Ball, Howard. The Bakke Case, (University Press of Kansas, Lawrence: 2000)
|Erik Rankin||The Bakke Case (Erik Rankin)|
|Amanda Moore||Re: The Bakke Case (Justin Vaughn)|
|Justin Vaughn||The Bakke Case (Justin Vaughn)|
|Matthew Bice||No Subject|
|Kathleen Guilfoyle||Re: Bakke Case (Justin Vaughn)|
|Date:||Mon, 19 Mar 2001 14:59:17 -0600|
|Subject:||The Bakke Case (Erik Rankin)|
Ball, Howard. The Bakke Case, (University Press of Kansas, Lawrence: 2000) Reviewed by: Erik Rankin
Racism in America has received the most recent press through the use of Affirmative Action. Affirmative Action has come under fire in recent years in many different areas. Higher education has been once such area, and numerous cases have come forward to argue against the validity of Affirmative Action. Can the constitution be interpreted in a way that shows Affirmative Action is unconstitutional? The Supreme Court has had the duty to determine the constitutionality of Affirmative Action in numerous landmark court cases. Each court case has moved the country closer to a definitive answer to the constitionality of Affirmative Action in America.
The Bakke Case by Howard Ball outlined one of the most significant Supreme Court cases on Affirmative Action. Ball gave a very legalistic description of the interworkings of this historic case. He first gave an insightful description of the state of racial affairs in higher education. Ball was able to give the pros and cons of Affirmative Action and the social and political issues that accompany them. This opening was rather brief and could have been slightly more informative. The transition to the specific court cases was also abrupt, but the case descriptions were to make up for their shortcomings.
Ball prefaced the Bakke court case with DeFunis v. Odegaard. This case pitted a student that was applying for admission to the University of Washington School of Law against its admission standards. The University of Washington had set aside 16 percent of the places in its entering classes exclusively for members of racial minorities. All applicants were screened and categorized by race. Minority applicants were then admitted to the school by having standards that were lower the majority students. Marco DeFunis was denied admittance to the University on two separate occasions during the time when this Affirmative Action policy was enforced. DeFunis then believed that he had been discriminated against due to his race. He met each qualification that the University had in place but was repeatedly denied. Claiming that he had been deprived of his constitutional right to the equal protection of the laws, DeFunis challenged Affirmative Action.
The case first hit the lower courts where DeFunis won and was admitted to the law school. The school appealed the decision and was able to have it overturned but was later met with a stay. This allowed DeFunis to remain in school while he continued the process of the courts. The case eventually made it the Supreme Court where the answer on the constitutionality of Affirmative Action was avoided. The court found the case to be moot because DeFunis was ready to graduate. This inability to answer showed the fear of the Supreme Court to tackle the issue. By finding this case moot the Supreme Court only delayed the inevitable on defining the Affirmative Action issue.
Following the DeFunis case another case was to begin shortly in California. This case was to involve Allen Bakke. Bakke was an incredible man that did time in the military and had gone on to work for NASA. At NASA Bakke was an engineer with promise and a very bright future ahead of him. Bakke however felt that his calling was in the medical field. He decides to enroll in the University of California- Davis Medical School at the ripe old age of 32. Bakke had all of the qualifications it took to enroll at the medical school but was denied access. This denial was mostly due to the age of Bakke rather than his skin color. Bakke however was informed differently by an assistant in the admissions office at the college in regards to his admissions. The assistant suggested that Bakke should reapply early and may have been discriminated against due to his skin color. I found this part of the book to be a section of the book where the author actually offered his own opinion on an aspect of the case. Ball called this admissions assistant "unprofessional" but was clearly looking out for the welfare of Bakke. Bakke did proceed to offer a challenge in his admissions by challenging the University and its admission policies.
Bakke argued that the University and its admission policies were a case of reverse discrimination. The University of California at Davis was actively engaging in an Affirmative Action program that set aside 16 spaces for minority students each year. With the medical school only admitting 100 people a year lowered the chances for a white student to get in. Bakke made his strongest case by attacking this quota policy. It is however a strong argument that there are numerous students that did even better than Bakke on all of his tests and other required aspects for admission. But Bakke was the only person that came forward to seek a right to the wrong of being excluded due to race. Bakke actually would grow to be more important as a cause rather than one man getting into school. This case had a slightly different set of circumstances than the DeFunis case. The most important aspect was the fact the Bakke was not admitted to school during the initial proceedings. This was to be very important since this was the Achilles heal of the DeFunis case. Bakke was obviously not going to be rendered moot which was going to force the court to make an answer regarding the practice of Affirmative Action. Bakke began his challenge in a California State court and received a verdict that struck the special admission policy of the admission policy. Bakke however was not admitted to school after the verdict had been set down. The school challenged the decision of the lower court with the California Supreme Court. That decision was 6-1 that allowed Bakke to be admitted to school. This set the school off and drove the school to appeal the decision to the United States Supreme Court.
The case received a large amount of press and was the most important story during the late 1970's. What made the case so interesting was the direct split between the Supreme Court Justices. The court split four Justices that supported the Bakke position along with four that felt the Affirmative Action program in the UCD was constitutional and necessary. It was the opinion of Justice Powell that broke the tie and ultimately set the decision in Bakke. Powell felt that while the race could be used as an acceptable means for selection into higher education, the use of quotas however was unconstitutional. The decision was a rather whitewashed answer to the growing Affirmative Action question the country was asking. Basically, it was the courts contention that Affirmative Action could continue as long as racial set asides were avoid. I argue here that this decision did very little to actually answer the question of Affirmative Action. It only instructed the education system to be more discreet with its admission policies. A school still has the right to use race as a factor in selections but may not use strict quotas. What is the actual difference? I argue that there is no difference but the Bakke opinion did actually help racial enrollment in higher education. What were the actual impacts of the historic Bakke case? According the findings of Ball the overall impact of the Bakke case has improved diversification in all aspects of higher education. Because Bakke actually legitimized Affirmative Action without quotas allowed diversification to flourish in virtually all higher education institutions. Ball reported that between 1988 and 1995 African-American enrollment increased more than 30 percent. Along with that the number of degrees earned by African American during the same time increased 34 percent for bachelor degrees and 40 percent for master degrees. Medical schools and law schools experienced the same type of boom that all other minorities experienced. One can see that this court case opened the eyes of the higher education institutions and allowed better colorblind practices for admittance to universities. Bakke actually gave strength and support to the watered down more friendly version of Affirmative Action. I feel that had Bakke not come along that this would never have had the chance to evolve. There is still a fight in the US courts today over the validity and the constitutionality of Affirmative Action.
The Supreme Court make up holds the key to the interpretation of the validity of Affirmative Action. Many suggest just like Ball that in future years the opinion the court may change based on its makeup. At the time the book was written Ball assumed that this might change with the election of the next president. The next president will have the power to appoint new Supreme Court justices that may have differing positions than their predecessors. The Supreme Court was quick to avoid the Affirmative Action issue in the DeFunis case and still not make a definitive statement with Bakke. The future however holds that this issue will resurface and will once again rise to the level of the Supreme Court.
The Bakke Case was a very informative book that allowed me to understand the ramifications of Affirmative Action in higher education. The DeFunis cases and the Bakke cases were described in great detail and allowed the reader to gain a deep understanding of the courts opinion. The only difficult aspect of the book was its legalistic jargon and terms. The book presented many findings that have stemmed from the Bakke case and how they have effected society. Bakke will continue to be a landmark court case that is a household name for its decision on affirmative Action. It will be interesting to see what it to become of Affirmative Action and the Bakke precedent in the future.
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|Date:||Mon, 30 Apr 2001 13:36:17 -0500|
|Subject:||Re: The Bakke Case (Justin Vaughn)|
|From: Amanda Moore|
|Re: The Bakke Case (Justin Vaughn)|
This commentary is offered in response to Justin Vaughn's review of "The Bakke Case," by Howard Ball, a veteran of the civil rights movement, professor of political science, and former dean of arts and sciences at the University of Vermont. Vaughn writes that Ball' s explanation of the "deft communication of the different views behind each of the parties in Bakke v. California Board of Regents" was particularly lucid. I believe that this was the most important aspect of the Bakke case that Professor Ball could have chosen to illuminate, and that Mr. Vaughn could have selected to highlight in his review. Although the concept of affirmative action is certainly possible to grasp and understand, it has often been misunderstood.
Before commenting upon each of Ball's explanations of the views of the Bakke case as outlined by Mr. Vaughn, it is noteworthy to digress briefly to the origin of the term, affirmative action, in order to see that such an emotion-wrought term was actually coined serendipitously by Hobart Taylor, Jr. in 1961. Taylor, a young black attorney and son of a good friend of then Vice-President Johnson, was asked by Johnson to assist with writing an executive order banning discrimination by federal contractors in hiring. Taylor agreed and assisted future Supreme Court Justices Arthur Goldberg and Abe Fortas in drafting Executive Order 10925, that established the Equal Employment Opportunity Commission. The order went into effect virtually unnoticed, with the term, affirmative action bestowed by Taylor because as he later said, "I was searching for something that would give a sense of positiveness to performance under that executive order, and I was torn between the words positive and affirmative…I took affirmative because it was alliterative" (Lemann, 38).
Returning to Mr. Vaughn's examination of Ball's insightful discussion, I found the following points particularly powerful in illuminating the affirmative action discussion:
(1) " Ball does an excellent job in highlighting the idea that this case was representative of Affirmative Action's inherent conflict between numerical equality (the Davis position) and moral equality (the Bakke position)" (Vaughn).
This delineation and explanation of moral equality versus numerical equality is short and concise, but it precisely demarcates the affirmative action argument.
(2) " Also, Ball perfectly contrasts the Institutional/Group stance taken by Davis and the Private/Personal stance taken by Bakke, and still manages to show that while by law both cannot be right, neither is completely wrong either" (Vaughn).
Herein Ball, as pointed out by Vaughn, condenses the entire argument of Bakke versus the California Board of Regents into a few words, while at the same time indicating that neither position is right nor wrong, the exact point which makes the entire affirmative action debate so difficult and emotional.
As author Nicholas Lemann pointed out after sampling a number of opinions about the meaning of the term affirmative action, the general belief of the American public about affirmative action is something like "stuff that's done explicitly to help black people" (Lemann, 40). If Lemann's analysis of public opinion is even remotely correct, then work such as Howard Ball's in "The Bakke Case" is sorely needed and beneficial in sorting out the truth and clarifying the particulars regarding affirmative action.
Lemann, Nicholas. "Taking Affirmative Action Apart," THE NEW YORK TIMES MAGAZINE, June 11, 1995.
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|Date:||Tue, 13 Mar 2001 08:47:57 -0500|
|Subject:||The Bakke Case (Justin Vaughn)|
|Justin S. Vaughn|
|Ball, Howard. "The Bakke Case: Race, Education, and Affirmative Action."|
|University Press of Kansas: Lawrence, Kansas, 2000.|
Ever since the formal dissolution of the institution of slavery in the United States, the nation has been gripped by a debate over the rights of African-Americans, their role in this nation, and what should be done to atone for the racial evils perpetrated in our country's first century. The debate has been a progressive one, growing and changing along with the United States. The latter question, regarding atonement, has received intensified attention since the Civil Rights Movement and its advancements through the 1960s. As the years go on, the detrimental sociological effects of our past are increasingly obvious and it is equally increasingly obvious that something must be done to combat the damage that is being done to our nation.
This is not to say that efforts have not been made, dialogue has not been entertained, or that programs have not been conceptualized and administered. All this and more has occurred. Unfortunately, the critics of these programs and ideas have too often had louder and more powerful voices than those of their proponents. The nation has yet to unveil a bridge over our racial divide that satisfies the demands of those who need help, complies with the constitution that governs us, and is valid and fair to the point that it can not be disapproved of by those who will not benefit from it, but must finance its objectives. Instead, we are left with underfunded and overextended programs that suffer from public disapproval and civic controversy.
One such idea that can be placed into this category falls under the rubric of Affirmative Action. Since there is no singular policy or definition of Affirmative Action, it must remain loosely identified as an idea. Affirmative Action programs have been administered in many different areas of society, and have been extensively contested in every form, particularly with respect to employment and higher education. In a nutshell, Affirmative Action programs seek to remedy decades of injustice by giving historically disadvantaged demographics opportunities that society and institutionalized discrimination ordinarily would have never allowed.
One such example can be found at the University of California-Davis Medical School. Davis, as it shall henceforth be referred to, set aside 16 of its 100 seats of its medical school class for minorities, demanding lower standards for those occupants than those required of the other 84. Had only uniform standards been used, Davis would have had a class that would have been completely white. In effect, without the 16% set-aside, no black students would have been able to attend. However, the problem with the Davis plan, and with Affirmative Action in general, is that it appears that for every minority that is aided by this program, a more qualified white student is penalized for his race and denied an opportunity. One such student, Alan Bakke, agreed with such a notion, and sued the University of California school system (a public cohort) for discrimination on the basis of race; a charge that constitutionally violated the 14th Amendment and statutorily violated the Civil Rights Act of 1964.
The case that subsequently ensued, Bakke v. California Board of Regents, has since become a landmark case in American legal studies, and marks the first time the U.S. Supreme Court heard and decided a case based on the constitutionality and legality of Affirmative Action practices. In his work "The Bakke Case," Professor Howard Ball goes into great depth and produces a tremendously informative and substantive discussion of the history of Affirmative Action prior to the Bakke decision, the intricacies and minutiae involved in the case and the Court's ruling, and the subsequent development of Affirmative Action since the ruling was handed down.
Ball is commendably disciplined in his objectivity throughout "The Bakke Case," to the point that it is still unclear whether he supports Affirmative Action or if he agrees to the merits of Bakke's position. This objectivity lends Ball credibility, and positions the work as an authoritative discussion of the issue of Affirmative Action and an excellent synopsis of the arguably most important case that has ever been heard on the subject.
Though the strengths of "The Bakke Case" abound, it is the weaknesses of the work that shall be discussed first. These weaknesses are primarily cosmetic, for there is nothing fundamental that I disliked or would change in Ball's endeavor. First, "The Bakke Case" is billed as a read for general readers, but I found it to be appropriate for a student with a strong understanding of the fundamentals of the U.S judicial structure and the legal system. An individual with limited or less knowledge of the law and the courts would find a great deal of difficulty in understanding many parts of this book. To Ball's defense, however, other parts of the book do not suffer from such difficulty. For example, the section of the conferencing component of the U.S. Supreme Court as well as how opinions are assigned and completed were very informative and would be easily understood by a novice student. Additionally, I do not think Ball's targeted audience were such general students, but rather those of the publisher.
Second, Ball spent more time discussion the intricacies of the Bakke case than the issue of Affirmative Action itself. While he got into great detail over various tidbits found in certain justice's conference notes, he only offered one or two sentence discussions of the major ideological reasons for support or opposition to Affirmative Action policies. Again, this can be attributed to the true purpose of the book. If it was to provide deep insight and understanding of the issues involved in the debate over Affirmative Action, then "The Bakke Case" falls short. However, if the purpose was to provide a tightly researched treatise on the legal and personal forces at play during the tenure of Bakke v. California Board of Regents stay on the U.S. Supreme Court's docket (I think this in fact is the purpose) Ball's effort was quite successful. Nevertheless, more insight would have been appreciated, although it would have made the book another 50 to 100 pages longer.
Third, while many readers (including myself) would find Ball's objectivity appealing, others may not. When dealing with a complex and controversial issue such as Affirmative Action, it is often beneficial, or at least easier, to be told what is right, what is wrong, and what one should think. Ball does none of this, but rather lays out the facts and the arguments and allows the reader to make up their own mind. Similarly, this book does not offer a position that you can agree with or disagree with. The reader is only provided with value-less information, and left to intellectually proceed on their own. Some readers may find this a strength, others a flaw.
Finally, Ball offers no strong prognostication for the future. Following his discussion of the Bakke case, Ball offers a chapter on the further evolution of Affirmative Action through Presidents Reagan, Bush, and Clinton. However, after all this he does not extensively discuss what he thinks will happen. While this is consistent with the objectivity he has shown throughout the work, the respect that I developed for his intellect during the first seven chapters left me wanting more than the basic and general predictions found in the final chapter, "The Bakke Legacy: Hanging By A Thread?"
In all fairness to Professor Ball, it must be noted that "The Bakke Case" overall is an excellent work, particularly so when the audience is composed of readers who already have an understanding of both the Affirmative Action issue, the legal system, and the fundamentals of the U.S. judicial process. Readers lacking such knowledge may find difficulty with some parts of "The Bakke Case" and dissatisfaction with other parts. But on the whole, Ball provides an exhaustive account of an incredibly important issue in American law and politics.
"The Bakke Case" also has some great parts, but critiques often downplay the positive aspects of whatever it is that is being critiqued. One example is Ball's discussion of the evolution of the Bakke opinion. The Bakke opinion is by all accounts one of the most complex and convoluted rulings ever handed down by the Court, and the way in which it was created is even more so. Ball simplifies and provides great understanding to such a complex process, without 'dumbing down' the material for the reader. Ball similarly covers amicus curiae briefs, providing relative understanding and communicating the vast importance of their role in the U.S. Supreme Court, particularly those coming from the U.S. Solicitor General's office. Had Ball taken the same care to define strict scrutiny vs. rational basis, this issue would have been equally as clear.
Other final strengths of "The Bakke Case" include Ball's deft communication of the different views behind each of the parties in Bakke v. California Board of Regents. Ball does an excellent job in highlighting the idea that this case was representative of Affirmative Action's inherent conflict between numerical equality (the Davis position) and moral equality (the Bakke position) and how this conflict divides those in charge of interpreting the constitutionality of such a conflict into starkly different opposing camps. Also, Ball perfectly contrasts the Institutional/Group stance taken by Davis and the Private/Personal stance taken by Bakke, and still manages to show that while by law both can not be right, neither is completely wrong either. Without Ball's objectivity, this probably would not have been possible. Finally, Ball showcases the Court's unwillingness to make policy and its preference only to interpret the legality of such controversial issues. Ball aptly quotes Chief Justice Burger's notion that courts do not belong in the business of "establishing ground rules for educators … We have far more competence to say what cannot be done than what ought to be done" (115).
All in all, Howard Ball's "The Bakke Case" is an enjoyable, informative, and worthwhile read. It would be highly recommended to those who have existing knowledge of U.S. law and justice and an interest in Affirmative Action. Minus those qualities, "The Bakke Case" is still worthwhile, but certainly less so.
|Justin S. Vaughn|
|Department of Political Science|
|Campus Box 4600|
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|Date:||Thu, 22 Mar 2001 14:59:41 -0600|
The hotly debated issue of affirmative action is deeply rooted with our awareness of American history. It is an issue that reaches far beyond the lines of higher education, or political relevance. Affirmative action makes several assertions about not only our past as a nation, but our present and future as well. Can our government compensate an entire culture of people for years of oppression and mistreatment? Is our constitution truly color-blind as we would like to believe, or are we merely glossing over realities to make it appear so? These are but a few questions that have been raised by affirmative action which have little to do with higher education, but a lot to do with our culture.
The case of Allan Bakke versus the University of California is credited as being the most important Supreme Court case involving affirmative action, but not the first. In 1971 a law student Marco Defunis, challenged affirmative action when he filed charges against the University of Washington, in the case Defunis vs. Odegaard. The Universities admissions policies at that time allotted sixteen percent of each freshman class for minority applicants. Minorities were regularly admitted using lower standards than those set for majority students. Defunis won the lower court's decision, and was allowed admittance. Later that year the lower court's decision was overturned by the Washington State Supreme Court's decision to validate affirmative action. Defunis later filed for certiorari in the U.S. Supreme Court, and Court Justice William Douglass issued a stay of action to the University, pending a final deliberation of the issue by the court. It wasn't until 1974, when the U.S. Supreme Court began to hear the arguments on the Defunis case, and eventually dismissed the case. The cases dismissal was made on the basis that since Defunis was about to graduate, the issue was moot. This allowed the court to avoid making any decision about the presence of affirmative action, or remark on the manner in which programs of affirmative action in were carried out. The Bakke case proved to be much more substantial, although not as much as some may have liked.
Allan Bakke was a well-paid mechanical engineer, as well as a war veteran, when he began to apply for medical schools in 1972. After being rejected twice by the University of California, Bakke brings suit in California Superior Court in 1974. The admissions practice at USC at the time was to leave sixteen percent of its admissions for minority students, quite similarly to the Defunis case. Bakke brought up suit upon the basis of discrimination under the fourteenth amendment and title six of the Civil Rights Act. The judge ruled against the use of preferential treatment, but did not admit Bakke to medical school. The University appeals the decision, and was once again ruled against by the California Supreme Court in 1976. This time the court ordered that Bakke be admitted to the school.
By the time the case fell into the hands of the Supreme Court, the Bakke case had grown beyond the boundaries of higher education, and imposed itself on the very interpretation of American law. The importance of the Bakke case revolved around three burning questions. First, can either the fourteenth amendment, or title six of the 1964 civil rights act create an absolute barricade against affirmative action? These were issues dodged by the Defunis case, although they were the same basis for complaint. Secondly, can preferential treatment compensate for historical oppression? Thirdly, is our interpretation of the American Constitution truly color-blind?
Title six prohibits any institution receiving federal funding from discriminatory practices, based upon race, color, or national origin. Similarly, the fourteenth amendment to the Civil Rights Act maintains that no state can "deny to any person within its jurisdiction the equal protection of the law." Despite the seemingly direct language in both articles, there was intense speculation as to the intent of either legislation. The arguments were that, affirmative action provides opportunity to those largely without, thereby establishing equality. The other faction would enthusiastically contend that discrimination has no color boundaries, and that everyone is equal under the law.
The Supreme Court was split into equal halves throughout deliberations. The outcome was eventually decided by the opinion of Justice Powell. The courts decision seemed to be nothing more than an arrangement of compromise. First, Bakke was ordered into the USC medical school. Secondly, the Court ruled that racial quotas as a method of affirmative action were unconstitutional. The message delivered by the court's decision, was that racial classifications, and preferential treatment are not always unconstitutional.
Ball showed good judgment by not providing any personal commentary on the issue of affirmative action, but rather allowing the infuriating judicial process to speak for itself, through providing actual accounts. The "whishy-wash" decision of the Supreme Court in the Bakke case was based largely upon necessity, and that is what I find to be most alarming. The Federalist papers (propaganda written prior to the civil war) addresses an aspect of American politics they labeled as "factions." Factions simply are competing, and often conflicting agendas, that regulate almost all of American policy making. Their belief was that factions were good, because they kept the free market system moving, the essence was competition. I wonder what Madison, or Hamilton would have said about affirmative action. By applying the equation of faction, we have reduced affirmative action into a competition of the most freedom. Ball unravels the Bakke case (slowly at times), but does illustrate the very potent point that nothing is ever only black or white. ·
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|Date:||Tue, 10 Apr 2001 13:45:15 -0500|
|Subject:||Re: Bakke Case (Justin Vaughn)|
I find the case of Bakke to be very interesting, and am especially interested in cases involving this so-called reverse discrimination because I just finished going through the law school application and acceptance process. The review gave me a very good explanation of the situation encountered by Bakke, as well as explaining Ball's book. I found myself wanting to read the book after listening to the discussion in class and after reading the review. I really liked the introduction and felt it was one that gave a good historical set-up and introduction into affirmative action, which is exactly why this case was even possible.
I feel affirmative action practices like the one at UCD is very unfair, and it is not fair to turn down students who are more qualified for those who are of a specific race. What is even more bothersome is the controversy involves medical school. This is where our future doctors who are going to be diagnosing, operating, and treating us are coming from, and this requires the best and smartest people, not a racially representative community. What is also problematic to me, though not as much as prospective medical students, is the program Michigan was using. The fact that an athlete or minority is allowed points due to just these factors makes absolutely no sense to me. Perhaps a white person graduates at the top of their high school class, but is not a minority or athlete. They apply to Michigan, and would have a seat due to academics, but are then bumped out of the running because a "C" student is the star running back for the high school football team. College is about education first, and although sports may generate revenue for a school, it is not fair to the hardworking, good students who may lose seats in universities due to affirmative action programs.
Other examples of the problems that come along with admissions to schools and affirmative action practices could go on and on. However, I may decide to read Ball's book just to get a more in depth understanding of Bakke's situation. The review stated that Ball is very objective in his presentation of the case and even in his beliefs on affirmative action seems to be positive aspect of the book. I can, though, understand Justin's frustration with Ball's lack of giving some direction and wanting more. As with many of the books we have been reading for this course, downfalls appear to be present in this book as well, but the discussion and review of Ball's book has grabbed my attention and put this book on a list of books I would like to read. ·
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