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The book is divided into four sections and contains an editor's preface and sixteen papers, with brief notes on the contributors at the back. I give the table of contents first, followed by a critical commentary on the collection as a whole.
Marshall Morris: Editor's Preface
Section 1 : TRANSLATION AND THE LANGUAGE OF THE LAW
John E. Joseph: Indeterminacy, Translation and the Law
Michael Cooke: Understood by All Concerned? Anglo/Aboriginal Legal Translation
Section 2: RESPONDING TO CHANGE AND TO DIFFERENCE
Cornelia E. Brown: Riding the Waves of Fortune: Translating Legislation of the Successor Soviet Republics
Keneva Kunz: Where the Devil Meets his Grandmother: Iceland and European Community Legislation
Timothy Dunnigan and Bruce T. Downing: Legal Interpreting on Trial: A Case Study
Mary Bucholtz: Language in Evidence: The Pragmatics of Translation and the Judicial Process
Kate Storey: The Use of Translators and Interpreters in Cases Requiring Forensic Speaker Identification
Vicki L. Beyer and Keld Conradsen: Translating Japanese Legal Documents into English: A Short Course
Sylvia A. Smith: Culture Clash: Anglo-American Case Law and German Civil Law in Translation
Section 3: PROFESSIONAL ISSUES, PROFESSIONAL PRACTICE
Holly Mikkelson: On the Horns of a Dilemma: Accuracy vs. Brevity in the Use of Legal Terms by Court Interpreters
Janis Palma: Textual Density and the Judiciary Interpreter's Performance
Matt Hammond: A New Wind of Quality from Europe: Implications of the Court Case Cited by Holz-M&aunl;nttäri for the U.S. Translation Industry
Gerhard Obenaus: The Legal Translator as Information Broker
Section 4: PERSONS, LAWS AND THE PRESENCE OF THE TRANSLATOR
Ruth Morris: Pragmatism, Precept and Passions: The Attitudes of English-Language Legal Systems to Non-English Speakers
Marilyn Stone: Las Siete Partidas in America: Problems of Cultural Transmission in the Translation of Legal Signs
Helge Niska: Just Interpreting: Role Conflicts and Discourse Types in Court Interpreting
In August 1980, as many readers will remember, Lindy Chamberlain's baby Azeria disappeared from the tent where she was sleeping near Ayers Rock. Most probably the baby was taken and eaten by a dingo. At all events, Lindy Chamberlain was eventually awarded $900,000 compensation by the Government of the Northern Territory of Australia following a reversed conviction for the murder of her daughter. In a hearing of the Commission of Inquiry into the Chamberlain affair, an Aboriginal lady, an expert tracker, with the help of an interpreter, appeared as an expert witness and testified that the tracks leading from the tent were those of a dingo carrying a baby. Under cross-examination, she was asked to consider hypothetical explanations: for instance, was it possible that the dingo had been carrying a rabbit, or a joey - a baby kangaroo? Aboriginal mores, however, do not allow people to engage in the discussion of false hypotheticals. The witness knew the correct explanation and replied to the hypothetical questions, 'You are talking your ways with your ideas and you are talking about lies'. The interpreter was restricted to translating questions, with a minimum of explanation, and therefore could not begin to explain the purpose and logic of the alien culture's practice of cross-examination. The Commissioner then intervened directly and asked, 'Could the dingo have been carrying a joey?' The witness replied, 'Was a kangaroo living in the tent?' She thus anticipated the conclusion of the reasoning which the lawyers were trying to break down into small parts.
Michael Cooke is a Lecturer in Aboriginal Languages and Linguistics in Australia who is also accredited as an interpreter and translator of Djambarrpuyngu, an Aboriginal language. This story is quoted in a long paper on the problems faced by Aboriginal people who become involved with the police or the courts but are unfamiliar with their language and culture. It is one of a number of anecdotes in the ATA collection which illustrate the cultural divide experienced by non-English-speaking defendants, victims and witnesses in a foreign court system, and the limitations on the help they can be given by even a good interpreter.
Cooke gives a particularly interesting illustration of the problems of conveying the legal reasoning of English law to Aboriginal people, in the form of extracts from a written translation of a coroner's report on an inquest relating to an Aboriginal. He includes back-translations into English which show how much more information had to be added by the translator, and he also quotes a similarly explanatory translation of the Bible into Djambarrpuyngu.
Another example of lack of communication is given by Mary Bucholtz, a doctoral student at the University of California at Berkeley, who works on courtroom linguistics. Her very accessible paper discusses a US federal drugs case where the jury was given a written translation of a transcript, recording a conversation in Spanish between the defendant and an informant. This transcript played only a minor role in the defendant's conviction, but an analysis of the difference between speech and writing and between translation and original shows that without linguistic expert witnesses a jury may be incapable of interpreting such a document appropriately.
Timothy Dunnigan and Bruce T. Downing, both of the University of Minnesota, the former an associate professor of anthropology, with a particular interest in linguistic anthropology, and the latter chair of the Linguistics Department and director of the Program in Translation and Interpreting, with a particular interest in community interpreting, present a critical review of the present system of court interpreting, at least that in Minnesota, based on a case where a Hmong man was convicted of first-degree criminal sexual conduct against a Hmong woman and the interpreting seems to have been defective. The conviction was upheld on appeal following an evidentiary hearing on the quality of the interpreting during the trial. Examples are given to illustrate how difficult it is for even a competent interpreter to convey the weight of taboo language within another culture.
How is this problem to be solved? Dunnigan and Downing mention some ways in which the State of Minnesota could improve interpreter training and selection. Cooke argues that interpreters must be allowed to provide explanation as well as translation, or else the requirement that the evidence and arguments in the case must be clearly understood by all concerned cannot be satisfied. But we should not forget that a cultural gulf separates many witnesses and others from the lawyers, whether or not there is a problem of language or hearing. Certainly many native speakers of English must be almost as bemused by the proceedings in which they are involved as the Aboriginal expert tracker in the Chamberlain inquiry. I remember the example of a defendant in a magistrates' court case in England quoted by a solicitor in a TV series ('The Law Machine', 1982) on how the courts work, who on being told by the judge that he was acquitted, said to his lawyer, 'Never mind, mate, you did the best you could'. And anyone who has been in a multilingual courtroom anywhere, for example here in Germany, will have seen cases where the defendant has admitted his or her guilt and received legal advice, and shows little interest in the perhaps skimpy interpreting offered in court; such a case does not suggest that the inadequacies of court interpreting always result in a miscarriage of justice, although it does create an uncomfortable sense that the possibility is always hovering in the background.
It may seem a truism to translators and interpreters that:. 'Clearly it is naive of the judge to believe that swearing an oath to accurate interpreting will guarantee accurate interpreting. Interpreters do the best they can, and are sincere in their effort to be precise and faithful to the foreign language testimony. Yet if they are not highly qualified to do their job, the product of their efforts is bound to be faulty. No amount of oath-swearing can guarantee high quality interpreting from an interpreter who does not have the necessary competency' (Berk-Seligson, quoted by Dunnigan and Downing). But this bears repeating: lawyers are likely to forget it. The ability to speak another language is sometimes assumed by monolingual people to be either perfect or non-existent. The point that swearing an oath does not, per se, guarantee quality is made again by Helge Niska of Stockholm University, owner of the Internet mailing list for translators and interpreters LANTRA-L. Niska and Marshall Morris, the editor of the volume, are also members of CompuServe, and the call for papers for this volume met with an international response particularly as a result of announcements on FLEFO (the Foreign Languages Educational Forum on CompuServe), LANTRA-L, LINGUIST-L and other Internet lists. Email addresses are given for all but three of the contributors.
Niska's paper on court interpreting is the last in the volume, but would be a good place to start reading. It is a broad survey of court interpreting in real life. This information would be useful for lawyers who are dealing with interpreters in court. It covers issues such as whether the interpreter is felt to be neutral or to be on the side of the authorities or of the accused or witness; attempts by courts to impose time constraints on interpreters, since a case with an interpreter always lasts longer than one without, and the discomfort engendered by these time constraints; the legal status of court interpreters in various jurisdictions; rules and conventions governing how interpreters work; the conflict between the pace of cross-examination and the slowing down caused by using an interpreter; the problems of speakers overlapping; and various types of discourse in a courtroom.
There are two further papers of great interest on two perhaps less central aspects of court interpreting. Kate Storey, of Monash University, Australia, teaches in the Forensic Program of the Linguistics Department. She gives a full and fascinating discussion of how interpreters can be used in forensic speaker identification - identifying voices from recordings. This is becoming increasingly important in Australian courts, since identification of recorded voices is more and more often challenged. Storey's is one of a number of papers from Australia which show that very interesting work is being done there on the importance of interpreting in a multicultural society. And Janis Palma is a federally certified, freelance court interpreter working in Puerto Rico. Her subject, textual density as a problem for interpreters, is of great interest for those teaching and testing interpreting. By way of numerous examples, the paper shows how utterances of the same length or number of words can be more or less easy for an interpreter to retain, depending on the density of their content - and in the case of legal proceedings, many of the texts will be dense, for example the testimony of expert witnesses.
The collection contains papers on both interpreting and translation, of course. Court interpreting, despite its variety and the numerous jurisdictions involved, is clearly a more unified subject than legal translation. The papers on interpreting come from the USA and Australia (I have not yet mentioned the paper by Holly Mikkelson because I want to discuss it below). There is nothing from continental Europe apart from Niska's paper, perhaps understandably because English is not so often one of the languages involved. There is nothing from England and Wales: Ruth Morris did extremely interesting work on court interpreting in Britain for her 1994 Ph.D. thesis, but in this volume she chooses a different subject. What is perhaps more surprising is that there are no contributions from Canada here.
What of translation? Legal translation, as stated above, is a very diverse field. Some forms of legal translation, especially the translation of statutes and contracts of some kinds, do not lend themselves to discussion within the scope of a short paper because of their complexity. Here I was disappointed by some of the contributions, but perhaps the subject is simply too problematic. We all assume we know roughly what happens in a court of law, which makes it easier to write about court interpreting, but when it comes to translation, how much legal knowledge is to be expected of the reader? How is one to convey the precise nature of a legal translation problem in view of the fact that the reader may not know the source language, or alternatively the target language?
At all events, a superb example of just the right amount of information and assumptions of the reader for a paper of this length in a publication of this kind is presented by Holly Mikkelson. Mikkelson is director of Court Interpreting at the Monterey Institute of International Studies in Monterey, California. Her paper discusses how an interpreter should deal with translating terms related to homicide from English into Spanish, or from Spanish into English, taking account of the fact that there are a number of Spanish-speaking jurisdictions. Although it refers to interpreting, this paper will be equally valuable for translators. Mikkelson adds Spanish-English and English-Spanish glossaries at the end of her paper. For a translator or interpreter working with Spanish, this paper gives material to be put straight into the card index or database; for those working with other languages, it is a clearly illustrated discussion of the problems of legal translation. Of course, homicide is an area of law as half-familiar to the popular imagination as courtroom dramas.
At the other end of the scale is an ambitious paper on the problems of translating German legal texts into English by Sylvia A. Smith, a freelance translator and a visiting lecturer at North Carolina State University. Smith starts out with an example of the problems of translating the phrase 'in the best interest of the child' into German. However, the problems of translating it are not legal problems, but problems of how to use the German language, which are bound to cause difficulty if one translates into one's non-native language. Smith then proceeds to generalize on the problems of translating between two different legal systems. From a thumbnail sketch of the German legal system, almost too brief to have been worth attempting, she digresses to the topic of the Basic Law (Grundgesetz) and Germany's Nazi past. It is not clear how far she then attributes translation problems to the existence of two legal systems, or to the difference between the US Constitution and the German Basic Law. From this point, the paper turns into a conglomeration of dozens of observations about the US and German legal systems. The paper appears to be an ill-digested mass of facts, not helped by a tendency to illustrate rules by inappropriate examples. However, for those unfamiliar with comparisons of the two systems, there is a great deal of useful information in this paper. I hope I am not doing an injustice to Smith, since the German legal system is the one I am most familiar with, but I have the feeling that she has not adequately considered the reader. I would assume the reader of such a volume has some experience of translation and some knowledge of law, and there is a certain style of concentrating on translation problems and 'reminding' the reader of basic knowledge in sub-clauses that seems to me to be missing here. Of course, perhaps the volume will indeed be read by those with no knowledge whatsoever of German law who wish to pick up some basic knowledge in the space of a few pages, but the desire to generalize and make broad statements of principle which do not stand up to logical analysis makes at least this reader feel disinclined to take statements for granted.
Another paper which assumes practically no legal knowledge, either of Japanese law or of US law, is that by Vicki L. Beyer and Keld Conradsen. They give many examples showing basic problems of translating Japanese legal documents (statutes, contracts, judicial decisions, and journal articles) into English. Those translating Japanese legal texts will undoubtedly be able to obtain a great deal of useful information about books and procedures from this article. It appears that Beyer and Conradsen are bilingual lawyers and academics (Conradsen is with a law firm in Melbourne, and Beyer is associate dean and director of the Temple University Law Program in Japan and Adjunct Associate Professor of Law at Bond University, Australia), and they appear to be competent translators too, as far as it is possible to understand from their examples without knowing Japanese. The fact that they neither teach translation nor describe translation as a main activity perhaps explains their rather basic approach to the subject. They state that legal translators are very often non-lawyers, and so they assume no legal knowledge in the reader. At the same time, presumably having learnt how to translate by translating, they seem to assume that the reader will also have no idea at all about what translation is. For example, they begin by explaining how to do a legal translation: skim the text as a whole, rather than concentrating on the first few lines. Then, translate the headings first (I thought it was standard practice to translate headings last, when the text beneath them has been clarified). Assemble a glossary. Be careful to note when variation is being used and decide which terms are synonyms and which are not. Finally, note that the first translation is only a tentative rendering, since somewhere towards the end of the translation the translator may have more insight. Anyone who needs advice like this should probably not be translating. It is assumed that the translator will pick up his or her legal knowledge in the process of translating, rather than beforehand: for example, English words chosen should be checked in Black's Law Dictionary to make sure that they are not terms of art with an unexpected meaning in English. Twelve examples of legal writing are then given together with their translations into English, discussed in some detail. The great advantage of this technique is that the discussion thus becomes accessible to those who do not speak Japanese, which was surely a serious problem faced by the authors. The arguments in favour of certain terms are not always full, but there is certainly enough information to be controversial. It is not clear to me why 'devise and bequest' must be used to translate one Japanese term, rather than simply `gift', nor in what circumstances the Japanese type of lawyer, bengoshi, should be referred to as barrister or solicitor, which seem too specific to the divided English legal profession. Particularly curious is the discussion of how to render a case citation. I wonder if it is not possible to leave the source in Japanese, despite printers' problems, with perhaps a longer English explanation if really necessary. Whether to write 23-11-1490, 23 Keishu 11, p. 1490 or 23:11 Keishu 1490 seems a rather thorny problem, since at most a Japanese librarian is likely to have to find the case. However, the paper may well be very useful for Japanese-English translators who take on legal translation work even though they are absolutely unfamiliar with the subject.
It seems to me that Smith, and Beyer and Conradsen, should have assumed a little more knowledge in their readers and could have written much more useful papers, in the case of Smith a less ambitious one. But other contributors have the problem of writing about subjects which are not amenable to simplification and can hardly be conveyed to the reader. Cornelia E. Brown of Hamilton College, whose field is comparative literature, has nevertheless worked as a Russian-English legal translator, and from 1990-93 was a staff translator for a Soviet-American, later Russian-American, joint legal venture. She worked together with Russian and American lawyers to produce translations of legislation, translating in both directions. She argues that a translation of legislation should not emphasize closeness to the Russian original and attempt to stand on its own without footnotes, but should be Westernized and accompanied by a great deal of commentary. This conclusion seems rather obvious, not least in the given situation, where translators' queries and comments, and comparison of legal systems, fed into the actual drafting of new legislation in Russian. Brown gives numerous examples of terms which were difficult to translate, and also illustrates the use of footnotes in translation. On more than one occasion she mentions the final decision as one implemented by the translators on the recommendation of attorneys. Still, despite her limited powers of decision as a translator in the projects in question, Brown's well illustrated paper will certainly be of interest to many translators, not just those in Eastern Europe and the countries of the former Soviet Union.
Keneva Kunz of the University of Iceland is a lecturer (a British term used here!) in English and Applied Linguistics and also a certified Icelandic-English court interpreter and translator. His brief paper tackles a huge topic, the translation problems encountered when Iceland became a semi-member of the EC. There are some illustrations of the unwillingness of Icelandic to use loan words and some legal terms which are particularly hard to translate. There is also some discussion of the problems of a country so small that it employed only about a dozen translators to translate the first 11,000 pages of EC legislation over a period of two-and-a-half years. Had Kunz written ten times as much, he might have come close to conveying the legal problems of translating legislation, but he is probably right to be brief and tantalizing. I was interested to read that Icelanders are still fighting about what native term to use to describe a fax machine (perhaps we can see in this the heritage of the epic battles of the Middle Ages) - bréfsími (a letter-telephone) or myndsendir (a picture-sender), and that tenants still give notice are or given notice only twice each year, as in the Middle Ages, when 'travelling days' (like the quarter days in England) in the spring and autumn were the days when servants moved from one position to another.
The papers by Brown and Kunz relate almost entirely to translating legislation, surely one of the hardest tasks a legal translator can be confronted with, and one which will scarcely be undertaken without consultation with lawyers from both source-language and target-language jurisdictions. But how much knowledge can a legal translator be expected to have? There are those who claim that only lawyers can translate, a view which I do not subscribe to, not only because I know a number of lawyers who cannot translate. The fact that some lawyers cannot translate does not mean that legal knowledge is detrimental to legal translation: it would be nonsense to claim that. But how many lawyers, even, are in the position to draft or translate legislation, especially if it is not in their particular field? Suggesting that a translator should be a lawyer in order to translate legal texts implies that a lawyer is able to deal with all kinds of different legal texts. But translators, whatever their background and training, need to be competent in many ways: they need a good knowledge of the source language and culture, and proficiency in their native language; and they need to be able to make intelligent guesses about how to understand and deal with difficult texts, where to find material and so on - not textbook material, but all kinds of information to understand the bizarre texts that are created in the real world. This last requirement is something lawyers are not trained to do, and translators are not usually so trained either, but by dint of translating in practice, many of them learn to do it.
This fundamental question is raised by Gerhard Obenaus, who is 'with' the Translation Laboratory of the University of Iowa (whatever that implies) and has degrees from the Universities of Vienna and Illinois. He quotes Hans Schwarz on the subject of legal translation: 'As in all other fields of knowledge, the translation of a legal and administrative text depends on the translator's full understanding and comprehension of the subject matter in question. This requirement is a sine qua non for the sworn court interpreter and authorized translator who has to fulfill a responsible task within the framework of judicature and public administration' and goes on to disagree with Schwarz in terms with which I can only agree:
'There are two problems with that requirement. First, very little is and can be done in translator training to make translators experts in other subjects. There are double-majors and courses dealing with special topics, but those barely scratch the surface. It is even unrealistic to expect translators to be experts. The average medical doctor, for example, will not be able to understand a technical article on nuclear medicine. Thus, even translators specializing in medicine, law, or any other field will at best have a pretty good idea of what the text is about. Hardly ever will they have a full understanding of the subject.' He starts out from the differing functions of legal translations and other basic statements about legal translation. A US warranty agreement may need to be replaced by its German equivalent if it is to be effective in Germany, rather than being translated word for word, or it may be that the German client wants a gloss explaining the function of the US warranty within the context of US law. Rejecting as impossible Schwarz's requirement that legal translators should have full understanding and comprehension of the subject matter in question, Obenaus emphasizes instead the need for the translator to be what he calls an information broker, knowing where to find information and knowing how to obtain from clients a clear idea of their requirements. He also advocates testing information gathering in translation courses. The paper concludes with a number of useful references to legal sources on the Internet.
Another fundamental aspect of translation is discussed by Matt Hammond, an adjunct professor of translation at the Monterey Institute of International Studies and also a freelance translator. This is the question also mentioned by Obenaus of the purpose for which a translation is commissioned, its function. Hammond sets out details of the Swiss court case reported on in 1987 by Justa Holz-Mänttäri, a professor of translation in Finland. In this case, the court had to decide whether a translation provided the quality the customer needed. An expert witness asked to see not only the source text and the translated version, but also the customer's product specification. There was no such separate specification, and the source text alone was held to be unsuitable as a specification, since it was designed for a different purpose than the translation. This case is particularly interesting in view of recent emphasis in translation theory on the function and purpose of translations. Hammond considers the implications of the case for US translating practice, and also discusses the question of the implementation of ISO 9000 for translators, which for some reason he sees as related.
I have now discussed all the papers in the collection apart from one philosophical and two historical ones, to which I will now turn. For some reason, the categorization adopted in the volume seems to be different from mine. There are, of course, many echoes in all of the papers of others. It is difficult to categorize, and to split the papers broadly into those on translation, interpreting, and law in general, which is what I am doing here, would spoil the enjoyment of those who turned to one section only, and is probably against the principles of the ATA series in general.
John Joseph, Professor and Head of the Department of English at the University of Hong Kong, who has taught legal semantics and courses on law and language, has contributed a paper on the theory of translation. He starts from the three 'laws' of translation laid down by Alexander Fraser Tytler, Lord Woodhouselee, in 1813: the translator has to strike a balance between giving a complete transcript of the ideas of the original work; recreating the style of writing of the original work; and achieving the ease of original composition. Joseph argues that the second law, the recreation of style, must be discarded in legal translation: everything must give way to at least attempting to satisfy the first law, the presentation of the ideas of the original. From this starting point, Joseph discusses a number of points relating to legal translation, with some reference to Plato, Bentham and others. One of his themes is the 'disappearance' of the author and translator in legal texts: legal texts originally resembled scriptural texts, and to appear authoritative they had to appear authorless. Where poststructuralists call for the removal of the myth of the author in literature and film, Joseph argues that since legal texts have never had an author, the countermyth of reintroduction of the author is needed! Joseph's conclusion suggests what he calls a '(post-) postmodern practice of legal translation'. The translator refuses to disappear. He or she makes it clear that the original is being explained and interpreted, not merely translated, thus preventing the reader from falling into the trap of believing that this translation is anything like a precise rendition of the original. The translator intervenes and comments. Nor does the translator attempt to reproduce the ease of composition required by Tytler's third law, since ease of interpretation should not be implied by a fluent style. Joseph does not think that this style of translation is yet viable in its extreme form, because such translations would be rejected by publishers. But in moderation, it can be used even now. I must admit that I greatly enjoyed Joseph's paper and found it very amusing to use a countermyth of reintroducing the author rather than removing the author; but since this kind of literature is not typical of my daily reading material, I may perhaps have seen a joke where none was intended.
Ruth Morris, mentioned above in connection with her work on interpreting at Lancaster University in England, is a lecturer in the School of Interpreting and Translation at Bar-Ilan University in Israel and works as a freelance interpreter and translator. She presents a brief history of the attitudes of English-language legal systems to non-English speakers. Twelfth-century England was a multilingual society (the legal glossary included Greek, Saxon, Danish, Hebrew, law Latin and law French); twentieth-century England is a monolingual society. Interesting historical notes are followed by a brief survey of some contemporary attitudes to parties and witnesses in court who are not native speakers of English. The question of the language to be used in court is shown always to have been an emotive one.
Finally, Marilyn Stone, a freelance translator, interpreter and language consultant who teaches in the Translation Certificate Program in the School of continuing Education at New York University contributes another historical paper which will be of great interest to those in parts of the USA where the traces of Spanish law can still be found. She writes of a thirteenth-century work on law, 'Las Siete Partidas' (The Seven Books of Law), created at the court of Alfonso X of Castile and Leone, a kind of early medieval code for all the provinces of Spain. She shows that words and legal concepts taken directly from this source can be found in legal opinions written in many states of the USA in the twentieth century. This is revealed by an electronic search using Lexis. If 'Las Siete Partidas' is important, so equally is its translation. The paper gives interesting information about the extent to which Spanish and French have been used in US courts, making it an interesting parallel to Morris's paper on England and Wales.
The editor of this volume is Marshall Morris, a professor of Translation at the University of Puerto Rico at Río Pedras. We owe him a debt for compiling this fascinating collection. Morris's full introduction summarizes the papers briefly and puts all the contributions in context. He also supplies notes on the contributors at the back, from which I have quoted in mentioning the various authors. The volume is explicitly described as an attempt to bring both practical and academic knowledge to bear on the field of translation. Each paper is followed by a bibliography; 'practitioners' and academics can perhaps be distinguished to some extent by the level of detail given in their bibliographies. But many of the contributors are academics and also practitioners. The impression left by this collection is one of a huge field of endeavour which can scarcely be analysed by unified standards, and full of questions waiting for further research and investigation.
Fuerth, Bavaria, 11th April 1996
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