad other institutions that make up the legal system (such as prosecutors’ offices, law school classrooms, panels of judges), and that are regulated by the legal system (such as police departments, schools, hospitals, the workplace). Sociologists (see e.g. Turner and Stets) and criminologists (see e.g. Karstedt et al) are increasingly focusing on the role of emotions in group and institutional settings, and this focus ought to be more fully incorporated into Law and Emotion studies as well.
Legal institutions can be improved in light of current knowledge of emotional dynamics. Here is another example. There is a disturbing pattern of prosecutors refusing to revisit wrongful convictions, even of those on death row. The emotional dynamics of the office help explain this phenomenon. Prosecutors feel loyalty to victims and their families, and gain satisfaction from helping victims. They may feel reluctant to deliver distressing news or to reopen old wounds. Moreover, prosecutors who question convictions may be perceived as disloyal to their colleagues and their office, and may be shunned. The emotional impact of shunning—or of belonging—can be a powerful incentive (Bandes 2006b). To avoid these painful outcomes (and the very real chance that they will not be re-elected if they are perceived as ‘soft on crime’), they may be willing to overlook injustice in order to gain approval and stature. Efforts to reform the institutional culture or organization of the prosecutors’ office ought to take these emotional dynamics into account when determining how to encourage prosecutors to keep an open mind and do the right thing without losing the satisfactions and rewards of their job.
The focus of the essay thus far has been on the emotions that influence legal decision-making and that shape legal institutions. Just as important, the legal system and legal rules can shape or guide emotions and emotion norms (Bandes and Blumenthal 2012). The interplay among public opinion, social norms, and the development of law is complex and bi-directional. Consider the example of same-sex marriage discussed earlier. Three decades ago the Supreme Court upheld laws criminalizing sex acts between same sex partners (which it called “homosexual sodomy”) (Bowers v. Hardwick). This decision evoked outrage which led to a powerful political movement (Gould 2001). 17 years later the decision was overruled (Lawrence v. Texas) and in 2015, the Court held that there is a constitutionally protected right to same-sex marriage (Obergefell v. Hodges). The Court’s evolution in this area of law was influenced by rapidly changing public opinion, and public opinion was certainly galvanized by the Court’s decision in Lawrence. This is an example of the complex interplay of social norms and Court’s decisions.
To take another example, law helps shape norms about appropriate punishment. It can encourage, discourage or channel the emotions that underly the urge to punish (Darley 2009). Or, as in the example about mortgage defaults above, it adopts and communicates norms by framing acts as not merely illegal but shameful. More generally, legal decisions, rules and institutions can help shape norms about empathy, tolerance and other values. Debates about how to structure legal institutions must focus on what goals those institutions ought to achieve. They must also be informed by accurate knowledge about human behavior and human emotion, by a realistic appraisal of how much there is still to learn, and by a determination to fill in those gaps in knowledge.
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