Of Class Actions and Cranberries

Little berries, big business.

Little berries, big business.

The Chicago-Kent Law Library is here this week to give you some dinner conversation for the upcoming holiday.  The word for you to casually drop into conversation on Thursday is “monopsonization.”

Every Thanksgiving, Americans buy (and eat) incredible amounts of food, especially seasonal staples like pumpkin, turkey, and cranberries.  According to Ocean Spray (they of the cranberries), Americans will consume 80 million pounds of cranberries during the week of Thanksgiving.  No matter if you’re on Team Jelly from the Can or Team Fresh, that’s a lot of money for Ocean Spray, the nation’s leading producer of cranberry products.

The big question being litigated in Massachusetts right now is whether that sweet/sour cranberry market is fair.  Ocean Spray is a cooperative of cranberry growers which allows it to obtain, process, and market the products jointly.  Cranberry growers have contracts to deliver their fruit to Ocean Spray to be processed.  Starting in 2006, Ocean Spray divided the growers into an A Pool and a B Pool.  The B Pool growers get their cranberries processed into “non-valued added, commodity foods” and receive a cut of those sales.  A Pool cranberries keep riding that gravy train (if you’ll permit the mixed Thanksgiving metaphor) of higher-margin goodies like the Ocean Spray-branded juice that you might mix with vodka for a pre-dinner cocktail.

Some B Pool members and independent growers (those few cranberry growers who are not members of the Ocean Spray cooperative) filed a class action against Ocean Spray alleging that Ocean Spray is, among other things, fixing an artificially low price for cranberry juice concentrate and forcing the independent growers to join Ocean Spray or shrivel up like a Craisin.  The allegation is that this amounts to monopsonization, an illegal attempt to consolidate the market not into one seller (that would be a monopoly), but into one buyer.  Amazon operates another alleged monopsony when it gets books from publishers for sale on its site.  Creating a monopsony by pushing the independent growers into the B Pool or out of business entirely leaves Ocean Spray without competition from growers who would sell their cranberries to other cranberry processors.

Litigation is on-going.  Pass the monopsony sauce.

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The Wayback Machine is Moving Forward


The Internet Archive is the closest thing we have to a backup of the Internet.  Founded by Brewster Kahle in 1996, the Internet Archive is a non-profit organization with the bold mission statement of providing “universal access to all knowledge.”  It provides free access to collections of archived websites, software, games, music, images and public domain books. The most popular part of the Internet Archive is probably the “Wayback Machine” service, which allows users to insert a web address and discover if the Internet Archive contains earlier versions of that webpage.  There are currently more than 445 billion webpage captures in the archive.

It was recently announced that the Internet Archive has received a $1.9 million grant from the Laura and John Arnold Foundation that will allow for a rebuild of the Wayback Machine’s code.  According to press announcements, this grant will allow a very substantial upgrade of the service, making it even more useful for the researcher.  Some of the planned improvements from this grant are:

  • Keyword searching for websites.  While this will not be keyword searching of the Internet Archive itself, it will free researchers from having to know exact URL’s of a website they wish to find.
  • Optimization of the crawling capabilities of the Wayback Machine.  Currently about one billion webpages are captured a week, but the new code will permit an even greater number to be archived.
  • Improving the playback capability of files found on media-rich and interactive websites.
  • Battling “link rot” by partnering with other services to identify broken links on their sites and replacing them with links to archived pages in the Internet Archive.

Lawyers have made use of the Internet Archive in interesting ways, most notably as a method of proving of how a website appeared on a certain date.  There are numerous reported decisions where attorneys have attempted to introduce print-outs of pages produced through the Wayback Machine.  This has led to interesting evidentiary battles centered upon hearsay objections, proper authentication and the “best evidence” rule.  Not all courts have accepted Wayback Machine results into evidence, but for certain categories of use, such as proving “prior art” in patent cases, courts have been inclined to accept this form of evidence.

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Three things to do with a case

previously read

read this?

So you found a case.  First of all, one hopes that you found this case using a secondary source.  Why?  Why the librarian obsession with secondary sources?  Because secondary sources explain the law.  Judges write cases in large part to dispose of a piece of litigation and to communicate something about the law to attorneys and other judges.  If any of them are thinking about whether their opinion does a good job of explaining the law to law students, it has to be way down the list of priorities.  A secondary source will explain an area of law and cite the relevant cases.

Now that you’ve found a relevant case, what will you do with it?  Cut and paste a quote and move on?  No way!  Here are the three things you need to do with a relevant case before you move on.

1.  Look at the cases your case cites.

2. Look at the cases that cite your case (KeyCite or Shepardize the case).

3.  Look at the cases that share a relevant headnote.

Once you’ve done all that, the process can certainly start over again.  However, at some point, you’ll notice that all of the cases keep coming back to one or two cases.  You’ll get a sense of how your case is different and everything will start coming together.  Does that mean you’re done?  Probably.  Knowing when you’re done is a lot of things.  In some ways, it’s a matter of comfort with your own skills.  If reading three more cases makes you feel more confident and you have time, you should do it.

What’s the absolute final thing to do with a case?  Remember that you found it in the first place.  Keeping track of your research, whether by using folders, notes, or just relying on your search history, means saving time and never having to say, “Did I read this already?”

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Next Generation Legal Skills

In a recent post on Above the Law, Bloomberg Law President David Perla writes about the ever-increasing need for law students to educate themselves on non-traditional legal topics such as sales, management, marketing, and project management.

In his post, Perla specifically mentions the work of Chicago-Kent Professor Dan Katz, who he uses as an example of a leader in the push for technical skills training in law schools.  In addition to Professor Katz’s work, Chicago-Kent offers a wide array of programs designed to teach students the skills that they will need to compete in a challenging and evolving legal market.  Notable examples include the Praxis Program, through which students learn and explore many of the practical areas described by Perla in his post, and Chicago-Kent’s Legal Clinics, which offer students hands-on experience dealing with actual legal cases under the supervision of experienced practicing attorneys.

Non-traditional legal training at Chicago-Kent does not stop with our courses and clinics, however.  The Chicago-Kent Law Library has created a number of research guides to assist students with their research and education in many of the topics at the heart of David Perla’s post.  Specifically, our Non-Legal Research Resources GuideBusiness Research Guide, and MPA Research Resources Guide will be particularly helpful for students seeking information on next generation legal skills training.  These guides provide links to online resources as well as information about print resources in the law library that might be of interest to students interested in broadening their legal education.

Finally, one of the great things about being affiliated with a world-class parent institution such as the Illinois Institute of Technology is that it provides our students with access to a wide array of multidisciplinary resources.  IIT’s Paul V. Galvin library has created their own research guides to assist students with multidisciplinary research. Chicago-Kent students interested in exploring the areas discussed by David Perla might also check out Galvin’s Business & Economics Guide (which includes a section on management resources) or the Public Administration Guide.

Students who are interested in exploring other non-traditional law school topics should feel free to stop by the reference desk to learn about more ways that the Chicago-Kent Law Library can help you better prepare for the new future of legal employment.

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Finery and Progress: Chicago-Kent’s Best Businesswoman

On a hot day at the end of July, 1921, Mrs. Alice Rosseter-Willard hurried to the home of her friend. There, on a couch in a secluded corner of a sleeping porch, lay Bertha Baur, newly widowed. Alice approached and offered her hand to the grieving woman. “Never have I dreamed that one could lose so much of life and happiness, and still live on,” Bertha said. Outside, her fifteen-month-old daughter Rosemary toddled on the lawn, under the watchful eye of a caretaker. On tiny, unsteady limbs, the child stepped carefully through the grass, arms outstretched, reaching uncertainly for hands to guide her.

Liquid carbonic machine, c. 1895

Liquid carbonic machine, c. 1895

Jacob Baur, head of the Liquid Carbonic Corporation, had died earlier that week, on July 19, 1921. He was known as the man who made the first “carbonator,” a machine which produced flavored sodas by mixing fruit syrups and carbonic acid gas. The machine won the medal for industrial achievement at the 1893 World’s Columbian Exposition in Chicago, and by the early 20th century, Baur’s carbonators were being sold to every brewery, drugstore, and bottling factory, with plants across the United States. At the height of his success, he met Bertha Duppler, another local success story, and the two were quickly married. Bertha settled into the couple’s home at 126 Lake Avenue in Highland Park, and Jacob continued to run the first successful liquid carbonic company in the Midwest.

Fulfilling the traditional role of wife and mother was something both delightful and surprising to Bertha. In 1870, she was born Bertha Elizabeth Duppler in Mineral Point, Wisconsin, the daughter of poor German immigrants. She remembered her childhood as a happy one, but the family was very poor, and Bertha’s youth was marred by the loss of her mother when she was nine. Bertha revealed her drive to succeed when she graduated high school and, at seventeen, secured a job as a secretary to the president of the Midland railroad in Indiana. Several months later, there came an opportunity for Miss Duppler to travel to Chicago to act as a secretary for the Republican National Committee. Friendly, ambitious, and voracious for good books and entertaining experiences, Bertha fit perfectly into young, political Chicago society. Her work at Republican headquarters was noticed, and soon she was employed as head secretary to the city’s postmaster. In 1906, Bertha enrolled in night classes at Chicago-Kent so she could keep her position in the postmaster’s office. “Why am I taking up the law?” she said to the Chicago Daily Tribune, “I am providing myself with something upon which to fall when the political winds change their direction and I find myself without a job.”

Bertha Duppler, Class of 1908 Composite

Bertha Duppler, Class of 1908 Composite

Pragmatic and unyielding, Bertha was not one to bow to convention if it meant she couldn’t enjoy the kind of life she wanted. She had decided quite early on that she wanted her adult life to be as far as possible from her poor childhood, and had slowly but surely climbed the ladder of employment to provide herself with the things and experiences she desired. She served as a secretary to three successive postmasters, graduated from Chicago-Kent in June of 1908, and was admitted to the bar later that year. The Tribune hailed her as the highest salaried woman employed by the federal government, calling her “the patriot of the post office.” During his tenure, Postmaster Fred Busse was injured in a railroad accident and confined to his home. Bertha seamlessly stepped in and assumed his duties until his return. She remained an integral part of the postmaster’s office until the Friday before her wedding, a fact which the Chicago Tribune found to be nearly inconceivable, as evident in the headline: Soon a Bride; Still Works. Weeks before, the announcement of her engagement to the wealthy Mr. Baur read that Bertha would “give up” business to be wed. In the simpering, saccharine tone so often reserved for public discussion of women’s lives in that era, the Tribune remarked that “Cupid came forward with his theory.”

"Gives Up Business to Wed," Chicago Daily Tribune, October 13, 1908

“Gives Up Business to Wed,” Chicago Daily Tribune, October 13, 1908

"Soon A Bride, Still Works", Chicago Daily Tribune, November 19, 1908

“Soon A Bride, Still Works”, Chicago Daily Tribune, November 19, 1908

If it was, in fact, Cupid’s theory that Bertha Duppler, now Bertha Baur, should settle down for good and give up her success in the working world, his theory was proven false. As it happened, Bertha’s only escape from staring into the chasm of loneliness she’d found after the death of her beloved Jacob was to go back to work. Her decision to step into his role as president and acting head of the Liquid Carbonic Corporation was swift and serious, and was reported along with his obituary in many trade publications. She worked through her grief and was a great success: she doubled the worth of Jacob’s initial investment, opened the first foreign plant, and eventually sold her stock in the company for $4 million in 1926. A Tribune article dubbed her “Chicago’s best businesswoman”, and she capitalized on her success in business by stepping back into the realm of politics.

"The ABCs of Politics for Women," by Bertha Baur. IIT Chicago-Kent College of Law Archives, Acc. 2014.03.

“The ABCs of Politics for Women,” by Bertha Baur. IIT Chicago-Kent College of Law Archives, Acc. 2014.03.

As early as 1916, Bertha was a firm and outspoken believer in a woman’s right to vote. That year, on a rainy day in June, she marched in the Chicago suffrage parade alongside such luminaries as Jane Addams, Dr. Anna Howard Shaw, and Janet Ayer Fairbank. She remained a devoted supporter of women’s suffrage until the right was won in 1919. Seeking to educate and interest women in politics and independence, she authored pamphlets for the modern woman on topics of voting and finance, and gave free lectures at the LaSalle Hotel. She ran a spirited, but ultimately unsuccessful, campaign for mayor of Chicago in 1922. In 1926, she ran unsuccessfully for the Republican congressional nomination on the “wet ticket” for the repeal of the Volstead Act. She ran unsuccessfully again in 1936, but served as a delegate to Republican National Conventions beginning in 1932. She was chairman of the Women’s Finance Committee and president of the Women’s National Republican Club of Chicago. She was chosen Republican National Committeewoman for Illinois in 1928, and remained a committee member until 1943. She attended national conventions without fail, always in a hat with elephants on it. She was the official hostess for the 1944 and 1952 Republican National Conventions in Chicago. She was one of the delegates sent to the third congress of the International Chamber of Commerce in 1925, and later attended the fourth in 1927 and the fifth in Amsterdam in 1929, where she was the only woman delegate.

Bertha Baur casts her first vote in 1919. Chicago Tribune historical photo.

Bertha Baur casts her first vote in 1919. Chicago Tribune historical photo.

In 1908, the Chicago Daily Tribune reported that Bertha’s views on women and business were somewhat non-traditional. “I see no reason why business women should not have a social and intellectual life,” she responded to a line of questioning about what we now call the work/life balance. While her later life was busy with politics, it was also the life of a sparkling socialite. She was the member of countless clubs and associations, and was the first and only woman for a time to be admitted to the Hamilton Club. She held parties and teas for Chicago’s important guests, including Queen Marie of Romania, and was received by Queen Mary in 1930. She appeared at several costume parties wearing the heavy brocade dress of Queen Caroline of England, who died in 1821, purchased from the Chicago Historical Society. She was known for giving early dinner parties so that she could change into a second set of fineries and leave for another engagement. Ever the philanthropist, the poor girl from Wisconsin-turned millionaire shared her wealth by funding an orphanage, and continued in her social work to educate and inform women.

Bertha Baur in one of her many elephant hats. Chicago Daily News negatives collection, DN-0080527.

Bertha Baur’s life made an impact on Chicago. A woman who saw no need to do as popularity dictated, she came far by relying on her own intelligence and skill in business. She rescued herself from the earth-shattering injury of loss by returning to her success in a man’s world, and generating more of it. Her grandson fondly remembered her suffragette’s spirit, saying “she taught me that women were smart, and did things. So later in life, I never had to pretend to welcome women’s liberation. I assumed it, and worked for it, and for things like it.” The little girl from a poor family got herself to exactly where she wanted to be, by doing the one thing she knew she could do: work. She did just that up until her death in 1967.

Never again would a headline about Bertha Baur read “Gives Up.” Chicago’s best businesswoman was quite unable to do so.

Bertha Baur was one of 23 women to be profiled in the 2013 Chicago-Kent College of Law Archives exhibit “Girls Want to Study Law.” 


“Bertha Baur’s Bubbles.” Time Magazine, 9 August 1926.

Bull, Bartle. “A Woman of Substance.” Women on the Web, 15 April 2011.

Chrucky, Serhii. “The Last Days of Washburne.” Forgotten Chicago.

“Gives Up Business To Wed.” Chicago Daily Tribune, 13 October 1908: 11.

McCormick, Mike. “Historical Perspective: Jacob Baur still recognized as ‘Father of the Soda Fountain’Tribune-Star, 3 July 2010.

Rosseter-Willard, Alice. “Our Own Lady: A Sketch“, 1931.

“Soda Fountain Man Dead.” Chicago Daily Tribune, 21 July 1912: 5.

“Soon A Bride; Still Works.” Chicago Daily Tribune, 19 November 1908: 9.

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Tech you should know: IL Prof. Conduct Rules & Tech. Competency

Mac keyboard and iPhoneThe Illinois Rules of Professional Conduct are created and revised by the Illinois Supreme Court.  On October 15, the Court updated these rules to reflect how technology has changed legal practice, including a requirement that Illinois lawyers demonstrate technological competency as part of their ethical obligations.  

According to the ISBA’s recent article “Illinois Supreme Court updates rules due to technology, practice developments”:

“The amendments to the Rules reflect the Supreme Court’s strong interest in utilizing technology to make the judicial process more efficient and its recognition of the increasing use of technology in today’s legal practice,” Chief Justice Rita B. Garman said. “These rule amendments also recognize how changes in legal practice have brought lawyers from other jurisdictions to Illinois to provide needed legal services as well as the Court’s commitment to ensuring that lawyers who practice in Illinois meet the highest of professional and ethical standards.”

Among other updates, the Court updated Rule 1.1, which reads:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

The rule is vague as written, but the rule’s comments provide more detail.  According to the newly-added Comment 8:

8) To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

This does not mean that lawyers are expected to be tech experts, but they are expected to understand how technology fits within their practice and what the benefits and pitfalls are. Take advantage of the resources available during law school to increase your technology skills, such as brushing up your Word skills with the Library’s guide to using Microsoft Word or taking technology-oriented classes such as Practice and Professionalism.  

Illinois is now one of 15 states that require technological competency.

Image- Mervi Eskelinen (Creative Commons)

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The American Museum of Tort Law

How many museums in this country are dedicated to a legal cause of action?  None, according to Ralph Nader, and this is one of the reasons that he recently opened the American Museum of Tort Law in his hometown of Winsted, Connecticut.  For those unfamiliar with Ralph Nader, he is a prominent advocate for consumer safety who has spent decades fighting for his causes as an attorney, author, and even presidential candidate.

The American Museum of Tort Law has been in the works for nearly twenty years, and finally became a reality with the help of $2 million in private donations.  The stated purpose of the museum is:  “…  to increase citizen understanding of Tort Law – the law of wrongful injury – and the role it plays in protecting personal freedom, health, and safety through the American civil justice system.”  The museum serves this mission through both exhibits at its physical location and its website.

The museum features displays on numerous significant tort cases and harmful consumer products, which serve to illustrate the development of the law of torts.  Nader designed the museum as a storytelling space, and so emphasizes the human toll caused by products such as the Ford Pinto, cigarettes, asbestos insulation, and even “Toys that Kill.”

The centerpiece of the museum space is a Chevy Corvair, a car particularly associated with Ralph Nader. Nader rose to fame upon publication of his book, Unsafe at any Speed, which was an indictment of the safety practices of the U.S. auto industry and which specifically targeted the Corvair as an example of an unsafe vehicle.  Nader alleged that the car’s rear-engine design and suspension system made it prone to crashing.

Another case that features prominently at the museum is the infamous McDonald’s “spilled coffee” case of Liebeck v. McDonald’s.  That 1992 case involved a 79 year old woman who suffered severe burns after spilling a cup of McDonald’s coffee in her lap. While tort reform advocates held this case up as an example of lawsuit abuse (asking why someone should be awarded $2.7 million for carelessly spilling coffee) the museum takes the position that the verdict was reasonable once the facts are fully understood. Such facts included the approximately 700 previous complaints from customers about the coffee being served at a dangerously high temperature and how competitors served their coffee at much lower temperatures.

The director of the museum is Richard L. Newman, is a trial attorney who practiced law for many years in Connecticut.  Among the listed “founders” of the museum is Fred Baron, who was a high-profile Texas attorney specializing in product liability and mass tort claims.  The fact that so many people involved in the creation of the museum are plaintiff’s attorneys will likely be used as a point of criticism.

The Chicago-Kent Law Library has many books written by Ralph Nader, as well as access to many articles he has written during his career.  To see what we hold, go to the library’s online catalog and run a search for “Ralph Nader.”

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Banned Books Week: I Know Why the Caged Bird Sings

This is the second book review for Banned Books Week 2015 from Gwen Osborne, Director of Public Affairs:

photo by York College ISLGP

photo by York College ISLGP

Before her death last year at age 86, Maya Angelou had begun work on the eighth book in her multi-volume memoir.

Angelou led a colorful life that included work as San Francisco’s first African-American streetcar conductor, a brothel madam, an Alvin Ailey dancer, a civil rights activist and a poet. I Know Why the Caged Bird Sings, published in 1969, is the first book in the autobiographical series.

maya angelou i know why the caged bird singsThe book recalls events in Angelou’s childhood in Stamps, Arkansas and St. Louis, Missouri. Like many works in African-American literature, birds are used as a metaphor for freedom. I Know Why the Caged Bird Sings takes its title from a line in Paul Laurence Dunbar’s 1899 poem “Sympathy.” (In 1983, Angelou published her own poem, “Caged Bird,” as a variation on that theme.)

Despite spending two years on the New York Times paperback bestseller list and being nominated for a National Book Award, I Know Why the Caged Bird Sings is one of the most banned and/or challenged books in America for its language and portrayals of violence, racism, sexuality, childhood rape and teen pregnancy.

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Banned Books Week: International Issues

While we are celebrating the American Library Association’s national “Banned Books Week” on our blog, the freedom to read is an international issue. Here’s an example: Newsweek reported Iran instituted a ban on all works by Paulo Coelho, the author of international bestsellers such as The Alchemist, The Diary of a Magus, and Veronika Decides to Die:

Paulo Coehlo Banned in Iran

Over the years, Iran’s theocracy has fearlessly thumbed its nose at Israel, the United States, and the United Nations. But now Tehran has taken its row with the West a disturbing degree further. This week the Iranian government reportedly banned all works by Paulo Coelho, the Brazilian mystic and author…

Here’s a reveiew of one book by Paulo Coelho by Library Technology Specialist Kim Koppen:

Paulo Coelho VeronikaDespite its title, Veronika Decides to Die is a surprisingly uplifting and inspirational book. The story opens with a young woman, Veronika, who attempts to commit suicide from overdosing on sleeping pills. She is unsuccessful and upon regaining consciousness in a local mental hospital, is told by her doctor that she damaged her heart so badly in her attempt, that she doesn’t have much longer to live anyway.

The story follows Veronika during her stay at the hospital, and the variety of emotions and road to self-discovery she experiences as she reflects on her life, her regrets and all the emotions she never allowed herself to feel.

Veronika Decides to Die is based on events in Coelho’s own life, and is one of those books that is filled with wonderful quotes about individuality and the difficulty people often face when attempting to conform to societal norms. While there are many quotes to choose from, I would have to say the following is my favorite,

Haven’t you learned anything, not even with the approach of death? Stop thinking all the time that you’re in the way, that you’re bothering the person next to you. If people don’t like it, they can complain. And if they don’t have the courage to complain, that’s their problem.”

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Banned Books Week: The Case of Mistaken Identity

Books and authors can be banned, challenged, or removed from reading lists for all kinds of reasons.  Many books have been found offensive because they mention drug use, profanity, or obscenities – and, in one recent case, mistaken identity.

bill martin brown bear brown bearBill Martin Jr. was a well-known children’s author who wrote many popular picture books.  If you have kids of a certain age, you’ve probably long since memorized his immortal Brown Bear, Brown Bear.  Certainly children’s picture book authors have faced numerous challenges (Maurice Sendak‘s In the Night Kitchen andWhere the Wild Things Are, for example).  But until now, Martin’s endearing works had escaped notice.  What changed?

In 2010, when discussing which authors to include on a list of cultural icons for 3rd graders, the Texas Board of Education decided to exclude Martin because of his books for adults, citing as an example his 2008 work, Ethical Marxism: The Categorical Imperative of Liberation.  According to one board member, Martin’s work included “very strong critiques of capitalism and the American system” and therefore Martin was not bill martin ethical marxisman appropriate author for the list.

The appropriateness of this reasoning aside, there was a much larger underlying issue: Bill Martin Jr. died in 2004, four years before the book on Marxism was released.  Was the book published posthumously?  No.  The 2008 book is by a completely different author, Prof. Bill Martin of DePaul University.

A little research could have avoided this mess altogether.  The Board probably should have checked with a librarian first.

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