Wednesday, February 08, 2006

The Eggshell Plaintiff

In the law of torts (civil wrong or injury, outside of contract, for which the court will provide relief in the form of an action for (monetary) damages), there's a principle called "the eggshell plaintiff," meaning you take your plaintiff as he comes. If you negligently trip someone, and he turns out to have hemophilia, ends up bleeding profusely from a minor gash and dies, well, sucks to be you. Even if it's an injury from which an ordinary person wouldn't suffer mortal wounds, this one did, and you will have to pay the damages if you were found to be negligent. Establishing a cause of action for negligence is another thing though, and more complicated than you think, but we won't get into that. The point is, there are people with unknown or extreme sensitivities out there, and while you can't live your life tiptoeing around everything, nor should you randomly stick your legs out for people to trip on, leave banana peels on freshly waxed floors, jump out from dark corners in grim reaper costumes to scare old ladies, or anything else I think is funny. "The Reasonable Person" would never do such things. The reasonable person would act reasonably, not incautiously, and while true accidents happen (and these aren't negligent, like you slip on a banana peel that you had no way of seeing or avoiding--cause if you did, that's negligence--and knock granny out when you fall), in general, if you act reasonably, you'd probably avoid causing injury to others, including the Eggshell Plaintiff.

Why do I bring this up, other than to sneak in bar topics into my posts to do double duty of blowing off steam and reinforcing concepts? Well, posts from the previous two days might make me appear to be such an Eggshell. Not to mine delicate ears, shrinking violet, overly PC, new agey bleeding heart liberal kind of eggshell. And I'm not--not that I'd care if you thought so. At this point in my life, I've built up a sufficient amount of rage from my years as a former silent wallflower listening in indignity to everything that could possibly offend me to have the attitude of "fuck you, fuckface" to any flagrant misconception about me (principled disagreement and discussion is another matter, that I can be civil and reasonable about).

But it's worth clarifying, if only to dispel certain stereotypes and assumptions for why certain people make the arguments they do. For example, I wouldn't assume that a First Amendment absolutist's opposition to any form of censorship or regulation of the cartoons or the t-shirts was due to his/her own biases. I'd probably give them the benefit of the doubt and believe that it's a principled argument they're making, unless I discovered that they regularly played with their G.I. Mohammed jihad action figures and played Spin the Rapist at parties. Similarly, despite my leftist credentials, my arguments that the regulation of speech is permissible in the educational and workplace context (something First Amendment absolutists disagree in principle with), and that the Danish newspapers should have exercised judgment and restraint in (but were not compelled to enjoin) publishing the offensive cartoons should not be taken as the raving lunacy of yet another delicate, easily offended liberal. These are principled arguments I'm making, and the solutions I proposed to them (the exercise of judgment by potential offenders, commercial boycott in absence thereof by offendees, no violence by either) are pretty reasonable I think. I mean, these are pretty tame, hard to disagree with, hardly radical statements to make. But yet there are those, I am sure, who would read me as "too sensitive." "Humorless." "Give me a break."

So why do I take umbrage with potential pigeonholing as "too sensitive"? Because while I'm not an eggshell plaintiff, there are those that are out there. So not only does offensiveness in the workplace, the classroom, other "captive audience" type places where you cannot merely avert your eyes or walk away from the conversation affect me, it would affect the eggshell plaintiff. Think of the cartoons. they came out in September 2005, and at first touched off controversy within Denmark, among the Islamic population there and the majority Danes. Then the extremist jihadists in other countries picked it up and fanned the flames, exaggerating the Danish government's role in sanctioning these cartoons, and now the Danish embassy has been torched and people have died. It's like the eggshell plaintiff taking it to the streets--the most sensitive and offended (in Islam you cannot even depict the image of the prophet, so it was majorly offensive to depict Mohammed with an UZI) have started a cycle of violence, and the "ordinary" class of plaintiffs are caught in the middle. Same thing with the t-shirts. I may be pretty offfended, but not as much as the rape victim in the classroom, who sees this pimple-faced, leering, slightly creepy 20 year old walk in making sport of her trauma and is furher traumatized. You take your victim as s/he is. And the graver consequences will follow, and you are as responsible for them even if you couldn't have known or predicted the results.

So, all I'm saying is: be reasonable. Exercise judgment. Don't stick your leg out to trip people, don't publish offensive images of religious figures knowing that the religious extremists will retaliate with immoderate force, and know that one man's joke is another woman's trauma.

Finally, I'll relate a personal anecdote. When I was interning for a judge my first summer in law school, my co-interns were jerks. Totally racially insensitive, but the worse thing is, they didn't think they were so. Asked me if I knew martial arts. Asked me why Asians were so "tight," i.e. insular, foreign and non-assimilating into white mainstream (where did they go to school?!). Daewoo was up before the bankruptcy court, we were listening via intercom, and one of them says "Wow, the lawyers don't sound Korean!" (What do Koreans fucking sound like? Chinky? Plus, why would a multinational firm hire only Korean lawyers when arguing before the Central District of California, and fobby ones at that?) They kept peppering me with questions about my Asianness, making fun of Asians and Asian "characteristics" my presence, to the point where I had to go to our supervising clerk and complain about it, that I did not want to discuss whether I went for white guys or Asian guys, and that no, I don't fucking know how to do karate. The judge actually had to have a sensitivity talk to the boys.

So, was I the Eggshell Plaintiff? I don't know. Maybe first year of law school did affect me, making me more sensitive than I had ever been before. Mainly because I had gotten through life with few racial incidences before. I attended a majority Asian-American university, and despite the whiteness of my first major boyfriend, his interaction with Asians was such that he was called the "Honorary Asian." But in my first year, I was derided for going home to be with my parents, siblings, and children (that whole extended family community network thing), told that I was the perfect example of one of those "organized" model-minority study-hardy Asians when I started whipping out my post-it tabs, and when I asked a guy about the last person he dated, he said "All of my past three girlfriends were Asian. I just like the fragility and exoticism." Worst of all, a CREEPY white guy come up to me and start saying hello in Vietnamese, as if of course, I could be presumed to know the language (I do, but whatever--I was born HERE). He kept coming up to me and trying to speak in Vietnamese, asking me out. He did this to every Asian girl in my section, Korean, Chinese, Thai (he apparently knew "hi" in about 5 Asian languages), following us around school, trying to touch us, scaring the hell out of us. So yeah, maybe I did become a little sensitive to any remarks about Asians, genuinely curious (if ignorant) or malicious.

But put yourself in the position of the Eggshell Plaintiff. I for one, take offense at people asking me what I think about the Vietnam War, as if I will never be seen as anything other than Vietnamese. It's a valid question, kind of, given that the war wasn't that long ago, and I was a product of it--in the sense that my family fled Vietnam, and I was born here. Still, I'm an American legal scholar. My area of study is constitutional law and legal systems theory. I speak/write/think in English far better than Vietnamese, to the point where I majored in English literature and took Latin as my language requirement. I'm not denying (nor am I ashamed of) my roots, but they definitely don't do justice in defining me. Thus, I take umbrage when people essentialize me into one facet (woman/Vietnamese) without recognizing that these facets interconnect and interact, thus ignoring the complexity of my identity. Wouldn't you? Say you're second generation Italian. Like Justice Alito. Would you be offended if people asked you what you thought of Mussolini, and the role of Italy in the original Axis of Evil? Do you even think about it? What if you're just a banker, thinking about banker things? Do you have to think about things that occured several decades ago in the country of your father or grandfather? Can't people ever see you as American and Italian? Why do they always go after the Italian first? Extend the analogy to any group that you belong to--Jews, Irish-American, Mormon, Southern, blacks. Would you like people coming up to you and saying "Hey, want some bagels and lox? What do you think of Arafat's likely successor (because all you think about is Middle Eastern Politics). Or "Man, did you catch Rap City last night? (because all you watch is BET, and that's all you're capable of talking about). Or "You're mormon? So, do you mind not drinking? You mean you can't even drink coffee? You probably hate gays, right?"

Essentializing is tricky business. I'm more of an intersectionalist, and am aware that categories of identity are fluid, and some are privileged above others or more forcefully felt at different times. It's a world of plaintiffs with different sensibilities out there, and on any day, we could be Eggshell Plaintiffs with respect to any one of our categories of identity.

So watch out for legs sticking out to trip you.


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