Before the Law
For decades, I thought that the Czech word “kavka” meant “crow”. This morning, to confirm that, I typed “crow” into Google Translate. To my surprise, it spat out the noun “vrána”. Now — there is no reason to doubt that. “Vrána” corresponds to the phonotactics of Czech and could as easily be a well-formed Czech noun as “kavka”. Nevertheless, a basic assumption of my world-view, i.e. the easy association of “kavka” with “crow”, had been unpended. After I scraped myself off the floor, I reversed the Google Translate cells, and typed “kavka” into the Czech cell. The English cell spat out “jackdaw.”
Like I know what a jackdaw is.
More googling revealed that the Wikipedia page for “jackdaw” says that a jackdaw is a passerine bird in the Corvidae, or crow, family (a passerine bird is a perching bird, with three claws in the front of each foot and one at the back). So, I was close. Different bird, same Linnaean family.
Not satisfied with the Google results, I went to the books. The Anglicko-Český a Česko-Anglický Kapesní Slovník (Dr. Karel Hais, Státní pedagodické nakdadatelství, Praha, 1974) translates “crow” as “vrána”, and contains no entry for either “jackdaw” or “kavka”. The more robust Anglicko-Český Slovník, by Jan Caha and Jírí Krámský (Státní pedagodické nakdadatelství, Praha,1964) also translates “crow” as “vrána”. There is no entry for “jackdaw”, but there is an entry for “jack” as a prefix; “-daw” is translated as “kavka” (“-ass” is translated as “osel”, or, in the sense we all really mean when we say “jackass”, “hlupák”). The Česko-Anglický Slovník by Josef Fronek, MA, PhD, University of Glasgow (Státní pedagodické nakdadatelství, Praha, 1993) translates “kavka” as “jackdaw, simpleton, pushover, or (Am. Sl.), sucker”. It translates “vrána” as “crow”. The Stručný Etymologický Slovník Jazyka Českého, by Josef Holub and Stanislav Lyer (again, Státní pedagodické nakdadatelství, Praha, 1978) says that “kavka” is a “noun of Slavic origin”.
I suspect that this unpleasantness would have been avoided if I had had a native speaker handy. That is because jackdaws and crows are closely related, most native speakers of Czech, other than bird watchers, biology post-docs and insufferable pedants, are probably as ignorant of the distinction between the two types of birds as I was until this morning, and most native speakers would say that “kavka” means, simply, “crow”, or “a kind of crow”.
“Kavka” spelled with a “v” is a fairly common name in Czech. Like German, Czech tends to de-voice word-final and certain syllable-final voiced consonants. So when the syllable-final “v” in “kavka” is pronounced, the word sounds like “Kafka”. As I understand it, the name was also common among German speakers in what is now the Czech Republic, although in German the name was spelled with an “f”, rather than with a “v”.[1] When I lived in the Czech Republic in the early nineties, I had a colleague named Stanislav Kavka. He had been the head of the English department some years prior, but had been busted down to docent by the lustrace laws of the early nineties, which purged leadership roles in government and academia of former communist party members. In fact, Standa had not only been a party member; he had been a fizel, or an informer, for the secret police, or the StB. That is how he had been given the opportunity to study in England and the United States. Here’s what there is to know about Standa:
I have quoted the snippet Before the Law, from the novel The Trial, by Standa’s namesake, before. Readers will recall that, in that story, a man from the countryside comes to a gate to gain access to the law. The man settles next to the gate and devotes his life to convincing the gatekeeper to grant him access; the gatekeeps strings him along until he dies. At the hour of death, the man learns that the cruel game perpetrated by the gatekeeper, or maybe by the gatekeeper’s supervisors, or by their supervisors, has been tailor-made to fit his own weaknesses, or perhaps vice-versa:
The gatekeeper has to bend way down to him, for the great difference has changed things to the disadvantage of the man. “What do you still want to know, then?” asks the gatekeeper. “You are insatiable.” “Everyone strives after the law,” says the man, “so how is that in these many years no one except me has requested entry?” The gatekeeper sees that the man is already dying and, in order to reach his diminishing sense of hearing, he shouts at him, “Here no one else can gain entry, since this entrance was assigned only to you. I’m going now to close it.[2]
I apologize for the recycled content, but, like any classic, the story is evergreen. Tales of citizens’ impotence before the law never grow old.
On June 30, Governor Cuomo signed Bill 10290-B (now Chapter 127 of the Laws of New York, 2020) into effect. In relevant part, the law holds that, during the “COVID-19 covered period”, as defined, courts may not issue warrants of eviction or judgments of possession against tenants who have suffered financial hardship during the COVID-19 covered period for non-payment of rent. For these purposes, the COVID-19 covered period is the period from March 7, 2020 through the end of the effective date of certain COVID-related executive orders. Shorn of the legislative-speak, it is a ban on evictions for non-payment for tenants who have suffered economically due to the COVID epidemic for the duration of the epidemic. Property owners can still pursue a money judgment against tenants who do not pay.
Section 127 still does allow evictions in certain cases. Under the statute, here’s who can still be evicted:
I have said it before and I will say it again: evictions suck, but we need them. They are life-shattering for the people displaced by them, but under current law they are the only remedy that property owners have to deal with tenants who are bad neighbors, or tenants who do not pay. In the longer term, we should replace that remedy with better remedies, like a rental insurance scheme — but for the time being, we need the existing remedy, in order to continue to provide clean, safe and affordable housing for people who need it. That said, these are exceptional times. Society’s need for property owners to have an effective remedy for tenants who are bad neighbors needs to be balanced against economically strapped tenants’ need for housing during a black swan downturn. That is what Chapter 127 attempts to do.
Is Chapter 127 fair? I think it splits the baby well enough. Some tenants really are suffering. If someone has lost their job due to the crisis but has a good-faith plan in place to get caught up, it is reasonable to ask a property owner to work with them. The solution chosen by the legislature is one of the less-bad short-term solutions currently available.
But here’s where it gets murky, and where we stumble against separation of powers problems. On May 7 of this year, Governor Cuomo signed an executive order ( Executive Order 202.28) extending certain provisions of another executive order, passed on March 20 ( Executive Order 202.8). Executive Order 202.8 imposed a ninety-day moratorium on all evictions in New York State. The later order, Executive Order 202.28, extended the earlier order’s moratorium, but only for evictions for non-payment of rent of tenants who qualify for unemployment insurance. However, Executive Order 202.28 was suspended on July 5 insofar as it applies to residential tenants by Executive Order 202.48 because that section of Executive Order 202.28 was preempted by the legislature when it passed Chapter 127.
Note that, in defining the COVID-19 Covered Period, Section 127 states that the COVID-19 Covered Period will end when the effective date of certain Executive Orders, inter alia Executive Order 202.28, expires. But Executive Order 202.48 states that relevant parts of Executive Order 202.28 are no longer valid because the executive order was preempted by…Section 127? Does this mean that the COVID-19 Covered Period ended when Executive Order 202.48 was issued? Surely not, because Section 127 references other Executive Orders as benchmarks and because, if we use some common sense, we all know what Section 127 was intended to mean, even if the plain meaning of the text creates either a short circuit or an infinite loop. So, if we look only to pronouncements by the Governor and the legislator, it appears that the statute is later in time, and the Governor has ceded jurisdiction thereto, for now, at least.
The problem is that the courts are not playing ball.
On June 18, Judge Lawrence K. Marks, the Chief Administrative Judge for New York State, issued a memorandum regarding eviction proceedings. The memorandum included three substantive provisions:
Judge Marks rescinded the requirement that an attorney or self-representing petitioner’s affirmation be included in eviction proceedings in AO/143/20 (July 7, 2020). The rest of the provisions in that announcement were extended on August 12 by AO/160/20.
It gets worse. On July 6, Chief Judge Janet DiFiore announced the timetable for court re-opening. In Phase Four of the reopening plan, courts may hear eviction matters in which all parties are represented by counsel, so long as these proceedings are conducted virtually.Effectively, this means that, until we return to normal or whatever the new normal will be, so long as the respondent is not represented by counsel (often the case in eviction proceedings — and easy for the respondent to arrange, simply by firing their lawyer), the petitioner has no access to the courts.
My civil procedure professor was something of a buffoon. He liked to prance around in pinstriped Hong Kong suits with a red pocket square peeking out next to his lapel. His favorite interrogative exclamation was a squeaky “Hm?” He was a media hog and something of a sadist in the classroom — he once told a student that, if she did not like the crass commercialism of American civil litigation, she go to medical school. He verbally abused his secretary and, when he was younger, he slept with (some of) his students. But he was brilliant. He used to tell us that, if you do not have a remedy, you might as well not have a right. Once that happens, the distinction between substance and procedure evaporates. That is what we have here. The Governor and the legislature have given us a reasonable, workable right, but the courts have taken away our means of accessing it. What is the point of having a right in the first place, if it remains beyond your reach?
Or, as Standa’s namesake would say -
[B]efore the Law stands a doorkeeper. To this doorkeeper there comes a man from the country who begs for admittance to the Law. But the doorkeeper says that he cannot admit the man at the moment. The man, on reflection, asks if he will be allowed to enter then, later. “It is possible”, answers the doorkeeper, “but not at this moment.” …These are difficulties which the man from the country has not expected to meet, the Law, he thinks, should be accessible to every man and at all times…
Judge Marks and Judge DiFiore have made us all into the Man from the Country. With luck, they will not turn us into so many cockroaches.
[1] German speakers in this region included Jews and and Sudetendeutsch, both of whom were forced to leave due to certain deeply unpleasant mid-twentieth century events.
[2] Vor dem Gesetz, F. Kafka, Trans. Ian Johnston.
Originally published at https://dirtlease.com on August 12, 2020.