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Larry Becraft has this unfortunate alibi that his arguments fail because someone else, somewhere else, had the same idea earlier but had not phrased it as elegantly as Becraft could. In some cases he cannot even point to that earlier case. In most instances, he might be about to point to it, but it was some distant, perhaps unpublished, decision that Becraft's judge might never have known about. Of course, one of the primary skills a lawyer must develop is being able to persuade a court that this instant case is not governed by an earlier decision in another case that has superficial similarities.
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