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Legendary teacher of constitutional law and related subjects he himself argued many cases before the United States federal courts including the Supreme Court. A frequent public commentator on issues and perhaps the most gifted translator legalese into plain english. [laughter] which the public oppose him a huge debt of gratitude. Caller. Thank you. Let me start by thanking the tucson festival of books for having me and for all of you for coming it is enormously gratifying for me as an author but to see so many people on a beautiful afternoon coming to hear about sreme is really wonderful. Thank you. [applause]s i will tell a story the book begins with. I will tel i was teaching a case that you are very familiar with borland charlottesville virginia. By all accounts she had a normal childhood, went to the Public Schools through Junior High School always received passing grades. Her father left her mother, her mother was destitute, her mother had no choice but her sister in foster homes area she was raped by her fosters nephew and became pregnant as a result. The foster parents were embarrassed by the pregnancy. Her foster parents had her institutionalized and was called a home of the politics for the feeble minded. She gave birth to a daughter in the home and after, virginia began proceedings. Virginia like most states in the country adopted the eugenics law the person testified she had a low iq. Many years later that professor gave her an iq test in the normal range and another test decided that the social worker had examined kerrys baby than six months old and has had something didnt seem normal about the baby. The state ordered that a tube litigation be performed and that she be surgically sterilized. A lawyer took the case to the Supreme Court. It should have been an easy case for the Supreme Court. After all the constitution prohibits cruel and unusual punishment. She had done nothing wrong. Besides the court by that point in history said the word liberty and the constitution protects fundamental rights to area among the fundamental rights we all have is the right to procreate. But the Supreme Court in the 81 decision written by Justice Oliver Wendell Holmes ruled against her. Justice holmes was one of the most revered to ever sit on the court and its language anywhere supports he said quote, three generations are enough. The Court Approved bastardization 60000 people in the United States were voluntarily surgically sterilized as a result of the eugenics and in the Supreme Court. When i was teaching my students understandably were outraged by the case. The night after that class i realized i had been making excuses for what the court had done and i realized that all too often in my teachings i had been making excuses about the court. I thought about it critically and i realized the Supreme Court has so often failed to through American History the most important times and tasks and i want to write a book that said that. [applause] what do you see as the purpose of having the constitution anyways . The effort to put the most precious values in the document it is difficult to change and after all what it makes the constitution different from all other coming any statute by congress can be changed. Any ordinance can be changed. But the constitution takes three quarters two thirds of both houses of congress and three quarters of the states to amend the constitution so you have to ask why does the nation that sees itself as a democracy want to be governed by the document and i think the answer is those that wrote the constitution knew that there would be tremendous temptations to compromise the most precious values and rights. They knew from the history that there would be the desire to centralize power so they wanted separation of powers right in this document. They knew that in the times of crisis there would be repression so they wanted to put the most precious values in this document so in this sense of the constitution is an an an in other it is best to make sure that there are shortterm passions that dont cause us to lose sight of the values. What is the purpose of the Supreme Court in the system to enforce the constitution . There are certainly other purposes to ensure the uniformity of the federal law and i think the preeminent purpose is to enforce the constitution. So the question i ask in this book, the question i ask all of you is how has the Supreme Court done over the course in American History and forcing the constitution . The most important issue in the early American Republic right up until the civil war was slavery. How would you grade the Supreme Courts handling of the question . Is it possible to give an f. Minus . When it was ratified until the 13th amendment was ratified that abolished slavery there is no single Supreme Court case that expanded the rights. Every Supreme Courts decision in aggressively enforced the institution and protected the rights of the slaveowners. I dont believe that they could have eliminated that they could help chip away at the institution. The court did not have to hold that they are property but that they are not citizens. Dred scott was taken to illinois and brought a lawsuit in federal court saying that he had been made a free person. The Supreme Court could have if it wanted to but instead Supreme Court said that slaves are property not citizens so they can sue but then they went in even further and said the compromise was unconstitutional. This was the compromised adults with the land that was adopted in the Louisiana Purchase specifying which would be free three states and the Supreme Court said it had the effect of taking them away from the slave owners. After the civil war, congress adopted and the states ratified the 13th, 14th and 15th amendments. What were those supposed to a com push . They changed the nature of society and government. The 13th amendment prohibits slavery and servitude. At the 14th amendment the 14th amendment begins by overturning dred scott and it says all persons born or naturalized in the United States are United States citizens and it also says that no state can deprive a person of life, liberty or property without due process of law and any equal protection of the law. This is the first time that the constitution was ever directly applied to the state and local governments and also gives the power to enforce it. In the 15th amendment adopted in 1870 says that the right to vote cannot be denied by race or previous condition of servitude. How would you grade the interpretations of these amendments and you are not substitute to any. I would give an f. Or f. Minus. Why do i say that . Youve never probably heard of the case to interpret these amendments in 1873 called the slaughterhouse cases. Louisiana adopted the law to give the monopoly in the louisiana legislators and some didnt want to work had a challenge into the court rejected the challenge and interpreted every tradition of 13th and 14th amendments. For for example the Supreme Court said that the equal protection clause can be used only to protect africanamericans from discrimination but thats not what it says. It says no person. What did you know that because of that case it wasnt till 1971 the Supreme Court found anything other than race discrimination they found that it was unconstitutional. In the same opinion in the slaughterhouse cases, the Supreme Court effectively read a provision of the amendment out of the constitution. One of them i didnt mention is in section number one exercise no state can deprive any citizen of the privileges or immunities of the United States citizenship its picture states cant deprive people of the most fundamental rights but the Supreme Court and the case said the Typical Court cannot use the privilege of the immunities clause to become unconstitutional. The provision that was 5yearsold put in the constitution and the Supreme Court for Supreme Court says no court can apply it as unconstitutional. Since the case in 1873 there is only one Supreme Court decision that hasnt been overruled in the privilege of the immunities clause. So it was less to protect the amendment a few years later and that is before we even get to 1896 and the plessy versus ferguson the Supreme Court held that separate but equal is constitutional and the law that requires the racial separation of the races is permissible because of the Supreme Court decision. Jim crow covered every aspect of southern life in many northern states as well posing apartheid to so much of the United States. The another one of the significant charges in the Supreme Court is that its failed in times of military and foreign affairs. What are some of the worst decisions that took place at this time . It is in the time of crisis they dont make us lose sight of the values. Let me take one example. Its one of the worst in history was the United States in 1944. During world war ii 110,000 japanese americans aliens and citizens and 70,000 United States citizens were routed from the lifelong and Franklin Roosevelt called constant transient camps. Race alone was used to determine who would be free and who would be incarcerated. The japanese families are often housed literally in horse stalls. This should have been an easy case for the Supreme Court. Race alone should never be used to determine who is free or incarcerated. It cant be used to determine who is a danger. Nonetheless the Supreme Court in that decision upheld the evacuation. Justice hugo black wrote the opinion for the court court in the opinion justice black said these are just the hardships japanese americans will have to bear. In the book you quote of the outlook would dissent in the case and as a rough paraphrase if anything is fundamental to the system, it is the idea that guilt is personal rather than inherited. But later jackson goes on to write i do not suggest the court should have attempted to interfere with the army carrying out this task if the people overlook the command fall into irresponsible and unscrupulous hands the court yields no power to to three straight. Is there anything the court could have realistically done to stop this internment of japaneseamericans . Its important to remember that it was decided in 1944. By this point, the tide had turned in the war. There is no longer appear at the Japanese Invasion of the west coast and im not suggesting that justified what was done in 1942 they had been so that they had been so easy for the Supreme Court to say that this was unconstitutional. Its important to remember that Robert Jackson was talking about was an attorney general under Franklin Roosevelt and even he said this was unconstitutional in the sense that was particularly troubled him is that they would lie like a loaded gun to be used in the future to take away liberties in wartime and i think thats what we have seen since september events. Another dark chapter as you tell it in this book was the first 35 years of the 20th century. How does lawyers and law professors often called the lochner ara. How did the court to go wrong . In the late 19th century to 1936 the Supreme Court declared unconstitutional over 200 federal, state and local authorities find it to protect workers and consumers. Let me give you one example. Congress passed the law that prohibited the shipment of interstate commerce of goods made by child labor. It wasnt even all that protected. If prohibited children under 14 from being used in a manufacturing of goods and for children over 14 they couldnt work more than ten hours a day or six days a week more than 60 hours. Congress didnt prohibit child labor. They just said if children are using and making those goods they cant be shipped in interstate commerce tidying up very clearly to article number one in the constitution to regulate the commerce among the states. Nonetheless they declared this unconstitutional. The Supreme Court Supreme Court has said congress could not regulate in this way. How many children were maimed injured or become even died as a result of the Supreme Court case of . This is an example of so many. When the states and congress try to put minimum wage laws for the maximum workers before declared unconstitutional. These were declared unconstitutional. When congress tried to protect consumers like through the price support this was declared unconstitutional. When congress tried to regulate the subsidies this was declared unconstitutional. The president Franklin Roosevelt was called court packing. But the key to remember is for you to take a long period of time by et 95 to 1936 the Supreme Court could unconstitutional all of these laws designed to protect society. So during the many periods that you discussed failed to protect minorities against the oppression by popular majorities the problem seems to be the office of the Supreme Court putting the will of the democratic majorities all of whom are in each of the law protecting consumers and protecting children subjected to horrible working conditions. When should a court stand up to popular majorities command when should step back and be sure to them . The basic question thinking about the constitution when do we want the court to defer to the political process and stop the political process that is the key difference between liberals and conservatives on the court. On tuesday june 25, 2013 the Supreme Court had a key provision of five conservative justices in the majority before the the justice and david this justice ended this is a provision of the Voting Rights act that in 2006 congress extended for 25 years almost unanimously. It was 98 to nothing with 33 no votes. Hard to imagine the congress being so close to unanimous yet they were declared unconstitutional, this critical provision of the act is usurping the states rights and exceeding the scope of the congress power. The liberal justice that we should be for two congress and its judgment that this is necessary to protect the Voting Rights. The next day wednesday, june 26 2013 the Supreme Court faisfor declared unconstitutional Section Three of the defense provision of the federal law for the purpose of marriage had to be in between a man and a woman. The majority with the four liberal justices in the sense that they would work for stress test kennedy before the conservative justices dissented with Justice Scalia when he did it for two congress. It cuts both ways. If they say we are not going to defer to the Voting Rights into the liberals say refer to congress. Wednesday its the liberals not wanting to refer and the conservatives say we need to refer to congress. Only Anthony Kennedy was the majority in both of the cases. What this shows me as both liberals and conservatives sometimes want to be her and sometimes dont they just disagree about when. My own view is that the constitution exists to protect minorities and fundamental rights in times of crisis. You cant leave the protection to the majority. We dont leave the fundamental rights to the majorities of the court has a very special role in enforcing the constitution who cant use the political process and protecting fundamental rights. There are other areas that should give a great deal of deference. As to make you talk a fair amount in the book about john roberts. What is his background and contribution in his role as chief justice of . He grew up in northwest indiana. His father was an executive. He wouldve he wrote in a privileged family come he went to Harvard College and then harvard law school. He clerked for a judge on the United States court of appeals in the Second Circuit at the chief justice of the United States. He then went to work in the Reagan Administration and the office of Legal Counsel and white house counsel. He then left that up and went to work at a law firm. Robert specialized in representing business interests in the United States Supreme Court and he took time out from that to work for the Solicitor Generals Office and they represent the United States in cases before the Supreme Court. He was the number two person to start in the office and while there he wrote a brief urging the court to overrule and allow prayer in Public Schools and he then went back where he was a lawyer until president george w. Bush made him a court for the district of columbia circuit and he spent two years until july, 2005 president george w. Bush nominated the chief justice of the United States at A John Roberts was 50yearsold so if he lived to be 90 the age Justice Stevens retired. What is the case against the Roberts Court . I think the Roberts Court consistently favored business over employees and consumers and all of us. I think that the Roberts Court has very much close to the courthouse door to those that are injured. Maybe to illustrate code you can pick an example and it might surprise you. They cannot sue a generic drug company, not for the design defect that is the result of the decisions, one in 2011. A woman in New Hampshire was given a prescription for the pain reliever. Her prescription is filled with the generic form and she took it as prescribed and suffered a horrific but no side effect. She spent months in a medically induced coma and is permanently blind and disfigured. She sued the company that made the drug saying there was a design defect. Faisfor the makers of the generic drugs cannot be sued for the design defect for the failure to warn. Had she taken the brand name version and she could have sued. The reason this matter before all of us is according to the fda over 80 of all of the prescriptions filled at the generic drugs. The generic equivalent over 90 of the time the prescription is filled with the generic drug. The decisions were an enormous victory to the pharmaceutical industry that a huge loss to all of us as consumers. Its called a preemption case as far a member of the others that you discussed in the book. What is preemption and how has the court got it wrong . The federal law and state law conflict. The law and that the treaty are the supreme law of the land and it is the one that you use for federal law on the one hand and state law on the other. It was often prescribed for those with diabetes and others where they need to speed the digestion. Its now known that a percentage of the prolonged users, 29 also for portable irreversible side effects. The case involved two women in different parts of the country that took the drug for prolonged periods and suffered side effects and they failed to adequately warn consumers that they warned 5for as they did two years later. Justice Clarence Thomas wrote the opinion and the food and drug act saved at the generic drug can be sold and its chemically the same as the brand and drug and there is the same warning label. Its cant change the chemical compounds which cant be sued. The justice wrote a dissent and say this makes no. If these women have taken their brand name drug because they took the generic version of the drug, they cant. She said it was meant to protect consumers not to lead to injuries where they cant recover. The company could choose not to sell the drug. It involves something called the federal arbitration act. What is the federal arbitration act and why should the rest of us or anybody else care about it . It was adopted in 1925 and it says the contract shall be enforced in the state law. I will answer a question directly. At t was advertising free cell phones for those that signed up for the service. The married couple went to get their free cell phones and a day like all of us my guess is like most of us they didnt read the agreements they were signing. They were so crazed with a first cut their monthly statement and each charge to 32. 80 in sales tax. Dvds that they promised free cell phones so they should have to bear the cost. They decided they wanted to sue at t for fraud and it was a classaction lawsuit. They said there is an arbitration in the agreement that you signed that says if you have any dispute you have to go to arbitration if you cant be part of the class action. They discovered the arbitrations are not enforceable in california in the routine. Nobody is aware of these. There is no agreement. The court of appeal said they went. It is revocable under state law. The five to four court of appeals Justice Scalia wrote the opinions and Justice Scalia talked about the evil class actions and said they terrorize business and forced to settle the claims. They cannot bring a classaction. Not even a classaction arbitration. Justice breyer in the dissent said the reason we need classaction into situations like this we are a large number of people and we each lose a small amount of money. No one is going to sue would go to arbitration so why does it matter to all of us . Arbitration is increasingly ubiquitous. They are found on Employment Contracts and consumer contracts and even medical contracts. Not that long ago. He and my doctor for the first time in a big stack of papers to fill out and in the middle is a form i was asked to sign with any dispute of the doctor and the treatment i couldnt sue the doctor i would have to go to arbitration. I asked the receptionist if the doctor would still see me she said she didnt know. Nobody ever asked her that question before. That dr. Didnt see me but i know many physicians will not see patients unless they signed arbitration. Unless they give up their right to sue in court. A band at the same time i bought a new computer but in order to use a computer, or a tablet like and i like and i had the terms are 46 single space pages long. But i decided to use the terms and sure enough it has had any dispute arising out of the computer i couldnt sue them in could sue them in court i would have to go to arbitration. I wrote a letter saying i didnt agree to that and by opening the envelope of the letter i would sue them in court if they had the dispute. [laughter] they didnt look back but the computer still works. Arbitration clauses are pervasive and take away the ability of people to exercise their rights to their day in court. So here today that it wont have the chance to discuss in the limited time you painted a pretty bleak picture but there are some bright spots. Can you tell us about what you regard as the greatest successes . I dont mean to say that it always goes. That would be the sense of inclusion. I chose my words in the book very carefully saying the Supreme Court has often felt identified as a major supporter brown v. Board of education may 171954 the Supreme Court held that separate but equal has no place in American Public education overruling plessy versus ferguson and then the end of the jim crow laws and i also believe that the Supreme Court could have done so much more than it did bringing about the school desegregation. Think about american Public Schools today how they are separate and unequal and becoming increasingly separate and then accelerating way i did a great put a great deal of blame on that in the court. I applaud the decision of the United States versus nixon when the court ruled unanimously that the president s claim did not allow him to keep the white house tape secrets. Nixon produced the tapes and the obstruction of justice telling the fbi off to investigate the watergate breakin. If they hadnt had the court to enforce the separation of powers i applaud the decision from june june 26 to 2013 holding Section Three of the defense of marriage act unconstitutional and im hopeful that in late june of this year the court will see the state law violated the constitution to be called dignity and at the same right to love and commitment. A cynical reader might think that you like the court when its liberal and dislike it when its conservative. How would you respond to that . Noticed that my examples dont fit into that pattern. Lets begin where we started. I knew that no one, liberal or conservative would defend the positions on slavery like dred scott. I knew that no one liberal or conservative would defend the decision on plessy versus ferguson. There are few today liberal or conservative who defend the decision. Few today liberal or conservative who defend the child labor cases. County board of education was a unanimous decision it wasnt liberal or conservative. It wasnt liberal or conservative. If you think about all of those examples come liberals and conservatives would agree focus on the value and success that i am arguing overall is not ideological. There are cases where theres ideological disagreement Citizens United versus the federal Election Commission but i can make a strong case against the court just focusing on the cases where the roles and conservatives would agree. Use of a number of times that the Supreme Court has made things worse rather than better. Would we be better off without a Supreme Court . I spent a long time pondering that writing this book. There are constitutional scholars do believe we would be better off with the power to strike down. He wrote a book titled taking the constitution away from the court to say we should no longer have judicial review. Larry kramer wrote a book calling for popular constitutionalism which he says we should end the judicial supremacy and get as i reflect on it the Supreme Court got it right. They said the constitution exists to limited government. The limits are meaningless if they are not enforced. Without the court will often go on and forced. I spent almost 40 years now representing prisoners including some on death row and i represented the guantanamo detainees and by representatives unless men in representative list man in the court. Ive realized that for my clients the court was nothing, criminal defendants, lawyers, Homeless People will rarely when. When is the last time they adopted the law to expand the rights of kabul defendant or the legislature on its own test a law to increase the rights of prisoners in the state . So even though they may often lose in the court for people like my client. Are the benefits to people with some of the costs that you would identify in the book like the plaintiffs cost to the children that were subjected to the conditions the horrible working conditions during the 18 or 19 Supreme Court block. The honest answer is i dont know how to add up all of the instances where the court may have decided. All of the instances it may be better. I wouldnt know how to identify the costs. The key is to think of the ways to make it better than in then in the future. Please join us. [applause] and our wonderful moderator. We have about 15 minutes for questions. I would encourage you to keep your questions as brief as possible and if you can lineup i will point to the one side of the room and then the other. There were many states are passing laws and i believe that those were intended by north carolina. Since it became clear they were backing away from those ways its not possible to go back to that . Is is interested in this question and write the Supreme Court has never explicitly overruled. The court implicitly overruled in 1942 that involved the eugenics law that said if a person was convicted of a crime involving the moral certitude would be surgically sterilized and the court in the eloquent opinion by William Douglas said the right is a fundamental right and its unconstitutional. What happened in the 15 years with the scanner versus oklahoma obviously the eugenics in the United States. Virginia passed a law in the direct compensation to those that were sterilized and its such a bill now pending in california. Its a symbolic gesture is that the people are no longer alive and the ability to have children was taken away but i hope there will be the day that the court says skinner versus oklahoma implicitly and the public with explicitly we overruled. Will you share your view on the constitutionality of the arbitration act. How they might decide the court reaches it. Its i will answer it simply and quickly this was a very pro arbitration Supreme Court. Business doesnt want to cases to go before the jury is. Also its important that business gets to strike those that are arbiters and individuals that want to make the income note that if they develop a pattern of the business they will no longer be employed to do it so one way which the court is being probusiness is systematically ruling in favor of the court will consistently hold arbitration. Video address the issues in the case before the Supreme Court right now regarding the redistricting in the vote of the people tax the case would argue about ten days ago its the Arizona State legislature of the redistricting commission. Arizona adopted an initiative to take the districting for the congressional districts out of the hands of the legislator to get to the independent commission. California followed the lead and created a commission for the state legislature districts. In fact i chaired the commission to the Los Angeles City charter and we put that in the late 90s and independent commission because otherwise the Political Party that controls the legislature draws the districts to maximize into computer programs are sufficiently sophisticated and there can be an enormous variance to the amount of the Political Party favored in the state and the number of districts they are able to control. I would favor the commission. Arizona legislators have a challenge on this and says article one of the constitution says that the legislature of the states shall set the time, place and manner and they say therefore you cant get that to the district commission. The United States court of appeals in the circuit upheld the arizona law and is at the legislature refers to the political process of the state its not just the legislature itself but besides that look at the language in the constitution. It is the legislation but the time, place and manner to me that it doesnt say anything about the districting. When i first heard of this case i thought the challenge was almost frivolous but the people in the state want to do this they should be able to. The conservatives would like this because after all it is a state choosing for it. Fullstop the people of the state are choosing. Its clear from the oral argument of the most conservative district is down i dont know where the majority will be in the case that i think that the commission for districting is the key government and it would be a shame if they take it away from the state in their ability to do this. [applause] you have made the case against the Supreme Court. How do we fix it . [laughter] thats the last chapter of the book and i hope that you will all get the book and read it. Let me quickly because i want to get more questions i list many reforms that i think could make a difference. We should change the way that its going to merit to the justice where the president can create a commission, democrat and republican to say i want you to send me names and i promise you to pick your names. We need to change the confirmation process. I favor the nonrenewable term limit. [applause] i think we need to change the way the court communicates and there should be cameras. It doesnt apply to the Supreme Court justices. We should apply the same rules in the justice that we do to other judges and we should make it so that no justice can decide for himself or herself. These are some of the reforms but i think i can make the case together we could think the mistakes less likely to happen in the future to prevent some of the mistakes in the past. Lincoln jailed several of his critics and a rule that was unconstitutional and lincoln ignored the decision so if they disagreed as the Supreme Court actually have the ability to defend the rights . Yes is the answer to your question but the history is somewhat but not completely accurate. During the civil war lincoln jailed his critics and suspended the writ of habeas corpus so they couldnt come to court to gain the release. Until the ex parte case after the civil war and until after lincoln was no longer a life i believe that the court could have declared it unconstitutional. Is there a chance a president could ignore the Supreme Court ruling . They had so much institutional credibility and such a long period of time Richard Nixon said he was going to disobey the Supreme Court order to release the white house tapes and then he was told by the Republican Leaders that they shouldnt do that. There is the defiance of the court but that isnt a reason not to enforce the constitution. I know you just touched on this but why are the Supreme Court justices the only court that do not have to follow the canon of judicial ethics . I think its wrong. Thats just the way that it can. They just dont apply to the justices. Also now if theres a notion that there is a notion that a Supreme Court justices disqualified if left to the justice to determine whether to participate. No one should be a judge for himself or herself. Im going to stick with this line over here since all of you have been in line. Do you think the Supreme Court was the correct place to take the issue of who one gore versus bush . Know that for a technical and not obvious reason. It was a question of florida law. To assume the court was right they counted the ballots without preexisting standards. There were two possible things to do. Create the standards that would be easy to do or you could stop the counting of the ballots. Which is it . The florida law there is no doubt liberals and conservatives would agree to that. Above all is clear that the question is left for the state courts to decide not for the United States Supreme Court it is a state law. What i think but i think that the court got it wrong was they based it on the florida law rather than the florida Supreme Court. And i discussed that in the book. Much of our discussion this afternoon has been on the arbitration system and the arbitration clause. Could you describe that process and a little bit more detail so that maybe we might understand it . Any time theres a contract it can say that rather than go to court the parties agree and they will go to an orbiter the arbiter is a private individual, not a judge. Theres the American Arbitration Association others groups of arbiters. You and i could be into that specify how the arbiter is cited. Let me give you another example. Do you remember circuit city . Adams applied for a job and on the back of the application in small print at his head if he had any dispute in the circuit city would have to go to an orbiter. Who reads the small print in the application to use after working he had a discrimination claim against and he sued them in the state court based on California Law and the United States Supreme Court ruled no he had entered into a contract with circuit city because on the back of his application is that it would go to arbitration. So whether it is an Employment Contract or consumer contract or medical contract if people agree to give up their right to go to court and to go to a private arbiter instead they are bound to do that and arbiters decisions are generally not published. Very difficult to get the decision overturned and by aggressively enforcing the court they closed the courthouse door to all of us. Im afraid were out of time. Thank you for attending the session dont forget to become a friend so that it remains a free event. Additionally all audience members are asked to vacate quickly so we can begin the next program on time. Thank you. [inaudible conversations]

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