Editorial
In this issue
Guest Editorial: Unsexing scholarship? Towards better citation and citizenship practices in global public law
In this issue
The guest editorial which opens this issue is authored by Rosalind Dixon and Mila Versteeg, who consider how the under-citation of female scholars can be addressed. They link this to a number of structural factors: rising academic workload coupled with the “publish or perish” mentality means that academics are under increased pressure to publish, which can exacerbate gender and racial biases in citation.
Our Articles section includes six contributions. In the first, Nimer Sultany examines the mounting significance of neoliberalism as a force in the case law of the Egyptian Supreme Constitutional Court, by contrast with the developmental economic vision often espoused by the apex administrative court. This is followed by an article by Vlad Perju, who proposes a theory of “transnational” constitutional norms to explain widely shared democratic commitments, such as judicial independence. In the third article, Shamshad Pasarlay advocates for dialogic incrementalism in constitution-making in fractured societies, contrasting the experiences of Iraq and Afghanistan. In the fourth article, Dimitrios Kivotidis examines the recent legislative overhaul of the Greek administrative state, which he argues must be viewed as part of a broader market-oriented trend of undermining social and political rights in Greece. Next, Maija Dahlberg and Anu Kantola take us inside the process of pre-legislative or ex ante constitutional review in Finland, informed by interviews with key actors involved in the Constitutional Law Committee of the Finnish Parliament. They find that political tensions surrounding the ex ante review process have been increasingly heightened in recent years, due in part to the increased involvement of external legal experts and increased scrutiny from the media. In the final article in this section, Madhav Khosla and Milan Vaishnav consider what is to be learned about the nature of parliamentary government through a close examination of legislative efforts to prohibit law-makers from defecting from one political party to another, comparing the example of India’s new anti-defection law with similar laws in Israel, South Africa, and Pakistan.
The issue continues with a focus on failures in constitution-making. Sonsoles Arias analyses the development of the constitution-making process in Kenya, arguing that the influence of partisan political forces ultimately led to the rejection of the new draft Constitution in 2005. Andrea Katz examines the rejection of a new constitution by public vote in Uruguay in 1980, which was designed to legitimize the governing military dictatorship. Whilst technically categorized as a failure of constitution-making, this plebiscite ultimately triggered the process of re-democratization in Uruguay. In consequence, Katz argues that constitutional “failures” can turn out to be long-term successes.
Our Symposium section features a collection of articles that assess the past three decades of international cooperation in the fight against corruption. Leonardo Borlini and Anne Peters introduce the symposium by highlighting the transformation that has taken place since the effort to tackle corruption has become multi-national. Borlini also authors the symposium’s first contribution, examining the use of monitoring and compliance mechanisms as a means of assessing the success of international cooperation on corruption. Next, Borlini and Cecily Rose argue that the current provisions on international asset recovery in the United Nations Convention against Corruption are inadequate, and scrutinize the domestic laws of Canada, Switzerland and the United Kingdom which, they suggest, embody the types of ”good practices” that are more effective at securing asset recovery. In her contribution to the symposium Anne Peters acknowledges that the individualized nature of human rights fits somewhat uneasily with tackling an inherently systemic problem: corruption. However, given the strong human rights framework within the transnational legal order, she concludes that human rights are indispensable in the fight against corruption. Next, Anne van Aaken advocates for the use of behavioral science in international anti-corruption law, which she argues can provide a powerful tool in strengthening anti-corruption measures. Finally, Yarik Kryvoi employs empirical data from international investment treaties and arbitration cases to examine the link between corruption and foreign investment.
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This issue includes seven book reviews, which discuss the dynamic interaction between constitutionalism and algorithms, feminism, Buddhism, authoritarianism, history, and climate change. To be more specific, Lauri Mälksoo reviews The Post-Soviet as Post-Colonial: A New Paradigm for Understanding Constitutional Dynamics in the Former Soviet Empire, highlighting the continued relevance of history and historical grievances for understanding constitutional developments in Central and Eastern Europe and post-Soviet Eurasia. Ruth Houghton reviews Global Gender Constitutionalism and Women’s Citizenship, urging constitutional scholars beyond feminist circles to engage with this book, which is one that addresses issues reaching beyond feminist constitutionalism. In his review of Constitutional Challenges in the Algorithmic Society, Ching-Fu Lin argues that the rise of the algorithmic authority should be accompanied by the rise of a sustainable and resilient constitutional environment backed by human-centered institutional design, as well as ethically and technologically informed norms. In his review of Litigating the Climate Emergency, Marcelo Lozada Gomez invites scholars and practitioners to build on existing materials to address the blind spots and the gap in legal standards to adjudicate human rights-based climate change litigation. Punsara Amarasinghe reviews Buddhism and Comparative Constitutional Law, pointing out the importance of the Asokan persona and the role played by Hindu jurisprudence in developing the Buddhist approach to the state. In her review of Useful Bullshit: Constitutions in Chinese Politics and Society, Han Zhu points out that the concept of “useful bullshit” is not synonymous with Chinese constitutions but can be applied to other socialist or authoritarian constitutionalism or even liberal democracies. Finally, Eddie Bruce-Jones, in his review of Recht und Rassismus: Das menschenrechtliche Verbot der Diskriminierung aufgrund der Rasse [Law and Racism: The Human Rights Prohibition of Racial Discrimination], examines the methodological and substantive contributions of this German monograph.
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We invited Rosalind Dixon, Scientia Professor of Law at the University of New South Wales, Australia, and Mila Versteeg, Henry L. and Grace Doherty Charitable Foundation Professor of Law at the University of Virginia School of Law, USA, to contribute a Guest Editorial.
Unsexing scholarship? Towards better citation and citizenship practices in global public law
1. Introduction
The production of high-quality legal scholarship depends on three key steps: reading, writing, and citation. Many of us jump between these stages, or iterate between them. We also engage in focused reading and more wide-ranging reading that can inform, generate, and challenge how we do more project-specific reading.[1] Each are essential stages in the production of high-quality, rigorous legal scholarship.
Yet reading and citation practices are under increasing strain. We are not reading or citing enough, and the reasons are often structural in nature. Academics in many countries are facing increasing workloads, with fewer resources, in ways that have clear flow-on effects for the time available for research. This is a problem in itself, but also one that contributes to other problems—including the reproduction of geographic, racial, and gender bias in our practices of citation.
In a recent study published in I•CON, Unsexing Citation, we demonstrated a clear and statistically significant difference in the rate at which male scholars are cited compared to the rate at which female scholars are cited.[2] We also found that this “gender citation gap” is driven almost entirely by the citation of male scholars, and that there are few signs that this pattern was improving, despite significant other changes in the field aimed at overcoming problems of gender bias and discrimination.
This editorial calls on the I•CON editorial board (of which one of us is a member) to address this problem head on—by instituting a new requirement that, as part of the submission process, all authors submitting to I•CON (and similar journals) warrant that they have given explicit consideration to the gender composition of authors cited in their research; and indicating that the editors may take compliance with this requirement into account, as part of the exercise of their editorial judgment.
A requirement of this kind is no silver bullet for the problems of academic overwork or various kinds of bias that female scholars may encounter. It does nothing to address the structural origins of current practices of unequal citation in global public law, or to require scholars to engage in exemplary patterns of citation. It is, by design, a relatively weak or “semi-procedural” intervention, that aims to recognize the importance of both academic citizenship and freedom in our collective scholarly practice.[3] Hence, there would be nothing (other than ethical norms) stopping a scholar from answering “yes” to this question, without giving proper consideration of the concerns that lie behind it.
It should therefore be seen as only one of many steps necessary to counter broader inequalities and biases in our scholarly practice. But it is an important first step: it helps challenge unconscious habits and biases, and puts the author in immediate dialogue in that moment with these questions. This is also especially true if editors take these questions seriously.
2. Academic workloads and time constraints
The starting point for any discussion about academic citizenship must be a discussion of academic workload. Legal scholars in many countries are required to teach large numbers of students and do substantial amounts of administrative work, in ways that leave little time for research. In many countries, these pressures have been worsened by progressive cuts in public funding and increasing managerialism in university governance.[4] Add to this a “publish or perish” mentality, or insistence that all academics—including junior academics—produce a high volume of research, and it is little wonder that many of us have limited time to read and digest the work of colleagues.
These structural pressures call for a structural response: that is, renewed efforts by scholars and university leaders to win public support for adequate public funding for universities, and to reverse decades of creeping managerialism and bureaucracy in university administration.[5]
Part of that also involves an effort to prioritize quality and impact, rather than quantity, in academic publishing, in ways that arguably run counter to our emphasis on citation. But it does not have to be the case that writing fewer articles should lead to fewer overall citations (one might imagine more substantial or better sourced pieces). And an emphasis on quality must also be accompanied by changes that make it easier to combine teaching, research, and service, or a balanced academic role and workload. In this sense, there is little real tradeoff between these various goals.
Such structural changes, however, require time and resources. The truly hard question is what we do as individuals and a field in the meantime.
3. Realistic academic citizenship
Considering that structural changes may not be immediately available, there are powerful reasons for us as a collective to insist on greater realism about what it means to be a “good” academic citizen, who excels in teaching and research and service to the field.
Otherwise, we risk an epidemic of depression, burn out and brain drain among current and future law teachers and scholars. These risks are also highly gendered and racialized: many women face additional care burdens at home that make coping with increasing academic workload pressures especially difficult.[6] Scholars in the Global South face far greater workload pressures and resource constraints.[7] And academic citizenship work is itself often distributed in ways that are far from racially or gender neutral.
Women, and especially women of color, are often called on to do far more informal and formal service work than male-identifying colleagues. And this problem often only becomes worse, rather than better, when decision-makers make greater efforts to ensure racial and gender diversity in areas such as panel composition, or the allocation of peer review. Indeed, efforts of this kind can often lead to a form of “diversity tax.”[8]
This means that we should take a flexible view of what good citizenship means, and one that gives considerable autonomy to individual researchers: no single scholar can mentor or give feedback to everyone in their field, and every scholar will have a capacity to do so that varies over time, depending on health, family, and other care responsibilities. Each scholar should therefore be entitled to make judgments about their capacity to offer certain forms of academic service at a given point in time, and to particular individuals.
We should also encourage a quality over quantity view of academic citizenship: high standards of peer review and commenting, for example, do not require long responses, only careful and constructive ones. And we should be mindful to judge what is adequate in this context with workload pressures in mind.[9]
4. Citizenship duties
At the same, we should be clear to affirm the importance of norms of academic citizenship, even if understood in realistic and flexible terms.
High-quality scholarship depends on a process of academic debate and exchange. This is a key part of ensuring that we promote a search for “truth,” or epistemically correct answers.[10] And it helps distinguish legitimate from illegitimate forms of scholarly activism.[11]
Moreover, for those of us with secure and well-paid academic jobs, there are clear benefits to membership in this community. We have the chance to do work that matters and that is afforded the protection of tenure and academic freedom.[12] These benefits also generate a corresponding ethical obligation to support the practices that sustain the field, including practices of reading, citation, and peer review.
Being a tenured academic means accepting a duty to read the work of colleagues, especially junior colleagues, and provide regular peer review and feedback to other scholars working in our relevant sub-field. This duty is imperfect rather than perfect in nature, and may be discharged flexibly.[13] But it is still a duty rather than a discretion.
Further, scholarly duties of this kind extend to reading and citing other relevant scholarly work. Good citation practices include citing work that is directly on point, and thus where citation failures could be considered a form of plagiarism or academic misconduct, but also to work that is only indirectly related or relevant. Both kinds of citation are necessary for there to be a true exchange of ideas, rather than disconnected series or arguments, without any form of dialogic or deliberative testing.
As a field, we should also take an interest in whether our colleagues are fulfilling this duty. There is little point in preaching academic citizenship if we consistently award prizes and coveted invitations to scholars widely viewed as poor citizens. Often, the reason that they are good researchers, yet poor citizens, is that they have chosen to prioritize time for research over academic service.
If we are serious about good citizenship as a virtue, we must therefore make it relevant to a broad range of academic decisions—including decisions about hiring and promotion, publication, and the award of prizes and grant of scholarly invitations, all of which are of key interest to the best researchers in a field. Doing so would be just and appropriate, given the ethical duties associated with membership in the academic community. It would also have salutary effects in encouraging better citizenship from leading researchers in the field.
And it would have the potential to counter racial and gender biases: there is good evidence that women and scholars of color are more likely to be asked, and feel pressured to accept requests, to perform a range of academic service tasks.[14]
This ethos should also extend to practices of reading and citation. In publishing work in I•CON, or other leading journals, we should insist not just on high standards of academic honesty—but also high standards of academic citizenship in practices of citation.
5. Honest but poor citation practices
There a several reasons why scholars may engage in honest, but less than exemplary, citation practices. As we noted at the outset, time, or the lack of time, is one of them. Another is the growth of global public law as a field, and the fact that there is now (happily) simply too much written and published each year in the field for any individual scholar to keep track of.
Given this, most scholars adopt certain shortcuts in deciding what to cite: for example, they focus on work by colleagues, or those in the same scholarly networks, or work they have seen presented at conferences or workshops. These shortcuts make sense: they provide an efficient way of reducing the time taken to recall or access relevant work to consider and cite. And for that reason, they should not by themselves be viewed as poor scholarly practice. By themselves, however, is the operative phrase.
Shortcuts of this kind should be considered part, but only part, of good academic citizenship and citation practice. Good practice also requires that scholars do independent research to find relevant work, which may not readily come to mind or which they may not otherwise be aware of. For scholars fortunate enough to have the option, they can rely on research assistants to help them identify work of this kind. But they must still read and consider the work, and its relevance, as part of high standards of academic citizenship and citation.
There are two key reasons for this: access to academic networks and conferences are not evenly distributed.[15] Scholars in the Global South face numerous obstacles to participation, including funding and visa barriers.[16] Similar barriers extend to scholars at lower-tier or less-well-resourced universities within the Global North, especially scholars who are not yet tenured, or in insecure, contract-based academic work. Attendance at conferences can be much harder for those with mental and physical disabilities, or serious health conditions. And many female scholars face obstacles arising from care work and responsibilities.[17]
This means that the scholars who show up to conferences and networking events are likely to be disproportionately male, able-bodied, economically privileged, and from the Global North. Citing these, and only these scholars, is thus a clear recipe for the reproduction of a range of unacceptable and discriminatory biases in the field as a whole.
In addition, scholars might be subject to unconscious or implicit biases when seeking to recall work done by colleagues. For instance, the “Matthew effect” is the tendency for the same research or ideas to be evaluated as more important or original when produced by male as opposed to female, or white as opposed to black, scholars.[18] The “Matilda effect” is where the ideas of women are often credited to men, who have the same ideas at a later point in a conversation or research context.[19] Both effects may also contribute to gendered patterns of citation: Matthew effects may mean that the ideas produced by men are deemed more worthy of citation by other scholars. And the Matilda effect may mean that, even if an idea is identified as important, credit for that idea is given to male researchers—as opposed to prior or contemporaneous work by female scholars or scholarly teams.
In prior work, we have also shown powerful empirical evidence that there are clear gender gaps in patterns of citation in the field. Specifically, we assembled an original dataset of the articles published in I•CON, from its inception in 2006 to 2021, and the citations contained in those articles. In total, we analyzed 1,031 I•CON articles and 31,786 citations. The data revealed some striking patterns. First, female authors are cited in I•CON footnotes at lower rates than they are published in the same journal. Notably, 37% of I•CON articles are authored by at least one female (including single-authored articles), but only 25% of citations include at least one female author; a difference of 12 percentage points. Perhaps more striking, our data reveals that this gap is driven by the citation practices of male authors. The footnotes of the average I•CON article with all-male author teams (including solo-authored male articles) include 20% of citations to works with at least one female. By contrast, when an I•CON article has at least one female author, citation to articles with at least female author increases from 20% to 32%. We further show that this difference between the citation patterns of male and female I•CON authors is statistically significant even after controlling for non-gendered explanations for citation, such as the age of the article, the reputation of the cited author, and the thematic orientation of the I•CON article.
We did not attempt to study these patterns in ways that account for geography or race; and this is clearly an area where further work is warranted. But we hypothesize that the same dynamics—involving unequal access to networks and implicit bias—are likely to apply in this setting.
We further note the significant potential flow-on effects of these patterns. Citation-based measures have notorious limitations, especially in law—where the most important forms of citation (for example, in judgments, legislation or processes of constitution making or international treaty writing) are rarely captured by formal citation tools. Even so, they may still be a useful measure of research productivity and impact; and even one that helps overcome gendered or racialized perceptions of “merit” or subjective worth.
For better or worse, they are also increasingly important parts of how academic performance is measured and assessed in many countries worldwide; and hence how decisions about lateral hiring and promotion are made. For this reason, a gendered gap in citation is effectively a gendered gap in hiring and promotion, in ways that raise significant independent issues of gender justice.[20]
6. The promise and limits of a citation pledge
In our prior work, “Unsexing Citation,”we laid out several possible responses to the finding of a gender citation gap: education, such as that provided by the publication and dissemination of our prior article, or this editorial reflection. A response of this kind respects the agency and competence of fellow scholars in responding to the patterns we identify.[21] But it is also unlikely to do enough to prompt change—especially in a context in which time-poverty and implicit bias might be significant contributing factors.
Time-poverty may mean that many scholars in fact never read, or become aware of, our findings. And implicit biases are hard to shift through education alone. They generally require more deliberate and salient “nudges” before changes are seen in behavior.[22]
Another response would be to mandate norms of parity in citation. A response of this kind could be a powerful tool for overcoming the current gender gap in citation practices, and would, on average, bind only male, rather than female, scholars—or those scholars most likely to be affected by implicit gender biases in their current citation practices. But it is also a fairly heavy-handed form of intervention, which runs up against commitments to individual academic freedom.[23] And in part for that reason, it seems quite likely to promote formalistic or “shallow” rather than substantive and genuine forms of compliance.
Our preferred approach therefore is a middle ground, which requires scholars to consider the fairness and diversity of their citation practices, without prescribing the precise outcome of that process. Following Ittai Bar-Simon-Tov in the context of judicial review, we label this a “semi-procedural approach.”[24]
In this editorial, we also extend that argument, by connecting it to the idea of good academic citizenship. We further speak directly to the editors in chief, suggesting that they could help reinforce the effect of such a requirement—by making explicit that they intend to view good faith compliance with it as a factor that could legitimately inform their editorial decisions and judgment.
Good academic citizenship is a standard not a rule and should be encouraged in ways that reflect that—along with the values of academic freedom. Hence, we avoid prescribing any quota or binding norm surrounding diverse citation practices. But good citizenship is also a duty, not merely a matter of discretion, and our collective practices should reflect that. We should require, not just hope, that researchers give due consideration to the contributions of others in the field. And we should make clear that this means due consideration of the research of all scholars—including those in the Global South, minority scholars, and female scholars.
One might worry that this may still lead to quite superficial change, and the “string citation” of work by female scholars, while retaining a prominent place for the voices of male scholars “above the line.” We share this concern, but also believe that is something that editors could take into account in the exercise of their editorial judgment.
And while shallow citation is no substitute for deep citation in academic work, it may still have some instrumental value for female scholars: it may encourage other scholars mining the footnotes of a piece to pay deeper attention to the work in future research. And it has an even cruder, more instrumental value: it means that women, not just men, benefit from the kinds of quantity-based metrics and measures of research quality and impact that are an increasing part of the modern, managerial academy.
We may not like the version of the academy that metrics and citation counts represent. But until we change that, we should not sit by—and simply observe, rather than challenge, patterns that mean that a narrow subset of male scholars are often their prime beneficiaries.
Rosalind Dixon and Mila Versteeg*
[1] Joseph Weiler: The Books that Formed my Intellectual Outlook, Rev. Democracy (July 15, 2022), https://revdem.ceu.edu/2022/07/15/joseph-weiler-the-books-that-formed-my-intellectual-outlook/.
[2] Rosalind Dixon & Mila Versteeg, Unsexing Citation: Closing the Gender Gap in Global Public Law, 21 Int’l J. Const. L. 407 (2023).
[3] Id. As we note in “Unsexing Citation,” we are grateful to Adrienne Stone for pressing us on this point. The idea of “semi-procedural” intervention is drawn from similar language used by Bar-Smina-Tov in the context of judicial review: Ittai Bar-Smina-Tov, Semiprocedural Judicial Review, 6 Legisprudence 271 (2012).
[4] Margaret Thornton, Who Cares? The Conundrum for Gender Equality in Legal Practice, 43 UNSW L.J. 1473 (2020).
[5] On admin and bureaucracy, see Elizabeth Emens, The Art of Life Admin: How To Do Less, Do It Better, and Live More (2019).
[6] Gráinne de Búrca, Rosalind Dixon, & Marcela Prieto Rudolphy, Gender and the Legal Academy, 22 Int’l J. Const. L. (forthcoming 2024).
[7] Rosalind Dixon, Comparative Constitutional Modalities: Towards a Rigorous but Realistic Comparative Constitutional Studies, 1 Comp. Const. Stud. (forthcoming 2024).
[8] Búrca, Dixon, & Prieto Rudolphy, supra note 6.
[9] In this sense we differ slightly from Editor-in-Chief Joseph Weiler on his illuminating work on the topic of peer review, its importance and requirements: Joseph Weiler, Best Practice: Writing a Peer-Review Report, EJIL:Talk! (July 22, 2019), www.ejiltalk.org/best-practice-writing-a-peer-review-report/.
[10] Jeremy Waldron, Foreign Law and the Modern Ius Gentium, 119 Harv. Law. Rev. 129 (2005).
[11] On this debate, compare Tarunabh Khaitan, On Scholactivism in Constitutional Studies: Skeptical Thoughts, 20 Int’l J. Const. L. 547 (2022) with Adrienne Stone, A Defence of Scholactivism, Verfassungsblog (Aug. 22, 2022), https://verfassungsblog.de/a-defence-of-scholactivism/.
[12] See, e.g., Carolyn Evans & Adrienne Stone, Open Minds: Academic Freedom and Freedom of Speech in Australia (2021). See more generally Vicki C. Jackson, Knowledge Institutions in Constitutional Democracies: Preliminary Reflections, 7 Can. J. Comp. & Contemp. L. 156 (2021).
[13] For a discussion of this distinction in the context of legislative duties, see, e.g., Rosalind Dixon & Lael K. Weis, Legislative Constitutional Duties and Judicial Role, 2023 Pub. L. 311.
[14] Búrca, Dixon & Prieto Rudolphy, supra note 6. See also Amani El-Alayli et al., Dancing Backwards in High Heels: Female Professors Experience More Work Demands and Special Favor Requests, Particularly from Academically Entitled Students, 79 Sex Roles 136 (2018); Meera E. Deo, Unequal Profession: Race and Gender in the Legal Academia (2019).
[15] Dixon & Versteeg, supra note 2.
[16] Dixon, supra note 7.
[17] Jaclyn N. Neo, Constitutionalizing Care: How Can we Expand our Constitutional Imaginary after Covid-19?, 20 Int’l J. Const. L. 1307 (2023). See also Búrca, Dixon, & Prieto Rudolphy, supra note 6.
[18] Dilruba Mahbuba & Ronald Rousseau, The Matthew Effect and a Relation with Concept Symbols and Defaults, 58 Annals Library & Info. Stud. 335 (2011), cited in Dixon & Versteeg, supra note 2.
[19] Margaret W. Rossiter, The Matthew Matilda Effect in Science, 23 Soc. Stud. Sci. 325 (1993), cited in Dixon & Versteeg, supra note 2. This is not to be confused with “the Matildas effect,” whereby the success of the Australian soccer team helped boost popular support for female sport and athletes: Tom McIlroy, The Matildas Effect: Albanese Gives Extra $200m for Women’s Sport, Austl. Fin. Rev. (Aug. 18, 2023), www.afr.com/companies/sport/the-matildas-effect-albanese-gives-extra-200m-for-women-s-sport-20230818-p5dxpe.
[20] For the consequentialist and non-consequentialist dimensions to these questions of justice, see Búrca, Dixon, & Prieto Rudolphy, supra note 6.
[21] On this notion of competence, in a free speech context, see, e.g., James Weinstein, Free Speech, Abortion Access, and the Problem of Judicial Viewpoint Discrimination, 29 U.C. Davis L. Rev. 471 (1996).
[22] For a debate on this question, see Christine Jolls, Cass R Sunstein & Richard Thaler, A Behavioral Approach to Law and Economics, 50 Stan. L. Rev. 1471 (1998).
[23] See Evans & Stone, supra note 12.
[24] See Bar-Smina-Tov, supra note 3.
* We are grateful to colleagues who commented on our prior article “Unsexing Citation,” and to Vicki Sentas for helpful comments on this editorial, as well as to John Lidbetter for outstanding research assistance in its preparation.
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