Author: chaowdur

Principle of Arbitrariness: Literature Review #1

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Context

The purpose of this literature review is to survey the research on “arbitrariness,” broadly construed. This includes an abstract view of arbitrariness as a philosophical concept. While formal definitions are elusive, the general approach is to look for a “family resemblance,” or the overlapping ideas and functions that construct the concept of arbitrariness. Nevertheless, the anchoring point for developing a conception of arbitrariness will be rooted in Canadian jurisprudence; more specifically, as a fundamental principle of justice (pursuant to s. 7).

By way of overview, three observations are useful to keep in mind. First, in Canadian jurisprudence, the key cases are PHS (2011), Bedford (2013), and Carter (2015). However, Mary Liston[1] argues that Roncarelli (1959) significantly contributes to the development of conceptions of arbitrariness. [In my opinion, Liston is the best source for a sustained analysis of arbitrariness.]

Second, the philosophical literature hardly looks at arbitrariness as a concept in itself. Much of the discussion focuses on John Rawls’s notion of the morally arbitrary within his broader political philosophy. Other philosophers engage in a linguistic analysis of arbitrariness, which has some connection to the law insofar as statutory interpretation.

Third, US and international jurisprudence on arbitrariness often focuses on administrative arbitrariness and on arbitrariness in sentencing (mostly, on the death penalty). In this vein, there is a focus on decision procedure, bias, and empirical research in psychology and sociology.

Philosophical Conceptions

For Rawls, the original position is derived from the idea that morally arbitrary features (e.g. gender, race, social class) do not count for determining the requirements of justice. Political liberalism generally holds premises of the equal moral worth of individuals or Kantian respect for autonomy, and non-arbitrariness is required for these ideals to be realized. Brian Barry[2] builds on this by arguing that the contents of what is morally arbitrary is linked to equal opportunity (i.e. equal opportunity is the elimination of morally arbitrary determinants). Formal equality involves having equal access to social positions and there must be no arbitrary barriers to advancement.

Joseph Raz[3] understands an act of arbitrary power as “was done either with indifference to serving the purposes that alone justify use of such power, or with belief that it will not serve them.” Raz believes that arbitrariness is inextricable with the exercise of legal power insofar as there is a human element or a “subjective core.” For Raz, this kind of arbitrariness is problematic in a narrower set of circumstances, namely, when it interferes with a person’s dignity. Note that in contrast to Rawls, who seems to blur notions of arbitrariness with luck and inequality, Raz shifts the focus to individuals and their decision procedures.

Some philosophers of language[4] have analyzed arbitrariness as flowing from boundaries drawn in the vagueness of natural language. Language is thought to be arbitrary because the connections between words and what they signify can be vague; in these cases, it is entirely arbitrary how one assigns meaning.  This is ostensible a problem for legal interpretation and larger questions in legal theory (e.g. Dworkin, Fuller, Hart).

Canadian Conceptions

Canadian jurisprudence on arbitrariness is made explicit in PHS, Bedford, and Carter, but there are arguably significant developments made in Morgentaler (1988) and (as Mary Liston argues) Roncarelli. Although the definition of arbitrariness was unsettled in PHS, the “rational connection” test (i.e., a law is arbitrary if there is no rational connection between its objective and its effects…) was settled by the Court in Bedford and Carter. Similar (but different, per Bedford) to the proportionality analysis of s. 1, the idea is that the law’s interference must meet a minimum level of rationality, which is not a difficult for the government to meet.

A number of scholars note the tension with arbitrariness and the rule of law. Timothy Endicott[5] understands arbitrariness as the absence of justification for a decision except for the fact that the decisionmaker made it; for example, executives do not require justification justifications for adhering to judicial orders other than that it was a decision by the court. Alana Klein[6] makes similar observations in that arbitrariness and gross disproportionality are not explicitly tied to rule of law; instead, there is room for problematic subjectivity in the POFL analysis.

Mary Liston develops a reading of Roncarelli whereby a disregard for the rule of law is developed into four dimensions: “the overly broad delegation of discretion; the lack of institutional independence; the failure to give reasons; and the denial of access to justice.”[7] Justice Rand, championing the rule of law, notes that “no legislative Act can, without express language, be taken to contemplate anunlimited arbitrary power exercisable for anypurpose, however capricious or irrelevant, regardlessof the nature or purpose of the statute.”[8]

US & International Conceptions

US and international jurisprudence on arbitrariness largely focuses on arbitrariness review and incorporates empirical studies. For instance, in the context of US admin law, arbitrariness acts as a check against “irrational or discriminatory” decisions and filters out serious “analytic errors.”[9] The focus is on the subject in a position of power and their biases, inappropriate motives, or personal preferences (in a public role). This can be tracked through empirical methods – for example, arbitrary sentencing and looking at death penalty cases.[10] Indian common law also tethers arbitrariness to the rule of law and it is an instrument used to strike down illegitimate uses of discretionary power.[11]

Notably, a contrast might be drawn between the philosophical conceptions of arbitrariness and the empirically based conceptions which focus on psychological irrationality (of those in power). As Robert Goodin[12] suggests, discretionary powers gone awry lead to uncertainty, unpredictability, and insecurity.

[1] Mary Liston, “Witnessing Arbitrariness: Roncarelli v. Duplessis Fifty Years On” (2010) 55:3 McGill LJ 689.

[2] Barry, Brian. “Equal Opportunity and Moral Arbitrariness” in Julian Lamont, ed, Distributive Justice (Milton Park: Routledge, 2016)

[3] Raz, Joseph. “The Rule of Law and Its Virtue” in Robert L. Cunningham, ed, Liberty and the Rule of Law (College Station: Texas A&M University Press, 1979).

[4] Kompa, Nikola. “The Role of Vagueness and Context Sensitivity in Legal Interpretation in Geert Keil and Ralf Poscher, ed, Vagueness and Law: Philosophical and Legal Perspectives (Oxford: Oxford University Press, 2017).

[5] Timothy Endicott, “The Coxford Lecture Arbitrariness” (2014) 27:No. 1 Can JL & Jur 49.

[6] Alana Klein. “The Arbitrariness in “Arbitrariness” (And Overbreadth and Gross Disproportionality): Principle and Democracy in Section 7 of the Charter.” The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 63. (2013).

[7] Supra, note 1, at 696.

[8] Roncarelli v. Duplessis, [1959] S.C.R. 121 at 140, 16 D.L.R. (2d) 689

[9] Thomas J Miles & Cass R Sunstein, “The Real World of Arbitrariness Review” (2008) 75:2 U Chicago L Rev 761.

[10] David C Baldus, Charles A Jr Pulaski & George Woodworth, “Arbitrariness and Discrimination in the Administration of the Death Penalty: A Challenge to State Supreme Courts” (1986) 15:2 Stetson L Rev 133.

[11] Abhinav Chandrachud, “How Legitimate Is Non-Arbitrariness: Constitutional Invalidation in the Light of Mardia Chemicals v. Union of India” (2008) 2:1 Indian J of Constitutional L 179.

[12] Robert E Goodin, “Welfare, Rights and Discretion” (1986) 6:2 Oxford J Leg Stud 232.

Law School Exams

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Here is a guide to make the transition from university student (in whatever discipline) to law student a bit easier by focusing on the biggest dragon: the law school exam. Obviously, there is substantive law and brand-new content, but I am mainly focusing on the pedagogical elements.

Structure

Exams are awful. They’re often your entire grade and try to test you on your knowledge of everything in the course. They take the form of “fact patterns” or “issue spotting” or just a hypothetical scenario that forces you to apply your knowledge of the law. For example, Sally the scientist slips and breaks a beaker of blood over Jerry the janitor who is a temporarily hired employee from overseas…

The way some people look at it is to look for a fork in the road. This means that you can argue both sides, and the professor wants you to argue both sides. You have to show the professor that you know both sides. I can argue that Sally is negligently liable because she had a duty that she breached and she caused a harm to Jerry; alternatively, I can argue that she did not have a duty because the people who hired her as a scientist are not supposed to keep slippery floors. Here are some cases for one side showing rule X, and here are cases for the other side showing rule Y.

Mechanics

You need to type fast because it’s a time crunch. On top of that, you need to get use to exam pressure conditions. It’s so easy to get careless and miss something under pressure, and it’s hard to do your best thinking under pressure. Another way to put it is this: be comprehensive. Address every issue thoroughly, and don’t miss a particular way to address an issue. There are so many ways to tackle an issue, and here is the just tip of the iceberg of considerations: interpretation (plain meaning, original purpose, etc.), words compared to actions, standards of reasonableness, scope, application, rights, efficiency…

How do you get better? Drill past exams. Preferably your professor’s exam – you want to note patterns – but other exams are just as good for building up exam skills. You need to sharpen your eye to spotting issues.

Summaries

Exams are mostly open book meaning you’ll need a summary. Summaries are exactly like they sound: they summarize the material so you don’t have to look through your textbook. Well, you don’t have time to look through the textbook; in fact, you’ll barely have time to look at your summary. That’s why people have long summaries and short summaries and maybe even a super short checklist. You know how boxers say fights are won in the training camps; it’s the same thing here, you need to put in work so you’re thinking as little as possible during your actual exam.

You might come across a policy question on your exam that makes you write an essay. The temptation here is to “can” or prepare answers ahead of time. Professors will punch you in the face for this. Personally, it can be effective with a bit of luck. But luck is your enemy if you want consistent top performance. I like to prepare ways of structuring my answer with elegant ways of starting my sentences. Under a time crunch, I wouldn’t be able to come up with, “While expectation damages are the default remedy in contract law, the fact that in this scenario…”

Studying

You need to know the material enough that it’s second nature. You need to know it so well that you can use it in new and creative ways. This might mean knowing it cold or having it memorized. The exams are putting different puzzle pieces of the law together. You need to know the puzzle pieces in order to put them together. This goes beyond memorizing into the realm of comprehension.

Another important part of studying is going to class. You might say that the professor just says everything in the book. You’re wrong. This is where the mind games being: you need to ask why are they teaching this, and why did they choose this content, and why are they are focusing on this? Get into your professor’s head.

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.