Category: reason

New York lawmakers are mulling a bill that would allow the state to detain anyone carrying or suspected of carrying a contagious disease that makes them a “significant threat to public health.”

Democratic Assemblyman N. Nick Perry of New York’s 58th District spearheaded Bill A416, which holds that the government may “order the removal and/or detention of such a person or of a group of such persons” in a “medical facility or other appropriate facility or premises designated by the governor or his or her delegee.” A confirmed carrier would be released only after he or she is no longer contagious, and a suspected carrier could be set free only when the government proves that he or she “is not infected with or has not been exposed to such a disease.”

Those who may have been in contact with the alleged carriers may also be detained and released when they test negative for the malady in question, or if the suspected carrier with whom they interacted is deemed to be negative.

What could go wrong?

The bill’s language is noticeably vague in defining the parameters around disease type, leaving the government wide latitude in conducting its risk analysis. Should it pass, Gov. Andrew Cuomo would be the first state leader to have that power at his disposal. The two-term Democrat has navigated the COVID-19 pandemic with an array of inflexible regulations, from what food restaurants can serve if they’d like to stay open to how hospitals are allowed to vaccinate New Yorkers.

Perry defended his bill on Twitter. “I am an American who understands our Constitution is sacred, and provides us with the right to agree or disagree, and hold different positions on issues that may relate to our civil and constitutional rights,” he wrote. The legislation was originally introduced during the 2015-16 session in response to the Ebola virus.

“This bill hasn’t been actively pushed for passage because the Ebola threat was ended thanks to a vaccine,” Perry continued. “However, many learned scientists believe that the likelihood of such a deadly pandemic is still real, and somewhere in the future there maybe [sic] the need for people to be protected from a person or persons carrying a very deadly and transmittable virus.”

It’s difficult to believe that the bill’s reintroduction didn’t come specifically in response to COVID-19. Though it’s a serious virus, it is also no Ebola, which carries an average case fatality rate of 50 percent, with some outbreaks reaching as high as 90 percent.

It’s also difficult to believe that the bill in practice would not “take away, or violate any rights, or [sic] liberties that all Americans are entitled to under our constitution, either state or federal,” as Perry claims. Though he presents his bill as a last-stop measure for a pandemic on par with Ebola, the vagueness of its approach gives the state a great deal of discretion in locking people up who might have some sort of unnamed illness, as well as people who merely interacted with someone who might have that illness.

That’s especially misguided when considering that prisons and jails have been a hotbed for COVID-19, with U.S. correctional institutions recently surpassing 500,000 cases.

2020 was a big year for testing the limits of government power. Americans were made aware of how inefficacious certain government regulations and bureaucratic hurdles are while also dealing with widespread business closures that likely have a negligible impact on public health. At the same time, much of the country seemed to collectively question government overzealousness in the criminal justice system, with renewed calls for reform. Assemblyman Perry aligns himself with those latter advocates, though it appears he does not see how his most recent bill might be incompatible.

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From Rapp v. Fowler, decided today by Judge Lewis A. Kaplan (S.D.N.Y.):

Plaintiffs commenced this action in the [New York state court] for assault, battery and other torts against Kevin Spacey Fowler, better known as Kevin Spacey. The claims arise out of alleged sexual misconduct involving the two then minor plaintiffs 34 and 40 years ago.

Defendant removed the action to this Court on the basis of alleged diversity of citizenship. He claims that he is a citizen of the State of Maryland and that plaintiffs are citizens of New York.

Plaintiffs have moved to remand the action to the state court. They contend that Spacey is domiciled in the United Kingdom and therefore not a citizen, for diversity purposes, of any state. The motion is supported chiefly by a declaration of plaintiffs’ counsel, who does not claim any personal knowledge with respect to Spacey’s domicile, and an array of newspaper and magazine clippings and other documents.

Spacey has submitted a declaration asserting that he is a domiciliary of Maryland. Plaintiffs argue, correctly, that the burden of establishing the existence of federal subject matter jurisdiction in this case rests with Spacey. But they would have the Court disregard Spacey’s declaration on the theory that it is “self serving” and not “competent.” That, however, would be entirely inappropriate.

A person’s domicile is “the place where a person has his true fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning.” Linardos v. Fortuna (2d Cir. 1998). Certainly Spacey is the only person who is competent to testify on the basis of personal knowledge with respect to whether “he has the intention of returning” to Maryland “whenever he is absent” although, as in any other case in which intent is in issue, other evidence may shed light on the credibility or lack thereof of his assertion of subjective intention. And the question whether he has his true fixed home and principal establishment in Maryland cannot be decided on the basis of newspaper and magazine clippings and other materials submitted by plaintiffs.

Accordingly, the motion to remand is denied. During the course of discovery, plaintiffs are entitled to seek evidence bearing on the domicile question., but examination of that question must be proportional to the needs of resolving the jurisdictional issue. The parties shall confer within the next two weeks with a view to reaching agreement on the discovery appropriate to that question and shall file a joint report with the Court no later than January 26, 2021 concerning their agreement or, failing an agreement, the boundaries of the dispute. In the meantime, there shall be no discovery on the jurisdictional issue absent consent of both sides. Should the jurisdictional issue remain unresolved after the completion of such jurisdictional discovery as the Court allows, plaintiffs will be permitted to renew their motion.

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It was the day before New Year’s Eve and the outdoor Union Square Greenmarket, despite temperatures in the low 30s, was busy with shoppers buying Hudson Valley apples and Vermont maple syrup and pretzels from Pennsylvania Dutch country, the last of which sat on a table below a pretzel flag snapping in the wind. 

I’d first tried Martin’s Handmade Pretzels two weeks earlier. As a pretzel fanatic, I knew a good one by sight, and the deep brown palm-sized twist turned out to be just right: the perfect dryness, the proper saltedness, super crunchy without being so hard it made your jaw hurt to chew it. Later that day, I posted an Instagram video about how amazing the pretzels were, maybe the best I’d ever had, to which someone replied, “One of their bakeries burned down last week.”

This was the same week I’d been covering the continuing ruination of the food and beverage industry in New York City, knocked out due to people’s fears of catching COVID-19, certainly, but absolutely gutted by an escalating series of city and state regulations. Every day, there were new stories about places that would never reopen; of innovations that stood no chance against bad weather, or against politicians treating the restaurant industry as both a trial balloon and a punching bag. Restaurants and bars in New York City, since the start of the pandemic, had been shut, partially reopened, allowed to have outdoor dining, and had that taken away. This was already having a massive impact as of last August, when The New York Times reported that one-third of New York’s small businesses might never reopen. More recently, Eater NYC reported that more than 1,000 restaurants have closed permanently since March 2020. 

For a food purveyor to have a fire on top of that? In the weeks leading up to Christmas? I asked Ethan Gallagher, co-owner of Martin’s who, when I got to the Greenmarket, was on the phone with a family member dealing with a health issue, if it felt like the trials of Job.

“One more thing,” he said, as the former-employee-turned-volunteer beside him handed out eight-ounce and one-pound bags of pretzels.

“Everybody got laid off during COVID, so now it’s just Dondrea helping and standing outside in the cold,” Gallagher said, and also, that the only reason they had any pretzels to sell was because Martin’s has a second bakery. Based on the customers queuing up two- and three-deep, it would not be able to meet demand.cov

“We’re one of four families left in the country that still do this all by hand,” he said. “People know of us because we’ve been around for so long. We’ve been at Greenmarket since 1982, when the former owner, Alfred Milanese, who I worked for for seven years before buying the business off him, started selling here.” 

Milanese, a writer who’d been living part time in Lancaster County, Pennsylvania, tasted the pretzels made by a Mennonite baker and brought them to New York City. His first customer was Giorgio DeLuca, founder of the gourmet store Dean & DeLuca. The pretzels would wind up being sold at 55 greenmarkets across the city and at countless wholesale locations. French Chef Jean-Georges Vongerichten grabs pretzels at the Union Square Greenmarket “on the regular,” says Gallagher; Sarah Jessica Parker nibbled a Martin’s Homemade on an episode of Sex and the City; and Businessweek once wrote, “Those who snack in times of stress will find no finer hard pretzels than the hand-twisted beauties from Martin’s.”

Gallagher himself probably could have gnawed a few the morning of Saturday, December 12 when, while setting up at the Greenmarket, he got a call from his business partner.

“He said, ‘The bakery is currently in flames,'” Gallagher recalled, and that he knew, instantly, that any earnings they’d managed to eke out in 2020 were now literally up in smoke.

“On Friday before the bakery burned, we ran a sale of flavored pretzels and sold $13,000 worth,” he said. “Half of those orders were fulfilled, but they weren’t picked up by UPS on Friday night. On Monday morning, I refunded $14,000 worth of orders.” 

It’s not as though Gallagher had not been suffering all year, with the loss of nearly all his wholesale accounts due to mandatory restaurant and bar closures. 

“The tricky thing about this world is that a big part of my business was wholesale,” Gallagher said. “That was gone right away when COVID hit.”

He listed some of the places that can no longer take orders. “ABC Kitchen, City Market, 232 Bleecker, The Untitled at the Whitney; immediately gone. To say nothing of people like Santos. He was a forager for ABC Kitchen who would come [to the market] every week, I’ve known him my entire New York experience, he was two years younger than me; died from COVID,” said Gallagher, who is 43. “It’s so impactful and there’s no way to not empathize with that. I try to keep everything perspective and know that if not for what [the Greenmarket] is, which is an outdoor grocery store essentially, we would have been shut down, too. It’s the only reason that I still have a job, have this business; without it we would have folded completely. There’s no way we would have survived.” 

Did Martin’s customers know about the fire?

“I put up a little sign, and Greenmarket put out a really great post,” he said. “I actually held it together really well for the first week, and then that following Saturday when I was here, we have longtime customers whose kids have teethed on these, who teethed on them when they were kids, so it’s such a history here and customers opened up to me in the most beautiful ways. I can’t even talk about it; it was pretty overwhelming.” 

Overwhelming, too—or perhaps infuriating is a better word—to know that there was no relief coming from the offices that had forbidden food operations to operate. What did they expect people to do? How, with no revenue, does any business survive? As one restaurant owner recently told me, had officials told him, out of an abundance of caution, to close for a few months and paid for him to be closed, he would have had no problem with it. Instead, people have been left in the figurative and literal cold, to work things out for themselves. 

Which is where Gallagher was as he worked that first shift after the fire. 

“What was going through my mind that Saturday morning was, how do I pivot from this?” he said. “One of the plans I’d had approved for the new year was to bring a soft pretzel to the market. People ask all the time [because] there’s no really great soft pretzel gig in town.”

As a kid growing up in New York City, grabbing a hot soft pretzel from a street vendor, before my dad took me to a Knicks game, say, was a total religion. I told Gallagher I still buy them but now they’re gummy or barely warm or oversalted, and always the size of a dinner plate. You eat basically a third and throw the rest in the trash or onto the subway tracks for the rats. They’re always terrible.

“They’re always terrible,” he said.

And yet I keep getting them, hoping this street staple has been reclaimed, to have something good about New York be good again. If Gallagher can sell a great soft hot pretzel at the Greenmarket…

“We will crush it,” he said.

He will crush it, and speaking of crushing, how about the customer trying to shove the sack of pretzels he just bought into a too-small cloth sack? How many pretzels did he have there?

“Eight pounds,” said the customer. Then, to Gallagher, “I heard you burned down.”

Gallagher listened as the customer explained he usually bought online but they were sold out so he made a trip to the market today. “They’re very good, they’re very crunchy, just delicious,” he said, and then apologized for having to run.

“I’m going to Mass,” he said, and took off with his sack of pretzels.

“That’s a whole eight-pound box,” said Gallagher, watching the customer go. “That’s a real pretzel commitment.”

I told Gallagher I was going to buy some, too; that we had them earlier in the week with margaritas and they were delicious.

“They go very well with everything,” he said, nodding at the winemaker at the stall next door, who nodded back. “In simpler times, we would drink wine together and eat pretzels.” 

May we have simpler times again.

“One day,” he said. “They’re coming.”

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At the Assizes in Salisbury in 1631, a prisoner threw a brickbat at the judge, and it narrowly missed. The judicial response to this contempt of court was gruesome and can be described as judicial murder. What exactly did the prisoner do? The Shorter OED defines “brickbat” this way: “a piece of brick, esp. one used as a missile; fig. an uncomplimentary remark.” (I recognize of course that looking into a twenty-first century dictionary does not do much to determine the usage of a seventeeth-century word, especially when as here the word was not even in English but in Law French. But I digress.)

As violent and harsh as the judicial response was, it still appears different based on how we resolve what might seem from our vantage point to be a verbal ambiguity. Was the prisoner executed for attempted murder? Or was the prisoner executed for an oral retort?

I thought of that ambiguity this morning when I was looking up the word potshot. It seemed like the right word for a sentence, but I wasn’t certain, so I went checking. The Shorter OED gives three senses. The first was hunting for food (a shot for the pot), which meant one didn’t have to follow the rules of the sport. The second is a random shot (and here “shot” is still in a literal sense, a shot with a firearm or perhaps a bow), “esp. unexpectedly or without giving any chance for self-defense.” The third sense is “a piece of esp. random or opportunistic criticism.” This third sense, I hasten to add, is how I was using the word.

It’s interesting to think about how these three senses might have been related. We can speculate about the historical progression. It’s easy to see how the usage in this second sense might develop out of the first: the first combines a positive (for food) with a negative (not according to rules or norms); in the second sense the particularity of the positive is falling away (random, not just for food) but the negative aspect is still there (not according to rules or norms, maybe softened now to conventions and expectations). And once the second sense is there, it’s easy to see how you would get the third, metaphorical sense. The metaphor would be quite different if it was closely tied to sense one (i.e., if sense two had never developed and the jump had been from one to three).

What is the point? It’s the importance of context. Nothing about the word brickbat tells you what the prisoner did in the summer of 1631 in Salisbury. Nothing about the word potshot tells you, in 2021, whether someone is using the word metaphorically of a critic or unmetaphorically of a sniper. (Context, context, context is a point on my mind, because today I am working on edits to The Mischief Rule.)

But let me push the point slightly further. If we have an account of two people who are, in 2021, going hunting, and the literary text is full of words that are connected to hunting, firearms, etc., and then the text says that one of them “took a potshot at their friend Bill,” was the shot literal or metaphorical? I think the probability of it being a metaphorical shot is almost 100 per cent. For an American English text in 2021, unless it is written coyly (with the reader expected to think one thing is happening, perhaps until the denouement of the story, while really something else is happening), the burden would overwhelmingly be on the author to clarify that she means a literal potshot. The expectation that a potshot at a person will be metaphorical is very, very strong. And that is so without any regard to syntax. And without any regard for whether the text has a profusion of vocabulary that fit the more literal senses.

In other words, context matters, but (in this instance) what is needed as context is not the appearance or prevalence of words in a certain semantic field, or even a knowledge of what activity the characters are involved in. Instead I’m suggesting that for a human target of a potshot we have now almost a kind of clear statement rule, one that has developed without any sharp moment of promulgation. My last speculation: it may be that potshot seems slightly playful, not quite serious, and so we attach it to verbal aggression instead of physical aggression. Perhaps that is because of its rhyme (which might then be tied into shifting cultural perceptions of the significance of rhyme, given twentieth-century changes in poetic form). But that is now speculation on top of speculation.

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Ahead of today’s pair of crucial Senate runoff elections in Georgia, President Donald Trump ostensibly campaigned for the two Republican candidates, but instead used his time to air more grievances about the last election. Trump is convinced that he won Georgia in November’s presidential election, even though the official numbers say he lost by nearly 12,000 votes and despite the fact that Trump’s lawyers have been unable to find evidence of widespread voter fraud in the state. A day after The Washington Post published an audio recording of a phone call where Trump cajoled the state’s Republican secretary of state to “find” enough votes to flip the results, the president continued to push his discredited conspiracy theories at a Monday rally to reelect incumbent Sens. David Perdue and Kelly Loeffler, the two GOP candidates who are on the ballot Tuesday.

“That was a rigged election. But we are still fighting it,” Trump told a crowd in Dalton, Georgia. He promised to return to the state next year to campaign against Georgia Gov. Brian Kemp, another Republican whom Trump blames for his loss in November.

Trump’s refusal to accept the results of the presidential election has left Republicans in a bind. If Democrats win the two runoff elections on Tuesday, they will have a slim Senate majority (with incoming Vice President Kamala Harris as the tiebreaking vote). The latest polls show Democratic candidates Jon Ossoff, a former journalist and political activist, and Raphael Warnock, a pastor, with slim leads in their respective races. That means turnout will likely decide the outcome, and if Trump has proven anything since his entry into politics in 2015, it’s that he’s a turnout machine for the Republican base.

But the president’s behavior—and the fact that both Perdue and Loeffler have refused to reject a wild plot by some Republican senators to challenge the certification of the presidential election’s results—may have alienated enough mainstream Republicans to tip Tuesday’s races toward the Democrats. Alternatively, Trump’s repeated (and false) attacks on the legitimacy of elections in Georgia may encourage his supporters to stay home.

That inconsistency has been on full display in the president’s Twitter feed where he has alternated between condemning Georgia’s election process as fraudulent—even going so far as to say that Tuesday’s runoff elections are “illegal and invalid“—and encouraging his supporters to participate in them. It leaves the impression, once again, that Trump sees elections as legitimate only when the results favor him.

Regardless of what happens on Tuesday night, we can all breathe a welcome sigh of relief that the seemingly interminable 2020 election season is finally over. It began with a Democratic primary debate on June 26, 2019. At 7 p.m. today, 559 days later, the polls will close and it will finally come to an end.

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FREE MINDS

Maximizing COVID-19 vaccinations means sometimes ignoring the government’s guidelines for who gets vaccinated first, especially when the alternative is throwing vaccine doses in the trash. More of the D.C. approach, please. And less of New York Gov. Andrew Cuomo’s heavy-handed approach to vaccine distribution, which is likely to be a disaster.

In D.C., the Department of Health is reportedly encouraging health care providers to administer surplus vaccines nearing expiration to *any willing recipient.* As they should.

In New York, that would cost you your job, and a lot of money.https://t.co/QGtPTjoTOk

— Billy Binion (@billybinion) January 5, 2021

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FREE MARKETS

Americans moved from big metropolises to smaller cities and away from high-cost, high-tax states during 2020, according to annual migration data tracked by United Van Lines, a major moving company. Idaho was the state with the highest percentage (70 percent) of inbound moves last year, followed by South Carolina and Oregon—while New Jersey (70 percent) had the highest percentage of outbound moves, just narrowly ahead of New York, Illinois, Connecticut, and California.

Metros w/ Highest Moves OUT, 2020
on @unitedvanlines

1/ Nassau, NY (81%)
2/ Bergen, NJ (81%)
3/ Trenton, NJ (76%)
4/ New York, NY (72%)
5/ Newark, NJ (72%)
6/ Chicago, IL (69%)
7/ Bremerton, WA (69%)
8/ Bridgeport, CT (69%)
9/ Middlesex, NJ (69%)
10/ Lake, IL (68%)

— Michael Hendrix (@michael_hendrix) January 4, 2021

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QUICK HITS

• The results of Tuesday’s runoff elections in Georgia will determine how ambitious President-elect Joe Biden’s first-term agenda will be.

• “A virus spent some time in a laboratory, and eventually it got out,” writes Nicholson Baker in a chilling long-form piece for New York magazine that lays out one potential origin story for COVID-19.

• In Singapore, COVID-19 tracing information is being made available to the police.

• The United Kingdom is going back into a full lockdown as coronavirus cases surge.

• Fun fact for a day when all eyes are on the state: In Athens, Georgia, there is a tree that owns itself.

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