Month: September 2020

Craig Ferguson: the Professional Unprofessional

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Craig Ferguson is unpretentious. Why use an adjective in the negative to describe him? Why not say “authentic,” “humble,” or “genuine?” He’s certainly all those things, but I want to emphasize the point that he defies the norms of late-night television, and deliberately trims all the neat lacing of an outward television persona. Another post might look closely at the form of his show in general: the absurd elements and what makes the show so special. Here, instead, I want to focus on the person, Craig Ferguson, and abstract away to the idea of being unpretentious.

We can draw a connection to being unpretentious in our own lives: our professional sides, and the double life we lead in the professional world. We change the way to speak, act, and show ourselves in order to present our professional selves in the best light. Television hosts must do the same, but, for Craig Ferguson, his approach, particularly with his guests, is to be unpretentious and instead just focus on building a relationship with his guest. Unlike other talk shows, his guest is not merely a client promoting their project in exchange for more viewers, nor is his guest subject to the host’s particular TV persona.

Craig Ferguson is essentially relation: he shifts the focus to the other and is empathetic to the point of forgetting to worry about how he looks and how he comes off to the gaze of the audience. The relationship he builds with the guest is the performance. The key to making the conversation with his guests interesting is that he’s genuinely interested in his guest. He asks engaging questions that are not superficial. It can get intimate, inappropriate, or indecent – all the things you’re not supposed to do in the professional world – but it is interesting.

Professional relationships are superficial and risk adverse, and thereby mostly uninteresting. As a professional, you cannot get intimate because it risks offending the other party or creating an uncomfortable environment: all elements that are not conducive to business, transactions, or a work relationship. Even the jokes in a professional context are sterile, forced, and disingenuous. The professional world is so concerned with optics, maintaining power, and looking competent that it creates an air of pretention and self-aggrandizement. Put differently, it’s about selling an image instead of meaningful interactions. There are boundaries to stay within because it is the superficial where we can all comfortably interact – this universality of professionalism, from the lens of comedy, is trite and hackneyed.

Notice how Craig Ferguson shifts all the attention and focus to the guest instead of trying to focus on maintaining his professional façade. He is free from boundaries, and he is free to explore all the uncomfortable areas for humor and an interesting conversation. He might end up looking foolish, incompetent, or weak, but this is the risk he takes in being unpretentious.

John Mulaney and Comedic Storytelling

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Stories are powerful for connection, teaching, and stepping into someone’s point of view. Throughout histories and cultures, storytelling has had different functions, forms, and medium. We’ll be exploring the intersection between comedy and storytelling through the comedian John Mulaney.

Voice

Comedy voice is a bit of an elusive term, but we can begin to describe it with reference to the Greek word “ethos,” meaning something like character or a particular set of values identifiable to a person. For John Mulaney, his ethos is a refined character with an almost century old, vaudevillian energy that doesn’t belong in this era. His suit and his transatlantic tone in his voice gives a sense of displacement for the audience: he doesn’t belong in this world, and he projects that persona into his comedy. This is the seed of instant connection with the audience: everybody feels confused, flustered, and displaced in the world at times. Yet John Mulaney does not carry himself as the disheveled, unattractive outcast. His speech has the rhythm of a professional and his manner of speaking is polished, almost like written theatre. He personifies two ends: ourselves in the world sees us – put together with a façade of manners and conduct – and the way we are in private – clumsy, awkward, and trying our best to navigate the world. This is John Mulaney’s point of entry and the way of connecting with the audience.

Technique

There are some notable techniques particular to John Mulaney. The structure of his story begins with a benign topic or some average occurrence in his life, then it starts to build up. Note that the source of comedy is in the absurd. The story turns into something weird about life or how his personal social faux pas. He points out how absurd things are in a couple of ways. For one, he provides commentary in the form of a relatable observation which breaks the fourth wall. Every step or pause, he wants to sprinkle in how absurd and weird the particular occurrence is. He points out to the audience to the tension within all of us between our professional and personal selves: he uses overblown, exaggerated impressions of people, he uses descriptive, flowery adjectives, and he uses his tone and gestures to paint a picture of an absurd scene. Notice also that he’s fundamentally self-deprecating to further relate to the audience. Any witty mocking of others is always couched in lowering himself first.

Effectiveness

The difference between the politician telling a story and the comedian telling the story is that the politician has to instill a sense of confidence and capability in the audience; the comedian, however, can show foolishness and weakness, and this arguably makes the comedian more genuine and authentic. The core vulnerability and humility in the comedian gets the audience on their side: once the audience is on their side, they can add “tags” or throwaway jokes or push for something more self-laudatory only because the audience acknowledges the comedian is, by their own title, a clown, a jester, a licensed fool. However, much like the politician, the comedian has insights, observations, and can serve as an advisor, as is the Shakespearean fool. John Mulaney is the modern court jester and a master storyteller.

My First Moot Court Tryout (Script)

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[RE: Nevsun Resources Ltd. v. Araya, 2020 SCC 5]

Hello, Justices, my name is [●], and I am here on behalf of my client, Araya, representing Eritrean workers. Our client seeks to uphold the decision to dismiss Nevsun’s motion-to-strike and have their appeal dismissed. Our client’s claim not only raises issues of procedural fairness in the domestic sphere, it also concerns the importance of Canada’s commitment to respecting the fundamental principles of international human rights.

In support of Araya’s position that Nevsun’s has not satisfied the “plain and obvious” test for striking the pleadings, I will be making 2 submissions today. My first submission is that, contrary to Nevsun, the question of whether international laws apply is not “plain and obvious” enough to suggest striking the pleadings. My second submission is that my client’s pleadings based on international torts (forced labor, slavery, cruel, inhuman or degrading treatment, and crimes against humanity)–given the possibility of either a novel tort or adopting international law–discloses a reasonable cause of action and chance of success.

To start, the threshold for it being “plain and obvious” that a claim has no chance of success is a high one. Justice Abrioux correctly identifies that the court could recognize either [1] the breach of customary international law or [2] a new tort based on adopting customary norms. Both of these options are consistent with the principle that international law is adopted into Canadian common law (unless there is contrary domestic legislation). The threshold for striking a claim as being “plain and obvious” of having no reasonable prospect of success is that the claim is “manifestly incapable of being proven” (Imperial Tobacco at para 17). This is an incredibly high threshold to meet because only well established questions of law are incapable of proof as they have already been answered.

It is important to clarify that adopting customary international law is also not manifestly incapable of proof just because it is possibly a novel claim. As the Court noted in Imperial Tobacco, “The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.” (para 21) Given the facts of this case, there is clearly a legal gap to be explored–an arguable claim–and the question of whether it is incapable of proof is yet to be decided. Until this is decided and the gaps are fully filled, it cannot be struck as having no reasonable prospect of success.

In the same vein, turning now to Canada’s commitments to international principles and this giving space to the possibility of hearing new torts. It is crucial to recognize the facts of this case cut to the core of the doctrine of jus cogens. (E.g. contract, labour, and admin law are accepted without proof.) Crimes against humanity, like slavery, are well established prohibition and violates one of the most basic human rights. My client was subjected to “violent, cruel, inhuman and degrading treatment.” They were “beaten” until they lost consciousness, “left in the hot sun” for over 12 hours, and had their families threatened if they sought remedy. Such acts “shock[s] the conscience of humanity” (SCC, quoting Bassiuni, para 124). Still, a novel claim of recognizing a new domestic tort is not the only way to proceed–alternatively, we can focus on international laws applying directly in virtue of Canada’s commitments to them.

These norms are not only rooted in the common law (in adopting international norms), but also in the foundation of Canadian public policy. As Laane [1949] (SCC, para 46) showed, the Court is reluctant to enforce decrees contrary to Canadian public policy, so the Courts should all the more adopt international norms consistent with Canadian public policy. There are no international customs prescribing the motion to strike (as Nevsun may argue), but there are international customs prescribing the investigation of my client’s claim.

In conclusion, our client submits that Nevsun’s motion to strike (and their subsequent appeal) be dismissed with costs. This case requires a look into how we understand procedural fairness in the context of the commitments Canada shares with other international powers. At the minimum, we must recognize that some violations to human rights are unacceptable too all and calls for legal action. Subject to any questions, these are my submissions. Thank you, Justices.

Conan O’Brien and Universal Humor

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There is a lot that is unique about Conan, but some notable aspects of his career are his longevity and global reach. I don’t think that’s a coincidence. He’s Harvard educated, knows his history, wrote on The Simpsons, stumbled into Late Night, and has been in the game for a long time and he keeps going, growing, and expanding. From Korea to podcasts, he’s a case study of someone who made a career of silliness.

Play and silliness is universal. You might call it corny, hacky, or lame. But he taps into the universal silliness that’s cross-cultural and perhaps cross-historical. His vaudeville-like physical humor is childlike and pure. However, he is witty and smart. He’s a professional who works hard and plays harder. He is sarcastic and he has a jaded, dark side to him. He knows all the tools of a good stand-up comedian in virtue of his vast experience. Yet what is remarkable about Conan is his willingness to be silly.

Silliness can be thought of as intentionally looking like a fool. We all do it from a young age and it can be seen among other higher-order primates. It’s playing a role, acting stupid, or being the outlandish clown. It displays an invitation to play and jest with others, and it’s the most basic form of interpersonal entertainment. Silliness can function as a signal to others that you aren’t looking to be combative, you want to neutralize the situation, and you want to engage in play. It’s a form of conflict resolution and social bonding, but it can also be inappropriate in certain social circumstances. For instance, it might be a faux pas to be overly silly at a funeral because the sacred and the solemn should not be undercut by the silly.

Some people might not find silliness funny per se. However, arguably all humor is an evolution of this primitive notion of silliness and play. We might look for more sophisticated forms of humor in the form of wit, wordplay, or deep observations; however, a carefully constructed joke is still a form of silliness. The silliness might deal with topics of the absurd and the ironic, but it still points out the silliness.

What is notable about Conan’s silliness is that it is mainly self-directed, thus, self-deprecating. Contrast this with the “cool” stand-up comedian that takes themselves too seriously to be self-deprecating: there’s a pretense and superiority that is at the opposite end of silliness — such people seem to be communicating socially exclusionary behavior and keeps others at arm’s length. Silliness brings people in. It brings everybody in to share in the joke of his foolish clown act.

“Bleached Out” Law Students

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[This essay was submitted for Osgoode’s “Ethical Lawyering in a Global Community” course in 2019-2020.]

Introduction

Recent conceptions of legal professionalism push back on the archaic models of professionalism which “bleach out” an individual’s gender, race, class, and arguably all the distinguishable parts of an individual’s identity. (Wilkns, 1998, p. 1) The focus on this essay is to highlight how this “bleaching” happens from the beginning of one’s legal career – that is, as a law student. I argue that the lived experiences of law students provide a unique standpoint in understanding the part of “professional bleaching” which fades an individual’s authentic self. Although some sorts of self-expression may be inappropriate as a “professional,” there are appropriate forms of self-expression, integral to one’s identity, which are discouraged in law students.

Lived Experience

In my first networking event at law school, I immediately felt the need to put on a façade. As a visible minority, this was not entirely new. I knew the drill: cover my tattoos, take out my piercings, dress in neutral colors, and enunciate every word. But there was something distinct about what I chose to present on this occasion. I was standing in a room full of powerful lawyers who could make or break my future. The difference between our social standings was pronounced, but what was even more striking was my anxiety over being ostracized. I had to play it safe and leave a part of myself at the door. I had to prove that I was like them, and discussing global politics proved that I could think like them. I became somebody else because I thought that is what a professional ought to do.

To be branded “eccentric” or “quirky” have different connotations depending on where you are on the professional hierarchy. There was a remarkable contrast in the social behavior between the students and professionals. My peers were equally nervous, tense, and uncomfortable. Overhearing their conversations, the personas projected was so different from the people I knew. With slight variations in their rehearsed lines, they were beginning to look “almost purely fungible.” (Wilkins, 1998, p. 1) In contrast, I noticed that the senior associates and partners could be the most authentic. They could curse and be crass, they could project a cynicism and indifference, and they could be whoever they wanted to be. While those in power had the privilege of being their authentic selves, I was clumsily trying to be my “professional self” (Wilkins, 1998, p. 1).

Analysis

This issue of personality “bleaching” in law students is just a symptom of a more malicious issue of professionalism being used to “exercise power and exclusion based on gender, race, class and religion.” (Backhouse, 2003, P. 2-2) The link is evident with a closer look at the norms generated by conceptions of professionalism largely held by “the white, Protestant, wealthy men.” (Backhouse, 2003, p. 2-7) The norms generated in these circles certainly exclude on the basis of gender, race, and class, but a corollary of this is that they exclude associated forms of self-expression. Such biased norms are intuitive upon reflection: some music genres become more “appropriate” than others, genders dictate athletic interests, and a particular vernacular indicates levels of intelligence. These attitudes promote a bifurcation between our professional persona and who we really are. It makes compartmentalizing our “moral deliberation in the spirit of robust role-differentiated behavior” come naturally; indeed, we do so at “a significant personal and social price.” (Farrow, 2008, p. 74) This issue fosters an unsustainable view of professionalism whereby showing authentic selves is discouraged.

The suggestion here is not to throw away all professional decorum; certainly, there are some virtues associated with archaic conceptions of professionalism, like respect or competence. What is problematic is conflating ethical superiority with the archaic highbrow norms associated with professionalism. You are not a better person for listening to Bach over Tupac. Professional codes of conduct go too far when they thrust a particular identity on the individual so they conform to the norms of those in power. A part of having a sustainable professionalism that “takes seriously the broad range of voices and interests” (Farrow, 2008, p. 56) is a dimension of freedom to fully express the diversity of individual personalities.

Conclusion

The existing conceptions of professionalism infected by “power, exclusion and dominance” (Backhouse, 2003, p. 2-2) are especially harmful for law students. Students are the vulnerable trainees of the profession relying on the graces of those powerfully established in the profession. The standpoint of the law student sheds light on the significance of this issue for the profession at large. There are subtler forms of self-expression (embedded in gender, race, and class) which are stifled in the name of professionalism. Navigating through the profession and developing a sustainable notion of professionalism is difficult for all law students, but a sustainable conception of professionalism must resonate with self-expression and an individual’s authentic self.

It is incumbent on those fortunate enough to be in positions of power to help alleviate this issue. Disruptions to the norm should not be thought of as “antagonistic zero-sum games” (Farrow, 2008 p. 84), and the scope of what is “appropriate” for a professional must be deliberately expanded. If the aim is to have a generation of lawyers motivated to act ethically, it is necessary to create a space for people to be themselves.

Comedy Case Study: Bill Burr

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Bill Burr is not for everybody, but here I’m hoping to shed light on why you should appreciate him a little bit more. He has gained some mainstream success in the last decade – for his roles in Breaking Bad, F is for Family, and his Monday Morning Podcast. He is sometimes described as a “comedian’s comedian,” meaning he’s acquired the respect by his peers for his comedic technique and craft. Let’s take a closer look at the kinds of techniques he employs and executes as a comedian.

First: a brief background. Bill Burr attributes his comedic technique to his tenure at the Comedy Cellar, a comedy club in Manhattan where many of the top New York comedians gathered. Here, he claimed, his fellow comedians (like Kevin Hart, Patrice O’Neal, Jim Norton, Rich Vos) harshly critiqued each other for hackneyed and cliché material – making each other sharper and better comedians – like a sort of peer review process. Moreover, Bill Burr performed all over America for a variety of crowds, and this made him into the comedian he is today.

Next: comedic style or comedic voice. The first impression you’d probably get is an angry Bostonian – the typical, dummy bro-dude with a fed-up, old man energy. He rants about a variety of subjects, including sports, relationships, and politics. Notably, he is honest and genuine, and he explores topics he is interested in or passionate about. This ethos of anger and authenticity is something we can all relate to.

Now, most importantly: comedic technique. Let us put aside the general principles of comedy (for now) and focus on what Bill Burr does really well. He can manipulate the audience’s emotions and reactions – first you’re against him and then you’re with him all the way.

More specifically, Bill Burr starts with a ridiculous or controversial premise that gets everybody’s attention – he creates and builds up tension. The audience is uncomfortable and wondering what will happen next. Next, he explains in an exaggerated or self-deprecating way (admitting his ignorance), and the audience joins in on the absurdity and they’re back on his side. He keeps pushing (adding tags), and the audience relates to his perspective and connects with his humor. First the crowd is against him, and then he triumphantly gets them on his side; rinse and repeat. He’s playing tug-of-way with the audience, the up and down, like a roller-coaster, making for a fun and entertaining ride.

What makes Bill Burr so special is that under all the sarcasm and mocking is a unique message. He has a specific point of view which he draws from instead of some vacuous cynicism, and you get to see the world from his perspective. Authors, musicians, movie writers, and Youtubers all try to communicate their point of view and how they see the world. Bill Burr effectively conveys his anger, confusion, and bitterness towards the subjects he covers. Even if you don’t agree with him, even if you know his facts are off, you see where he’s coming from and you empathize and connect with him. In this, he challenges you, changes you slightly, and gives you a new way to looking at the same old subject.

A Law Student’s Guide to Online Classes

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I’m a law student doing the whole school online during a pandemic. I am going to give you some tips. This isn’t going to be the Linkedin, I worked 80 hours, ran 3 marathons with my intermittent fasting children, and finally achieved my dreams being the CEO of middle management. We get it: just say you can’t find any meaning in your life and you regret your choices, like the rest of us. Stop shoving your 5 AM cold showers down my throat; I know you’re sleepy and uncomfortable. If you’re just starting school, you’ll be nervous about how things will be. How am I supposed to skip class and get drunk for fun when there are no classes to skip and you drink to… feel something, anything?

Schedules: this time, pretend you’re a CEO, and you’re your own personal assistant. Your personal assistant has to schedule everything you have to get done in the day and push you onto the next task. Mr. President, you can’t spend half an hour on the toilet scrolling through your phone. This isn’t easy. You have to audit your time and see where you’re hemorrhaging minutes. Then recalibrate and schedule again. But don’t overdo it. You know, live a little. Find the structure that’s just right, goldilocks. And you’ll be on your way to not feeling the existential dread your own psyche.

Next, the fundamentals: sleep, food, exercise… Anybody tries to take these away from you, I give you permission to vomit in their stupid face. Stop fetishizing all-nighters. It’s like being a boxer proving how hard they can get punched in the head – it’s hit and not get hit. I’ve been there. I mismanage my time and procrastinate because I have issues with motivation. Prioritize sleep, practice some sleep hygiene, stop treating sleep like it’s Keyser Soze. Diet and exercise are also key. Take a walk, eat carrot, try not eating Doritos dipped in cream cheese, no matter how much you hate yourself. Pick up some other good habits too: journaling, meditating, or defunding the police and eating the rich.

Work spaces. You’re going be sitting all day, so get yourself a nice chair and a desk to sit at. This way you can be productive while you mute and turn off the camera of your zoom meeting, and get some actual work done. Make sure you have a dual monitor. If you work on a laptop: don’t. Personally, I’ve had more monitors than I’ve had lovers, and I fully intend to keep it that way.

The final step is one even I, whose been social distancing for about the last 10 years, still struggle with: you have to find ways to be social. Now, don’t break social distancing protocols. Call your friends, go for a walk, or make helpful videos that are a thinly veiled guise for your mental breakdown that, frankly, was overdue.

The Function of Comedy

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[This post is based on a YouTube video I made.]

Even if you’re not a comedian, (or just pretend to be one) you sometimes play the role and others around the play the role as well. It plays an important function. First, it can act as a social lubricant. Think of a scenario where the atmosphere is palpably tense and awkward, and somebody cracks a joke and it immediately lightens the mood in the room. Comedy helps us bond and interact – it breaks the barrier of the strange “other.” According to one estimate, we are thirty times more likely to laugh with other people than when we are alone. (Provine, 2000, p. 45) Think of the laugh tracks on the Big Bang Theory. It’s not a funny show. Fight me.  Comedy can ease charged situations and relieve tension. More examples: announcing bad news, apologizing, complaining, warning, criticizing, commanding, evaluating…  Second, and related, it can establish trust. Being funny is an attractive quality, especially in a romantic partner. Laughing gives pleasure – and a lot of it! So ugly people, listen up. Moreover, the requisites to being funny – like being witty, relatable, and having a personality – shows intelligence, creativity, adaptability, and empathy. Not everybody can be funny, and not everybody can make you laugh – if they can, then there’s already a special bond formed.

More austere, comedy can be useful for education; specifically, philosophical education. Let’s take a closer look at the modern stand-up comedian. They both report a particular point of view and a set of experiences, and they note puzzling ones. Like the observational comic: “What’s the deal with airplane food?” They both try to find some common ground or shared experience, then they analyze this by stepping out and looking at it from a different perspective.  They’re both generally contrarian and don’t abide by accepted customs or traditions, but they critique and analyze it (ironically, satirically, etc.). Sometimes the quickest way of realizing something is wrong is through humor (e.g. south park). They both pay close attention to language. A good joke is economical and uses as few words as possible; moreover, a joke must use exactly the right words to express an idea clearly to an audience. They teach complex ideas and present them in plain English, sometimes through indirect communications – that is, the lesson and subtle and not in-your-face. They both seek to clarify confusing things and find new truths and insights. A comedian often looks at another good joke and thinks, “Why didn’t I think of that, that’s so obvious.” Creativity and cleverness are prized.  Other times, comedians aren’t so profound: sometimes jokes are just for the sake of getting a laugh and are absurd in the sense that they have no purpose. “This seems plainly absurd: but whoever wishes to become a philosopher must learn not to be frightened by absurdities” (Russell, 1912, p. 31). Philosophy should be more for the people. It’s been removed to academics and so obfuscated that it has little relevance for the general public. Comedians try to break that boundary by making these general philosophical ideas more palatable and enjoyable to consume. This relationship between philosophy and comedy isn’t so far-fetched. Because I said so.

A unique feature of a good comedian is their comedic voice. Their stage persona – their je ne sais pas. It’s what makes a great actor, story, scene, song, or piece of art. It builds a certain relationship with the audience, and they connect strongly to the audience in a real way. In rhetoric they call it “ethos,” and it’s what makes a great speaker convincing and believable. 

Momentum also ties into this. Typically, comedians have to have a strong opening joke in order to build this relationship of trust with the audience. After we laugh at somebody’s joke, we feel something towards them. The comedian can use this to propel their other jokes on the momentum of their previous successful joke; however, if a joke is unsuccessful, they lose credibility and lose the momentum. They have to build the trust again and get the audience on their side.

Theories of Humor

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[This post is based on a YouTube video I made. Please don’t look for it.]

These theories try to answer the question: what makes something funny? Before we go any further, we should make a distinction between a strong version of a theory and a weak version of a theory. For instance, if we ask why people make video, a strong answer might be, “because they want attention.” The answer is strong because it says that people only make videos to get attention, and this is the only reason anybody ever makes videos. This is a “strong” claim and it seems too strong to be right. A weaker answer might say something less ambitious like, they want attention, but that’s only one part of it. Maybe they also want validation and didn’t get enough hugs growing up, dad.

There are traditionally three theories on why we find things funny: the superiority theory, the relief theory, and the incongruity theory.So instead of enjoying jokes and having a good time, let’s analyze it to death and do some homework on them.A strong version of each theory would take the particular theory and think that the highlighted feature is essential to what makes something funny; on the other hand, a weaker version of a theory would say that the particular theory only captures one aspect to what makes something funny.

The superiority theory is simple: it says that we find something funny because we feel superior to it. It’s somewhat sadistic and has some sort of elements of schadenfreude. That’s a fancy German word for harm-joy. This can account for the bully laughing at his victims, a crowd laughing at somebody’s embarrassment, or laughing at a celebrity roast. It might include less malevolent cases, like finding amusement in a child’s naiveté or an animal in a silly costume. More interestingly, this theory can also account for more subtle things, like self-deprecating humor, irony, and esoteric jokes. Like now, I’m making a complete fool of myself. Luckily, I don’t have to show my face.Self-deprecating humor pushes the fact that I am inferior, and I want you to mock and laugh at me; of course, often this is done in an ironic way, but the irony may further reinforce your feeling of superiority. This seems tenuous, but the feature of irony most relevant here is that not everybody understands the irony of the joke. For instance, if I’m being ironic in the way I’m presenting myself as a buffoon, then part of the humor comes from you picking up on the irony, whereas not everybody would pick up on that nuance. This is a hallmark of esoteric jokes: the, “I know what you’re talking about; I’m so smart, la-dee-da.” Personally, I hate this type of humor because it’s necessarily exclusive and a bit malicious. “Ou, look at what I know and those stupid other people don’t know. If you don’t laugh, you’re stupid.” Let me add that the superiority theory, a strong version of it at least, isn’t very sensitive to ethos, or at least the importance of humility, empathy, and sympathy in comedy – that is, the connection between the joke delivery and the audience. The disconnect between the superior and inferior is estranging, and even between those who are in the superior category, the general atmosphere is showy, combative, and arrogant. Superiority might be one part, but it’s not stable enough to account for the whole of why we find some things funny. Unless you’re stupid – I’m right, okay? Moving on…

The relief theory says that we find things funny because it helps us relieve some tense feelings. The laughter might help release a general anxiety, a nervous energy, or some confusing and ambivalent mix of emotions.This theory is suggestive of some of the beneficial aspects of finding things funny: it can discharge negative emotions almost cathartically, and it can have this effect in tense social or interpersonal situations. Think of the times you laughed at an absurdly inappropriate time (to therapeutic effect), or the joke cracked at the really tense meeting, or giggles between two lovers. This theory also explains why the traditional structure of a set-up and punchline joke is so effective: there is some anticipation and buildup following some relief. I think this theory in combination with the next theory provides the most comprehensive account of why we find things funny

The incongruity theory says that it’s not the relief that makes something funny, rather it is the conflict or contradiction of ideas that makes something funny. In this light, if we look at the structure of a joke, the set-up creates an expectation and the punchline violates this expectation through some sort of misdirection or absurdity. The incongruity can be conceptualized in different ways. Immanuel Kant conceived the incongruity between our expectations and our experience, and others have followed suit by saying that the incongruity is based on categorical errors in reasoning or flaws heuristics. Schopenhauer conceives the incongruity in our sense perception of things and our abstract rational knowledge of those things.

Hard Cases and Humble Beginnings

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[This essay was submitted for Osgoode’s “Ethical Lawyering in a Global Community” course in 2019-2020.]

Introduction

Some cases in legal ethics seem impossible to resolve and lawyers sometimes choose the best of two bad options. These cases are the “hard” cases that are liminal and are fraught with fuzzy grey zones. This paper takes a closer look at these ethical[1] hard cases and explore how the moral agent (the lawyer) ought to approach them. I argue that one particularly dangerous attitude to have is laxity towards these hard cases, and that the main danger is proceeding with blind spots in one’s moral reasoning. I further tease out some possible ways of addressing one’s blind spot through a communal approach and then explain some implications of this approach for lawyers actively navigating through hard cases. It is crucial to avoid these pitfalls in facing hard cases and it is equally important to cultivate virtues like intellectual humility and diligence.

What are “Hard” Cases?

Hard cases in legal ethics are often the starting point for discussions on what lawyers ought to do and what makes certain actions right. One particularly useful way of presenting hard cases and drawing out ethical questions are through dilemmas. Dilemmas usually take the form of having to choose from two options whereby each option draws out a particular moral intuition or principle. For example, you might be confronted with a dilemma when you are presented with the choice of representing a client you know to be guilty. On one hand, you may believe that you cannot in good conscience be associated with guilty persons; on the other hand, you may believe that even guilty persons deserve legal representation. Ethical dilemmas represent only one kind of hard case and they function to abstract away certain facts to illicit specific intuitions.

Hard cases in legal ethics are often highly fact driven and it is difficult to illustrate all of the different options and actions one ought to take.  For example, the Catholic Church’s priest sex abuse scandals present a spectrum of hard cases for lawyers depending on how it is analyzed.[2] A basic way of understanding this might be in terms of an ethical dilemma in the form of whether a lawyer ought to take them as a client or not. But what makes this a hard case s the fact that there are deeper issues than choosing from two options. Perhaps you think that the morally right action is to represent them, but that is not the end of the story. You are then faced with further questions of how to represent them and what sort of ethical principles guide your subsequent steps. There are indeed appropriate times to engage in “secrecy, defensiveness, and rights-maximization” as well as appropriate times to engage in “compassion, vulnerability, and risk-taking.”[3] The initial ethical dilemma does not capture the full range of issues presented in the hard cases of legal ethics. Lawyers must face hard cases by further spelling out the hypothetical consequences, outcomes, and implications. Isolated ethical dilemmas might help tease out some biases, motivations, and force one to be critical of psychological dispositions; however, hard cases in legal ethics must also scrutinize to the relation each discrete choice has on other choices and further look at the overarching effect.

One mark of hard cases in legal ethics is in the complexity of how one ethical decision relates to other ethical decision and the emergent sum of decisions which is scrutinized by others. For instance, choosing not to reply to one email is a discrete choice and within that moment it might be ethically justified; however, circumstances can change and choosing repeatedly not to reply to subsequent emails can result in the emergence overall effect of stonewalling or failing a duty to communicate. Discerning what kinds of action is appropriate at each step is what makes the choices hard, especially when the circumstances change and previous deliberations do not quite fit with the next. Not only is the next ethical problem a moving target, there are higher level considerations where the web of ethical choices is considered in its entirety. The levels of complications can be overwhelming and one can be left with some paralysis with what action is the “right” one to take. This is what makes “hard” cases hard.

The Dangers of Ethical Laxity

By definition, there are no easy answers to hard cases, so the next question is about the correct attitude to have towards ambiguity. To start, we can try to answer the question in the negative: an incorrect attitude to have is being lax. Ethical laxity can be understood to have a dimension consisting of plain intellectual laziness. Trying to work out and carefully weigh each reasonable justification can be laborious and taxing. It can be easy to fall victim to the inertia of following norms instead of engaging in critical analysis. Even simple decisions in where to get a coffee is multifactorial in that there might be good reasons for going to Shop A and good reasons to go to Shop B – for instance, Shop A might offer a more complex flavor whereas Shop B offers a cheaper price, but you are a loyal customer to Shop A while you also need to cut down on frivolous purchases. Choosing a coffee shop can be mentally taxing. These habits can translate to when we shirk the labor involved in moral deliberation and instead “become tools for facilitating morally problematic conduct.”[4] In the legal context, it is similarly tempting to avoid active deliberation, especially when it is easier to adopt the “client’s moral perspective without engaging in the moral dialogue necessary to confirm that perception.”[5] Hard cases must not be approached flippantly rather there needs to be a proper reverence for their complexity.

Proper respect for the complexity of hard cases sheds light on another dimension of ethical laxity – that is, ethical arrogance. More specifically, a respect for the complexity of hard cases requires a level of intellectual humility, especially with respect to the boom of psychological research suggesting human susceptibility to errors in reasoning. These blind spots in our reasoning can perpetuate a false confidence or overestimation of our abilities to navigate through hard cases. For example, a genius lawyer might believe that her talents in law translate to deciphering hard cases in legal ethics, but her lack of ethical training may in fact leave her with a superficial analysis. In this example, the lawyer has a blind spot in her reasoning that her legal expertise translates into ethical expertise. Ethical laxity in the form of arrogance can stop the deliberative process too soon and result in the same flippant lack of engagement with hard cases.

It is hard to fault somebody for falling victim to errors in reasoning, but intellectual laziness and arrogance towards ethics is condemnable. Errors in reasoning might innocently result from having a particular education or are contingent upon mostly luck based external circumstances. For instance, my failure to acknowledge the efficacy of western medicine might stem from my lack of access to an education system which taught me the power of the scientific method. However, deliberately waiving away such blind spots in our reasoning when they are apparent to us is unacceptable. The harms of ignoring ethical blind spots are clear, for instance, in the Canadian history of the legal profession and sexual assault. There were (and still are) blind spots about sexuality and sexual violence in courtrooms which waived away the relationship between “sexual assault, gender hierarchy, and shame.”[6] There is an air of laxity in questions like, “Are not defence lawyers, Crown attorneys, and trial judges simply doing their jobs within the parameters of a legal process that is unavoidably harmful to its participants, and to sexual assault complainants in particular?”[7] The legal processes around sexual assault are vulnerable to the same ethical blind spots because the constituent parts of the legal system are individual lawyers. Moral development in these areas can be achieved through rigorous analysis and the unique lived experiences of the victims which inform us of the oppressive structures we might be blind to. An outside, novel perspective is crucial for spotting blind spots.

Patching Blind Spots

            At this point, an objection might be raised in that a set of rules for professional conduct may draw attention to or completely patch individual blind spots. For instance, if there is a prevalent blind spot towards being sensitive to gender pronouns, then a possible solution might be to implement prescriptive rules to use proper gender pronouns. This objection, however, might miss the purpose of rules of professional conduct. The purpose of the rules of professional conduct is to offer general guidance for actions but not an exhaustive set of instructions. Allan Hutchinson notes that “it must be sufficiently general to provide a principled framework within which lawyers can orient their general behaviors, but not so specific as to amount to a limited list of instructions.” The rules of professional conduct acknowledge the complexities of hard cases and only give a limited set of parameters in “situations of moral soul-searching.”[8] They do not solve hard cases for us.

            More concretely, we can take a closer look at the rules of the Law Society of Ontario (LSO). Take for instance Chapter 5: we see what it means to be an advocate, namely representing the client “resolutely and honorably within the limits of the law.”[9] This has some guidance for behavior and applicability to a variety of cases, but there remains an ambivalence in what the right action is when applied to specific facts. For example, some have understood this rule as justifying the view of zealous advocacy or a lawyer being a “hired gun,”[10] yet others have understood this to mean the opposite and vehemently disparaging such approaches to legal practice. This debate is certainly a hard case and there is no clear answer when looking to the rule. But the very function of the rules is to guide in decision making and are intentionally formulated to be silent towards hard cases. The rules of professional conduct should not be thought of as a program which we can follow on autopilot; rather, they should be thought of as a guide for drivers on how to not swerve off the road.

            Since rules of professional conduct provide minimal support in addressing individual blind spots, it is important to rely on the feedback of others to recognize and address one’s blind spots. First and foremost, lawyers must look to their peers and try to understand alternative perspectives. Hutchinson enumerates some unique ethical issues within the context of a self-regulated profession, as he notes, “the regulation of lawyers is too complex and technical to be understood by non-lawyers; lawyers, by virtue of their training and experience, possess such knowledge and insight.”[11] These are useful points to keep in mind when considering the communal aspect of ethical deliberation and individual duties “to regulate the ethical activities and professional practices of other lawyers.”[12] Peers provide an informed perspective many of the nuanced issues unique to the profession, but they are not the only perspective to look at in addressing blind spots. 

There is a danger of being too insulated within the profession and this narrow viewpoint leading to further blind spots, so a crucial avenue of data must come from perspectives outside of the profession. Incorporating a diverse set of perspectives involves being sensitive to ethical norms and ways of thinking from other parts of the world. In this spirit of plurality, we can look to how the contingencies of circumstance can change views on “power dynamics or options placed on the table.”[13] Returning to the earlier illustration of approaches to traditional medicine, somebody approach western medicine might be more sensitive to the power structures pervading scientific institutions. A pluralistic lens provides just the kind of critical outlook that is less concerned with “substantive outcome or political labels.”[14] It takes the starting point at hard cases cause conflicts in how we ought to act, that is, “instead of trying to erase conflict, seeks to manage it.”[15] Indeed, in the same way pluralism towards culture acknowledges that the ways of understanding the world in “the real world is far messier,”[16] we must to strive to deconstruct our own neatly packaged solutions to hard problems. It is imperative that we “identifying new mechanisms, institutions and practices for structuring such interactions, and evaluating the strengths and weaknesses of the regimes that emerge.”[17] The global diversity reminds us that we are not the final arbiters to moral truth and shed light on our blind spots when analyzing hard cases. 

The Plank in Our Eye

            The complexity of hard cases and the ways to properly approach them can be daunting, and it is important to carry an attitude of humility towards others who are wrestling with the same issues. We cannot hypocritically condemn others for what appears to us as a clear violation; rather, we should reserve judgment and take a caring approach to understand their perspective along with the range of factors they may face below the surface. On first blush, all this might seem trite and common practices of courtesy, but research confirms that we often only pay “lip-service” to such moral mandates.[18] A lack of empathy and care can warp the way we judge others for moral failures by demanding more of others than what we demand of ourselves. A good example of this is in Groia.[19] This case involves a lawyer engaging in “sustained and sarcastic personal attacks.”[20] The immediate intuition might be that this is a clear violation of the requirement to be “courteous” and “civil.”[21] It is easy to look at the violation in isolation. However, the Supreme Court of Canada, siding with the lawyer, was not overly concerned with the sanctity of rules in themselves, rather they carefully weighed the implications and context-specific nature of the case. If we are overly focused on violations of rules, we can miss all the other relevant factors involved in another person’s subjective experience of the issues. It is easy to distance somebody as the “other” and forget that they face the same complications, struggles, and constraints as we do.

            Instead of looking to the rules to point out violations in others, we should instead strive to collaboratively developing virtues for the legal profession. There is a danger to understanding rules of professional conduct as a strict set of commands to be obeyed. The vision of the hypothetically ideal lawyer of good character should not be the lawyer who worships the rule but the virtuous lawyer. From this angle, the rules are conducive to the flourishing of a virtuous lawyer within the domains of “legal controls,” “professional regulations,” “market forces” and “professional culture.”[22] For example, Chapter 2 of the LSO can be read in this light to promote the virtue of integrity. The lawyer has a duty to “discharge all responsibilities […] honorably and with integrity.”[23] The virtue is meant to have the effect of instilling the trust of clients and the general public while giving lawyers the freedom to develop this virtue in a broad range of ways (thus, their private matters are not stringently regulated). Moreover, there are broader aims of promoting the pursuit of justice and fostering the virtue of seeking fairness or having the wisdom to bring about justice. Rules of conduct should not aim at blind obedience, rather they should “takes seriously the broad range of voices and interests”[24] involved in deliberating on hard cases.

The upshot of all this should be an attenuated, equitable approach to rule violations. Instead of looking for moral perfection, we should be looking for the ability to navigate through hard cases in such a way as to suggest virtuous character. The suggestion is not to take the teeth out of ethical review boards, but to ask them to acknowledge the hard cases and be wary of fallacious comparisons to some ideal moral paragon of what a lawyer ought to be. What flows from these recommendations is an idea that casting judgment should not be easy lest we pay a “significant personal and social price.”[25] Hard cases are universally challenging and it is important to take seriously the “variety of potentially competing interest[s].” [26] By way of prescription, there needs to be a focus on educational aspects rather than punitive measures. Indeed, “as much as we love to point fingers,” it just places another “stone’s weight of blame” when it is often much “too late for blame to make a difference.”[27] By taking a punitive approach, “we do nothing to prevent such disasters from happening again.”[28]

Bibliography

Paul Schiff Berman, “The Evolution of Global Legal Pluralism” in Authority in Transnational Legal Theory: Theorising Across Disciplines (Roger Cotterrell & Maksymilian Del Mar eds., 2016) 151. 

Elaine Craig, “Sexual Assault and the Legal Profession” in Putting Trials on Trial (McGill-Queens University Press, 2018) 

Trevor Farrow, “Sustainable Professionalism” (2008), 46 Osgoode Hall Law Journal 51

Allan Hutchinson, Legal Ethics and Professional Responsibility, 2d. ed. (Toronto:  Irwin Law, 2006)

Thomas King, “Afterwords:  Private Stories” from The Truth About Stories (Toronto:  House of Anansi Press, 2003)

Robert K. Vischer, “Legal Advice as Moral Perspective” (2006) 19 Geo J. Legal Ethics.

Jurisprudence

Groia v. Law Society of Upper Canada, 2018 SCC 27.

Statutes and Regulations

Rules of Professional Conduct, LSO 2014.

[1] Although some writers have made technical distinguish between “moral” and “ethical,” I use them interchangeably.

[2] RK Vischer, “Legal Advice as Moral Perspective” (2006) 19 Geo J. Legal Ethics at p 7. [Vischer]

[3] Ibid.

[4] Vischer, supra note 2 at 7.

[5] Vischer. supra note 2 at 24

[6] E Craig, Sexual Assault and the Legal Profession, (Montreal: Queens University Press, 2018) at p 9. [Craig]

[7] Ibid at 7.

[8] A Hutchinson, Legal Ethics and Professional Responsibility, 2d. ed. (Toronto: Irwin Law, 2006) pp. 13-14. [Hutchinson]

[9] Rules of Professional Conduct, LSO 2014, C 5.1-1. [LSO]

[10] Even the LSO commentary lends some support to this view by suggesting that the adversarial system generates no obligation to help the other side if it hurts your client’s case.

[11] Hutchinson, supra note 12 at 8.

[12] Ibid.

[13] PS Berman, The Evolution of Global Legal Pluralism, (Cheltenham: Edward Elgar Pub, 2016) at p 154. [Berman]

[14] Ibid at 164

[15] Ibid at 166

[16] Ibid at 181

[17] Ibid at 188

[18] Hutchinson, supra note 12 at 10.

[19] Groia v. Law Society of Upper Canada, 2018 SCC 27 at para 155.

[20] Ibid.

[21] LSO, supra note 13.

[22] Hutchinson, supra note 12 at 11-14.

[23] LSO, supra note 13 at 2.1-1.

[24] T Farrow, “Sustainable Professionalism” (2008), 46 Osgoode Hall Law Journal 51 at p 56. [Farrow]

[25] Ibid at 74.

[26] Ibid at 100.

[27] T King, The Truth About Stories (Toronto:  House of Anansi Press, 2003) at pp 156-7. [King]

[28] Ibid at 160.