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11 Catt. 2: In re Sang on Wheels

2012 July 11
by JEREMY, C.J.

JEREMY, C.J., delivered the opinion of the Cart. CATTLEYA, J., wrote a separate concurrence dubitante.

Green papaya salad is one of those characteristic dishes by which one may assess the quality of an establishment which purports to purvey a particular cuisine. In French restaurants, I tend to sample crème brûlée. In Italian restaurants, tiramisù. In Greek restaurants, galaktoboureko. Of course, waiting till dessert requires one to first plod through a meal of unknown quality. Luckily, certain Southeast Asian cuisines—Thai, Laotian, Cambodian—have given us a salad of such ubiquity, of such delicacy, and of such simple finesse that we may assess an establishment’s quality from the onset. And so it was with an entirely scientific and objective curiosity that, one particularly muggy Spring day, we ordered green papaya salad from Sang on Wheels (“SOW”). We have recently adjudicated SOW’s drunken noodles, upon which my sister and I met with some disagreement. See In re Sang on Wheels, 11 Catt. 1 (2012). Today, we consider the case of SOW’s papaya salad.

I. STREET FOOD

I would find green papaya salad to constitute “street food” and thus be entitled to a presumption of affirmance. Street food is “the kind[] of food[] that can be cooked in front of you and [is] meant to be eaten with your hands, without forks, while standing up.” In re Eat Wonky, 2 Catt. 5 (2011). While green papaya salad requires use of a fork and thus cannot meet all elements of this test so construed, we have held that our Eat Wonky, used to determine whether a dish is “street food,” is “not intended to affirmatively define the entire class of ‘street food,’ but is rather intended only to be a multifactor test to guide and direct our analysis.” In re Hot People Food, 6 Catt. 4 (2012). We have also held before that food that has traditionally been understood to constitute “street food” must necessarily satisfy our own definition of “street food.” Cf. In re Street Vendor Near National Mall, 9 Catt. 5 (2012). Green papaya salad is a tried-and-true street food which satisfies the spirit, if not each exact element, of our Eat Wonky test. I would therefore find green papaya salad to constitute “street food” under our jurisprudence, despite the required use of a fork. As such, SOW’s green papaya salad is entitled to a presumption of affirmance unless this Cart can meet its heavy burden to rebut that presumption. See In re Big Cheese, 6 Catt. 2 (2012).

In this case, as explained below, the Cart rebuts the presumption of affirmance.

Papaya Salad

II. GREEN PAPAYA SALAD

Green papaya salad is a perfectly balanced dish, blending (a) young, unripe, shredded papaya (almost tart), combined with (b) lime (sour), (c) fish sauce (salty), (d) chili (spicy), and a touch of palm sugar (sweet). These competing flavors should be in equilibrium.

Each of these elements was present in SOW’s green papaya salad, but that all-important equilibrium was missing. In this Cart’s earlier decision with regard to SOW’s drunken noodles, my sister wondered “whether SoW purposely sweetened its sauce with sugar to appeal to the American palate, in the same way that Thai restaurants in the area have become too Americanized.” See Sang on Wheels, 11 Catt. 1. With its green papaya salad, SOW again offered up a cloyingly sweet dish. Texturally, too, the dish was problematic. The shredded papaya was suspended in a gloppy, unidentifiable sauce. In the end, I was unable to take more than a few bites. Given my predilection for crème brûlée, tiramisù, and galaktoboureko, I may have a bit of a sweet tooth. But my sweet tooth was not nearly sweet enough for SOW’s papaya salad.

III. CONCLUSION

As with its drunken noodles, SOW’s papaya salad held a lot of promise. But because it was cloyingly sweet, unbalanced, and texturally awkward, this dish must be

REMANDED to Sang on Wheels for revision.

CATTLEYA, J., concurring dubitante.

My gut tells me that papaya salad is not street food. However, I cannot prove it. It’s nearly impossible to do so now that the Cart’s method for determining “street food” — once a bright-line test — has been reduced to a free-for-all where anything goes.

For example, I cannot reconcile how Asian noodles could be street food in my brother’s mind, see In re Sang on Wheels (The Drunken Noodles Case), 11 Catt. 1 (2012) (Jeremy, C.J., dissenting), but Italian spaghetti would not be. (My intuition tells me that the Chief Justice would not find spaghetti to be street food. To my knowledge, no food truck within the Cart’s jurisdiction even sells spaghetti.) But are Asian noodles and Italian spaghetti so very different? My brother would explain that it’s the spirit of our “street food” test that separates Asian noodles from Italian spaghetti. He relies on this spirit to classify papaya salad as street food:

Green papaya salad is a tried-and-true street food which satisfies the spirit, if not each exact element, of our Eat Wonky test.

I find this answer highly unsatisfactory because my brother relies on a spirit that he has in the past rejected. When he disagreed with my analysis not so long ago in In re China Garden, he wrote:

My sister invokes the spirit of a law over its text . . . willfully overlooking the fact that laws have no spirits. This is indeed a sad day for legal reasoning, a travesty of justice, a flaunting of the rule of law, and a return to the basest form of judicial activism there is.

China Garden, 5 Catt. 1 (2012) (Jeremy, C.J., dissenting).

According to the wise Chief Justice, the spirit of a law is sufficient even if not every element is satisfied, but invoking the spirit of a law over its text is the basest form of judicial activism because laws have no spirits. There is a fine line here, indeed. And clearly, I have not figured out how to walk it, while it seems that my brother has. To me, it sounds like laws have no spirits — except when the Chief Justice says that they do. But this cannot be. I know a fine legal mind such as his has a better explanation for what appears to be a gross inconsistency in his thinking. I know it must, just must, be a matter of my limited understanding.

Because I do not understand why papaya salad (or drunken noodles) is street food and the Chief Justice does, I must go along with my brother’s conclusion today — but with the gravest, gravest doubts.

 

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