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Ginsburg Thoughts

[ 96 ] July 15, 2016 |


Since the liberal blogopshere came down as hard (Lemieux excluded) as conservatives on Ruth Bader Ginsburg for saying out loud that Donald Trump was horrible, I guess it wasn’t smart. I’m amazed at how many people I know were offended by this, not only on the internet, but just in conversations I’ve had with other academics. I guess I never had any illusions of the justices being much more than political animals the same as the rest of us. But I am struck at how Ginsburg has now crossed some unacceptable line when Antonin Scalia going hunting with plutocrats or with Dick Cheney when his office had business before the Court or Clarence Thomas officiated Rush Limbaugh’s wedding or Sam Alito openly disrespecting Obama during the State of the Union address evidently didn’t cross the line.

I guess some people still really feel invested in the idea that the Supreme Court is somewhat above the political fray and that there are norms and decorum that must be respected, but it feels a bit childish to me. The more the curtain is drawn back that the Court is as full of political hacks as anywhere else, the more honest, if cynical, our politics will be.


Do Start-Ups Have to Rely on Exploiting Independent Contractor Rules?

[ 57 ] July 14, 2016 |


I confess I don’t really understand why we need a real estate agent start-up company, but the answer to the above question is no, as this profile of Redfin demonstrates.

“I think Silicon Valley is still a pioneer of work force models — but the model we pioneered is the 1099 model,” Mr. Kelman said, referring to the tax form that independent contractors file. “This huge work force of laborers doesn’t get to participate in the wealth that was created.”

Mr. Kelman argues that full-time employees allow him to offer better customer service. Redfin gives its agents salaries, health benefits, 401(k) contributions and, for the most productive ones, Redfin stock, none of which is standard for contractors. Redfin currently employs more than 1,000 agents.

Now with his company on a stronger footing, Mr. Kelman says he believes his approach has been vindicated. He has even become an informal counselor to other tech entrepreneurs exploring a shift to employees from contractors.

But they are still the exception. The idea of building a large work force of full-time employees, outside of core disciplines like engineering, is not part of the ethos of most companies in today’s tech industry, observers who have studied the industry say.

“They don’t see job security and workplace benefits as something that’s valuable,” said Louis Hyman, an associate professor of labor relations, law and history at the ILR School of Cornell University and author of a forthcoming book on temporary labor in the United States. “What’s valuable is doing cool stuff and scaling up and making a better tomorrow.”

The use of independent contractors is about greed, not about making a better tomorrow, however Silicon Valley libertarians see it. I have no particular love for yellow cab companies. And I have no problem with competitors with those companies. I do have problem with labor exploitation. If Uber wants to classify its drivers as employees, pay them fairly, and provide them benefits, then all my objections to it are gone. But of course not doing that is the whole point of Uber’s existence. However, it does not have to be that way.

Technology and Protest

[ 159 ] July 14, 2016 |


In the last week, the crucial role of technology documenting the shockingly routine murder of black people by the police has again been demonstrated.

According to The Guardian, 566 people have been killed by police in the US in 2016 alone. This week, the videos that have circulated on social media of police brutality make these horrific events at distant places feel real for everyone.

“I wanted to put it on Facebook to go viral, so that the people could see,” Reynolds said of the footage, according to Wired. “I wanted the people to determine who was right and who was wrong. I want the people to be the testimony here.”

Just days prior to Castile’s fatal shooting, Alton Sterling, a black man who was selling CDs outside a convenience store, was shot by police in Baton Rouge, Louisiana. The incident, which is now being investigated, was captured by a bystander on his smartphone.

Such videos channeled on social media are opening up evidence to the public. As we saw with the 2014 protests in Ferguson, Missouri, and the fatal shooting by police of unarmed black man Walter Scott in South Carolina in 2015, scenarios that might have otherwise been disputed now have the chance to reverberate across the world.

Now, some say, “we have this video and the cops don’t care. They still kill black people with impunity. What difference does it make?” And that’s certainly true. Technology is not going to end racism and it isn’t going to end police violence. However, the police have been routinely killing black people without consequence since the 17th century and it continues today. The major difference today is that everyone has cameras and access to the internet. That is a huge difference. Why were there protests after Ferguson and after Baton Rouge and Minneapolis? It’s because of that technology. The reality is, like we saw after Triangle in 1911 and the Santa Barbara oil spill in 1969, that people seeing injustice is the biggest difference maker in whether they care enough to do anything about it. That’s why no one cares when 1138 people die making our clothing in Bangladesh. Corporations have intentionally moved production to places where consumers don’t see the death. It’s why information has become politicized and dangerous to those in power. It’s why North Carolina used the Baton Rouge and Minneapolis incidents to shield the police from the public seeing body cam footage. It’s why Idaho and other states have sought to pass ag-gag bills to make owning footage showing animal cruelty inside food processing plants illegal. So long as we all have these cameras, we have the potential to create change. These cameras are absolutely critical in spurring this change. If the cameras get people in the streets and cause national conversations about racism, then that’s a genuinely good thing. The conversation since these incidents, where even a reprehensible man like Tim Scott is talking about the police pull him over because he’s black and people like Newt freaking Gingrich are acknowledging the open racism of the police, has shown some level of progress. That only happens with this technology. I am hoping that somehow the use of these technologies help spur changes on the conditions of work around the world as well. But whenever we see injustice, we should film it and send it to the world. Use the technology to fight for justice. It’s one of the only weapons we have.

Prison Labor Unions?

[ 23 ] July 14, 2016 |
Inmates from a La Fourche parish jail on a work release program fill giant sandbags in Port Fourchon, Louisiana May 11, 2010. U.S. Army National Guard troops were dropping the sandbags using helicopters on nearby breaks in beaches to protect marshes from the BP oil spill offshore.   REUTERS/Rick Wilking (UNITED STATES - Tags: ENVIRONMENT DISASTER)

Inmates from a La Fourche parish jail on a work release program fill giant sandbags in Port Fourchon, Louisiana May 11, 2010. U.S. Army National Guard troops were dropping the sandbags using helicopters on nearby breaks in beaches to protect marshes from the BP oil spill offshore. REUTERS/Rick Wilking (UNITED STATES – Tags: ENVIRONMENT DISASTER)

While I remain as skeptical of whatever the modern Industrial Workers of the World is as ever, this is certainly interesting. Should prison laborers organize into unions? Should public sector unions make this a priority?

This spring, the IWW and allied community groups organized prison labor strikes of thousands of incarcerated workers in Alabama, Wisconsin, Texas, Mississippi, and Ohio—all demanding the right to form a union. The IWW Incarcerated Workers Organizing Committee has called for a nationwide prison strike on September 9th to mark the 45th anniversary of the Attica prison uprising and claims it has the support of thousands of prisoners throughout the U.S.

“It could really shake things up,” IWW organizer Jimi Del Duca told me. “A lot of working class people are afraid to organize because they have a few crumbs to lose. [Many] prisoners have nothing to lose and that gives them courage. They have nothing to lose and everything to gain.”

However, the barriers to organizing prisoners are high. Communication between prisons is difficult, as most prisoners are not allowed access to email. Even within prisons, inmates are limited in their ability to meet face-to-face. While they are allowed to assemble routinely for Alcoholics Anonymous meetings or religious activities, the 1977 Supreme Court case Jones v. North Carolina Labor Prisoners’ Uniondenied them their first amendment right to assemble if a warden feels a gathering is a threat to prison security. As a result, wardens block most prisoners’ union meetings.

However, Elon University Labor Law Professor Eric Fink says that prisoners may have another option. The right of prisoners to form a union has never been challenged in a National Labor Relations Board (NLRB) union certification case, and Fink believes that prisoners could use the NLRB process to push for the right to meet regularly and form collective bargaining units. He argues that prison workers—employed by private contractors in 37 states—should have the same right to form a union as other workers employed by those contractors. According to Fink, if the IWW were to bring a case before the NLRB, then the Board could declare that prisoners are employees who are eligible to join a union.

“I think the Board is capable of saying there are issues that [incarcerated people] have the right to bargain for—such as hours and wages—as any other worker would have the right to do,” said Fink.

As for prison workers who are employed directly by the state, Fink feels they could organize more easily. Under federal labor law, each individual state has a Public Employee Relations Board (PERB) which governs how labor law is applied in the jurisdiction. Often, the leadership of the PERB is heavily influenced by local labor leadership. So, if a public sector union such as AFSCME were to endorse the right of prisoners to form unions, state-level PERBs might be inclined to extend that right.

However, there is a catch: many public sector unions also represent guards, who may be lukewarm to the idea of prisoners forming unions.

“The problem is that insofar as a number of public sector unions have prison guards as members—and sometimes in large numbers—it has an impact on the ability to have that discussion,” said Bill Fletcher, the former education director of the AFL-CIO.

Heather Ann Thompson, Professor of History in the African American Studies at the University of Michigan, believes that guards should see prisoners’ unions as a win for them, too.

“These are workplaces that are deeply unsafe and barbaric,” said Thompson. She believes that giving workers a collective voice may reduce gang violence, because it will give prisoners a structure through which they can advocate for themselves. Unions would also provide guards and prisoners with the means to push together for a safer prison environment.

A few thoughts:

1) Since we as a society have determined to make prisoners work for substandard wages, a situation corporations and states are very happy to take advantage of, we also have to think of them as workers. They are legitimate workers. They are also unfree workers. They make wages that undermine non-prison workers. They work in terrible conditions. They work directly under the supervision of people who can be violent toward them. These are problems.

2) All workers should have the right to a union. That very much includes prison workers.

3) Suits challenging the status of prison labor would be beneficial. This is a project someone should take on.

4) Regardless of the IWW name and history, anyone working to organize workers is a good thing. The Jimmy John’s actions of a decade ago didn’t lead to much, but did help jumpstart the broader fast food workers movement of the present. If the established unions aren’t going to do this, anyone who wants to step into the breach is more than welcome.

5) The challenges here are gigantic, including that the prison guards are going to freak out about it.

6) Those challenges don’t mean it shouldn’t be tried. But this would require a lot of money, which only the established unions can provide, and the energy for a shot in the dark campaign that will anger other unionists, which these IWW activists are going to have to a far greater extent than unions that already represent guards.

So I don’t really know what the path forward looks like, but it’s a path that needs to be walked.

Epidurals and Purity

[ 273 ] July 14, 2016 |


I have never understood the idea of women putting themselves through extreme pain in childbirth so they could feel “natural.” Now, I’ve never been through childbirth nor do I have children so maybe you can I don’t know what I’m talking about. But what other painful medical procedure do people undergo where pain medication is routinely forsaken for the principle of being “natural.” It sure seems to me that this is a lot more closely related with other facets of the purity fetish of modern bodies that range from homeopathy to acupuncture to GMO freakouts than it is to anything approximating science or medicine.

Jessi Klein:

I AM seven months pregnant and standing in line at a grocery store in Brooklyn, minding my own business (as much as anyone pregnant can mind her own business, because people constantly feel as if they have the right to talk to pregnant women about their pregnancy). A woman in front of me turns around. She’s a little younger than me. She does not appear pregnant. She is not with kids. Maybe she has kids at home. It doesn’t really matter.

She asks me, “When are you due?”

This is a common question and one I don’t mind answering.

I tell her. I assume we are done.

But then, she says, “Are you having a natural birth?”

I’m just trying to buy a sandwich. Is this complete stranger really asking about my birth plans? I decide to be honest.

“No,” I reply with a smile.

She looks at me, worried. “So you’re having an epidural?”

I am beside myself.

“Yes. At the very least,” I say.

Now she looks genuinely shocked. She turns and scurries away, like a missionary who’s just been told by a particularly stubborn native that she’s very excited to go directly to pagan hell.

My god, I’ll bet she won’t even breastfeed. We all know the bottle is the technology of Satan!, says a bunch of people of a generation who somehow managed to survive without being breastfed for 2 years.

Both breastfeeding and maximum pain childbirth are more ways that society tells women how to live their lives correctly, while telling them every other natural thing about them needs to be suppressed.

The term natural birth.

“Natural.” It sounds so … natural. So relaxing. So earth goddess. So feminine.

But how often do people really want women to be or do anything “natural”? It seems to me the answer is almost never. In fact, almost everything natural about women is considered pretty horrific. Hairy legs and armpits? Please shave, you furry beast. Do you have hips and cellulite? Please go hide in the very back of your shoe closet and turn the light off and stay there until someone tells you to come out. (No one will tell you to come out.)

It’s interesting that no one cares very much about women doing anything “naturally” until it involves their being in excruciating pain.

No one ever asks a man if he’s having a “natural root canal.” No one ever asks if a man is having a “natural vasectomy.”

This is why I generally believe, and of course I know there are exceptions, but I’m just saying, usually, you should get the epidural.

The criterion for whether we are doing our jobs as women “correctly”— and, yes, it’s a job — is more often than not how many of our own wants and needs we are putting aside. We want to eat, but since everyone likes us better when our weight is the same number as our body temperature, we must learn to be hungry. And we can’t acknowledge we’re hungry, because no one wants to think about skinniness as something that takes work. This is why half the ingénues on the Oscars red carpet feel compelled to say they just scarfed down a cheeseburger on the way to the show.

And as for the “scary medical consequences of an epidural I read on the internet or heard about from my doula friend,” well, to say the least they aren’t any more scary than any other harsh medical procedure, which childbirth certainly is, epidural or no. Besides, there’s more than enough pain in life:

When you have a baby, there will be plenty more pain. The pain of recovery, no matter how you give birth. The pain of nursing. The pain of not fitting into any of your old clothes. The pain of not fitting into even your maternity jeans. The pain of hearing your baby cry and not knowing how to fix it. The pain of wondering whether your partner still finds you attractive. The pain of arguing with your husband while your child is in the other room. The pain of knowing that you witnessed the very first moment of this beautiful person’s life, and that one day, and you hope that it’s at least a hundred years from now, there will inevitably be a last moment.


Baton Rouge in Context

[ 18 ] July 14, 2016 |
Community members attend a vigil in memory of Alton Sterling, who was shot dead by police, at the Triple S Food Mart in Baton Rouge, Louisiana, U.S. July 6, 2016. REUTERS/Jeffrey Dubinsky

Community members attend a vigil in memory of Alton Sterling, who was shot dead by police, at the Triple S Food Mart in Baton Rouge, Louisiana, U.S. July 6, 2016. REUTERS/Jeffrey Dubinsky

What’s the context of the Baton Rouge police murder and protests? LSU professor Christopher Tyson, an African-American and city native, as well as the 2015 Democratic nominee for Louisiana Secretary of State, explains the deep divides in the city:

It’s only by crossing that line that one can reconcile the more affluent neighborhoods of south Baton Rouge with the city’s grim statistics. According to the Centers for Disease Control and Prevention, in 2013 Baton Rouge ranked first in the nation for estimated H.I.V. and AIDS case rates per 100,000 people. For many years we’ve been one of the nation’s top murder capitals. Black men in East Baton Rouge Parish had a 46 percent high school graduation rate in 2011-2012. One-third of black residents live below the poverty line. And a vast majority of them are concentrated in north Baton Rouge

Recently, there was an organized effort to form something called the City of St. George. The goal was for south Baton Rouge to break off and form a new city, a move that would have exacerbated our community’s growing stratification. The effort ultimately failed, but we now all live in a city in which we know that a significant percentage of our neighbors want out.

Too many view the lives of people in north Baton Rouge as the cumulative result of poor choices, weak values and dependency. This is more than just lazy thinking. It’s an intolerable lie predicated on the erasure of all of our city’s and nation’s history. Like many urban communities, north Baton Rouge is the result of specific policy choices, social patterns and the toll that all of it eventually takes on neighborhoods, families and individuals. It’s a very American story of how black people have systematically been denied the opportunity to live in safe and stable neighborhoods. No amount of “individual responsibility” or “bootstrapping” will ever change that.

In the past few years, many of us have worked to bring attention to the challenges facing north Baton Rouge. A lack of access to reliable public transportation, quality health care, youth mentors and nutritious food are among the many crises that define day-to-day life in this half of this city. One example of what activists are working on: the lack of an emergency room in north Baton Rouge after the area’s public hospital closed its doors.

This past weekend teenagers from the Baton Rouge Youth Coalition, a college-prep mentoring organization I co-founded, planned and led a peaceful march attended by more than 1,000 people. There is a dedicated, multiracial coalition of civic and justice-minded folks working hard toward a more equitable and humane future. But the suffering grows every day, and there simply aren’t enough of us doing this work.

This is the context within which a man is led to sell CDs at midnight to feed his family. This is the context for the anger, frustration and exhaustion erupting not just from the corner of North Foster and Fairfields, but from all over the city. When I first visited Mr. Sterling’s memorial two days after his death, I spoke with other people there about our responsibility to his family and this city. We affirmed our linked fate with each familiar greeting and new introduction. We dapped up and exchanged hugs. We contemplated our next steps. We questioned the adequacy of our efforts. We all felt a need to be there, for Mr. Sterling, for each other and for our city.

In other words, structural and intentional white supremacy combine to keep African-Americans poor, the police ready to crack heads, and racial tensions high. It’s surprising there aren’t more violent upheavals given these conditions.

…..See also this piece.

When the VP Selection Mattered

[ 77 ] July 13, 2016 |


As Trump and Clinton are about to pick their VP candidates, it’s worth remembering that it basically doesn’t matter in terms of the election. It gives the chatterers something to talk about. Political junkies love it, but ultimately, it barely matters. If you pick someone completely incompetent like Sarah Palin or Dan Quayle, well, it doesn’t much matter. If you pick someone brilliant or highly experienced like Al Gore or Joe Biden, well, it doesn’t much matter. This probably won’t matter either, although I will laugh if Trump picks Gingrich and cry if it Clinton picks Cory Booker or the general. But it definitely did matter once, and that was 1944 when FDR was dying. Politico ran a story on that choice. We can always dream that he could have selected Henry Wallace again, but the party faithful barely acquiesced to Wallace in 1940. The conservatives hated him and FDR did not have the power in 1944 he once had within the party. He had to dump Wallace. Had FDR died before the 1944 election and Wallace taken over, maybe he could have won that fall before being utterly eviscerated in 1948. Rather, Roosevelt chose between two men, Harry Truman and William O. Douglas. We know what happened with the former. The latter is kind of fascinating to imagine, although it’s hard to see him beating Dewey in 1948. Unfortunately, the Politico article doesn’t even mention Douglas, instead focusing on Jimmy Byrnes, which wasn’t going to happen under FDR because he was too anathema to the liberals. Of course, FDR basically wouldn’t admit that he was dying and so actually choosing the next president was not really on his mind, thus he never told Truman about the Manhattan Project outside of what was necessary when he was in the Senate to stop his investigative committee, for instance. Truman actually did ask Douglas to be his VP in 1948. Douglas declined however and Alben Barkley became VP instead.

Embrace Wind Energy or Drown

[ 96 ] July 13, 2016 |


A new Siemens wind energy project in west Texas and eastern New Mexico will produce 324 megawatts of energy, enough to fuel 180,000 American households. That’s a lot of energy. This is the kind of wind energy investment we need from all quarters to fight against climate change without completely decimating our quality of life. You’d think Republicans would join in this fight, in no small part because there’s a lot of money to be made in wind energy. But, as per the norm in the Republican Party, Donald Trump continues to deny the existence of human-caused climate change, calling it “bullshit.” Meanwhile, Trump’s properties in Florida will be underwater in the next few decades. You’d think the insurance rates would get Florida-property owning elites to care, if nothing else. But ideology trumps reality once again.

Child Labor: Helping Dad or Taking Jobs From Adults?

[ 62 ] July 13, 2016 |


Upon reading this, you might think it’s nice that a son is helping his father doing his construction labor over the summer. But then you realize that this sort of thing is the root of how child labor get established and that it takes work away from law-abiding contractors.

A day after a 13-year-old boy was found doing electrical work at a school construction site, more than a dozen union members staged a protest outside the building.

“We’re asking for a level playing field,” said Ted Duarte, a senior organizer for the New England Regional Council of Carpenters. “We’re asking for legitimate contractors, union or not union, to have a real shot at getting real work and not having to compete against people who are exploiting children.”

The state Department of Labor’s Wage and Workplace Standards Division sent inspectors to the New School, an extension of Rogers Magnet Elementary, Thursday after learning of the violation. Authorities said they found the juvenile helping his father, an electrician working for D.F. McDermott, a contractor out of Ansonia.

Police removed the boy and his father from the construction area, but no one was arrested.

And the UBC should be protesting against this. Even if you don’t want to blame the father, you should blame the school.

There simply is no place for child labor in this country. And 13 year olds should definitely not be working on construction sites as electricians.


[ 150 ] July 13, 2016 |


A Democratic majority in the Senate probably means having some massive tools in the caucus. Baron Hill was going absolutely nowhere in the Indiana Senate race. Winning Indiana would really help Democrats retake the Senate. I get all of this. But boy am I not excited about the return of Evan Bayh. It’s not that I mind having some relatively conservative senators in the caucus who don’t always vote the right way. I understand that Heidi Heitkamp and Jon Tester have to make compromises at times. But Heitkamp and Tester aren’t self-aggrandizing grandstanders. And that’s what Evan Bayh is. It’s not about politics, it’s about him. He’s a huge hypocrite, writing an editorial when he dropped out of the Senate in 2010 decrying money in politics and then immediately becoming a top lobbyist. And that was perfect Bayh. A total blowhard with a moral compass of jello. I won’t quite say he’s as bad as Joe Lieberman because at least Bayh was in a state where centrist politics made a certain amount of sense. But he’s pretty awful. I have enjoyed a Democratic Senate caucus without people like Bayh, Lieberman, or Max Baucus. I guess there is Joe Manchin, but he’s holding on for dear life in a hard-right, white supremacist state where the next Democratic senator may be decades in the future. So even there, he can be explained away.

So I will accept Bayh if the price is a Democratic majority. He may well win. Cook immediately moved the race to Toss-Up status. But I hope against hope that he is smart enough to at least read the tea leaves that his absurdities have no place in the Democratic Party anymore and that he is in the party of Sherrod Brown and Jeff Merkley and Elizabeth Warren.

NLRB Pushes Back Against Permatemps

[ 59 ] July 13, 2016 |


In their myriad ways to avoid not only unions but also responsibility for their own employees, employers have come up with any number of ways to control workers without having any legal obligation to them. One of the most effective ways is to use temp agencies for long-term workers who labor on the shop floor next to actual employees, doing the same work with lower wages and fewer if any benefits. The Japanese auto industry’s investment in American factories for instance has relied heavily on this sort of arrangement. How can a factory unionize when the workers are technically employees of different companies? This is of course half the point of it, the other half being lowering employee compensation. Before this week, the rule was that the temp company would have to grant permission for their employees to be included in such a bargaining unit, which is of course laughable that they would grant. But by a 3-1 vote, the NLRB overturned that rule this week.

The National Labor Relations Board is reaffirming its view that labor law must now address the brave new world of the fissured workplace—where workers are often separated from their actual employer by layers of subcontractors and staffing agencies. On Monday, the board announced a decision on the case Miller & Anderson, ruling that unions that want to represent bargaining units including direct employees as well as “permatemps,” contract workers, and other indirect workers that share a “community of interest” are no longer required to get permission from the parent company.

The old standard, established by George W. Bush’s NLRB in 2004, which required unions to gain such parent-employer consent, allowed companies to use staffing agencies and subcontractors as a barrier to organizing drives. Under the new ruling, a nurses union, for example, can now more readily expand bargaining units at a hospital to include registered nurses who are directly employed by the hospital, as well as nurses who work for staffing agencies hired by the hospital.

This is absolutely huge and another enormous advance in labor law by Tom Perez’s Department of Labor.

In an increasingly fractured world of labor relations, it’s hard to understate how big of a deal this is for easing union organizing efforts. And coming less than a year after its Browning Ferris ruling that established a bold new standard for defining when parent companies are joint employers of subcontracted workers, the Miller & Anderson decision is yet another important step that increases employer accountability to their workers by expanding the responsibilities of joint employers.

Not only does the decision mark an emerging new jurisprudence on labor relations, it also serves to burnish President Obama’s second-term record on labor and worker rights, which includes a rash of bold new policies enacted through executive power.

You can read the decision in this PDF

This is why I have zero patience with anyone voting for Jill Stein. While there’s no guarantee that Hillary Clinton will have as strong a DOL as Obama has since naming Perez to his cabinet, there’s also no question that her NLRB appointees will build on these sorts of decisions to improve conditions for workers. I simply assume that most people who refuse to “compromise their values” by voting for Hillary basically don’t actually care about working class people.


[ 59 ] July 13, 2016 |


Worth remembering in this age of extreme police militarization that the concept of the SWAT team came straight out of the LAPD after Watts in the mind of a very nice man named Daryl Gates. In case you forgot the details of Gates’ reign of terror over black communities as LAPD chief between 1978 and 1992, here’s a primer.

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