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Monthly Archives: January 2015

Legal How-To: Disclaiming an Inheritance

Although an inheritance of money, property, or other assets is often a welcome gift for the recipient, there are circumstances in which a person may want to disclaim a gift from another person's estate. For example, a person whose own estate may already be at or near the limit of the federal estate tax exemption may choose to disclaim an inheritance for tax purposes. Disclaimers may also be used to take advantage of martial deductions or to prevent a beneficiary's creditors from making a claim on property that he or she inherited. So how do you legally disclaim a gift or bequest made by another person' estate? Here's a general overview: How to Make a Qualified Disclaimer Under IRS rules, there are five requirements that a person must satisfy in order to disclaim an inheritance: The disclaimer must be irrevocable and unqualified. The disclaimer must be in writing. The disclaimer must be completed within nine months of the death of the person who left the bequest. The person making the disclaimer must not accept any benefit from the disclaimed property.The interest disclaimed must pass to someone else "without any direction on the part of the person making the disclaimer." If these conditions are satisfied, the property will pass as if the person making the disclaimer had predeceased the person making the gift. The disclaimed property will then pass to whoever is specified by the will, trust, or other instrument, or by the operation of law. The disclaimed property will also not be treated as a transfer or a gift by the person making the disclaimer. This allows the person making the disclaimer to avoid the tax issues that would otherwise be involved with accepting the inheritance and then giving the inherited property as a gift or transferring ownership to another individual. Need More Help? If you are dealing with a large or complicated inheritance, or need advice on whether a disclaimer is right for your situation, your best option may be to seek the help of an experienced estate planning lawyer. Are you facing a legal issue you'd like to handle on your own? Suggest a topic for our Legal How-To series by sending us a tweet @FindLawConsumer with the hashtag #HowTo. Related Resources: Saying 'No Thanks' to a Bequest (The New York Times) Millionaire's Heirs Wait 92 Years for Inheritance (FindLaw's Law and Daily Life) Legal How-To: Omitting Relatives From Your Will (FindLaw's Law and Daily Life) Sign Up for Our Free Legal Planning Newsletter (FindLaw's Legal Heads-Up)
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What Do Federal Child Abuse Laws Say? 3 Things You Should Know

In addition to state laws prohibiting child abuse, the federal government has its own laws meant to protect children from neglect and other forms of abuse. These laws include minimum child welfare standards to which the states are required to conform. However, a recent three-year study by the Children's Advocacy Institute found that none of the states are actually meeting these standards, NPR reports. What do federal child abuse laws require? And what did the study find when it comes to enforcement of these laws at the state level? Federal Child Abuse Laws As the Department of Health and Human Services explains, federal child abuse laws are found primarily in two sources: the Child Abuse Prevention and Treatment Act and the Social Security Act. What should you know about these laws? Here are three quick facts: The Child Abuse Prevention and Treatment Act was enacted in 1974 and established the federal Office on Child Abuse and Neglect. It also provides grants to states for child abuse and neglect programs that meet certain federal standards. The Act also sets the minimum definition of child abuse and neglect as "Any recent act or failure to act on the part of a parent or caretaker which results in death, serious physical or emotional harm, sexual abuse, or exploitation," or "An act of failure to act which presents an imminent risk of serious harm." The relevant portions of the Social Security Act further established federal child welfare oversight of state welfare policies and practices by the Department of Health and Human Services, including the collection of child welfare statistics and the administration of child welfare information systems. Report's Findings According to the Children's Advocacy Institute's study, over a three-year period, no state met the federal child welfare standards, but the Department of Health and Human Services, which is responsible for enforcing these rules has largely taken a hands-off approach. "There is no meaningful oversight and the states know it," the report asserts. The report estimates that at least 686,000 American children were the victims of abuse or neglect in 2012, including 1,640 who were killed as a result. The report suggests that Congress should require HHS to take punitive action against states that don't follow federal regulations and sanction the executive branch, of which the HHS is a part, if it fails to meet its regulatory responsibilities. Related Resources: Federal government failing to protect children, report says (The Associated Press) What To Do if You Suspect Child Abuse (FindLaw's Blotter) Meth-Related Child Abuse Cases on the Rise? (FindLaw's Blotter) Adrian Peterson Indicted on Child Abuse Charges; Freed on Bond (FindLaw's Tarnished Twenty)
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What Is Resisting Arrest? Are There Any Defenses?

What is resisting arrest, and what defenses can potentially be used to defeat the charge? A San Francisco public defender was arrested Wednesday after she refused to let police photograph her client in a court hallway. Notably, a police officer told her before she was placed in handcuffs that she would be arrested for resisting arrest. Eventually, Deputy Public Defender Jami Tillotson was arrested, though a cellphone video shows that, far from "resisting," she let police cuff her and lead her away. So how can she be prosecuted for resisting an arrest that hadn't happened yet? Calif. Penal Code Section 148: It's More Than Just Arrest The statute in question, California Penal Code Section 148, isn't limited just to resisting arrest, even though that's the shorthand name for it. Like similar laws in other states, it prohibits "willfully resist[ing], delay[ing], or obstruct[ing] any public officer, peace officer, or an emergency medical technician ... in the discharge or attempt to discharge any duty of his or her office or employment." Any action a person takes that impedes an officer -- even standing in his way -- could qualify. Resistance isn't limited to just physical contact. It can be verbal, as in a person's refusal to identify himself or herself during booking at the police station. It can also be a passive act, like going limp when being arrested. As one California appellate court observed, "[A] person who goes limp and thereby requires the arresting officer to drag or bodily lift and carry him in order to effect his arrest causes such a delay and obstruction to a lawful arrest" as to violate the statute. Potential Defenses Some potential defenses to resisting arrest include proving that you were not resisting, or that you were acting in self-defense against an officer's unreasonable use of force. Another defense is the claim that the arrest wasn't lawful in the first place. Courts have held that, although people are required to submit to a lawful arrest, an officer making an unlawful arrest isn't discharging a duty of his or her office because police don't have the right to make unlawful arrests. California, however, closed this little loophole -- which has existed since English common law -- by enacting a separate statute making it a crime to resist any arrest, lawful or not. The only exception to the other statute, Penal Code Section 834a, is that a person can use force to protect himself from death or injury from an officer's use of excessive force. Even if a person thinks an arrest was unlawful, that question is ultimately up to a judge to decide, and if the judge decides it was lawful, then the arrestee can be hit with these other violations. Was This Really a Crime? The burning question is whether Tillotson was obstructing an officer's performance of his duty. That part isn't entirely clear and would hinge on whether photographing a person who's not detained or arrested is a "duty" (which the dictionary defines as "obligation").This question will probably never be answered, though, as it's unlikely the San Francisco District Attorney would make such a huge P.R. blunder as charging a public defender for trying to do her job by advising her client. Related Resources: Browse Criminal Defense Lawyers by Location (FindLaw) 2014 in Review: Top 5 Blog Posts About Dealing With Police (FindLaw's Blotter) Resisting Arrest: Dad Reportedly Tells Kids to Bite Officers' Faces Off (FindLaw's Legally Weird) Staged Child Abduction Triggers Investigation, Outrage (FindLaw's Blotter)
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What Is Rent Control?

In order to prevent the cost of rental housing from skyrocketing, local governments may institute rent control regulations. Without rent control, rental prices in some cities can be, as former New York City mayoral candidate Jimmy McMillan eloquently put it, "too damn high." Though as it turns out, McMillan's rent was actually pretty low: He was recently evicted from an East Village apartment he was renting for well under the market rate, thanks in part to New York City's rules for rental units. (McMillan also maintains another apartment in Brooklyn which he reportedly occupies rent-free in exchange for performing maintenance.) So what is rent control, and what does it actually do? Rent Control Explained Rent control regulations generally restrict the ability of landlords to raise the rent on certain types of rental units. Rent control rules also typically restrict the ability of landlords to evict tenants who continue to pay rent on time. Rent control rules vary by jurisdiction. In New York, for example, apartments that have been occupied by a tenant continuously prior to July 1, 1971, in a building built before February 1, 1947, are subject to rent control. Apartments in buildings built before January 1, 1974, with six or more housing units are subject to similar restrictions called rent stabilization. What's the Difference Between Rent Stabilization, Rent Control? In McMillan's case, the apartment he was evicted from was not subject to rent control, but rather was subject to rent stabilization. Although the two are similar, the owners of rent-controlled apartments are generally more restricted in their ability to raise the rent than those with rent-stabilized apartments. Another key difference between the two is that rent-controlled apartment leases can only be passed to a direct family member. This has led to a number of bizarre and sometimes illegal schemes by those seeking to avail themselves of the low rents required by rent control. In one case, a 62-year-old New York woman was legally adopted by an 85-year-old tenant of a rent-controlled unit in order to take over his rent-controlled apartment. If you have questions about rent control, a landlord-tenant lawyer can explain the laws in your city. You can also learn more about your rights as a renter at FindLaw's section on Tenant Rights. Related Resources: Browse Landlord-Tenant Lawyers by Location (FindLaw) Legal Limits for Landlords Raising Rent? (FindLaw's Law and Daily Life) NYC Rent Control Law Won't Go to US Supreme Court (FindLaw's Decided) For Married Couples, Living Apart May Pay Off (FindLaw's Law and Daily Life)
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Contractor Injured at Your House: Are You Liable?

Homeowners having work done to their homes may be concerned about not just the quality of the work, but also about the potential legal liability for injuries sustained by contractors performing the work. By virtue of owning the property, homeowners may generally be held responsible for injuries caused by negligence in failing to maintain the property in a reasonably safe condition. What is considered negligence in a given situation depends in part upon the status of the injured person, but also the cause of the injury and the circumstances surrounding an accident. A homeowner's eventual liability may also depend on whether an injury will be covered by insurance. What do homeowners need to know about the possibility of a home-improvement or construction contractor being injured? Duty of Care Owed to Contractors Although contractors are on a person's property in a professional capacity, homeowners still owe them a duty to reasonably maintain the property. For the purposes of homeowner liability, injured parties are grouped into three categories, each of which are owed varying levels of care: invitees, licensees, and trespassers. Contractors are generally considered to be invitees, which include visitors on a property for business purposes (such as workers or customers in a store). Homeowners owe the highest degree of care to this group of visitors, including a duty to repair known dangers and inspect for undiscovered hazards in areas an invitee may have access. When a homeowner fails to live up to this duty, and a contractor is injured because of a condition that the homeowner would reasonably have been expected to discover and correct, the homeowner may be liable for negligence in a personal injury lawsuit. What About Insurance? In some instances, a homeowner's insurance policy may protect against personal injury liability. Although individual policies vary, some homeowner's policies provide coverage for accidents and injury claims, including those by contractors. A contractor's injury may also be covered by the contractor's own insurance. If the contractor is working as an employee of a larger company or contractor, he or she may be covered by worker's compensation. Contractors may also have other forms of insurance coverage that may provide coverage for injuries sustained by the contractors themselves, or a contractor's employees and subcontractors. If you are concerned about potential liability for a contractor injured on your property, you may wish to contact a personal injury defense attorney. You can also learn more about liability for injuries or accidents at FindLaw's section on Homeowner Liability and Safety. Related Resources: Browse Personal Injury -- Defense Lawyers by Location (FindLaw) Who's Liable for Your Holiday Party Injury? (FindLaw's Injured) If Your Tree Falls Onto Neighbor's Property, Are You Liable? (FindLaw's Law and Daily Life) Want to Sue a Home Contractor? 3 Things to Consider (FindLaw's Injured)
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Show of Hands: How Many Americans Support Cellphone Driving Laws?

How many Americans support laws that limit cellphone use while driving? According to a new FindLaw.com survey, it depends on what kinds of limits you're talking about. Half of those surveyed (50 percent) said they support laws that require hands-free cellphone use while driving, while 42 percent said they support a complete ban on drivers' cellphone use. Just 8 percent said they didn't support any limits at all. Regardless of your feelings on the issue, laws restricting cellphone use while driving are in effect from coast to coast. Here are three facts you may not know: In many states, laws on cellphone use while driving allow for "primary enforcement." Laws regarding handheld cellphone use while driving vary by state. (The Governors Highway Safety Association maintains this handy list of state-specific distracted-driving laws.) Many states allow for "primary enforcement" of these laws, which means a driver's cellphone violation can, in and of itself, be the basis for a traffic stop. However, in other states, laws may require a separate traffic violation in order for a driver to be ticketed for cellphone use while driving. With laws in place, police are coming up with clever ways to catch violators. While it's often easy to spot a driver with a cellphone pressed against his face, it's less easy to tell when a driver may be surreptitiously sending text messages in violation of the law. That's why some jurisdictions are coming up with clever ways to catch distracted drivers in the act, like using special SUVs to give state troopers a "boost" in their enforcement efforts. In one court's opinion, a person who texts a driver can potentially be held liable for crash-related injuries. This interesting legal twist arose after a 2009 crash; the driver had received two text messages before the accident occurred. A New Jersey appellate judge chided the teenager who sent the text, explaining that she may have had "a duty not to text someone who is driving" if she'd known the recipient would "view the text while driving." That's potentially significant because establishing a legal "duty," along with a breach of that duty, are key elements in proving negligence. Like it or not, cellphone-use-while-driving restrictions are in effect in most states. To learn more about these and other rules of the road (and what to do if you get a ticket), head over to FindLaw's comprehensive section on Traffic Laws. Related Resources: Browse Traffic Ticket Lawyers by Location (FindLaw) Texting and Driving: 3 Ways to Prove It (FindLaw's Blotter) 3 Texting Crash Videos Every Driver Should Watch (FindLaw's Law and Daily Life) Top 10 Tips for Distracted Driving Awareness Month (FindLaw's Injured)
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Can Your Car’s Paint Job Get You Pulled Over?

Most people are well aware that driving too fast or in a reckless manner is likely to get you pulled over. But a car's paint job may also attract the attention of law enforcement. It's not against the law to have a crummy paint job or to paint your car an especially obnoxious color. Fortunately for most of us, the fashion police have not yet been granted the same power as the actual police to make arrests. So how can your vehicle's paint job get you pulled over? Seeing Red? You've likely heard the conventional wisdom that driving a red car is likely to result in being pulled over by law enforcement more often than driving a car of a different color. And at first blush this makes sense: Red is the quintessential "sports car" color, the furious hue of the Ferraris and Corvettes and other high-priced vehicles built to be driven well over the speed limit. However, this theory is nothing more than an urban legend, according to Snopes.com. Police have long denied that the color of a car matters in attracting their attention. And statistics show that overall, it's the kind of car you drive, regardless of the color, that affects the likelihood of getting a ticket, reports Forbes. Drivers of sporty import models like the Volkswagen GTI and the Mercedes Benz CLS-63 are more than twice as likely to be cited compared to the average driver. Paint Jobs That Can Get You Pulled Over Although a red car in and of itself won't necessarily get you stopped, there are other paint schemes that will make it more likely that you may be stopped and even cited for a violation.For example, cars that have been "murdered out" -- with black paint, black-tinted windows, black wheels, and even tail lights painted black -- may lead to traffic stops and citations, as "Keeping Up with the Kardashians" star Kylie Jenner recently found out. This isn't necessarily due to the paint job itself, but rather the dark tinting on windows and lens covers. Elaborate paint schemes may also be run afoul of the law if they too closely resemble those used by law enforcement. You may recall that a Massachusetts man was cited for impersonating a police officer after painting his Maserati to resemble the police car robot from the "Transformers" movies. (The charge against the driver was later dropped, according to Boston magazine.) If you've been cited for your car's paint job, a lawyer who specializes in traffic tickets can help explain your legal options for fighting the ticket in court. Learn more about traffic stops, traffic tickets, and going to court at FindLaw's section on Traffic Laws. Related Resources: Browse Traffic Ticket Lawyers by Location (FindLaw) The Top 5 Illegal Car Modifications (FindLaw's Law and Daily Life) Are 'Blue' Xenon HID Headlights Legal? (FindLaw's Law and Daily Life) Are Unmarked Police Cars Legal? (FindLaw's Blotter)
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How Do Free Consultations Work in Personal Injury Cases?

Many personal injury attorneys offer free consultations. This allows a lawyer to learn more about the facts surrounding your case before deciding to take you on as a client. As the first step in the process of pursuing a potential personal injury claim, your initial meeting with an attorney will also be an opportunity for you to find out more about your legal options and to get a feel for whether you and the attorney would work well together. But how do these initial meetings work? And what should you expect from a free consultation with a personal injury attorney? Setting Up, Preparing for a Consultation Attorneys who offer free consultations generally make it clear on their websites or in advertisements that they will review an injury claim for free. Setting up a consultation with an attorney who offers these consultations is typically as easy as calling the attorney's office or filling out a form on the attorney's website. In order to get the most out of a consultation and to make sure the attorney has everything he or she needs to assess your case, you will need to do some preparation for your consultation. It's a good idea to make a list of questions you want to ask the attorney, about your case and about his or her experience and fee arrangement. You should also make a list of things to bring with you to your consultation. This list should include: Medical records; Receipts for any expenses you've incurred because of your injury; Police reports, if any; Insurance information; Paystubs, which may help in claiming lost wages; and Any legal documents or correspondence from other potential parties in the lawsuit or insurance companies. What to Expect at Your Consultation Consultations typically last around 30 minutes to an hour, but can last longer, so be sure to allow for extra time if needed. The lawyer will have questions for you about your injury, your medical treatment, and other facts regarding your potential case. Before deciding on whether to take or decline your case, the attorney may want to take time to consider the information you have provided, or may suggest that you seek further medical advice regarding your injury. In some cases, the attorney may refer you to another lawyer, if he or she cannot take your case for any number of reasons. You should also feel free to consult with more than one attorney before deciding which one to work with. Meeting with several different attorneys can often provide you with more information regarding the merits of your case. Find more tips on the initial steps to take following an injury or accident, including meeting with an attorney, at FindLaw's section on First Steps After an Injury. Related Resources: Injured in an accident? Get your claim reviewed by an attorney for free. (Consumer Injury) 5 Things a Personal Injury Lawyer Can Do (That You Probably Can't) (FindLaw's Injured) When Will Lawyers Answer Questions for Free? (FindLaw's Law and Daily Life) How Much Is Your Personal Injury Case Worth? (FindLaw's Injured)
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Women Criminal Defense Attorneys: Interview with Nina Beattie

This week, I had the pleasure of interviewing Nina Beattie who is a partner at Brune & Richard in New York City. Nina is an experienced litigator who focuses her practice on representing individuals and entities in white-collar criminal and regulatory matters. Many of her clients are from the financial sector both in the United States and abroad. She won an acquittal at trial for one of the defendants in the Bear Stearns hedge fund case and she remains at the forefront of representing clients in what is now a highly scrutinized industry. Nina graduated from Yale Law School in 1996 and before joining Brune & Richard, she clerked for a federal judge in the Southern District of New York, and worked at the Capital Defender Office. She has been recognized as a leading lawyer in her field by Chambers USA, which describes her as an “extraordinarily gifted lawyer who is very smart and tremendously hard-working.” She has also been repeatedly identified as one of New York’s top white-collar defense attorneys by Super Lawyers. Nina is a tireless advocate for her clients who are lucky enough to have her by their side and I am thrilled to introduce her to you. What do you love most about being a criminal defense lawyer? Getting to know my clients, mastering complicated fact patterns, and working in a very dynamic area of the law. Also, that the stakes are high – that what I do and how I do it matters a lot. Of course, that is also what keeps me up at night. Much of your practice is focused on white-collar defense and representing clients in regulatory matters. What are some of the challenges you face in white-collar cases? In a white-collar case, there are usually multiple governmental agencies (not to mention plaintiff’s firms) investigating the client. For example, in a typical financial fraud case, a lot of attention is often focused on the role of the United States Attorney’s Office or some other criminal prosecutorial agency. But often times, the SEC, FINRA or the CFTC is conducting its own parallel investigation or proceeding; and, today, various state agencies – such as the New York State Department of Financial services – as well as US Senate committees can be in the mix, too. In some of the more recent financial crime cases – such as those involving LIBOR and foreign currency manipulation – there have been international regulatory and prosecutorial bodies involved as well, which has added a new layer of complexity. The challenge comes in when the various entities are not truly coordinated, as is often the case.  If a client does agree to be interviewed or give testimony, it’s likely that he or she may end up giving statements multiple times over a number of years to various different entities and parties. Navigating the best course, knowing that there will be multiple competing considerations, can be quite challenging. Do you think that women bring unique skills or attributes to defending the criminally accused? It’s hard to say. There are a number of traits that I think are crucial for any successful criminal defense attorney to have. Some of those – such as being able to listen well, being empathetic, or being detail oriented – are often associated with women, for one reason or another. But plenty of men have those traits as well. Have you had women role models and how has this impacted your career? I have had women role models throughout my legal career, and they have been very important to me. When I graduated from law school, I clerked for the Hon. Kimba M. Wood of the Southern District of New York, and the experience of working for her still inspires me. She is both a brilliant and forceful jurist and a wonderfully kind and down-to-earth person. I try hard to emulate her. What kind of struggles do you think that women in the field have to deal with that our male colleagues do not? I was once told in a job interview that I couldn’t do the job because I had a child. I responded that I guessed he, the interviewer, didn’t have any children. He said that he had three children, but it was very different because he had a wife. In fact, he said, he had two wives, an ex-wife and a current wife! I think having to overcome obstacles in life can make you a better advocate.  You can’t let one individual’s foolish opinion stop you from succeeding.  I focus on getting results for my clients and leave the rest behind. ...
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Joan Rivers and Alleged Medical Malpractice: 3 Things to Know

Comedian Joan Rivers' death was the result of medical malpractice, her daughter claims in a lawsuit. What can consumers learn from this pending case? As you may recall, Joan Rivers underwent a procedure to remove a growth from her vocal cords last summer. She suffered cardiac and respiratory arrest during surgery and was rushed to a hospital; Melissa Rivers later decided to remove her mother from life support. But according to Melissa's lawsuit, Joan Rivers' death can be blamed on doctors and the New York City clinic where her procedure was performed. Here are three legal facts about medical malpractice cases to keep in mind as this lawsuit proceeds: 1. The Lawsuit Does Not Specify the Amount of Damages. Lawsuits often seek a specific dollar amount in terms of damages, but Melissa Rivers' lawsuit does not. Under the laws of New York, where the suit was filed, lawsuits alleging personal injury or wrongful death are not allowed to state an amount for damages. This allows a jury to come up with an amount on its own, without being influenced by what the plaintiff feels he or she deserves. Other states have similar laws about specifying damages in these types of cases. 2. What Counts as Malpractice? Many medical errors can be considered malpractice, including wrong-site surgeries and retained foreign objects (i.e., sponges left inside a patient). But these cases all assert that a medical professional breached his or her duty to a patient by failing to act as a reasonable professional would. In Melissa Rivers' lawsuit, she names the Yorkville Endoscopy Center and five physicians, including her mother's personal doctor Gwen Korovin, as defendants, Reuters reports. The doctors failed to recognize Joan Rivers' declining vital signs, performed a procedure that Rivers had not consented to, and were slow in calling 911, the suit asserts. The suit also calls out one doctor for allegedly taking a "selfie" with Joan Rivers while she underwent the procedures. 3. The Case May Come Down to a 'Battle of the Experts.' If the case goes to trial, the question of malpractice may come down to a "battle of the experts." That's when both sides present dueling expert witnesses to testify about how a "reasonable" medical professional would have acted in a similar situation. As you can see, there are a lot of legal factors to consider in a medical malpractice lawsuit. To lean more, check out FindLaw's section on Medical Malpractice or contact an experienced attorney to review your case. Related Resources: Have an injury claim? Get your claim reviewed for free. (Consumer Injury) 5 Signs You May Need a Medical Malpractice Attorney (FindLaw's Injured) Joan Rivers' Estate Plan: $150M to Daughter, Grandson, Dogs (FindLaw's Celebrity Justice) Joan Rivers' Death: 3 Legal Facts About Life Support (FindLaw's Celebrity Justice)
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