Our Boys Always Botch It

Monday night, a day in the life. Cowboys at Met Life, playing the Giants. Don’t know if you’ve been to Met Life or not. I’ve been by there several times – New Jersey state fair is held in its parking lot, and I’ve had to go by the Meadowlands racetrack any number of times when they were using it as a COVID-19 vaccine megasite. Met Life looks like a megascale model of your air conditioner. I finally made it inside this summer, for an Elton John concert that I expected to be hotter than First Baptist Hell, but it turned out to be quite comfortable.

I won’t trouble you too much about the details of the football game; it was tied well into the second half, and then New York managed to break Saquon Barkley for a long gainer that put the Giants ahead. The Cowboys tied it, and then scored another touchdown, and there we were in the fourth quarter.

Cooper Rush was leading the Cowboys at the time, and the cameras kept catching Dak Prescott on the sidelines (he’d broken his thumb in Week 1, you remember) and he was just staring at the field, with a look of pure stoicism on his face. I can’t find a picture of it, but he looked kind of like this:

I mean, you had to see that face. It was like Roy Kent passing a kidney stone. It was a look of abject misery, and I knew why. Any Cowboy fan knows that face. It’s the one that we all make when the Cowboys are ahead late. It’s the face that says I know they are going to foul this up; I just don’t know how they’re going to do it.

So here’s the thing. Whatever Dak and I were waiting on didn’t happen. It just didn’t. The Cowboys were up by seven, and kicked off to the Giants. The Giants did… well, pretty much what pessimistic Cowboys fans expect the Cowboys to do in that situation. They went three and out with a penalty. The Cowboys got a long punt return from their USFL castoff, which put them inexplicably in field goal position. Even though the offense couldn’t move the ball, the Cowboys were up 10. Dak kept staring out at the field, waiting for the Cowboys to self-destruct on defense.

Well, that didn’t happen, either. I mean, it wasn’t ideal. The Cowboys gave up a fifteen-yard facemask penalty that put the Giants on the 22. But the defense found new life. Giants QB Daniel Jones missed on three passes, the last with the kind of intentional grounding penalty that’s just designed to wreck drives. The Giants were held to a field goal. All the Cowboys had to do was get a couple of first downs. But they only were able to get one, and kicked it back to the Giants with a minute-forty-five left. I know they’re going to foul this up. Dak kept staring at the field, resolute stubbornness masking the beginnings of a stomach ulcer.

And what happened? It was the Giants that fouled up–they managed to not only lose the game on an interception, but lost their best WR to a ligament tear incurred by, from what it looked like, taking a gentle jog at the end of his route. Whatever horrible thing that the Fates or the Football Gods or your malevolent deity of choice were going to unleash upon Cowboys fans… didn’t happen.

Okay, I am not going to sit here and tell you that the Cowboys are good, or that they can beat the Bills or the Dolphins or the Packers. That’s not my point. I am not here to raise anyone’s hopes in that particular direction.

My point is this. Both Dak and I, who have seen more calamitous Cowboys games than either of us can easily digest, were going into that fourth quarter expecting the Cowboys to do the same stupid things that they usually do. Idiotic holding penalties. Dumb interceptions. Dropped passes. Inexplicable play calls. Nonsensical coaching decisions. Except that… this time, it didn’t happen. I mean, the Cowboys weren’t perfect. They could have done done more. But what they didn’t do was arguably more consequential. There weren’t any turnovers. There weren’t any holding plays wiping out long gains. There weren’t any missed field goals or muffed punts. Nobody tried to, oh, I don’t know, run a draw play with sixteen seconds left and no time outs. All of the mistakes that you’d expect to see never materialized–or else they managed to happen to the Giants, which is just as good.

So that led me to my question. What if we didn’t do the stupid, self-destructive things that we usually do? Not, saying, again, that we have to be perfect. Not saying that we have to make the outstanding play or make the heroic effort. But… what if we just stopped doing the bad things?

Before the Monday night game, I’d run low on gas, and I’d stopped where I usually stop, at one of the gas stations at Pennington Circle. I went inside and got a little bag of cashews, and a Coke Zero. I was dog-tired. I hadn’t gotten anything like enough sleep over the weekend. I have a demanding job that includes an hour-long commute both ways. And I have several other excuses if you’d like to hear them. But what ultimately matters is my behavior, and this particular behavior was to grab a Little Debbie Zebra Cake and a package of raspberry coconut Twinkies. (The Zebra Cake was, unfathomably, stale.)

So… what if I stopped doing that?

Let’s ignore the scale of things a bit. I get that me eating a little bit of junk food that I shouldn’t eat is nowhere near as consequential as, say, the Cowboys offensive line getting flagged for holding to bring back a sixty-yard Tony Pollard scamper. No one is setting me back ten yards for illegal Zebra Cake. But it’s the same thing, isn’t it? I keep making stupid decisions that I know are stupid decisions, and engaging in self-destructive behaviors that I know are self-destructive behaviors. And they matter. Not every one of them matters in and of themselves, but cumulatively, they do matter. And the only way to reverse their effects is a long, slow gradual process of self-improvement and self-discipline that’s… difficult.

Maybe it’s easier to start with not doing things. Tom Wolfe famously pointed out about the pre-Mercury program in THE RIGHT STUFF that “Our rockets always blow up and our boys always botch it.” Maybe the first step towards ultimate success is to stop failing so much. Once you stop failing, maybe the sky’s the limit.


Walker, Texas Rangers

Friday evening, a day in the life. I had gotten an email from our local chain steak restaurant, which had just barely stayed open during COVID and had been operating off of a drastically shortened menu for years now. The email said they had brought back their prime rib, so we made reservations for 7PM. We got there, I ordered the prime rib.

“We just ran out,” the waitress said. Of course they did. (They went on to serve the Mrs. chicken that was still pink inside, and didn’t comp us anything. Drat, double drat, and triple drat.) So while we were waiting for food that was not prime rib, I made the announcement.

“I have something to play for you when we get back in the car,” I said. “I have to warn you, it’s really stupid and inconsequential. But it’s a nice thing.”

I will not ask you to listen to the episode of the podcast in question–it is the jokey Joe Posnanski-Michael Schur meta-podcast about sports, kind of–but I will discuss a little bit of the context. The current recurring bit on this podcast is the idea that more baseball teams should have “unofficial nicknames.” For example, the only constant in terms of the uniform design for the franchise currently known as the Los Angeles Angels has been the use of a halo around the letter A (lowercase or uppercase), and so they are occasionally referred to by baseball announcers and ESPN anchors as the “Haloes.” (If you did not know this, you are excused from reading the rest of this post.) Posnanski and Schur have taken it upon themselves to think up similar alternative “unofficial nicknames” for every MLB team. This has been a lengthy process, which has resulted in new monikers for the Washington Nationals (“the Feds”), the Cincinnati Reds (“the Chili”) and the Chicago Cubs (they eventually settled on “the Ivy,” sure, why not). But Posnanski and Schur were stumped by several teams, and asked for listener input.

I am not immune to sudden bursts of inspiration.

And I thought that would be the end of it. The tweet got 32 impressions; nobody saw it, nobody cared, which is as it should be. And sure, San Francisco is famous for its fog, and had actually gone so far as to incorporate the light gray color into an alternate uniform. And the San Francisco Giants and Los Angeles Dodgers are forever linked in baseball history; of course the names should echo each other. The “Fog” and the “Smog.” Another silly idea sent into the nameless void.

Only this time…

I listened to the podcast on my way home (I have an hour-long commute from my home in suburban Princeton to my office in Northeast Philadelphia), probably about a week after it aired, and was jolted with surprise to hear my name being mentioned in connection with–I cannot stress this enough–this stupid tweet about this silly enterprise on this ridiculous podcast.

What I expected next was a fair bit of ridicule–why not? It’s a stupid idea. But… no. They liked it. They bought it. The nation’s most well-known sportswriter and the producer for The Good Place liked my idea and adopted it. So I played it for my wife and kids, with the caveat that, of course, all of this was relentlessly pointless. (The Mrs. was impressed, Child A was amazed that someone on the car radio had said my name, and Child B ignored the whole thing. Par for the course.)

Photo of three San Francisco Giants players, somewhat obscured by fog, wearing light gray uniforms with the Giants logo partly fogged out
You gotta admit, there’s something to it.

Andy Warhol talked about having fifteen minutes of fame. This was maybe a fifteenth of a second. Maybe it wasn’t that much. I know it couldn’t be that much, because I have not had a single Giants or Dodgers fan approach me and tell me how stupid my stupid idea was. (For which I am profoundly grateful.)

So, anyway. I wrote all this to set up the central idea of this piece, which is that my beloved Texas Rangers deserve an unofficial nickname, and it should be the “Walkers.”

If you have ever thought about the Texas Rangers in your life, it is likely because of these events:

  • Nolan Ryan beating the absolute whey out of Robin Ventura
  • Elvis Andrus sneaking up behind Adrian Beltre to touch his head, and Beltre overreacting
  • The Dodgers winning the 2020 World Series in Arlington, over an AL team that, somehow, was not the Rangers
  • The famous seventh inning between the Rangers and Blue Jays in the ALDS that ended with Jose Bautista flat-out murdering a baseball and then flipping his bat
  • Game Six of the 2011 World Series, which is making me angry just thinking about it
  • The 2010 World Series, where the every-other-year Giants smothered the Rangers in their first WS appearance
  • Josh Hamilton winning the Home Run Derby in Yankee Stadium, after a lifetime of taking enough drugs to make Keith Richards say, “Maybe you should taper off, sonny.”
  • The team declaring bankruptcy, and Nolan Ryan buying them at a fire sale
  • Alex Rodriguez taking a quarter of a billion dollars to play in Arlington and then decamping for the Bronx at the first opportunity
  • Nolan Ryan throwing two no-hitters without taking anything stronger than Advil
  • Jose Canseco having that baseball bounce off his dome and over the wall in Toronto
  • The ridiculous jerseys they wore throughout the 1970’s, with RangerS or TexaS on the front
  • The Rangers throwing high-school hurler David Clyde to the wolves

That’s it. That’s the franchise history. Oh, there were any number of foolish trades in there, dumb decisions, players that did not pan out. But this is what people remember, and only a couple of those memories are good.

The Rangers already, of course, have an alternate nickname; they have been called “the Strangers” since I can remember, and they usually deserve it. But, you know, come on. What kind of alternate nickname is that?

I have been thinking about this, waiting for inspiration to strike. I like “the Punchers,” to honor Ryan’s epic beat-down of Ventura, but that’s sort of short for “Cowpunchers,” and that’s too close to “Cowboys.” (The Dallas Cowboys, which of course play in Arlington now, are sometimes called the “Pokes.” I am just throwing that out there.) I like the “Bush Leaguers,” after my old boss George W. Bush, but of course he hasn’t been involved with the team for years, and his greatest moment in baseball occurred while he was wearing a Yankees jacket, so there.

For years, while the Rangers played in the fortress-like Ballpark in Arlington, the local sports radio guys would say that Rangers home games were played in “The Temple.” I like calling the Rangers “the Templars,” but nobody would get it and they don’t play there anymore, and the Temple is now home to the Dallas XFL franchise, which just makes me physically ill.

So that leaves one option. The alternate nickname for the Rangers should be “the Walkers.”

poster for TV show "Walker: Texas Ranger" featuring Chuck Norris walking through saloon doors

Mike Schur said on the podcast that the Rangers “don’t have an identity.” Well, you know who has an identity? Chuck Norris, that’s who. All I am saying is that maybe he has a little identity to spare, to help create an unofficial nickname for a beleaguered American League franchise that has not won a World Series title since they were moved from Washington in 1972.

So, again, I am throwing this out there into the void, after having spent an hour writing this inane blog post about an unofficial nickname that almost nobody will ever use. “You wanna go see the Phillies tonight? The Walkers are in town.” “Oh, sure. Sounds fun.” Yeah.

If you read this all the way through, thank you.


Obvious Injustice

Mary Jo. C. v. N.Y. State & Local Ret. Sys., 707 F.3d 144 (2d Cir. 2013)

Why This Is Not a Law Review Article

You see — maybe you don’t — I write law review articles. I’ve written five so far, plus a couple of journal articles here and there, from when I was working in academia. I’m not going to bore you here in the opening paragraphs about what they are all about, because that’s exactly what would happen.

Two things you need to understand first. The first is that law review articles are exercises in vanity, and vanity is a sin. The only people on God’s green earth who need to write law review articles are legal academics who are trying to pad their respective curricula vitae. I was never a legal academic. I wrote the first law review article for the journal where I clerked in law school because they sent out a call for articles and I thought it would help my career. After that it was just vanity. I wrote the last article after I quit my last legal job; I was an overage grad student at Rutgers on an independent study project and I had to write a paper; why not try to get it published?

But that doesn’t mean that it was a good idea for me to write yet another law review article. To put it bluntly, you don’t get paid to write law review articles. They’re difficult to write, and the footnoting is hell. Not to mention that I’m not working as a lawyer anymore, and nobody I know is going to be impressed if I write any more law review articles. It’s a pointless, painful exercise at this point in my career.

And yet…

Okay. I’m doubling down on the vanity thing here. The second thing you need to understand is that the articles I’ve published have been in, um, well, not the top tier of law reviews. Like, y’know, the North Dakota Law Review. There is not one thing wrong with the North Dakota Law Review, and I am proud to have published there, but it ain’t Harvard. Not that I am shooting for Harvard, you understand. I would just love to have something in the Texas Law Review, just once. Or the Baylor Law Review. It would… mean something for me. (I don’t expect you to understand, why would you?)

I just figured I could write one more, a good article, a big article, and maybe I could get it published someplace with a big nationwide reputation. And I had an idea of what to write about. There was a case I’d read, years ago, which was what I thought of as a good case. Mary Jo C. was a very pro-plaintiff Americans with Disabilities Act case, out of the Second Circuit. There aren’t that many pro-plaintiff ADA cases. And the case had been published years ago; I figured there were a lot of cases since that had cited it, and I could spend many happy hours reading them and seeing how the other federal courts and state courts had dealt with the issues in that case.

I want to say it was September 2020 when I started thinking about turning the Mary Jo C. case into a law review article. I had just gotten a new job, and so didn’t have to spend every evening and weekend scouring the job sites. I was locked down, so I had the time, and I needed a new project. I logged on to my Rutgers alumni account and accessed the Westlaw online legal database. And… come to find out that the free Westlaw access I had when I was a grad student was no longer available. Blast and damnation. I could access Westlaw, but I had to access it from the Rutgers wireless network, and that meant I had to schlep to campus, and that wasn’t happening. (I am not the sort of person who is going to pay for Westlaw access to write an article for which I am not ever going to see so much as one thin dime, so that was out.)

So I set the idea aside for the time being — and used my free time to write a novel, as it happened — and didn’t come back to the idea until March 2022. By that time I’d already gone through COVID-19, so I wasn’t worried about catching anything. It was a fine sunny Saturday. My wife had taken our daughters to see her hairstylist in South Jersey. I had a free day and had nothing better to do than to schlep over to New Brunswick and download what was probably a hundred or so law cases from the last few years. Why not?

I didn’t do it. I took a nap instead.

It wasn’t too much longer before I decided maybe the best way to approach the Mary Jo C. decision was by easy stages. I re-read the Second Circuit case. I took a closer look at the lower-court decision. And I realized that when I’d looked at the case before, I’d just looked at the holding. I hadn’t taken a good look at the reasoning. I hadn’t really taken a good look at the process.

What I realized is that what was going on in Mary Jo. C. v. N.Y. State & Local Ret. Sys., 707 F.3d 144 (2d Cir. 2013) wasn’t just your average ADA Title II case. I realized that this was a case that implicated deeper policy questions about the role of people with disabilities in society, the ongoing stigma of mental illness, and the way that society understands basic issues of fairness and justice. It was too good a story to be turned into a boring, flat law review article that would sit for generations on dusty law library shelves.

All I had to do was figure out how to tell it.

The Remedying of this Situation

Exterior of Kingsboro Psychiatric Hospital, Brooklyn, New York
Kingsboro Psychiatric Hospital, Brooklyn, New York

I don’t know if you’ve ever been to a psychiatric hospital. Probably you haven’t. I have been lucky enough that every time I’ve walked into a psychiatric hospital, I was able to leave and go home. When I was working as a lawyer, I had several clients who were in different psychiatric hospitals — Ancora in South Jersey, Trenton across town from my office, Greystone up in Morris County. Spend a couple of hours in one of those places, and when you walk out, the world turns back into Technicolor. The air smells sweeter, the sky is blue again.

Let me put it another way. There aren’t many large state psychiatric hospitals left, but there are still some, and they’re hard places. They’re oppressive. They can be dangerous. They’re intimidating. And what maybe you don’t realize is that they’re also difficult places to work.

C.S. Lewis once wrote, talking about evil, that in the Managerial Age, the greatest evil is done “in clean, carpeted, warmed and well-lighted offices, by quiet men with white collars and cut fingernails and smooth-shaven cheeks who do not need to raise their voices.” If you work in this kind of office — I do myself — imagine walking out a perfectly reasonable office door and stepping into a literal madhouse. The offices at Greystone are like that; you’re not ever more than ten feet away (and a locked door) from someone with mental illness so serious that they can’t care for themselves. The contrast is… jarring isn’t the word for it. And the white-collar staff, you understand, sits in their quiet little cubicles, and all the time, right on the other side of the wall, is the modern-day Bedlam.

Well, Louis Callace wasn’t a white-collar anything. He worked at Kingsboro Psychiatric Hospital in Brooklyn for twelve years until he was fired in February 1984. (Kingsboro is still open for business as of 2022.) Callace was an assistant cook when he was fired. Twelve years as an assistant cook in a psychiatric hospital is not anyone’s idea of an easy job. It’s perhaps not entirely surprising that he developed symptoms of mental illness himself.

The one good thing about working twelve years as an assistant cook at a New York state psychiatric hospital is that you’re eligible for state disability retirement benefits. There was just one catch. The rule at that time — the same rule that’s still in force, and would play a big role in the Mary Jo C. case — was that you had to file for disability retirement benefits within ninety days of your last day of work. Louis Callace didn’t do that. He didn’t get around to filing until March 1985, more than a year after he was fired. The State of New York, in its august majesty, wasn’t in the mood to cut Callace a break. They denied his application for disability retirement benefits. Callace filed for a fair hearing, claiming that his mental illness kept him from filing on time. He lost, and appealed through the New York state court system.

The case was assigned to an appellate judge named Norman Harvey. The official bio says that Judge Harvey was an Air Force veteran who completed 74 missions over German-held territory. If you know anything about the air war in Europe, 74 missions is just an unGodly amount of missions. So we’re talking about someone who was a very brave and tough individual, someone who had seen a hell of a lot in their lives.

I want to just highlight the last paragraph of the decision here:

While the result of this case is an obvious injustice, particularly in light of petitioner’s 12 years of service and the uncontradicted psychiatric testimony, it is clear that Retirement and Social Security Law § 62 does not provide a waiver provision similar to the Federal statute. Nor has petitioner pointed to any authority which would allow the Comptroller or this court to carve out such a waiver. Accordingly, the remedying of this situation rests with the Legislature.

You caught that first part of that first sentence, right?

Okay, so imagine you’re Louis Callace, struggling with mental illness, about to lose his one source of income for the rest of his life, and you hear the judge say, “While the result of this case is an obvious injustice.” Hell, imagine you’re you. Doesn’t matter what kind of case it is. The judge is up there, in his black robes, and he’s telling you that you lost, and that it’s an obvious injustice, sorry, go bother those folks over there in Albany and get them to change the law.

What the hell do you do with that? And how do we accept that as a society?

What We Talk About When We Talk About Justice

I don’t want to shock you or anything here, but there is a very good argument that the American judiciary is not really about what we think of as justice.

I mean, you’d think so. The person who is nominally in charge of the whole thing from an administrative point of view is known as the Chief Justice. The other nine appointees to the Supreme Court are Associate Justices. There is a whole agency in the federal government called the Department of Justice. You kind of get the idea that what the entire process is there for is, you know, justice. But that’s not quite correct.

The leading modern philosopher on justice is the late John Rawls, Harvard professor and author. Rawls developed a theory he called perfect procedural justice, which basically means that in a perfect world, you set up procedural systems that always reach the right outcome. Rawls illustrates as follows, in A Theory of Justice:

Toillustrate the former, consider the simplest case of fair division. A number of men are to divide a cake, assuming that the fair division is an equal done, what procedure, if any, will give this outcome? Technicalities aside, the obvious solution is to have one man divide the cake and get the last piece, the others being allowed their pick before him. He will divide the cake equally, since in this way he assures for himself the largest share possible.

There is, I submit, a reason why Rawls picked this example, because there are not a lot of other examples of perfect procedural justice in this sad old world. Case in point; I have twin teenage daughters who are well-provided for in every conventional sense, so they spend their days racking their brains to prove that some element of their lives is unfair. The most common complaint is that they have to share a bathroom, and — oh, the horror — this means that one of them has to take a shower first in the evening, while the other gets to laze around and read for ten extra minutes. In order to deal with this horrifying injustice, we have determined that one child will take her shower first on odd-numbered days, and the other child will take her shower first on even-number days. Perfect procedural justice? Oh, no. Not on six days out of the year, where the odd-numbered child must take her shower first on the thirty-first of the month and then the first. (Our response to this has been as follows: shut up and get in the shower, kid.) Perfect procedural justice is only going to be found in the rare situations where there’s a simple rule that everyone understands that can’t be misapplied.

So besides perfect procedural justice, Rawls identified imperfect procedural justice (which is what we get most of the time, more about this in a minute) and pure procedural justice, which is what you get when everyone agrees that there’s a fair procedure, even when the procedure guarantees that you never get a just result. (I think this is where Rawls goes off the rails a bit.) Pure procedural justice is like the old rule in the NFL that the winner of the coin toss in overtime got the ball first; it wasn’t generally seen as fair in an overtime game between the Saints and Vikings that if the Saints won the toss, and scored, that it was the end of the game. Pure procedural justice doesn’t have to be fair; it just has to use a fair process to achieve some kind of result.

Rawls uses the specific example of a criminal trial to illustrate imperfect procedural justice, and this is the point I am trying to make here. What the justice system in America is trying to do is to try to get the procedure as fair as possible, and if that happens, you’re more likely to get a just outcome.

Graphic showing the four elements of procedural justice: voice (all are given a chance to tell their side of the story), trustworthiness (decision makers convey trustworthy motives), respect (all are treated with respect and dignity), and neutrality (decisions are unbiased and guided by transparent reasoning)
This illustration is from a Yale Law School website about procedural justice; the site doesn’t mention John Rawls, which is pure anti-Harvard bias on the part of the Yalies, don’t let anyone tell you any different. (I went to Baylor and don’t really have a dog in this fight, just sayin’.)

Legal scholars have expanded the concept of imperfect procedural justice (which Rawls gives short shrift to) to include the concepts in the illustration above. Taking these concepts and applying them to the Callace decision: Was he treated with respect? I suppose so, hard to say. Can we trust Judge Harvey to make a fair decision? Sure. Was Callace given a voice? Yes. Was the decision neutral? No doubt. (A biased judge would have tossed out the law and given the decision to Callace, rules be damned.) There isn’t a procedural flaw in the Callace case that I can see. But the result was an obvious injustice; even the judge said so. (More about this a little later.)

The point of the justice system is not — despite its name — to provide justice, but to make sure that the procedures are fair, in the hopes that imperfect procedural justice will occur. Justice and procedural justice are very different things, as Louis Callace could tell you. The difficulty in looking at the Callace case as an example of imperfect procedural justice is that the problem with this case is not that the procedure is either fair or unfair, but that the law was unfair — and as Judge Harvey rightly pointed out, it’s not the job of the justice system to fix unfair laws. And in fact, the New York law that doesn’t allow for any exceptions to the rule that you have to file for disability retirement benefits within ninety days hasn’t changed. It’s still on the books. What did change was the passage of the Americans with Disabilities Act in 1990 — five years too late to help Louis Callace, who never got his disability retirement benefits.

I wanted to reach out to Louis Callace, if I could, to get his opinion on the case. Unfortunately, he died on September 11, 2001. (In Orlando, of natural causes — just a coincidence.)

A Question of Stigma

Entrance to Central Islip Public Library, Long Island
Central Islip Public Library, Islip, New York

We don’t know a lot about who Mary Jo C. was, and that is by design. She was a librarian, working in central Long Island. She had experienced mental illness since she was a teenager. She worked as a librarian from 1986 until she was fired in November 2006. During this time, she moved around to several different After she was fired from Central Islip Public Library, Mary Jo C. approached a legal clinic at Touro Law School for representation, and was accepted.

The lawyer representing Mary Jo C. from Touro was William Brooks, and he made two decisions early on in the case. First, he redacted the plaintiff’s last name in the complaint. Second, he did not identify the specific mental illness that she experienced, and did not provide any details about whatever behaviors that she may have experienced that led to her being fired. (This was a mistake, as we’ll see.) The purpose of this was to protect the plaintiff’s privacy, but was also, in my view, done to mitigate the societal stigma against mental illness.

The problem with not providing this information, from my (admittedly selfish) position, is that it leaves a lot of room for speculation. My best guess here is that Mary Jo C. might have had schizophrenia, and that she was at some point institutionalized. But I don’t know that, and frankly it’s inappropriate for me to even guess.

Whatever the real reason might have been, the facts are that Mary Jo C. missed two important deadlines. The first was the same deadline that Louis Callace missed; Mary Jo C. also failed to file for her disability retirement benefit within the 90–day window after she was fired. The second was the 180-day filing deadline for filing a disability employment discrimination case with the Equal Opportunity Employment Commission.

This led Brooks to include two causes of action in the complaint. First, the complaint named the New York State and Local Retirement System, alleging that the ADA required the state to modify the 90-day rule to allow Mary Jo C. to file after the deadline. Second, the Central Islip Public Library was included in the complaint for employment discrimination under Title II of the ADA. This was ultimately unsuccessful (and is the holding for which the Mary Jo C. case is most well known for); both the lower court and the Second Circuit would go on to rule that you can’t sue for employment discrimination under Title II (the part of the ADA requiring state and local governments to not discriminate), you can only sue under Title I (the part of the ADA that prohibits most employment discrimination on the basis of disability). Got it? Okay, won’t bring that part of it up again.

The first filing by the defense in this case was a motion to dismiss. This is a standard part of pretty much every civil case in the US. The motion to dismiss is for cases where the plaintiff has, according to the defendant, failed “to state a claim upon which relief can be granted.” It works like this: the defendant is essentially saying, “Even if everything the plaintiff says is true, the plaintiff still can’t win.”

One of the first things you learn in law school is that the jury decides the facts of the case, and the judge decides the law of the case. The motion to dismiss is the perfect example of how this works. The motion to dismiss presupposes that everything the plaintiff says is correct. The plaintiff doesn’t have to prove that the facts stated in the complaint are correct at this stage; that would be for a jury to determine if the case ever gets that far. What the defendant has to show is that, if we pretend for the moment that everything the plaintiff says is true — even if the plaintiff is wrong, mistaken, or lying — that the plaintiff can’t win as a matter of law. And because that’s a judicial decision, the motion to dismiss means that the judge decides the outcome of the case before it ever gets to a jury.

The judge in this case, by the way, was Sandra Feuerstein, a George W. Bush appointee who held the unique distinction of being a judge and also having her mother be a judge. She filed her opinion on May 11, 2011. The first stage of the analysis — which is a very common issue in ADA cases across the board — was whether Mary Jo C. had a disability.

I mean, if you are just a normal person sitting out there, reading this on your phone instead of playing Ticket to Ride or something, you might think, “Well, this is someone who has had mental illness for years, and supposedly got fired for it, you’d think she had a disability, why are they litigating this?” A good question. First part of the answer: the plaintiff’s disability always gets litigated. Unlike most other federal civil rights laws, the ADA only applies if you can show you have a disability. Showing that the plaintiff doesn’t have a disability is a quick and easy slam-dunk win for defendants. Second, the ADA definition of disability is tricky anyway — and it’s even trickier if you have a mental illness.

Under the ADA, you have to show that you have an impairment that substantially limits a major life activity. Brooks, in trying to limit the information about Mary Jo C.’s disability, just asserted that she had mental illness. In drafting the complaint, Brooks didn’t go through the process of identifying which major life activity was affected, or whether there was a substantial limitation. (Generally speaking, the “major life activity” that’s affected in mental illness is “thinking,” and it’s harder to show a substantial limitation in terms of thinking than it is for, say, seeing for a person who is blind, or walking for a person with paralysis who uses a wheelchair.)

So that was bad enough. Judge Feuerstein then discussed the main issue of the case — the 90-day deadline. Brooks argued in this case that the State of New York had a responsibility under the ADA to provide a reasonable modification to the rule to accommodate Mary Jo C.’s mental illness. And Brooks had a strong argument that a modification could have been provided. As it turned out, Mary Jo C.’s brother had contacted the comptroller’s office, asking for an extension. The request was rejected, but the comptroller said that Central Islip Public Library could file on her behalf, allowing her to meet the deadline. (Did the good people at the library take pity on Mary Jo C. and file the paperwork for her so she could get her disability retirement? Reader, they did no such thing.)

The New York Attorney General’s office, representing the august majesty of the Empire State, had a simple argument. The 90-day deadline wasn’t just a rule that could be modified. It was the law of the State of New York. The ADA, the AG’s lawyers reasoned, only required a reasonable modification. For the state to ignore its own law would not be reasonable, therefore, the state was within its rights to tell Mary Jo C. to buzz off.

An Erie Coincidence

I have to tell a little story here. I was in first year at the University of Texas Law School in 1991. I ended up going to a Federalist Society meeting — the only one I ever went to; not sure why. Anyway. All I remember about the speaker, whoever he was, was that he mentioned the Erie decision. The Erie decision dates back to 1938 and goes like this: sometimes federal judges have to interpret state law, and when they do that, they have to follow the decisions from state courts. (If there’s not a decision on point, the federal judge has to guess what a state might do.)

So it’s the next morning, and I’m sitting in the back row for whatever first-year law school class I’m in — don’t remember which one — and the professor asks the question, “Why does the federal court follow state law here?” I pop my hand up. “The Erie decision,” says I. One hundred heads turn my way.

I was not, you understand, known as a legal scholar at that time. It must have been, for my fellow students, like hearing your dog spout the Pythagorean Theorem. And it did not, sorry to say, make me very popular, as I had — rather unintentionally — shown them all up.

All right then. So Judge Feuerstein had an Erie problem. She had to look at the state substantive law to make a decision. And there is only one case on point — that of Louis Callace. The Callace case is very clear; the New York law cannot be waived. Judge Feuerstein cited the Callace decision for the proposition that the 90-day deadline may not be extended or waived by the State.

What Judge Feuerstein does not do is point out that the author of the Callace decision said that the outcome as an “obvious injustice.” She might have asked a very basic question here; whether the Erie doctrine should apply in cases where the state court has done something manifestly unjust. She did not. What she did was to throw out Mary Jo C.’s case with prejudice, arguing that she was not a “qualified person with a disability” because she was not entitled to have the New York law modified.

After reading her decision, I wanted to contact Judge Feuerstein and ask her, now that ten years has passed, if she thought she had done the right thing. Unfortunately, not too long before I started working on this project, Judge Feuerstein was killed in April 2021 in a hit-and-run accident in Florida. The alleged driver, arrested shortly afterwards, was a young woman named Snape. When she was arrested, she claimed to be Harry Potter. You can’t make this stuff up.

I Become A Pollster

When I look at both the Callace decision and the first Mary Jo C. decision, it doesn’t take me long to reach the conclusion that both cases were badly decided. But I spent a lot of time as a plaintiff’s counsel in these kind of cases. Of course I’m going to think this way.

I remembered the following bit from Michael Shaara’s classic The Killer Angels:

Then he talked to me for a while[about slavery], and he was trying to get through to me, just as I had tried with the minister. The difference was that this was a brilliant man. He explained that the minister was a moral man, kind to his children, and that the minister believed every word he said, just as I did, and then he said, ‘My young friend, what if it is you who are wrong?’ I had one of those moments when you feel that if the rest of the world is right, then you yourself have gone mad. Because I was really thinking of killing [the minister], wiping him off the earth, and it was then I realized for the first time that if it was necessary to kill them, then I would kill them, and something at the time said: You cannot be utterly right. And there is still something every now and then which says, ‘Yes, but what if you are wrong?’ ”

So maybe I was wrong. Maybe not everyone else thinks that these plaintiffs were treated unfairly. We live in a society where you can’t get people to agree that water is wet. I had to check whether I was maybe a little bit turned around on this, and the best way to do that was to become a pollster.

The way that you do that is through the Amazon Mechanical Turk program, which will (for a very small amount of money) allow you to set up whatever survey you want, and a good-sized sample of people will answer it in exchange for a nickel. I set up a one-question survey:

Carolyn worked as a state employee for twenty years. She became ill and was fired from her job. Carolyn was eligible for disability retirement, but because of her illness, she was unable to complete the application form within the three-month deadline. Because she missed the deadline, the state agency she worked for denied her application for disability retirement. Carolyn appealed this decision, but was turned down. Carolyn currently does not receive any disability retirement benefits because of this decision. Was Carolyn treated fairly by the state agency?

bar graph showing 25% saying Carolyn was treated fairly and 75% saying that she was treated unfairly
Again, you can’t make this stuff up.

I was, well, a little surprised by the result, which was a 75/25 split. A quarter of the responders thought that the fictional Carolyn was treated fairly? That couldn’t be right, could it? If I had phrased it as a political question, okay, maybe there’s a political bias against people like Carolyn. But I didn’t.

So I decided to try again. I made two changes. I included that Carolyn had a mental illness, and I asked people to say why they made their decision. The result was very similar, a 73/27 split, with slightly more people saying Carolyn was being treated fairly. Most of the comments were from people who thought there was unfairness. But the other comments (outside of the mean one that called poor Carolyn a “wack-a-doo”) followed two lines of argument. The first was that Carolyn had the opportunity to get help from someone:

  • She had three months to take care of it or ask someone to help her do it.
  • I understand that Carolyn has mental illness. But unless she was in the hospital, she should have been able to find help filling out the form.
  • She had time to fill out her disability application. If she was unable to do so, she could have had someone (HR office) help her fill it out.
  • Carolyn was given 3 months to complete and if they already reviewed the case and said she had the ample amount of time, then regardless of her mental disability that is her responsibility.

What I did not include in the question is the fact that Mary Jo C.’s brother did try to help her — and that her former employer refused to lift a finger to address the situation. So that sorts those people. But the other folks had a different issue:

  • She knew that there was a 3 month deadline to complete the application, and should have adjusted accordingly to compensate for it.
  • She had every opportunity to get her application filled out and I seriously doubt her mental health issue was so severe she couldn’t fill out an application in 3 months,
  • Because as per rule Carolyn need to apply for retirement benefits within three months period which she failed to complete.
  • She missed the clearly stated due date.
  • They had rules set in place, and she did not follow them.
  • The rules are the rules that everyone must follow.

The Rules Are The Rules That Everyone Must Follow

I am going to talk about baseball here for a little while if that’s not too much trouble. (If you don’t like baseball and want to skip this part, I understand.)

Here’s the situation. October 15, 2015. Rogers Center, Toronto. The deciding Game 5 between the Toronto Blue Jays and the Texas Rangers, American League Division Series. The winner goes on to the next round, the loser goes home. Top of the seventh at Rogers Center, game tied 2–2. Two out. Rougned Odor of the Rangers on third, Shin-Soo Choo at bat. Aaron Sanchez, a second-year starter pushed into relief duty for the playoffs, is on the mound and has worked Choo to a 1–2 count. He throws a 94 mph fastball over the plate, but the pitch sails high. The umpire calls it a ball. The count is 2–2.

Okay, maybe you didn’t get or understand everything in the proceeding paragraph. Doesn’t matter. What you need to understand is that when the pitcher throws the ball to the catcher (assuming the catcher, you know, actually catches the ball and it’s not put into play), the catcher then tosses the ball back to the pitcher. This happens a hundred times a game, more or less. It’s a completely routine action.

Then this happens:

Maybe you skipped past the video, so I’ll explain it. Three things happen, one after the other:

  • Martin, the catcher, attempts to throw the ball back to Sanchez, the pitcher, like you would normally do. Except that this time, the ball glances off the upraised bat of Shin-Soo Choo, the batter, and dribbles out towards the infield.
  • The runner on third, Rougned Odor, takes a second to process the situation, and then sprints down the line and crosses home plate before the Blue Jays infield can throw him out.
  • The home-plate umpire, Dale Scott, sees what Odor is doing, walks out from behind the catcher, waves his arms and points in the direction of third base.

So here’s the situation. Dale Scott, and the entire Toronto fan base, was of the opinion that the ball should have been called dead once Martin caught it. Exactly two people in the stadium knew the rule — Harold Reynolds, the color commentator in the Fox Sports booth, and Jeff Bannister, manager of the Rangers. (I don’t credit Odor for knowing the rule — maybe he did, it’s not clear, but I think he was acting on instinct or directions from the dugout.) Bannister comes out to argue that Odor’s run — which, as you may remember, was the go-ahead run in an elimination playoff game — should count.

So Bannister goes out, tells Scott what the rule is and the umpires huddle. They decide that, yes, the ball was live and Odor’s run should count. Bannister pumps his fist and heads back to the dugout. Toronto manager John Gibbons storms out from his dugout to confront the umps. Odor gets high fives from his teammates in the Texas dugout. The score is now 3–2 Rangers.

There is a longer version of the video that goes on for ten more minutes, showing the reaction of the Blue Jays fans in the stands. If you watch the whole thing, keep in mind that these are Canadians. Nice, polite Canadians, who are going absolutely batshit over this. Why are they doing that? I don’t think that it’s just because it was a call that went against their team.

I think that the absolutely apoplectic reaction of the Toronto fans was because they thought a basic rule was being violated. Keep in mind that nobody (other than the announcer and the Rangers manager) knew the rule. This is in part because the rule is completely obscure. It’s also because nobody had ever seen this before. Joe Posnanski covered the game for NBC:

Because: NOBODY HAS EVER SEEN THIS BEFORE. One-hundred-fifty years of baseball, we’ve seen throws kill birds, we’ve seen relievers brought to the plate in little cars shaped like baseball caps, we’ve seen a pitcher throw a no-hitter on LSD, we’ve seen a 3-foot-7 person draw a walk, we’ve seen closers choke stars, but WE’VE NEVER SEEN THIS BEFORE.

The rules, as my commenter said, are the rules that everyone must follow. And when that didn’t happen — when it appeared that the umpires had thrown the rules out the window — people reacted. They reacted poorly.

Why? Because, as people, we like rules. We like what lawyers like to call “bright-line rules.” We like it when other people follow the rules — even if we’re always willing to give ourselves an exemption. All the Toronto fans in the stands thought there was a bright-line rule that the ball in this case was dead — not just because it benefited their team. That’s the logical thing to expect. Even the umpire thought so. And then when the rule was disregarded, the nearest thing to a riot broke out. It wasn’t that their team got a bad call. That happens all the time. It was that an injustice had been done. The rules weren’t being followed.

And that’s just what the commenters said in the above poll. The 90-day rule was a bright-line rule, and poor Carolyn didn’t follow it. Might these people have some sympathy for people like Louis Callace and Mary Jo C.? Most of the people in the poll did, but a quarter of them put the rules over whatever sympathies they might have had. I am not saying that these people are bad people. They’re not. They’d just prefer to see the rules followed, and if you can’t follow the rules, for whatever reason, too bad for you.

Oh, and as much as it pains me to say this as a Texas Rangers fan, in the bottom of the inning, this happened:

Jose Bautista of the Toronto Blue Jays hits the game-winning home run and flips his bat in celebration.
You know how many playoff games the Texas Rangers have won since this happened? None. Even the Dallas Cowboys have won at least one playoff game since October 2015. The Rangers are 0–3 in the playoffs and are in the middle of another losing season. I will remind you again that this essay is called “Obvious Injustice” for a reason.

Fundamental Alterations

So the Mary Jo C. case was appealed, and found its way to the Second Circuit.

So I was giving a speech one time to a group of people I thought were lawyers. Turns out all the lawyers in the office (no fools they) bailed on the speech, and my audience didn’t understand what I meant when I was talking about the different circuits. So a brief explanation: the intermediate federal appeals courts (the ones between the district courts and the Supreme Court) are divided into twelve regions. The First Circuit is in Boston, the Second Circuit is in New York, etc. etc. There are eleven Circuits plus the DC Circuit in Washington. Most cases at the circuit court level are heard by three-judge panels. The Mary Jo C. case was heard by two circuit-court judges and a district court judge (“sitting by designation,” which is not all that uncommon).

The judge who authored the Mary Jo C. opinion is Robert Sack, a Clinton appointee who is now the senior judge for the Second Circuit. He started out his analysis by asking an interesting question: so just how important are the rules we follow, anyway?

Tom Cruise arguing a case in “A Few Good Men.”

Lt. Kendrick: Lance Corporal Dawson disobeyed an order!

Kaffee: Yeah, but it wasn’t a real order, was it? After all, it’s peace time. He wasn’t being asked to secure a hill or advance on a beachhead. I mean, surely a Marine of Dawson’s intelligence can be trusted to determine on his own which are the really important orders and which orders might, say, be morally questionable?

So that’s the question. Is the 90-day deadline enshrined in New York law a “real” rule that has to be followed no matter what? In the text of the ADA, there’s a concept called “fundamental alteration,” which basically says that there are some rules that are so important that you can’t change them, but any other rule can be changed to accommodate a disability. The most obvious example is the driver’s license; the ADA does not mandate that a state has to give a driver’s license to someone who is blind and can’t drive. But since the driver’s license is often used as an identification card, the ADA does mandate that the state has to provide an alternative identification card for people who can’t drive due to a disability; that’s not a “fundamental alteration” to the driver’s licensing function.

You may be familiar with the concept of Chesterton’s fence:

There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, ‘I don’t see the use of this; let us clear it away.’ To which the more intelligent type of reformer will do well to answer: ‘If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.’

This is, without putting too fine a point on it, what the “fundamental alteration” analysis is all about. Let’s assume here that Chesterton’s fence does more than block a road; it denies access to someone in a wheelchair who can’t get around the fence. Under the ADA, the fence has to come down if it’s an architectural barrier that results in unfair discrimination, unless pulling the fence down is a “fundamental alteration” — i.e., there’s a good reason for the fence to be there, whether that is obvious or not. (Or an “undue burden,” if the cost of pulling the fence down is prohibitive in some way.)

The precedent that Judge Sack looked at was the famous Supreme Court decision in PGA v. Martin, in which the Supreme Court struck down the rule that professional golfers had to walk the course to accommodate Casey Martin, who could not walk the course without a great deal of pain and was requesting to use a golf cart to participate on the PGA Tour. The Supreme Court found that the rule requiring players to walk the course “is not an essential attribute of the game itself.”

This led to a classic dissent by Justice Scalia:

But the rules are the rules. They are (as in all games) entirely arbitrary, and there is no basis on which anyone–not even the Supreme Court of the United States–can pronounce one or another of them to be “nonessential” if the rulemaker (here the PGA TOUR) deems it to be essential.

The rules are the rules! But the rules are entirely arbitrary. And if the rules are entirely arbitrary, and result in discrimination — if not, as we’ve been talking about, obvious injustice — then why do we need to follow them? The 90-day deadline, even though it is enshrined in New York law, is completely arbitrary. There’s no good reason for the state to require forms to be in within 90 days as opposed to 91 days or 92 days or 93 days. Is there? Is there something so magical, so ineffable, about the 90-day rule that anyone who applies on Day 91 is required by law to never claim the disability retirement benefits that they earned over a decade or more of work?

If the rules are the rules, Judge Sack reasoned, and all of the rules are equally important (no matter how arbitrary they are), and all of them always have to be followed, this “seems to us to run counter to the ADA’s broad remedial purpose by allowing states to insist that whatever legal requirements they may set are never subject to reasonable modification under Title II of the ADA.”

What’s more, as Judge Sack pointed out, the state of New York had already waived the 90-day rule for anyone who had been impacted by the terrorist attack on the World Trade Center on September 11, 2001. So if the rules aren’t the rules for 9/11 survivors, why should they be the rules for people with mental illness? Why not make the same sort of accommodation for Mary Jo C.?

A Clear and Comprehensive National Mandate

So the one time in my life I got called for jury duty, I was trying like hell to get off the panel. The case was a drunk-driving case involving a rich defendant who was obviously guilty, and the defense attorneys announced early on that they would extend the trial by any means necessary to delay the defendant’s inevitable prison stay. (That case is still being litigated, twelve years later.)

I am a civic-minded kind of guy, but I am not a patient person and there was no way in this world I was going to hang around for this kind of nonsense, not when I had made up my mind that the defendant was guilty. So I told the trial judge the truth; I had a pending case before the Appellate Division and could be called in to give oral argument at any time. This… did not go over well. I was told, in no uncertain terms, that the Appellate Division could go hang.

The entire point of appellate courts is to tell trial courts what they got wrong. That’s all they do. This does not make appellate judges popular with trial judges. Trial judges make lots of decisions during the course of any case, and of course every decision is second-guessed by somebody.

In the lower court, Judge Feuerstein’s analysis in Mary Jo C. stopped at the finding that the 90-day deadline was New York law and that it would not be reasonable for the state to disregard its own law. Judge Sack took the analysis one step further. “We must inquire whether Congress, when it enacted Title II’s reasonable modification provision, intended to require modification of state laws under certain circumstances, thereby preempting them, or whether it instead intended the reasonable modification provision to stop short of encroaching on state laws.”

What Judge Sack means here by “preempting” is to say that federal law trumps state law when there’s a conflict. And that’s true even when there isn’t exactly a direct conflict. It was not as though the New York legislature, when it passed the law creating the 90-day deadline, was rubbing its collective hands together and chuckling to itself about how it was totally going to screw over Louis Callace and Mary Jo C. They probably never gave it a second thought. But the conflict isn’t between the laws, it’s between the New York law and the purpose of the ADA. Judge Sack noted that the purpose of the ADA was to implement a “clear and comprehensive national mandate” to stop discrimination against people with disabilities. If the ADA were to be subject to the vagaries of state law, “the ADA would be powerless to work any reasonable modification in any requirement imposed by state law, no matter how trivial the requirement and no matter how minimal the costs of doing so.”

What’s more, if Judge Feuerstein’s opinion was followed, “any state could adopt requirements imposing unreasonable obstacles to [people with disabilities], and when haled into court could evade the antidiscrimination mandate of the ADA merely by explaining that the state authority considered possible modifications and rejected them.” (Judge Sack is here quoting Crowder v. Kitagawa, a Ninth Circuit case where the court struck down a Hawaii law which put unreasonable restrictions on guide dogs coming into the state). Let’s suppose New York had a law that said there was a 90-day deadline to file for disability benefits, unless you had mental illness, then it was just 45 days. That would be clearly discriminatory, wouldn’t it? If New York could pass that law (which it could), the only recourse left for the people who were discriminated against would be that it would be preempted by the ADA.

As for the last issue in Judge Feuerstein’s opinion, that Mary Jo C. did not have a disability, Judge Sack reasoned that the only reason why Judge Feuerstein made this decision was because she thought the rest of the plaintiff’s claim was futile. Accordingly, he allowed Mary Jo C., on remand, to amend the complaint to show that she could meet the ADA disability definition.

Stipulated and Agreed

Exterior of US courthouse in Islip
U.S. Federal Courthouse, Islip, NY

Although it would be nice to think that Judge Sack’s opinion ended the Mary Jo C. case, it was sent back to Judge Feuerstein on remand. What she made of the Second Circuit’s decision is not recorded. What we do know is that, four and a half years after the complaint was filed, and a year and a half after the Second Circuit decision, the case of Mary Jo C. v. New York State and Local Retirement Sys. was settled. Mary Jo C. agreed to dismiss the case, and the state comptroller agreed to deem her previously filed application for disability benefits as timely filed. And Mary Jo C. agreed that the state had not admitted that it “has in any manner or way violated plaintiff’s rights, or the rights of any other person or entity.”

So was this justice, at long last? Technically, it wasn’t even the end of the case — the issue of attorney’s fees lingered for quite some time afterwards. Certainly Mary Jo C. got more justice than Louis Callace did, thanks to the ADA. But was it worth it?

Berkeley law professor Malcolm Feeley, in 1992, wrote a book called The Process is the Punishment, which was about how the criminal judicial process itself was a form of punishment for those accused of a crime. Having to go through four and a half years of litigation to get a just outcome may qualify as imperfect procedural justice, but it is no less imperfect for all that.

Having said that, the lasting impact of cases like Mary Jo C. is not just the benefits that they provide to the winning party. Having a strong Second Circuit opinion that state law is not a safe harbor against ADA reasonable modification requests is something that helps every future litigant with a similar claim. Every person with a disability going forward with a claim against a state will be helped to make their case because Mary Jo C. and her attorney stuck it out and got a positive decision.

Of course, that leads to the question, “Just how much good has the Mary Jo C. case done to help ADA plaintiffs over the last ten years?” And that’s a question that calls out for further legal research. Something like a law review article.

Which I suppose, now, I have to write after all.

A Circle of Moonlight, Books, Commentary

A Symbolic Post about Symbols

This is kind of a weird post about the dinkus, which I literally did not know was called that until I looked it up. And you may very well ask yourself, what in the Sam Hill is a dinkus?

So, when you are writing a book, one of the things that you have to do is to is to separate the book into chapters, right? Everyone knows this. Chapters have been used since the Dark Ages. But things happen within chapters; time passes, perspectives change, settings change. You can’t start a new chapter every time that happens, unless you are James Patterson, and you are not James Patterson.

This is where the dinkus comes in. The dinkus is a break within the chapter. It is a subtle hint to the reader that something is different. You could use–and people do use–an extra carriage return, but the cool thing to do is to use a symbol. You can just use three asterisks, like this.


And that’s fine. But you can use anything you want. In A CIRCLE OF FIRELIGHT, one of the main characters is a black rabbit, who is a symbol himself, so I used that as the dinkus.

I thought, and still think, that this is very cool. I think that the readers (both of them) figured this out, and got it, and that is fine. You don’t have to use the dinkus, but it’s a nice touch.

So I wrote the sequel, A CIRCLE OF MOONLIGHT, and I wanted to use a dinkus for that, and in the early drafts I used a dinkus that was a minimalist interpretation of the changing of the phases of the moon. It looked OK. But when I tried uploading the Word file to Amazon for them to set up the Kindle file, hey howdy, guess what. The dinkus didn’t carry over. Well, okay, FINE. This is one of the little annoying fiddling things that you have to deal with when you deal with publishing.

So I started thinking. Okay. If the image file won’t upload, what can I use that I know will work? The short answer for this is something called Unicode. The internet runs off of Unicode, and Unicode is a huge repository of symbols. I went looking for symbols, and there is a kanji symbol for moon:

So that looks kind of sharp. But I looked a little deeper, and there is a Unicode variant that has a circle around it:

Ding! Ding! DING! That’s the dinkus. It’s a circle! Around the moon! For a book called A CIRCLE OF MOONLIGHT! Boom. And it works when you upload it to Kindle. And a little more research shows that there’s a similar ideograph for fire!

So I have been spending all morning trading out the rabbit symbol in A CIRCLE OF FIRELIGHT for the fire ideograph for the new Kindle and print versions.

And because everything in the world is not quite perfect, it turns out that in Japanese, these symbols also mean “Monday” and “Tuesday.” And this is fine. If you are reading either novel in Japan, and you are wondering why on earth there’s the symbol for “Tuesday” in the middle of the book, well, this is why, and I wrote this post to explain it. So there you go.


Café I

The best restaurant in the history of the city of New York closed forever last year, and it was all my fault.

It was a modest little place in the center of a long row of squat gray buildings, tucked in between a yoga studio and a plumbing supply wholesaler. It did not have a listing on Yelp, or a marketing budget, or even a name. The restaurant—people just called it that, “the restaurant,” if they called it anything—was open only for lunch on weekday afternoons, and it wasn’t uncommon for it to be closed on Fridays if the weather was nice outside.

The owner’s name was Sandy, and Sandy worked alone. No one knew why. None of us knew a thing about Sandy, other than the one startlingly obvious fact that Sandy was a genius with food. Every meal I ever had at the restaurant was superlative, off-the-scale excellent even in a city of high-level cuisine. Sandy’s food was always simple in concept—heart-nourishing soups, thick meaty sandwiches, hand-crafted salads—but everything was fresh and delicious and skillfully prepared.

Sandy very easily could have been a famous chef with a national reputation, leading a talented brigade at a high-end restaurant that would thrill diners and dazzle even the most jaded food critic. But that would have meant dealing with investors and sous-chefs and waiters and bartenders, and that wasn’t what Sandy wanted to do at all. Sandy worked alone, and that informed what the restaurant was and how it worked.

The restaurant didn’t have a menu, for one thing. You ate whatever Sandy was dishing out that day, and you were grateful for it. If you were a regular—that is to say, one of the few people who knew of the restaurant’s existence—Sandy would send you a text in the morning, telling you what was available that day. You replied “IN” or “OUT,” and if you were “IN,” Sandy would send you a text telling you when to pick up your lunch.

When you walked into the restaurant, you walked down a long, thin corridor until you came to a tiny window, where your lunch was waiting for you. Just to the right of the window was a large refrigerator stocked with bottles of Poland Spring water, one to a customer. (If you wanted a soda, or coffee, you had to bring it in yourself.) You took your lunch, got your water bottle, and found a place to sit down.

And this was the beauty of the restaurant, what made it so special, what made those of us who ate there so devoted to it. There weren’t any tables. The restaurant had carrels, like at a library, and each carrel had one chair. You found an unoccupied carrel, sat down, turned on your laptop or tablet or whatever other device you liked, put on your headphones, and ate your delicious lunch in complete solitude.

I mean, you just couldn’t beat that.

I only found out about the restaurant because of a guy I barely knew. His name was Ron Newman, and he had rowed crew at Brown when I was at Princeton. He was leaving Manhattan for a new job in Seattle, and that meant he could nominate someone to take his place as a regular. He’d remembered me as a kindred spirit, I guess. We had a quick drink at a quiet bar in the Financial District, and he told me all about Sandy and the restaurant and how it worked. I was skeptical at first, and then I tried Sandy’s pastrami sandwich—on toasted pumpernickel, with hand-ground mustard and just a tiny smear of apple butter—and I was hooked.

I ate at the restaurant at least three times a week, more if I could get away with it. Every time I had a lunch meeting in the office, eating a flimsy sub sandwich and having to listen to other people crunch on mass-produced potato chips, my heart sank. But whenever I could get out of the office and grab a quick bite at the restaurant, I was revitalized. It was more than just the food, although the food was spectacular. It was the opportunity to commune with myself, to be alone for a brief moment in a city of 7 million people, to be exactly the person I expected myself to be, and nobody else.

The last time I went to the restaurant was a sunny day in late August. Sandy was making roasted eggplant soup, spiced with curry powder, served with a generous dollop of Greek yogurt. I left the office and strolled the four blocks to the storefront. Two people were waiting out front for me.

“There you are,” Lance said.

Lance was my supervisor, and Clayton was with him. Clayton worked in human resources, something to do with staff development. I stifled the urge to run in the other direction.

“We thought we could do lunch,” Clayton said. “Lance saw you come into this place a couple of times, and we figured we might join you for lunch.”

I should have lied. I should have told them that I was going to the Thai restaurant on the next block, or that I was just out for a stroll. But I couldn’t make the words come out of my mouth. Lance opened the door and ushered me inside, and I was trapped.

There was just the one brown paper bag waiting for me in the window. I took out three bottles of water, and handed one each to Lance and Clayton. I took my bag, knowing there was only one serving of soup inside.

“Let’s find someplace to sit down, first,” I said. “I’ll see if I can get you something.” I showed them to a carrel; they looked skeptical but didn’t ask any questions. I went back to the window.

There was a screen just behind the window, so you couldn’t see into the kitchen. I had never seen Sandy, not any more than just a hand putting a bag in the window. I didn’t know anyone who had ever seen Sandy, or had had so much as a conversation with the reclusive chef.

“Excuse me,” I said, “but two people from my office followed me here, and they want to try the soup. If it’s not too much trouble.” It was a horrible moment for me, saying something to somebody else in the restaurant, in the very citadel of solitude.

Approaching Sandy and asking for a favor was like a cargo-cult savage asking the heavens for canned Spam, but I didn’t have a choice.

I waited for a long moment in silence.

“I am really sorry about this,” I said. “Please.”

I could just barely make out Lance and Clayton’s conversation; one of them was saying, “Who the hell does this guy think he is, anyway?”

Two brown paper bags appeared in the window. I snatched them, said a brief word of thanks for my deliverance, and went back to the carrel, where an obviously agitated Lance and Clayton were waiting for me.

“What the hell kind of place is this?” Lance said. “Is there not any place to sit?”

“Or a menu?” Clayton said.

“Trust me,” I said. “It’s delicious. Maybe the thing to do is to take it back to the office and eat there.”

“It’s soup,” Lance said. “It’ll get cold, and then we’d have to heat it up.”

“Do you think we could find a couple of chairs?” Clayton said.

I went down the row of carrels, and found two of them were unoccupied. I grabbed the chairs out of them, and slid them down the aisle. This earned me more than a couple of glares from other diners, but nobody said anything. They wouldn’t.

“Here you go,” I told Lance and Clayton. “Sorry.”

“This is easily the weirdest restaurant I have ever been to,” Lance said.

“It’s so quiet,” Clayton said. “It’s too quiet. It’s like eating at a library, except you’re not supposed to eat at a library.”

I opened up my container of soup and motioned for them to do the same. It was heavenly, the sweetness of the yogurt balancing out the bitterness of the roasted eggplant. Lance and Clayton tasted theirs, but their focus was on me, and that made me even more uncomfortable, if that was possible.

“We wanted to have a chance to chat with you outside the office,” Lance said. “You know, to talk about you, and your development, and your future with the firm.”

“We have been watching you for a long time,” Clayton said. “Your work has been stellar. But we’ve noticed that you don’t always do your best work when you’re collaborating, or when you’re a team. You always seem a little reserved, a little aloof.”

“Not that this is a bad thing,” Lance said. “But we think it could hurt you down the road. You know, as far as getting promoted. This soup is delicious, by the way.”

“I know,” Clayton said. “It’s got just enough spice to it. Anyway, look. We are not trying to get on your case here, all right? This is not going on your record. It’s a friendly chat. What we’re trying to do is to see if we can figure out how to get you to open up around other people. Be more of a team player.”

“It’s a personality thing,” Lance said. “Not a work thing. It’s just that people don’t like to work with someone who’s not all that outgoing, you know?”

If we had been at work—in some anonymous conference room—I could have addressed everything they were saying. I could have explained that I wasn’t being aloof or reserved or anything like that, at least not on purpose. I could have pointed out everything that I brought to the table, how it balanced out those elements of my personality. But here, in a space that was created to honor silence, introspection, and incredible soup, I could not say a word in my own defense.

“This is outstanding soup. Lance, doesn’t your wife manage a restaurant?”

“She does indeed, and she’s always looking for new talent. And this soup is evidence of that. Do you happen to know the chef? Because…you know, working in a place like this, a chef is probably looking for greener pastures, right?”

A door that I’d never noticed before opened, and Sandy came bursting out of the kitchen. She raced down the aisle of carrels to where we were standing, and took off her chef’s hat.

I had never seen her before now; nobody had. She was unspeakably beautiful. In a town filled with beautiful women, she was something like a minor goddess. And she was incandescently angry.

“You’ve had your soup,” she said. “Now get out of here, and don’t come back. Ever. This is my place. I worked hard for it, and I sweated blood to get it just the way I wanted it, and I’m not giving it up for anyone.”

“Are you sure about that?” Lance said. “Because you could do so much better, with a little more effort. You could be a real star in this business.”

“Leave,” she said, and her pastel blue eyes were visibly seething with anger. Lance and Clayton put their soup containers down and silently filed out of the restaurant.

Sandy turned to glare at me. “What were you thinking, bringing them here?”

“I love you,” I said. I hadn’t meant to say it, but it was true. I had never loved anyone before, and I had to say it to her, if I never said anything again.

“You are banned,” she said. “For two weeks. Don’t try to call me or text me, or you’ll be banned forever.”

“What are you doing tonight?” I asked. “Maybe we could go and…”

“Get something to eat?” Sandy asked. “No.”

“Go see a movie?”

“Talk to me in two weeks,” she said, and went back into the kitchen. I finished the dregs of my soup and left.

I returned a week later, just because I couldn’t stay away. There was a line at the restaurant that was already out the door and spilling out into the street. The next day, the line was around the corner. The next day, the line was gone. There was a handwritten note attached to the door that said, “Closed forever.”

I got a “needs improvement” on my quarterly evaluation from Lance and Clayton, and I took the hint and quit. I spent half my severance pay on a private investigator to try to find Sandy, but he could find no trace of her. I spent the other half of the money on a two-month lease on the storefront Sandy abandoned.

The first two weeks, all I made was grilled cheese sandwiches. But all of the regulars came back, like nothing had happened. I started to learn how to cook from watching YouTube videos. I can turn out passable stews now, and decent sandwiches, and last week I made a curried Waldorf salad that wasn’t too far removed from what Sandy would have made.

The only other thing I did differently was to give the restaurant a name. I hold on to the hope that one day Sandy will just decide to walk by, to see what’s occupying the space where her restaurant was, and she just might see the name on the door and step inside and order something, just out of curiosity. It is a thin reed of hope, I know. But dreams have been built on less.


Miracle at the Meadowlands

I wrote something very critical of the New Jersey vaccination process the other day; this is the follow-up. My appointment was today to get the vaccine. There are basically three tiers in the system now: one is through the mega-sites that use the state vaccination registry system (Somerset County, Morris County, and Middlesex County), one is through the mega-sites that don’t use the state vaccination registry system (the Meadowlands site, Burlington County, and the Atlantic City site where my wife got her vaccine last month), and the other is through the major chain pharmacies. The first-tier mega-sites are wait-and-hurry-up; at some magic moment the state will give you a registration code and an appointment, you just have to be patient. The third-tier pharmacy sites are all whackadoodle; you have to be on at just the right time when they’re ready for you, and if you don’t have your chakras aligned with the universe, you are out of luck.

The second-tier mega-sites are the way to go, they release appointments at a certain time and you can get one if you’re persistent and lucky. The Meadowlands site, where I went today, is affiliated with the nice people from Hackensack Meridian Health, who run a lot of hospitals in North Jersey. If you’re on their site at midnight, and keep hitting that refresh button, you can get an appointment, or that’s what I did. So this is my list of tips for anyone who’s going there:

  1. Sign up for MyChart once you have your appointment. This is the Hackensack Meridian patient portal. The key advantage of doing this is that, for reasons that don’t make any sense, the Hackensack people do not send you an email that tells you that you’re registered. If you have any anxiety issues at all, you can sign up with MyChart (the HMH version, other hospitals use the same software), and it will tell you when your appointment is.
  2. Get there in plenty of time. You want to go to Parking Lot M, which is a little sliver of parking in the big Meadowlands complex. The vaccines are given in the west grandstand of the racetrack, which is just north of MetLife Stadium. (Why they don’t use the stadium itself I do not know.) There was a good bit of parking when I went there; didn’t really have much trouble with traffic or parking. (I had one moment of panic where the police shut down Route 206 north of where I live, but that was just for a few seconds to deal with an idjit driver who was going southbound in the northbound lanes.)
  3. You’re going to have to wait. There was a three-stage line when I went there: a) a line to get into the building, out in the freezing wind–this was populated by Army National Guard soldiers with bullhorns who barked out the latest time when you could get in time. I got there at 10:55 for an 11:10 appointment, and had to loiter out in the cold wind for three or four minutes before they would let you on the line. (This is to combat the very long lines they’ve had periodically.) All they will do at that point is check your printout to see if you have an appointment. After that, b) you have to climb a steep ramp which does NOT comport with ADAAG standards, I’ll have you know. There’s a checkpoint at the top of the ramp–which is inside, out of the biting wind–where they check you in and give you a little plastic card with a QR code printed on it. After that is c) another line to get to the registration desk.
  4. Bring your significant other with you. Okay, so I went with my wife to the Atlantic Convention Center mega-site, and could not have felt more useless. So you might be thinking, hey, I can just go myself, leave the Mrs. at home, right? Yeah, don’t do that. Why? Because if you’re signed up, and your spouse isn’t, they might just offer to sign up your spouse for their first appointment at the same time you get your second dose. Cool, eh? (They do NOT do this at the AC center, if they had, I would have jumped on that option like a duck on a Ritz cracker crumb.) The only flaw in this system is that it’s only one person you can do this for. One of the people ahead of me in line was a twentysomething kid who had brought his elderly parents, and they would not let him into the registration area–only two people at a time, that’s the rule.
  5. It’s going to take awhile. I was signed up for 11:10 AM, and didn’t get the shot until close to 11:45 AM. That’s not bad! I was able to pick up the plastic bin that the Mrs. wanted me to get at the Container Store in Bridgewater on my way home, and was in home in time to pick up the kids from school. But, yeah, it took maybe a little longer than you might think.
  6. So far, so good. The shot wasn’t painful, and the arm isn’t incredibly sore. No side effects yet (this was the Pfizer shot, in case you’re keeping score at home.)

Anyway, lookit. The fact that we have a vaccine today is nothing short of a miracle. I don’t know for sure if it’s a miracle cure or not. But I was glad to get it done, no matter how aggravating the process was, and I’m glad I have an appointment for three weeks from now for the second shot.


The Needle Tears a Hole

I don’t remember when I started really seriously worrying about the vaccine. It wasn’t right away. I don’t mean to say that I didn’t want the vaccine. I just thought that I would get it in good time.

I am a fairly normal and average person, but I am maybe a little more vulnerable than a lot of people to COVID-19, for two reasons. First, I am overweight and have Type II diabetes, and yeah, there are a lot of people like that. Second, I am working outside the home; I do human resources at a small social services agency in Philadelphia. In this role, I have been exposed to COVID-19–haven’t contracted it yet, or I might not be sitting here typing about it.

I was under the impression, early on, that I would get the vaccine through my employer. I wasn’t particularly stressed about this; I assumed that the state agency that funds the program where I work would make the vaccine available in short order for our staff.

I didn’t start to get worried until the stories started coming out about the 21-year-old Drexel student who was, stupidly, put in charge of the Philadelphia vaccine program. That was the first inkling I had that anything was wrong. I decided to hedge my bets and sign up for the New Jersey registration system. That was easy, but then there was nothing from that system except radio silence.

Not long after that, New Jersey posted a long list of places where you could sign up for vaccinations. Some of them (like the designated site in my county) were tied to the state system. Others… weren’t. I signed up through the Camden County site. I got an appointment–for early August. Not ideal.

Not too long after that, vaccines started to be available through the large pharmacy chains, and I started checking them on a regular basis. When I didn’t have anything better to do, I would click through. Shop-Rite–nothing. CVS had intermittent stretches where it looked like you could make an appointment, if you held your mouth right. Walgreens would let you enter in ZIP codes all day long but never give you any availability. And Rite-Aid… oh, good Lord, the Rite-Aid site. You have to click on every store and see if appointments are available. One time out of, say, fifty, you can click through–but you can’t ever make an appointment.

And I began to hear from other people–won’t say who–who were getting vaccines, and who had way less entitlement to the vaccines than I did.

I have spent a lot of time working in social services, and one of the most corrosive things in social services agencies is I’m not getting what I want but someone else is, which is just a variation on that’s not fair. You hear this all the time. “I just fell through the cracks.” “I’m not getting this because of my race,” whatever that race might be. “The illegals get taken care of and we don’t.” Whatever your particular flavor of grievance is, there’s enough unfairness in social services delivery systems to justify it.

So this was familiar territory for me, dealing with service delivery in a fundamentally broken system. What you learn in dealing with these systems is that you need to figure out what the unwritten rules are and then use them to your advantage–that, and you have to advocate for yourself, because nobody else is going to be as effective.

The first step in the process is self-education, and it turns out the best way to educate yourself rapidly is through Facebook, which hosts several New Jersey groups for vaccine advice. It didn’t take me long to get helpful tips. Follow the vaccine bots on Twitter. Walmart only does appointments for seniors, so don’t bother. Rite-Aid releases appointments at 11:45 at night, and check http://vaxxmax.com/ for what sites are available. CVS updates at 5 am. (Being an insomniac is a great way to get a vaccine.)

So far, it’s worked, despite frustration after frustration. We were able to get an appointment for my wife at the Atlantic County mega-site; they operate their program by, literally, the luck of the draw. I got an appointment at the mega-site in the Meadowlands because I was on a certain website at midnight, holding my mouth right, and just kept clicking until an appointment came up.

The Facebook group that’s the largest does have incredibly useful information, but it’s also a litany of misery. People are trying as hard as they can and not getting anywhere. People are trying to get appointments for elderly parents who won’t travel. There’s a lot of anxiety, and a lot of heartbreak. And it doesn’t have to be this way. There is plenty of opportunity for the state to step in and tell their partners to develop a more systematic, orderly way for giving out the vaccines instead of relying on people to navigate a bewildering and tech-heavy system. I can’t imagine why it’s not being done, other than it’s easier to do it this way. (Just as it was easier to hand thousands of vaccines to that 21-year-old.)

I get vaccinated in the next few days. I can’t wait. I can’t wait to get back into the mainstream of life. But I’m aware that I’m only able to do this because I learned about the vagaries of the system and was able to exploit them–and that others aren’t as lucky.

A Circle of Moonlight, Books

Just A Quick Update on A CIRCLE OF MOONLIGHT

For the–er–forty or fifty people out there who actually bought A CIRCLE OF FIRELIGHT, you might be interested that I’m now officially 40,000 words through with its sequel, tentatively titled A CIRCLE OF MOONLIGHT. (Possible alternative titles include I CAN’T BELIEVE THIS IS TAKING ME THIS LONG and HOW DUMB DO YOU HAVE TO BE TO WRITE A SEQUEL TO A BOOK THAT SOLD THAT POORLY.)

And so, below, is a sample chapter. It doesn’t make much sense out of context but here you go.

Long Black Limousine

March 30 | Madison Square Garden, The Other New York

“Ya did good, there, Lady Ashlyn,” C.J. says. “Time to go home.”

“Not just yet,” I say, tears wet on my cheek. “One more thing to do. I need to make it to where Penny is, let her know that it’s okay.”

“No can do,” C.J. says. “You heard the Dark Lord. He gave you a job to do and you did it. Now I have a job to do, and that’s to send you back home. No time to run any other errands before you leave.”

“Call the Dark Lord,” I say. “Ask him for me. He understands about Penny; he’s not going to stop me from talking to her.”

“I have my orders, Your Worship, and they involve escorting you straight off this island.”

“I understand. I am not trying to get you in trouble. There’s just one thing.”

C.J. leans on her sword. “What might that be?”

“You have to catch me first.”

“I ain’t too worried about that,” she says. She cracks a cruel smile, then snaps her fingers. All the house lights in the Garden come up. The arena is filled with dark furry shapes, all of them wearing hockey sweaters.

“Maybe you can get past me, but all of them? Not seeing it, Your Worship. Best to come along quietly. I can be reasoned with, but werewolves, you know, they don’t excel in the art of negotiation.”

“I was right. This was a trap all along.”

C.J. smirks. “That’s as may be. Question is, what are you going to do about it?”

All right, Ashlyn, I think to myself. You against the Warden of the Eastern Marches, backed by twenty thousand werewolves. How do you get out of this one?

Assets: my brain, my sword, the most powerful wand in the world.

“What I wouldn’t give for a holocaust cloak,” I say.

“Old movie quotes ain’t gonna help you any, love,” Valentine says.

Fight or flight. Fight or flight. Fight or…

Accio Broom!” I shout, and a push broom flies from behind one of the benches, into my outstretched hand. I climb aboard, and kick off the ground in one fluid motion. I rise into the air, wafted by a ragged chorus of howls.

Madison Square Garden turns out to be a pretty good place to learn to fly. No crosswinds, for one thing. I fly over the court in a lazy loop, about twelve feet up. The werewolves rush the court, but all they can do is mill around, waiting for me to fall. C.J.’s face is an unbecoming shade of scarlet, as she yells something at me that I can’t hear.

I take a second loop around the court, rising a little higher, until I’m level with the new bridges, which are lined with werewolves wearing Philadelphia Flyers jerseys and shaking their paws at me from behind the thick glass. I shake my fist back at them, and feel the broom dip under me; apparently this flying thing takes a good bit of concentration. Either that, or the enchantment on the broom is dying out. Whichever it is, I decide that I need to develop an exit strategy. I climb up to the level of one of the upper-level lounges and pull out my wand. “Reducto!” I shout, and the glass in front of the lounge explodes, sending shards onto the cursing werewolves below. There’s only a few werewolves in this lounge, and they duck for cover. I sweep into the lounge just as the magic in the broom sputters out, and hurtle into the concourse.

There are only a few werewolves hanging out here; they’re waiting in line for beer. I spring to my feet, snap a curse in their general direction, and take off in the other direction. I’m too high up now. I have to get downstairs, and find an outside door that will let me into the streets of the city. I have a vague idea where New York Presbyterian is from here; it’s somewhere on the East Side over by the UN building. Another platoon of werewolves spots me from the other side of the concourse, and I blast a curse at them, but it just slows them down. I spot a stairwell, and race towards it. There’s a horde of werewolves racing up it, and they spot me, and start howling.

I take a deep breath. The enemy’s gate is down, I think. There’s just enough room in the center of the stairwell to fit through. I hold my left hand over my head, and give my wand a flick.


I grip the umbrella with my left hand and vault over the rail, floating down the middle of the stairwell. The werewolves howl in frustration, and some of them try to swipe at me, but I manage to hold them off. I drift down all six stories, and land gently on the concrete floor. There’s a door that says “Emergency Exit,” and being chased by twenty thousand werewolves would seem to be a pretty big emergency. I fall against it, and it opens, and I am outside, in the still night air on 31st Street. I cross the street, dodging two tour buses (both thankfully werewolf-free, from the looks of them, or at least nobody was howling at me). I wind up in front of an Irish pub, next to a Vietnamese pho restaurant. I stop for a minute to catch my breath, and head east, racing past a parking garage and some kind of construction site. Seventh Avenue is up ahead. New York Presbyterian is northeast of here, up on First Avenue somewhere, if it’s in the same place. Easiest thing to do is head east and hope for the best, then turn north once I get close to the East River. It’s a plan, anyway.

Traffic has picked up a good bit, with the usual chaotic mix of police cars and taxicabs. I don’t see any good way through. I look to my left, towards the Garden, and there’s a crowd of werewolves, spilling out of the arena. They haven’t spotted me yet, and I don’t have a prayer of outrunning them if they do. I turn right, heading south, with the idea that I will cross over Seventh in a couple of blocks.

I don’t get five steps before C.J. Valentine appears out of nowhere, chewing gum and wearing a ridiculous chauffeur uniform. She’s holding a sign that says LADY ASHLYN REVERE, and is standing next to a sleek black limousine parked against the curb. “Get in the car,” she says. “Unless you want to get up close and personal with my furry friends.”

I have read too many Jack Reacher novels; I am not ever going to get into that limo. “Get out of my way,” I say, brandishing my wand.

The door of the limo opens, and the Dark Lord unfolds himself from the interior. He is tall, and bald, with his undertaker suit hanging off of him. “Miss Valentine is only doing her job,” he says. “Please don’t abuse her any more than is strictly necessary.”

“I don’t want anything to do with you,” I say, “not right now. I have a score to settle with you, but that can wait. I’m here to see my sister.”

“That is easily accomplished,” the Dark Lord says, gesturing to the interior of the limo. I look inside, and there is Penny, curled up in a ball in the back of the limo, shivering in a green hospital gown.

My wand is out, but I can’t think of any curse or hex that would be enough to blast him into oblivion for this. “She should be in the hospital,” I say.

The Dark Lord blinks. “She is in the hospital, of course. In your world. In this world, the place you call New York Presbyterian is a warehouse; publishing companies and literary agents use it to store rejection letters. Anyway, never mind, that’s not important. What is important is that your sister is asleep—really asleep, by which I mean not REM sleep. She will wake up in an hour or so, is my guess. And much improved, thanks to your banishment of that inconvenient ghost. You have nothing further to do here, and would be well advised to leave. And even better advised not to return, although I have to admit that I do admire the creativity of the bobsled run.”

“I’m not leaving without Penny,” I say. “You can’t hold her hostage like this.”

“Like every child, she is a hostage to fortune. You can’t blame me for that.”

I can feel the anger rising against the backdrop of the screeching werewolves behind me. I point my wand in their direction, and shout, ”Igneous!” A pool of lava erupts in the middle of Seventh Avenue, and the howls of the pack turn into yelps of pain.

“That was unnecessary,” the Dark Lord says. “They would not have hurt you without my leave.”

“There’s no need for anyone to be hurt today, least of all my sister. If you can’t let me have her, you can at least let her go.”

The Dark Lord smiles a ragged smile. “That would show exceptionally poor judgment on my part. And you are leaving without her, no matter what happens.”

“Don’t be so sure,” I say.

“I am sure,” the Dark Lord says. He pulls back the sleeve on his suit jacket and checks a gold watch. “It’s seven-fifteen. They just brought in dinner for the room across the hall. They’ll be waking you up any second now.”

“This isn’t over,” I say.

“It is for now.” And just like that, the towers of Seventh Avenue dissolve into smoke and ash behind the Dark Lord. I get a last glimpse of Penny, silent and helpless in the back of the limousine, before reality comes crashing in and erases the New York of my nightmare.


March 30 | Robert Wood Johnson Hospital, New Brunswick

I wake up with a start, heart racing, with my right hand outstretched, gripping the handrail of the bed.

“Didn’t mean to wake you up like that,” the orderly says. “You need to eat something, though. I’ve got macaroni and cheese, if you think you can handle it.”

I gulp in a lungful of air. My hospital gown is soaked in sweat. I try to brush away the droplets on my forehead with my left arm, forgetting for the moment that it’s in a cast. I stop just in time to keep from bashing myself in the head with it.

“If I can get a glass of water, first,” I say. “And my phone, please, it’s in the side pocket of the green bag over there.”

The orderly looks like he’s going to shoot off a smart remark, but he swallows it and nods. He pours me a drink from the pitcher on my left, and retrieves my phone for me. “Thanks,” I say, while managing to enter in my access code one-handed. I open up the phone app and call my dad, who picks up on the first ring.

“You’re awake,” he says. “Good. I was wondering.”

“How is Penny?” I ask.

“She took a real turn for the better about an hour ago. Morton thinks that the anti-rejection drugs started working. She’s not out of the woods yet; she still has a fever and they’re not sure whether the virus she has is antibiotic-resistant yet or not. But it’s looking promising, finally.”

I collapse back onto my pillow, exhausted. “Are they going to try to wake her up?” I ask.

“Morton says so. We’re actually on our way over to ICU. I’m not planning on telling Penny you’re in the hospital, too, no need to stress her over that. Understand?”

“Of course.”

“How are you doing, though? Dr. Torrez texted me and thought you had come through okay, but he didn’t do the surgery, so I wasn’t sure.”

“Fine,” I say. “My hand is still numb, but all the fingers are there.”

“That’s a plus, in case you need to ever use the Yellow Pages. And you’re sounding good. That’s the best your speech has been in a long time.”

I hadn’t noticed that, exactly, but he’s not wrong. “I’ve been working hard in therapy,” I say.

“It shows. Look, we’re almost there. You need to try and eat something, get your rest. I’ll get you an update in the morning.”

I put the phone down carefully on the bedside table and try to sit back up.

“Are we good with the macaroni and cheese?” the orderly asks.

I take a long, cool sip of water, to try to chase the foul taste of the city out of my mouth. “Yeah. Sounds good.”



NARRATOR: Alongside a lonely highway in Central New Jersey, a deathly quiet falls over a deserted suburban shopping center.

ROB BELL, ADVENTURER: You drive by, and you see houses, and farms, and all of a sudden you see this site. And it’s almost completely deserted. And you ask yourself, what could have happened?

JIM MEIGS, JOURNALIST: Every once in a while, you will see an abandoned strip mall, and it’s obvious why. The buildings are old and not in good shape, with peeling paint and crumbling curbs. But this one looks brand new.

NARRATOR: What powerful forces could have emptied this promising shopping destination?

ANDREW GOUGH, HISTORIAN: The only signs of civilization are the cars passing back and forth on the highway. But none of them stop here. It’s uncanny.

LYNETTE NUSBACHER, MILITARY HISTORIAN: The buildings all look brand new, but it’s clear that no one has ever set foot in them. Who could have built this vast complex and then just walked away from it? Where are the shoppers? Where are the tenants?

ROMA AGRAWAI, ENGINEER: It’s just so strange. You look in the windows, and you can see the certificate of occupancy. The mall looks ready to move in. It’s structurally sound and everything. You can look around and just imagine a Liberty Travel here, a Dollar Tree there. But there isn’t anything.

NARRATOR: What once was a promising site for commercial development is now an empty husk of a strip mall. What could have caused this site to become abandoned so quickly?

BELL: You get the feeling like a major piece of the puzzle is missing, like there’s something unexpected and different about this site.

NUSBACHER: One thing that’s fascinating about this site is that it’s so modern. Which means that, whoever abandoned this place, it couldn’t be Nazis. Which is odd, because if you watch this show, it’s usually Nazis.

MEIGS: On one hand, it’s just an empty strip mall in suburban New Jersey. But on the other hand, it’s a powerful metaphor for loss and isolation in the twenty-first century. It’s extremely unsettling.

NARRATOR: This is the Princeton Meadows Shopping Center.

AGRAWAI: Work on this site started in 2019, with plans for construction to be complete by summer 2020. The weather in the winter was mild, and the contractors made good progress. By March 2020, the site was nearly ready to open.

NARRATOR: But in March 2020, an outbreak of a virus named COVID-19 would wreck all the grand plans for the opening of Princeton Meadows. Anthony Harper was one of the developers.

ANTHONY HARPER, REAL ESTATE DEVELOPER: It’s not been an easy year for us. I mean, it’s not been an easy year for anybody. We had several tenants lined up. CVS. Einstein’s Bagels. I had a couple of feelers from Orvis, you know, they sell all that fancy outdoor gear? They all backed out as soon as the lockdown started.

MEIGS: There’s a certain poetry to the silence, a certain splendor to the absence.

BELL: All that effort that went into building something like this, and here it is empty. You walk around, and you think of everything that could be here. A nail salon. A hardware store. Maybe over there in the corner you could have a Five Guys.

GOUGH: I haven’t been inside a Five Guys in over a year now. You can get takeout but it’s cold by the time you get it home. It just isn’t the same.

AGRAWAI: All I want is to go to a restaurant with my husband without worrying about getting sick. I’m talking a date night here. Just to sit and talk for a while. It was such a normal thing, and now it isn’t.

NARRATOR: Princeton Meadows now faces a difficult time in an uncertain future.

HARPER: So from a financial standpoint, we’re taking a severe hit. And that’s not a great place to be, but there are so many people in this community that are hurting so much more than my partners and I are. You hate to see it. A lot of the crew that built this strip mall are out of work now—have been for months.

MEIGS: I look at one of the online tracking pages every day, and the numbers just keep going up and up. I remember when losing a thousand people a day was such a scary figure. Now, it’s four times that, and it’s heartbreaking.

NUSBACHER: I think back to the 1940’s, during the Blitz, and people in London wondered when that was going to end, and it didn’t, not for years. Is this close to the end of the pandemic, or is it just beginning?

HARPER: I got a call the other day from a guy who wanted to open a shoe repair place here, and I nearly cried. I mean, it doesn’t sound like much, a shoe repair place. But it was something hopeful. I feel that we’ve lost that in a lot of ways.

BELL: I’m an adventurer. A world traveler. I spent six months in a studio apartment in Hoboken, sheltering in place. You can’t imagine what that’s like.

GOUGH: Twenty years from now, we’ll look back on this time, and I don’t think any of us will ever remember it fondly. All of us have been touched by this cruel disease, in ways we won’t ever fully understand. And those that have lost a loved one will never forget that impact.

HARPER: I know it’s just one shopping center. There are a million of them in New Jersey. But to see it empty like this, day after day, when it should be filled with life, is just so depressing and sad. I keep thinking, one day, we’ll have tenants, and customers, and things will get back to normal again. All we can do is hold on until that happens.

NARRATOR: The tides of history move on, racing past us all. Princeton Meadows stands as a mute reminder of the ravages of disease and time.