The Comedy Cellar: Live from the Table - Consent

Episode Date: June 4, 2021

Jeannie Suk Gersen is a law professor at Harvard Law School and a contributing writer to The New Yorker. Myq Kaplan is a comic, his most recent album AKA is available now. 

This is live from the table, the official podcast of New York's world-famous comedy cellar, coming at you on SiriusXM 99 Raw Dog and on the Laugh Button Podcast Network. Dan Natterman here with Periel Ashenbrand, the producer. We have with us Mike Kaplan. Mike is a comedy cellar regular. He's a comedian. He also has an album out called AKA. That's his latest album.

His new album, I guess it just came out, Mike? Yeah, it came out during the pandemic. So the latest one possible. Does it have a lot of pandemic humor in it? Oh, no. I recorded it before. I recorded it in front of unknowing audiences about what would come in the future. But yeah, released in 2020.

We don't have Noam with us yet. He's late. Where he is, we don't know. Could be anywhere. He could be with Mila or Manny doing, you know, those are his kids, doing something with them. I don't know. He should be here soon. Mike, how long, on a related note, do you think pandemic jokes will still be doable? Oh, I mean, I have some that I don't think are doable anymore. You know, from like a year ago, you know, something, the current events from April of last year,

I think had like a limited shelf life, though maybe, I feel like it could be like a retrospective now, be like, you know, like what happened? I guess I have no idea what the future is going to hold. But I'm trying to get back to not just doing jokes about being afraid and in a room not leaving. I have a joke about the gyms being finally open in New York City, which is already outdated because they've been open for months. But the jokes, the joke still works for whatever reason. I guess I sell it.

I don't know how much longer I can do it. But I think the end is not, as far as that joke is concerned. Oh, yeah. I mean, I think... More general jokes about the pandemic? A couple of years. I mean, it's a major event. You know, I mean, look,

I mean, people tell jokes about, you know, I mean, Michael Jackson. I mean, that's a little stale, but they do it. Oh, yeah. Well, people do September 11th jokes, I guess. I mean, it's a significant thing in history. So I guess you'd be able to do it for, you know, depending on the joke. Yeah, I think it depends.

Is it the same joke? You know, like when Hillary Clinton was running for president, I feel like some comedians dusted off their Monica Lewinsky jokes because they had a new way. Oh, the name Clinton's in the news, you know. So I think if you're writing new jokes, as you are, as most comedians are much of the time, you can write a great new joke about, you know, your Jim Gaffigan joke about seeing the movie Heat five years after everybody else did and wanting to talk about it then. I feel like that could happen for any joke topic. You know, you'd be like, oh, wow, I just came up with a great one about the Truman Show. you know you and how connected you are to it it doesn't ha you don't only have to tell jokes about what's happening literally right now as far as the truman show is concerned i think that might

be pushing it a little bit simply because i mean gone with the wind you can talk about because it's uh it's you know it's a part of the american landscape and and and still controversial but the truman show i think has been largely forgotten. Well, let me offer you, this is a sincerely a thing that I learned about the Truman show or discovered in the past year or two. So I think the movie came out about 20 years ago. And I feel like you're, you're familiar with it. You saw it, you, you know, the general, I know the general idea, yeah.

I'm more than 40 years old now. I was about 20 when it came out, and it took two decades for me to realize that his name is Truman because he was the one true man in the town that he lived in, and I went for decades without realizing that, and I feel like that is a joke. I mean, it's not necessarily even a joke, but it's a concept.

It could be a joke, it's an idea. Yeah, and it's about me and my ignorance more than the movie itself. So I feel like as long as anyone, do all the 9-11 jokes you want, do all the pandemic jokes you want, as long as it's about my ignorance, I think it'll work. You have to have heard of the event.

Yes, that's true. The point I was making is, is the Truman Show a universal reference that people know, especially younger people? I don't know the answer to that question. I mean, certain movies like The Godfather, you know, they stick around in the consciousness. I don't know if the Truman Show is one of those movies,

but in any case. Yeah. I mean, I had a joke years ago about the movie Final Destination, and I know that a lot of people, I'm sure that most people haven't seen the movies, even though they might be, you know, passingly familiar with it,

but the joke that I wrote was, it was sort of required that you know what happened in the movie. So I just sort of built in a telling, like a brief summary of like, here's what you need. I think it takes away a little bit from the punch of the joke if you have to explain things like that. But that's always a possibility. Oh, yeah. No, I did it in a very funny, innovative, impressive way.

But yeah, for other people. I should mention that the Comedy Cellar, and we talked about this last week, but now we are officially back at 100% capacity with vaccination cards. You have to present your vaccination card to get in, but we are at 100% capacity here. Mike, have you played here since the 100% capacity? It's only been since Monday, actually. I came by and did New Jokes on Monday, but previously I was in the Village Underground on Sunday,

so I got the last, the tail end of the slightly under 100% capacity. Wasn't the Duran Duran song New Jokes on Monday? Oh, I don't know if I know. I don't know if Duran Duran. I was kidding. It was New Moon on Monday. I think that the Truman Show is more universally accessible than that Duran Duran song.

It may be so. That may be so. I don't know. I mean, I'm an 80s kid, so to me that song is still very much with me. But yeah, I was here on Monday. It was kind of exciting. As excited as I get. I've been doing this long enough that nothing's exciting anymore. But it was exciting. And Noam is here. Should we admit him or not?

I don't know. I mean, I also recently got into an argument with him. Hello. So nice of you to join us. I literally, literally just got into an argument with him about how he's never late for anything. And he was telling me that I'm always late.

I thought it was seven 30. I got confused the last week when we started late. We're talking about the seller being back at full capacity. I call it vaximum capacity. That's maximum capacity with a vaccination card presented at the door. Do you have any thoughts? Are you happy to be back? Does anything get you excited anymore?

I was saying for me, it's harder and harder to do. I had a bad day at home today. I'm in no mood to do this podcast. I'm very happy. Of course, I'm happy that the to do this podcast. I had, I'm very happy. Of course, I'm happy that the cellar is open again. I mean, it's fantastic,

right? It's, I need to make a living. It's great. Comedians need to work. Are you happy, Dan? I'm not going to redress the,

you needing to make a living point. Why? What do you think? I don't need to make a living point. What do you think? I don't need to make a living? I think that I think you could probably squeak by. For what? Forever?

Maybe not forever, but for a while. But I could be wrong. You're an idiot. Do you understand how much money goes out every month when we're closed? Rent, utilities, bills, insurance. It's crazy.

Three kids, a wife, a house. Well, in any case. What do you think? He never has to work again? I don't know about never has to work. Are you one of those people tweeting Jewish privilege on, on, on Twitter? Hashtags. Anyway. Yes. It's well, I was saying to Mike, it was fun, but you know,

what is Mike doing here? Is he going to complain about Israel now? Is that, is that what we'll get to that? We may or may not get to that. There are a couple of interesting things happening this week well you can choose the topic choose your own adventure style we'll do this wait i just want to say one thing that was not the intention in inviting mike the intention in inviting mike was that he is smart enough to hang with the invited guests but also mike runs left and it's always nice to have somebody that has a different perspective because Noam tends to run middle right. I tend to run middle right

and Perrielle, she's all over the map. Crazy left. But Noam, two interesting news stories this week. Number one, Google, the Google diversity chief or whatever they call him apparently tweeted some or not tweeted but had a blog post uh about in 2007 where he said if he were jewish he would be well i i had do you have the do you have the talking points because he said the jews were war warlike people or something right that's not a direct quote but that's not a direct quote that's a reasonable paraphrase. The other story is a valedictorian in Texas was going to do a valedictorian speech that was pre-approved. She had to get her speech approved by the school officials. And at the last minute, she substituted a speech about the new anti-abortion law in Texas. So those are the two topics. Well, I think the first one, so he said, I'm looking at,

he says Jews have an insatiable appetite for war. That was pretty close. Well, let me, let me get the precise quote. Could you please call it? Okay. That's a precise quote. If I were a Jew, I would be concerned about my insatiable appetite for war and killing in defense of myself. And in sensitivity to people suffering. Yeah insensitivity to people's suffering, yeah.

Self-defense is undoubtedly an instinct, but I would be afraid of my increasing insensitivity to the suffering of others. My greatest torment would be that I've misinterpreted the identity offered by my history and transposed spiritual and human compassion with self-righteous impunity. And he also wrote that the Jewish experience

with the Holocaust ought to have given rise to sympathy and compassion for the oppressed. So I don't know what the latest is, whether he's been fired or he's made an apology that he may or may not be sincere. I don't know. Listen, this is the thing. I mean, I know Mike's being really quiet, but it's not surprising because, you know, I felt this way a long time. I don't think it's 100 percent. But is it a coincidence that a guy like that is a diversity chief?

No, not in my mind, because so much of what this is, is not about, you know, this is the world that we'd like to live in, where everybody's treated the same. A lot of what is dressed up as intersectionality and equal rights and all that stuff is just racist hate and resentment. And it's put in a Trojan horse package of righteousness as if we're just trying to do right. But if you look at the basic anti-racism tracts, I mean, they're filled with the idea that it's okay to judge people by the color of their skin. And once you've normalized treating people by the color of their skin, of course, people become extremely comfortable with anti-Semitism.

Like, you know, once it's like, I mean, people are going to say, believe me, I'm not offended as a white person. As a matter of fact, I think all the Jews here, even my capital will agree, we don't feel white. We don't have any allegiance to white people. We're offended that they want to lump us in as white. But, you know, when it's so normal that white people this, white people that, and Karen and just, you know, and just talking bad and white males and blah, blah, blah, you know, all of it. You just normalize the whole idea that it's OK to judge people by their immutable characteristics.

So then why not the Jews? I mean, we've already broken any principle opposition to bigotry, right? I mean, what's the principle against bigotry? Mike, you must have something to say about that. Oh, well, I guess I'm against bigotry. And I don't really understand the question of what's the principle, the last question that Noam asked. What I'm saying is that when I was a kid, the principle was obvious. My kids can understand it, which is it's unfair to judge people by their immutable characteristics. That's, you can't judge somebody

by something that they have no choice in. But then when, you know, when the mayor of Chicago says, shut up, Karen. Well, okay. Well, you know, you can say that it's not as harmful because-

Well, aren't people judging Karens by their actions? No, she just used it as an all-purpose slur against a white person who disagreed with her. But I think the original meaning of a Karen was somebody who was like a white lady unreasonably calling the cops on a black person. That's like taking an action. So the name Karen was given for an action. I'm not saying that I would do it or that it's the right thing to do. It's as if I took OJ who was a murderer and started calling black people

OJs. I mean, you can't, but I mean, whenever the original thing of Karen was, it became, it's become very socially acceptable to just bash groups. Like I said, it, the, the, there is no principle anymore. The principle went from it's wrong to judge people by the color of their skin to it's wrong to judge certain people by the color of their skin. And then you heard the argument. As a matter of fact, if you're not white, you can't be racist. You've heard that argument. Meaning that you're,

what does that mean? So it means that you're entitled to judge people. It's you're morally. You're morally exempt. You can hate people because of the color of their skin. I actually don't think that that's... You're not a racist. Noam, I think that when people say that you can't be racist if you're not white, it's that their definition of racism is that racism is prejudice plus power, which means that if the power is lacking, then you cannot be prejudiced plus power, but it is not that you cannot be

hateful. I totally reject that because I've heard that. I mean, you're being accurate about what they're saying. First of all- So you reject my accuracy? No, I'm telling you what I reject. I rejected that it's sincere, not that you're being sincere, but when they say it is sincere, because first of all, that's not the definition of racism. But second of all, what you don't hear them say is, yes, that is a foul person right there. I wouldn't call them racist because they're not in power. Nevertheless, they're disgusting. In other words, it doesn't just become a semantic thing. Well, it's not quite racism, but it's still racial hate or whatever you want to say. They use it to exempt.

If I were to complain about, did you hear what that, my wife's Indian, did you hear what that brown person said about the Jews? And I say, that's racist. They will say, no, that can't be racist. They won't say, yeah, that's horrible what she said. I don't think you're using the right word, but that's fucking disgusting that she would say such a thing about somebody based on the color of their skin. They don't say that.

Well, I'm not sure who the they is that you're talking about. I've never heard anybody say that argument that you're referring to. Not once did they ever follow that argument with, but by the way, you're absolutely right. That was a disgusting thing to say. They never, it always is used as a total forgiveness of the foul. I don't have another word, but racism, you know, if they want, if they want to redefine it, then they have to leave me with a word to describe what it is when a homeless person kicks the shit out of a Jewish person.

And they want to say, well, that wasn't because I said, you dumb fucking Jew when he's doing it. And he said, well, that's not racism. Okay. Do you want to tell me he's not racism? Then just tell me what it is. You know, I don't know. No, no. I'm professor Gerson is here, but I wanted to ask you, I wanted to ask you, uh, okay. So this man in 2007 made a blog post saying what he said, this, uh, Google diversity guy diversity guy. Now, I'm pretty sure that you are against, would be against him being fired for that. Is that correct? I'm against people being fired for their political points of view. I'm not against somebody being fired if you know if if their view is incompatible with their you know being taken seriously on their job so i mean like if you if you have a diversity counselor let's let's take a different diversity counselor who says such things about black people like this to

make it easier we'd say well no you you can't you know, you can't be in charge of diversity and actually turn out that you hate black people. I get that. So there are, you know, it's not all, but in general, yeah, in general, I would like to see people no longer fired for what they believe in, because I think the slight gain from time to time is totally outweighed by all the boneheaded injustices.

What about the fact that this blog post was from 2007? I mean, should there be some sort of general amnesty on all internet posts prior to a certain date? Yeah, in general. The only thing about this case, I think, which makes it harder in my trying to be fair-minded in my mind it's i know it's you're gonna think it's because it was about the jews it's really not and you you guys know the listeners might not but i've defended tons of people who said things about the jews i don't want to see them fired but in this case because the job is somehow overseeing the elimination of racism, as it were, like it's hard for me. I have to take it more seriously. But yeah, 2007 is a long time.

And, you know, I don't I'm not I'm not calling for this person's head. I'm more I'm more interested in the rank hypocrisy of it all. So, for instance, there is this Twitter hashtag now, Jewish Privilege. And if you browse Jewish Privilege hashtag, it's the most vile anti-Semitic conspiracy theory. And I made a joke, like if we didn't control the media, maybe somebody non-Jewish would have the nerve

to write about it. But because we're in charge of all the things, we don't complain enough. But the fact is that if you replace that hashtag with black privilege or Asian privilege, and you wrote all these horrible things about Asians and black people, Twitter would take it down, you know, in a hot second.

No one's ever said that about the Jews before, that we don't complain about. That is incredible. We have a professor here. She's very important. Let me introduce her fold her into the conversation this is genie or jenny genie i guess genie suck is it is that correct the pronunciation yes she is a law professor at harvard

very impressive um but we'll we'll yeah i'm getting to that perriel i know how to read sorry there's a little dispute amongst us it doesn't concern you uh she's also a contributing writer to i know i think one of noam's favorite publications the new yorker my father was one of my father's favorite publications as well um in fact he he put, you know, they, nevermind, it's a long story. Go ahead, Dan, go ahead, don't let Perri. I'm saying like, the New Yorker, like they say, like you can, if you've been a longtime subscriber,

you can add somebody else, you can get somebody that you know a subscription. And so he got me a subscription and I never read it. But anyway, Genie's- You ever do the caption contest, Dan? You'd be good at the caption contest. I wrote a Shouts and Murmurs once that got rejected. It was about, Shouts and Murmurs is like their witty, you know, fiction section.

And I wrote one about a guy going to, I kind of don't remember it that well, but I think it was a guy going to heaven and the official language there was Spanish. Something like that. That doesn't sound like fiction. All right, so go ahead, Dan. Finish your introduction. Yeah, the introduction is finished so so genie genie we were talking obviously about this guy kamau bob i believe his name was that tweeted or not tweeted rather but this was i guess prior to

twitter 2007 or right around the time twitter came out he had a blog post saying that the jews are uh warmongers or whatever they're calling for his head anyway. I don't know if you want to continue that discussion, Noam, or if you want to- Maybe we can circle back to it. Something else. So I was very taken with an article that Professor Gerson had written about the Chauvin case a few weeks ago.

But now we're so far away from the Chauvin case, I do have only one question I want to ask you about Chauvin. Then I'd like to ask you about the politics of bad sex, if that's okay. Okay. It's okay. So on the Chauvin case, leaving aside all of it, can you explain to us, because I've been having some debates, what is the difference between but for causation, which just means that if it wasn't for this this wouldn't have happened I think that's and and the standard in the

Chauvin case which was a substantial factor is that what was substantial factor what does substantial factor mean in causation so So but for is, I think that's pretty intuitive, right? But for this, it wouldn't have happened. But for my parents having had sex, I would not exist. Correct. Therefore, your parents are liable for anything that any crime you commit under the but for rule. Yes.

That's right. But generally for legal causation, for something to be considered caused by something in the law, you have to have both but-for causation and something that we generally call proximate causation or legal causation. So in the state in which this crime took place, you do have to have but-for causation, but you also have to show, and in that state they call it substantial factor, which means that it doesn't have to be the only factor, but that it's something that contributed substantially to something coming about. So that's what is meant by substantial factor.

And I think that too seems pretty intuitive in that the pressing of the knee on the neck of George Floyd was a substantial factor. It contributed to the death. If I could just jump in, does it also have to be foreseeable? In other words, if I invite Noam to my house, he has an accident on the way over. That's a pretty substantial factor that he got into the accident that I invited him to my house. But obviously there's no crime. So it seemed to me that foreseeability or intention would have to be included in that. Right. So yes, it can't be just completely out of the blue. Like there's no connection.

But reasonable foreseeability is one of the blue. Like there's no connection. But reasonable foreseeability is one of the things that goes into the idea that something is a substantial factor. So it's true that if someone comes over to you, invite someone over to your house, and they get into an accident, you didn't do anything wrong, right? Because you didn't have any intent or you didn't have any recklessness or negligence or any kind of like guilty mental state with respect to somebody getting into an accident. But here in the Derek Chauvin case, there was some amount of recklessness or negligence in using the knee on the neck so there it wasn't like it was a completely innocent state of mind even if you don't have to prove necessarily that the intent was to kill

okay but this is reasonable foreseeability is the is the is the is the factor that i was getting so so this is where i'm really confused because i've heard it described in exactly the opposite way i've i i spoke to a law professor who has a friend of mine who who laid it out for me actually just as you have just now but then for instance i think lara Bazelon was on our podcast, and she described the substantial factor as being a less rigorous test than but four. And then I, so I looked it up for instance. Right. Well, so for instance, in some things I looked up online, it says the substantial factor test, sometimes a plaintiff would likely have gotten injured regardless of the defendant's actions. kind of a classic hypothetical in law school, like if a firing squad, everybody fires on one person, and you can't trace who actually shot the bullet that killed somebody.

So would you let them all off, right? Because you can't prove it. And it says some courts, however, have tried to solve the problem related to but four cause. Some courts use a substantial factor test, which states that as long as the defendant's actions were a substantial factor in a crime, then the defendant would be found guilty. So in the firing squad example, all the members of the firing squad, all of the members would

be found guilty. However, this test creates a problem. So what this seems, as I read those things, it seems like a workaround to the but-for test. So when we're really not sure we have but-for causation, we have this substantial factor test. So is that just a difference between civil and criminal law there? So in general, usually you have to have both but-for and the other kind of causation that sometimes is called proximate cause. Sometimes people call it reasonable foreseeability. Sometimes people call it substantial factor or legal causation. And it's the latter one, it's just more nebulous. Often, the way I think of it is just, it's a way of, it's like a placeholder concept for our moral intuitions about who is responsible.

So at the end of the day, you can parse it and have all these hypotheticals about, you know, about 10 people shooting at someone at the same time and all of that. And, but at the end of the day, when you see what courts do, what juries do, it really traces to their moral intuitions about who is responsible for the result. And so more than these technical kinds of hypotheticals, I think what's more predictive of whether causation is going to be found is whether people think this person is morally responsible for the death. And ultimately that's, that's what it, it tends to track. Right. So I, that, that sounds now you're now, what you're saying now is closer to what the feeling that I've been getting, but that's, does that mean that you can convict somebody of murder,

even if you're not sure the person wouldn't have died anyway. Is that what that means? Is it a workaround against reasonable doubt? This is really troubling me. So for instance, I know what a substantial factor in heart disease is because you can say, well, if you didn't have that diet, you might've gotten worse heart disease, you might have gotten it sooner, you might have a different type of heart disease. It can be a factor and you can still say, well, even if you hadn't had the diet, you still have the heart disease. But this diet was a substantial factor in what you've gotten. I have trouble transposing that to a binary situation where you're either alive or you're

dead because you can't make somebody more dead or less dead so the question in my mind is and this goes to the shelvin thing this substantial factor almost seemed like the jury could say to themselves well there was drugs and there was this and there's that and i don't really need to know that this killed him as a matter of fact even if he even if he had died even if he might've died without this knee on his neck and back, my moral intuition still think this is so outrageous. I think he's guilty of murder. That's,

that's, that's fraught to me. That's scary to me. Yeah. I don't actually think that that is what is entailed. I don't think that that is what we're opening up to, that you're not sure he would have died, but I'm still going to go ahead

and say that this person struggled, no. It really is that there are multiple causes, right? So the drugs could have been, maybe you can't outright rule out the drugs having contributed or pre-existing conditions having contributed. All of those are contributing factors. But another contributing factor, a substantial factor, was the knee on the neck. That's what is meant. It's really not that, oh, he would have died anyway at that moment without the knee on the neck. That's what is meant. It's really not that, oh, he would have

died anyway at that moment without the knee, but we're still going to convict him. No, no, no. I do not think that that's a bridge too far, as you are saying, and I agree with that. I do not think that that is how causation works or would be explained to the jury. If the jury were to say that in their deliberations, that's what happened, that would be explained to the jury. If the jury were to say that in their deliberations, that's what happened, that would be an error. So, I mean, then we'll move on. So, I mean, just the idea that the standard is nebulous and I can speak to Harvard law professors

and other people and it's like, well, you know, it's not very, very, it's not easy to pin down and one person's definition is substantial, might not be another person's definition is substantial. And we're going to trouble pinning it down, like how are these jurors going to be able to pin it down? The whole thing makes me uncomfortable. I, and I read, I'm not going to waste anybody with the jury instruction, but the jury instruction is also nebulous. Look, I hear you, but I think that possibly this is

because you probably don't spend a huge amount of your time looking at jury decisions and trials, a huge amount of, but here with the Derek Chauvin, we had, we were all really focused on it. And so what you're, what you're really realizing is just how, I mean, it's, I almost feel like saying to you, welcome to the law, because sometimes people who aren't lawyers think, well, law is precise and law is about, you know, you know law is about exactitude and about drawing straight lines that you're either on one side or the other side. And it's very clear. That's just not the law. That's not how law works. I mean, most of the time, law works through these standards that

are not precise. And then you get a whole bunch of lay people, namely jurors. And in part, we want them because they're not lawyers, so that they will imbue the decision with the moral intuitions that are harder to make precise. I went to law school too, and it took me about two years of law school to realize what you realize what you're saying i you know like i would go through i would read supreme court decisions and try to figure out well why i don't understand why they decided this way and then after two and a half years i realized oh now i know why because they don't know what they're doing because it's man-made and it can be anything just like when people discuss the plot of a movie and they say, well, why did he,

why was he in this scene? Was he wearing a bathrobe and in the previous scene he had a knife? And then, no, the answer is because the screenwriter fucked up. If I may.

Yeah. But we want to pivot from this. Okay. Can we, can we, because this is really, I'm still,

I'm still trying to get it. So I'll read the first sentence of the journal. This is kind of interesting. Let's, let's just, let's just breathe. I thought you wanted to talk about sex,

which is more easier to our listeners on Raw Dog. No, you're going to have to stop kneeling on people's necks, just in case. Okay. It says... I don't think that's too much to ask. No, it's not too much to ask. It says, this is the actual jury instruction.

To cause death, causing the death, or cause the death, means that the defendant's acts or act or acts were a substantial causal factor in the causing of the death of george floyd now can can we think of a an example where something is a substantial does that mean that it, like I'm just trying to say what that means. It means it's, see the way it sounds to me is that

what you did in combination of other things could lead to death. Yeah. But. To me it's just a lay reading of that instruction. It sounds like it means if it weren't for him doing that, he wouldn't have died. They should say that.

That's what the instructions should be. I don't know what a... Like if there's three different things and any two of them would cause the death, including the two, but not your factor in it? Like, you know what I'm saying? Like, it's confusing to me. Let's say he had drugs, he had heart disease,

and he had a knee on his neck. What if the drugs and the heart disease would have killed him? Okay, if the drugs and the heart disease alone would have killed them and i mean if okay if the drugs and the heart disease alone would have killed him chauvin would not have been convicted because that is that does not count as causation so what i'm saying is you have to have both but for causation right right? As in, but for means without you, without Chauvin, he's alive, at least for a while, right? And in addition to that, you have to have this substantial factor satisfied as well, which means that you are- You have instruction for the jury.

I'm sorry? But Noam wants to know if that was the instruction. I read the instruction. I mean, it talks about superseding causes. I mean, I get it. I understand the concept very well as a lower end thing, meaning like, well, it's not just enough that it's but for causation, but it can't also be like you stepped on his toe, and therefore that was that straw that brought the camels back.

It can't be such an insubstantial factor. I get it as a lower limit but if you tell me what was this it was did it contribute to the death what i feel like is that it rather than saying as the first sentence of the jury instruction the defendant's action must have caused the death additionally it it should not have been so insubstantial, you know, because what I think it does is blur it up so they don't realize, or they're not disciplined to asking themselves, do we know he wouldn't have died from the drugs? Because let's just go into the case for a little bit. There were these three experts. There was Tobin, right, who said this would have killed anybody, even a healthy person. There was this

other guy, I forget his name, was kind of in the middle, who said, you know, it was positional asphyxia plus all these conditions. And then there was Baker, who examined the body, who said, actually, it's not positional asphyxia at all. It was the stress of everything. But what was interesting to me as a watcher was that, well, actually, the first opinion and the third opinion were mutually exclusive. So the prosecution had made their case by presenting me with two experts who could not both be correct. Rather than getting three experts who kind of spoke with the same voice, they gave me two competing accounts of how he died, which one of them had to be false. And I'm like, well, if you give me two experts and they're mutually exclusive, that to me is reasonable doubt right

there. Like that to me, that's it. Like you're the prosecution. If you're going to tell me that your expert can disagree diametrically with your other expert, but I'm supposed to still think you proved this beyond a reasonable doubt. I'm like, well, no, that's not the way the mind normally works. If I go to two doctors and they give me two completely opposite opinions, I can't say that either of them is correct. I might have my gut feelings, but you have to prove. And like if they had gone to Baker and said, who said, you know, there was a, there was a, could have been a lethal amount of fentanyl. He just found it was much less likely that that was a word he used much less likely. If, if, if that guy, Nelson had the courage to say to Baker, listen,

how do you know he didn't die of fentanyl overdose? Baker, I believe would have had to say, well, I don't really know that. It just really seems really unlikely to me. And really unlikely to me does not seem like proof beyond a reasonable doubt. I mean, I'm happy the guy is in jail, and I hope justice was done. But something about this causation thing has just been bothering me and bothering me. I don't know. What do you, what do you think, professor? It seems like if you had been on the jury, you might've been the reason that the jury hung.

Not if I lived in Minnesota. If I lived in Minnesota, I would have, I would have said, but you know, I, I have to say, I, I guess I disagree with you. I just, I, I think, you know, it, I think there's a good reason that 12 people unanimously thought, you know, that to them, they watched the video, they heard the experts. And what you're saying about the conflict, the potential tensions between the prosecution experts, sure, that could happen. But there is nothing wrong with presenting alternate theories of how something happened. That happens all the time in trials.

It may be a bad strategy because, like you're saying, a jury may not buy it. It may confound them and they may get confused or think, wait, if the prosecution can't even get its story straight, how likely is it that they're correct? And that could be a reason to introduce reasonable doubt. But that is not logically necessarily a reason to vote to acquit, because you could say they presented two theories. I buy one of them. I don't buy the other one. And this ultimately you're trying to get at the truth. You're trying to get the jury to have their own account of how it happened, you can offer multiple possibilities. Yeah, well, that does sometimes happen. The prosecution says, you know, it could have

happened this way or it could have happened that way. I get that. And I would say that the jury certainly can decide to buy one or the other, especially in matters that they can bring their common sense judgment and experience to not so much in two scientists i think to me like zooming out for a second i would just say okay that's the prosecution if they couldn't find two experts to say the exact same thing, I have to worry. Something is going on there. If I have a medical ailment and I go to four different doctors and I can't get two doctors to say, no, no, Mr. Dorman, it's definitely this. That happens a lot of the time. But they're all telling you you're going to die.

You're going to die. You're going to die. Yes, but that's right. That happens all the time. You're like, you might have celiac disease, or you might be having a stroke, or you might, you know, but the bottom line is your symptoms are your symptoms, and you're feeling bad. But they have, yes, but here they have to prove beyond a reasonable doubt, the causation. So it can't be, so you have, you can't just be like, I'm happy with either theory. The issue is, is the doubt, it sounds like you have doubt. And the question is, is your doubt reasonable? And the jury probably thought, look, there are some doubts here and probably raised

some of the issues. And they thought, well, but the doubt is, it's not reasonable. You have unreasonable doubts, Noam. I mean, I think if this was a more sympathetic defendant, people would see my argument with a lot more sympathy. That's correct. I agree with you. A lot of politics. If they had a defendant who hadn't knelt on a guy's neck, yeah. Yes, with a video that looked absolutely gruesome and brutal.

And the bottom line is that is why we have juries, to bring their common sense of the matter into it and listen to the experts, but not completely defer to them. No, I try to be as objective as I can possibly be, like just forgetting everything about the politics, everything, like everything about the issue, because you're supposed to do that. We're not supposed to bring any of that into the quorum. And I'm saying when one medical expert has a mutually exclusive opinion to the other medical expert, and by the way, the one we don't believe is the one who actually examined the body and does it for a living. And the one we're going to go with is the one who never even saw the body.

That's a troubling, that is a troubling outcome to me. I mean, like, as a law school hypothetical. Maybe you should, I mean, maybe they'll be calling you for consultation on the appeal. Listen, I'm happy he's in jail. I mean, if he wasn't actually responsible for this guy's dying, it's not for lack of trying. I mean, this guy's got his knee on his back or his neck and long after anybody can make any argument for wanting him to have his knee on his back. His partner even said, hey, shouldn't you let him turn over?

So if he didn't kill him, it's only because he's the luckiest guy in the world and Chauvin died of a drug overdose or something. Now you're really sounding like any doubt there would be unreasonable. No, because, no. Listen, let me, so you know that Sicknick case? That guy, the guys who got, so Sicknick for those of us. Going even deeper into the weeds here.

No, no, this is really interesting because this is a very important example. Sex bureaucracy. Okay, just last thing. So Sicknick is this guy who was a federal police officer, whatever you call it, trooper. And he was first, he died the day after the January 6th insurrection,

riot, whatever you want to call it. And the first story was that he got hit over the head with a fire extinguisher, but that turned out, I think, not to be true. Then the next story was that he died from getting like bear poison, which is like pepper spray on steroids kind of thing in the face. And supposedly he was supposed to die of a reaction to that. People do, by the way, die sometimes from this. And he was going to get, and the people who did it were going to get charged with murder and blah, blah, blah. And

everybody was sure this is how he died. And then lo and behold, there's a story in the Washington Post, the medical examiner found that Sicknick died of natural causes. He just happened to die the day after he got it in the face from this, during this riot, this coincidence. And I'm like, well, that's what you get because a jury might have convicted him. They would have seen this gruesome video of getting, being sprayed in the face and whatever it is and say, well, that's what you get because a jury might have convicted him. They would have seen this gruesome video of being sprayed in the face and whatever it is and say, well, what are the odds that a guy's going to drop dead right after that and guilty? And here's this amazing coincidence. I say, well, that's a coincidence. That's a way less difficult coincidence to accept

than the fact that somebody died an hour after taking a lethal dose of fentanyl, wherever they happened to be an hour after they took it under a knee or whatever it is, you know, especially when the guy who was in the car wasn't given immunity to test. I think Hall was not given immunity to testify about Floyd's taking of the drugs, what his tolerance might've been, whether or not this was more drugs than he'd taken in the past. A lot of things about this, we had an ACLU, they'd be saying the kind of things that I'm saying.

These are the kind of things that they used to say in unpopular cases, but they don't talk about that stuff anymore. Don't we have an ACLU? We have one, but they are silent on matters of civil liberties for the most part now, right? I mean, so for those who-

I don't know if that's right. There was a guy who was in the car with Floyd and he was maybe his drug dealer. I don't know. And he took the fifth and the prosecution refused to give him immunity to testify, presumably because what he might say was not going to help the prosecution's case. But in my opinion, the way I always felt like, well, if I'm on a jury and I know that the prosecution has a witness that they're withholding from me, I'm saying, well, something, this stinks to high heaven. Because I know very well that if this guy was going to help their case, they would

have given him immunity in a heartbeat. The ACLU would normally, if this was a Central Park jogger case and there was a witness that was not allowed to testify, everybody would be like, that's an outrage. How could the prosecutor keep a witness out of this case when somebody was on trial for their lives? But in this case, we're like, well, it's okay because anything is fair game

if we're going to convict Chauvin, right? How do you know what the guy was going to say? I'm presuming that... Oh, yeah. So you don't... I'm presuming with strong common sense that if he was going to help the case, they would have given him... Perhaps, but he might not have helped the case for reasons that have nothing to do with whether the causation was there. It could be just that he's not a credible witness yeah but i think you'll agree with me professor that we would all like to see defendants given every uh benefit of the doubt

when they feel there's a witness human being who might help prove their innocence you know i mean that's that's a big thing they're given a reasonable doubt. It's a very, very, very big thing, almost un-American in a way, even though I know it's done and legal, to tell somebody on trial for their life, listen, yes, I know you want that guy to say what they saw. Well, the defendant could have called that witness.

Anyway, we... They did, he took the fifth, I thought. Anyway, okay, yeah. I don't know, I know we said an hour, but just a wee bit longer because we did get a little bit sidetracked. By the way, before the show, Norm literally said, I don't want to talk about Chauvin. I can't help it because I'm so happy to have a smart law professor,

you know, and I like to, you know, test my, my, my, my dumb thoughts. So, okay. the politics of sex. You still said that, though. You knew she was a smart law professor, and you were still like, Perrielle. Okay, Perrielle, Perrielle. This is up your alley. Sexual bureaucracy.

The professor wrote an article, I think the gist of it, she'll tell us, but the gist is that some of these laws regarding the way sex is supposed to operate, laws and social norms and consent and all that, just don't really match up to the way real human beings, the mating dance of real human beings. Is that correct? Well, I think it depends on who you ask, honestly, because things may be changing. Tell us about it. Give us a gist.

Will you summarize for our listeners? Sure. I'll just start with the idea of consent. What is consent? At the end of the day, when you're talking about the difference between sex that is just sex, you know, and or sex that is sexual assault, right, there's, there's got to be some distinction between those two things, of course. And often, the distinction comes down to consent, was their consent or wasn't their consent. If there wasn't consent, then that wasn't sex that we generally think is allowable in our society. So basically, it all comes down to how you define what consent is. So in the old days, before any of our time really, it used to be that in order for there to not have been consent uh a person usually it was a woman would have had to resist to the utmost that was the legal

formulation resist to the utmost and then what resistance to the utmost generally meant was that she like had severe injuries, like probably ended up in the hospital. It wasn't enough that she was like, had punches and bruises. What resistance to the utmost meant was like, you know, she, it was like she had really physically put up a huge fight. And then there would be like evidence to show that. That's what resistance to the

utmost was. So now we don't think of consent that way. And then the question is how far are we going to go away from that kind of physical notion of saying no, like physically resisting the act. Is it, and then, so during my college years, the slogan was no means no, right? Which seems straightforward enough. Like if a person says no, that means no and you don't go forward. And that was what we used to say.

I used to do all kinds of feminist advocacy and marches and take back the night and all that. And it was always no means no. But now, this many years later, 25 years later, no means no is no longer the standard. The standard now is more like if they don't say yes affirmatively, if the person isn't saying yes affirmatively, this is called affirmative consent, then it's not consent. Now, I'm not describing this affirmative consent. I'm not actually describing the criminal law as it stands right now. But there certainly is a lot of advocacy trying to make the criminal standard

that affirmative consent standard. Affirmatively, if there isn't a manifestation, an expression of an agreement or assent or some kind of affirmation, then there's no consent. Are these university guidelines? In general, right now, where it has taken hold is in universities. And so in the last five years, what we've seen is like a very rapid change in university codes so that you could get disciplined or kicked off of campus, expelled or put on probation or suspended for sexual wrongdoing. And of course, then it matters how the college defines consent. And so

again, a lot of advocacy right now going on around trying to get colleges to adopt this affirmative consent standard, and many of them already have. What's the criminal standard? What does the law say? The criminal standard right now doesn't go to affirmative consent. Usually, consent is, it would be like some manifestation of no like saying no or um obviously physically resisting would count although that's not required um so it would be just uh basically the the idea would be that a person has not consented if they have manifested some resistance, whether verbal or nonverbal, to the act. So, Pariel, let's go around. I'm really curious. What do you think about the

idea that a man should ask permission? Can I kiss you? Can I do this? I have to break it to you. These standards do not apply only to men. Women also are being disciplined and suspended and things like that for not getting affirmative consent. These are gender neutral standards. And in fact, it would not be okay under federal law and state anti-discrimination law to have a consent standard that only applied to men and not to women. Yeah, but go ahead. I agree with that. I didn't mean, it sounded like I was being flippant, but I had something else on my head, but that's very important that you said

that. Go ahead, Peral. So what do you think about that? I mean, it's preposterous. Who has sex that way? Well, but, but, but confirmative consent doesn't have to be verbal right i mean i assume that confirmative affirmative consent can be you know in some in some places you can manifest your consent affirmatively through acts or words in other campuses it must be through words soon they're gonna have to have us like sign, like, I want to give you a blowjob. But again, I want to underline that this is not part of the criminal law. This is only on campuses. Very few people are not being disciplined, you know, under this standard, unless it was an extreme case. I could be wrong. You are wrong.

What's the most outrageous case that you've heard? Dan, let's just get into the... I think it's a good question. It is a good question, but let's hold that question. I want to hear a female point of view and then a male point of view. Is this the way real life can work? Let's ask Mike Kaplan. He is about as gentlemanly a gentleman as we could find, and he happens to be right here.

We invited him. Okay, Mike, do you think this is realistic? You know, I think that I have grown a lot in the time since my college days when for sure this wasn't the standard that, you know, like the idea that I understand, you're like, it seems unsexy to be like let's pause for a moment and make sure that everybody's on this page but there are i understand now like

i listen to dan savage's podcast and there are ways in which that he talks about like you can sexually ask somebody like i'm like to the left of pariel here where it's like you could be like hey you know what i want to do to you and And if they're like, no, they're like, okay, great. Like, I sincerely, I think it's great to know, to be sure that when you are doing something with someone that they want to be doing it with you and that they are enthusiastic about it. And so I do think that it's not the way that things have always been. I think that teenagers and adults have been like bumbling through, sometimes successfully finding people

like without communicating, using their words as fully and being like, well, I guess it ended up okay. But I do think that this is a good standard to aspire to, to like to let younger people know that it is good, like to especially to encourage all genders, but especially women who have been historically socialized to just assent silently, to go along with a man in sort of a heteronormative way?

No, can I just give you my point of view? First of all, it just never came up for me in college. I was a virgin when I graduated, and I'll go one step further. I hadn't even kissed a girl at that time. Very sad. But we'll move on from that. Very respectful. Well, not very respectful. I mean, I wasn't even

in a position where this would even initiate. Having said that, we really want to hear your opinion. Go ahead. My opinion is, when it comes to kissing uh and grabbing of uh of body parts kissing and grabbing um i will i will let uh non-verbal cues guide me when it comes to the act of sexual intercourse i will always either ask or wait for them to say and they often do. They often do. I'm not bragging, but they often do scream. F me, you know, can I tell you? I wait for one of those to think of, sorry, Professor, but this is a

comedy oriented podcast. Or sometimes you're just joking. Oftentimes, it's either I will ask or they will say. That's often what they say, you know. And I will wait for one of those two. And if I don't get that, I will make a verbal ask. For the sexual act, for ass grabbing, boobie grabbing, et cetera, I will rely on nonverbal cues. I don't know. I kind of really like what mike said though

especially don't gloss over what i said i just said it what i said was better than what you said you can say to somebody i really want to kiss you i really want to kiss you can be a sexy thing to say yeah i guess but it's never it's never done i It's true, though. Seldom done. He's right. Like, girls are... You move slowly forward, and if they pivot, then you know. Like, you just kind of move in, you know what I mean? You just kind of... And then, you know, they...

Dan, you're a comedian. You talk professionally. I believe you could say something. Okay, so first of all, let me, let me say, let me say is as, as sexist as, as is going to sound. I understand why it has to go in both ways,

but in real life, if a guy came to me all upset because a girl tried to kiss him and didn't ask him first, I mean, he would get laughed right out of any, any meeting with guys in, because in real life, I believe this is not wrong to say, what we are protecting here or what we're reacting to here is that overwhelmingly men are stronger and tend to be the violent ones.

And we're trying to, if this problem came about just because of the number of times men were sexually assaulted by women, we would never have this policy. What we're trying to do here at Root is end the mistreatment of women. And yes, we have to create a gender neutral standard because the law forces us to do that. But I think that most of us realize it's not really the same in either direction. Men are not scared. Men are assaulting other men as well, Noam. There are gay relationships. Can I just tell you, so I was asked, what is the most outrageous case that I know about? I know of a few, but let me tell you about

one that is public knowledge. I know a lot from my own me tell you about one that is public knowledge. You know, it's not, I know a lot from my own legal practice because I do represent people who are accused of things and who are complaining of things in universities. As a lawyer, I represent people. But one that I, one case I didn't work on, but that is now, it is public. It's in a case. So at Brandeis University, there were two male students who were in a relationship for 18 months. After the relationship broke up, one of them brought a complaint about the other one, his ex-boyfriend, to the authorities at Brandeis and there were several different accusations, but one of them

for which he was found responsible for sexual misconduct was the accusation that they showered together often. And in one instance, he said his boyfriend had looked at his genitals without his affirmative permission. Stop. Come on. Okay, you think I'm making it up, but I'm not. No, nobody thinks you're making it up. No, I don't think you're making it up. I don't think you're making it up, but there has to be more to it. No, that's almost the same thing.

Well, I'm telling you, there were a few other accusations. Like one of them was he woke him up with a kiss one time, and he couldn't have affirmatively consented to that because he was asleep. Oh, my God. So that was one. And he was found responsible for that as well. What does that mean, found responsible for? Found responsible means like it's like the equivalent of guilty,

so that you would get punished. Right, right, right. But what were the consequences? I mean, what is there like? Oh, he got a disciplinary, like it was either a suspension or a, you know, he got like something in his file. Like he was found responsible. He went on a permanent record, as they used to say back in elementary.

Yes, exactly. So I don't remember whether it was a suspension or some other thing. He wasn't expelled for it, but he got something that disrupted his education. I mean, this is insane. So let me ask you, let me ask you. Can we get another example that involves a female complainant and a male? Yes. Yes, there have been situations that I've been a lawyer for where often it happens that it might be like the

female complainant brings a case against the male and then the male. Oh, no, frozen. I mean, I do not affirmatively consent to this. Ladies, gentlemen, and other people, Mike Kaplan! Thank you, everyone. Please, one more round of applause for everyone else that's not me. And also

for everyone that is me. And that's everyone. Thank you so much for coming. Thank you to the microphone for working in advance. All right, so far so good. Before I get started, I'd like to say, please go to the bathroom if you have to go to the bathroom. That's not a joke. That's just for your body. I like to start off by talking about the bathroom because it's something that I think can unite us

in times when there's so many things that can divide us. There's like politics and religion and how you feel about the band Nickelback, but bathrooms really bring us together. We all agree. We all love them. We all need them. You might be thinking, but aren't there controversies over who can use what bathroom? Maybe, but here's my solution. It's pretty simple. First thing I would say, just use whatever restroom that makes you feel safe and secure and comfortable. And secondly, nobody assault anybody. And I feel like those things can go pretty easily together, you know?

And if you must assault someone, and you mustn't, but if you must, I would say to find someone who also wants to assault someone. And then you guys have fun together, you know? Got a lot in common. And my solution is one bathroom for assault only. You understand?

Just have it be like Fight Club in there, you know? I'm not a big fight guy, per se. I'm much more of a guy who uses words like per se, but... I'm much more of a love guy than a fight guy, so I've actually rewritten the movie Fight Club to be called Love Club. And here's a brief sneak preview, summary of the plot of my movie Love Club,

is a bunch of guys jerk each other off the whole time. But then in the end, we find out it was only one guy. One guy with all the dicks. And not even all the dicks, because not every guy is a dick, and not every dick is a guy. And that is some nice bathroom humor to get us all started together.

Oh, you guys. Getting off on the right foot, and all the dicks. Well, what do y'all think about that case about the two men? I mean, do you think there's more to the story, or that's actually what happened? No, I do you think there's more to the story or it's that's actually what happened no i don't think i don't think there's more to the story i think it seems to me that in that situation like they were in a relationship together and they liked

each other and then when they were out of the relationship it seems like it was sort of the guy gaming the system using like the letter of the law, technically speaking, like, because when people are married, like you can, you know, a thing that would be potentially technically assault, like if you get too drunk, you can get drunk with your partner and have sex if you want to. But if you do that with somebody you don't know, that technically might be assault. So they were doing things. The idea that they were naked in the shower and he looked at his genital i just have to believe that that can't possibly be the basis for a disciplinary action at brandeis or anywhere else hurry up to see if she tried to reconnect i'm going to research that after the

show and i'll yeah i'll give you well this is the thing that when you create a lot of um footholds in the law hooks um people will use them in bad faith this is similar to trip and falls that are bullshit and all sorts of tort cases you know you you create a liability and then um especially people you know you can see it in a love relationship where people are bitter towards each other and they just want to hurt each other and they find i I mean, you see this in divorce law all the time. Right. So I, you know, so I believe it. Did she, did she, is she gone? I'm working on it.

She had, she had enough of Dan, I think. Well, look, I have to, I have to keep it real on some level. But no, you know, I thought I brought up an interesting point, and basically ignored, basically brushed aside, is that I said that I demand, I require a verbal consent for intercourse. Now, does anybody else have that policy? Anybody else here on the panel? Oh, for sure. No. Now, Noam back in, of course, Noam's married now,

but back in his days, he was, let's not forget, Noam, nerdy though he might seem, plays a mean six string. And he got a lot of ass back in the day. I don't understand how, I mean, I'm trying, excuse the erection, but I'm playing back in my mind, very sexual situations that I had. Usually you're kissing, you go over to the bed, you lay down, you're clutching at each other's clothes. I mean, I mean, it's not like you just like take it out.

Like, like it's, it happens so, so gradually. There's never any doubt. Be that as it may. And you may have, I'm not saying you're wrong. So gradually, there's never any doubt. But wait a second. Be that as it may, and you may have, I'm not saying you're wrong. I'm saying for me, for me, I need some sort of verbal assent. Why?

Because you want to make sure. I want to make double, triple sure. Wait, so here's the thing. Where's the professor? She said she couldn't take you anymore. Oh, she didn't say that. Where is she? She found you insufferable. No, I don't know where

she is. I'm trying to get her back. Look, I hope she wasn't offended by anything I said. No. No, she had a technical problem. She'll come back. I just messaged her. We are talking about human sexuality and sometimes adult language will be used in that context. No, she's fine. She's great. This is her no. Let's take

her no for an answer. The thing is, Noam, is that you're not taking, you're, I'm, you know, assuming that, you know, you've never been in a situation where you're doing something to somebody that they don't want done, right? So you're not allowing that possibility even into the scenario, which is why it seems so absurd to you i would say this the actual intercourse is usually the least the least ambiguous part of the interaction in other words it's the steps that come before that where you're actually taking where you're where you're more unsure.

Like the initial kiss, that is a very unsure thing. Like you hope that she's receptive, but you know, that you can miscalculate on the initial kiss. The sexual act has a particular, both legal and psychological weight to it. Well, I'm saying like

when you're finally both naked on the bed past the age of 21, it's pretty clear where this is going. It's before that. Maybe the first time you try to undo the clothing, that's where she might say, no, no, no. I don't want to go that far.

No one's traumatized by somebody trying to undo their clothing people are traumatized by sex that they didn't really want so to make in that spirit to make to to just be perfectly so there's no ambiguity i myself and this doesn't happen often because i'm not that sexual let's face it But when it does, I want some sort of affirmative consent. And Mike, you said also that you seek that as well. Oh yeah, but I also would seek it for kissing and grabbing, as you said. And perhaps-

I have a question for the professor. Is she coming back because I have a- I don't know, honey. She's not answering me. I mean, it's possible. So Mike, before you kiss a new woman, I assume, Mike, once you've already kissed a woman, you're in a relationship.

You don't ask for permission each time. I gather. Oh, yeah. I mean, I'm in a relationship of about five years and we do not, we're not as explicit to the letter of the law of the college rules these days. Are you telling me Mike with any new girl and it's been five years, I'm assuming you're not cheating, but with any new girl,

are you telling me that before you kiss her, you say, can I kiss you? I would say, I mean, in the more recent years of my life, I would be more likely to do that, yes. There's something about what Mike's saying there that really resonates with me, which is young women are not historically taught, and young girls, when they're first starting to hook up with people, they are sort of, you know,

you just go along with it, right? Like you're just sort of pushed along into this thing. So I think the teaching them to speak out and teaching young men. My experience with women is they have no problem speaking out. I remember I heard a story. But maybe that's just me. There are stories I've heard of like, you know, teenagers, you know, teenagers having sex where they're both kind of not communicating about it. I don't think that people are the best communicators in general about sexual things.

Like, I don't think that everyone gets a great sex education. I don't think that it's taught well. I think there's great resources out there, but, you know, this society is so sex negative and sort of sex phobic that people like, ah, you'll just, you'll figure it out. It'll be fine. You just, you just feel it out. You feel around like you'll get it. You'll know, but that's not so. You talk about sex education. The mechanics of sex are easy enough. Are you talking about educating

people on being assertive? Thank goodness, you're back. I'm back. So sorry about that. I don't know what happened. That's okay. So what did you conclude about affirmative consent? I revisited my personal policy of requiring or asking for some sort of...

Like you're a flight attendant in an emergency room. When it comes to intercourse, but not when it comes to, generally speaking, the preliminaries. Mike asks for permission, even with the preliminaries, and no, don't give a damn. He just go in and do it. And I've revised my position because I think that it's good to teach younger kids that they, you know, should use their voices and say what's okay and not okay. That's another argument. Well, I don't know.

But I also do think it's not that, I'm not really sure that's the way that people have sex with each other, you know, like in a natural setting. But you're bringing up two separate things. Do you think it will change? Do you think it will change that people will have sex that way, like over time,

the more we talk about it this way? I do. What do you think what what's your position but i still want to hear an outrageous story about a woman that complained about a guy uh you know doing something without uh perry will you complain about Dan real quick? Do you have a story that comes to mind, Professor? Yes. I have known of cases where a college student felt that he had tried to break up with the girlfriend and the girlfriend didn't want to break up and, you know, and, you know, started to engage in sexual acts, you know, namely go down on him. And he felt that this was, he had not affirmatively consented. And so, and he felt violated.

Now, is that an outrageous story or is that just, you know, that's what affirmative consent is? That is beyond outrageous. Well, that is outrageous. You feel it's outrageous for the guy to complain to the authorities?

He had a start-to-finish blowjob and then he complained that he didn't want it. Right. Right. Yeah, no. Like, sorry, that doesn't go like that. So, so... If she started to do it and he pushed her away,

like, okay, that's a different story. But if they had like an entire session in which she performed fellatio on him and he, I'll be polite, you know, finished. And then he complained. He had to have finished? He had to have finished for you to be outraged? He had to have finished for me to, and then to complain about it, is what I'm saying, would be outrageous.

It's outrageous even if he pushed her away. All right. So listen, so let me just ask. You're misunderstanding. Hold on. I understand. We know we got you. Well, you're saying if he finished, he has no right to complain.

I'm saying he has no right to complain under any circumstances. Hold on. Mike, what do you think? Thank you. Thank you for asking. I have a personal story that's sort of related and touches on something that Noam was talking about earlier, too, sort of complaining about like the binary nature of these things.

Like it's not necessarily as binary as like somebody did something wrong and somebody did something like and somebody did something, uh, like who is correct. Like when I was, when I was in college, I was working at a summer camp and I was hooking up with a woman who I'd like hooked up with a couple of times,

but we hadn't had sex and we were like just fooling around. And like in like a very swift move, she like, uh, pulled my shorts off and like, I had never had sex from like behind before and i that she just like made it happen without a condom and it happened real fast and i it felt good but i afterwards was like that was not the my favorite way for things to go and there are

elements where i'm like the guy in that story where I'm like, I don't, I wouldn't say that she assaulted me, but I do not think that I, I certainly didn't verbally consent to what happened. I certainly didn't want to do it without a condom. Like I wouldn't have wanted to, but it was happening so fast and I didn't feel like that I was able to. And maybe there were some like macho, like, you know, toxic masculine ideas of like, I'm supposed to want this. I'm supposed to be doing this. Like, who am I to think that I shouldn't be doing this? But all of those things were conflicts that were within me.

And I just like, I told her that I later, like the next day, I was like, I didn't want to do this without a condom. And I was like worried about disease and pregnancy. And I was scared. And like, so we kind of like broke up because I was like, I felt a violation of a kind. Are you telling us, just so I'm clear here, that she forced you to have sex, to do her from behind? Essentially. I wouldn't use the word force, but she finessed it. It's not force. It's not consensual. It was not consensual in the sense of affirmative consent or really even, I mean, it was just, it happened silently without you saying yes or no. And under today's affirmative consent standards, if you felt violated and you went and complained, yes,

she would have technically violated the rules. And in fact, it wasn't, it wasn't wanted. I mean, the standard often is, did you want it? The wantedness, the welcomeness is an important concept these days. And so are the rest of you saying that you don't think that such a claim should be vindicated? You know my position with regard to how I operate. I'm very, very clear that I want consent, but I don't understand

how a woman makes a guy do her from behind. I mean, this is a couple things. Well, he's telling you that that happened. It's not like forcible, but it was not consensual. Yeah. I was behind her, Dan. And you were participating.

Certain motions. I'm not saying that I wasn't participating. So this is the thing. There's a few things I'm trying to get in here. First of all, at some point, you'll take responsibility for your own actions. You, if you're participating in a sexual act, you're participating in a sexual act, number one. Number two, not everything that happens between couples needs an institution of law or order or university to adjudicate. We definitely need someone to step in when a crime is committed, when somebody is forced to do something, whatever it is. We don't necessarily need that when somebody

makes an error of judgment that they regret the next day. And number three, a lot of these cases, at least maybe just because they're the most interesting ones to listen to, maybe not actually the ones that matter, sound like sour grapes between people who have long relationships and maybe there's some bitterness or resentment, and they're kind of marshalling the law or whatever procedures they can to get even with each other in the same way people throw the kitchen sink at each other in divorce court and stuff like that and accuse each other of all kinds of horrible things. So these would be my worries. But here's another question I have is,

in most cases, we're like first and most primary worried about the terrible times that people have been forced to have sex, right? But the thing is, if you're forced and somebody asks you for consent, I've always wondered this. Are you really gonna say no if you're scared? How much more does it get you?

If you're scared, a man's overpowering you, whatever it is, how much more is the question going to change your answer if you feel this tremendous intimidation or pressure to have sex? I've always wondered about that. It's still bad to assault people, even if you ask them for consent. And you scare them into giving it.

No, I hope you're not. I hope you're just kidding. Of course, it's terrible to assault people. But I'm wondering. Well, an important part of this, I would say. I'm just wondering, in real life, what's being accomplished here? Yeah. Is that actually protecting people? That's what I'm wondering. Right, right. No, I think, you know, I hear what you're saying. I think you're saying

if we have an affirmative consent standard and we're not going to consider it consent unless you say yes, is it actually going to do anything to prevent sexual assault in that? Do we really think people who are intimidated and feeling like there's a huge power dynamic or like they're, they're scared, are they really going to be able to speak up at that moment? I mean, is it going to prevent sexual assault? Really? I think that that is a fair question. Yeah, for sure. I mean, I really wonder. Let me say one more thing to follow up with that.

I'll hold that thought. So because as a dad, I have a daughter. And as I weigh all these things, and obviously whatever anybody must think about me, you must know I don't want my daughter to ever have any kind of trauma. I want her to have a happy and healthy sex life without trauma.

Just your daughter though. And I think that the most important thing for that is going to be us teaching her to speak up for herself and not feel pressured to say no, to not get herself into it. Because that seems to be, there seems to be either it's an actual physical intimidation or just a psychological pressure

that women seem to buckle under, which men may have trouble understanding, but it's clearly real because you hear enough stories to know that it's real. And to somehow to raise our daughters to not feel that they have to do this. Because I don't think if she has that feeling, if the guy says, can I, she's going to feel like she has to say yes. And then he's going to be able to say, you see, she said yes. Yeah.

I mean, it's difficult for me to wholeheartedly agree with Noam on anything. But I really do think that that's the thing, what he just said. I mean, I really do think that teaching girls that they don't have to do things that they don't want to do, that they don't feel pressure to do things because the guy wants to do it or the guy's going to like them more or whoever they're with is going to like them more. But I really do. I mean, I've had sexual experiences in the past where I've been like, oh, I kind of wish I didn't do that or whatever, or I kind of wish that, but it's like, you, you can't then take that and turn it around and, you know, file a complaint with like my university. I mean, how the hell was he supposed to know that, you know,

I sort of wish that like, I didn't give that, you blue job or whatever is it really possible to teach people yes and be done but to teach people to assert themselves i mean yeah i don't assert myself how many times have i done a gig they say can you do 10 minutes for free for this charity and i can't assert myself and i'm a grown man. I think that's why it's also important to teach men and to teach all the genders, like to teach men to not to— Is it something that's an innate part of your personality? No, you're right. You're right, Mike. You're right. You're right. Teach the men to invite a no when they're—to teach the men to not put the pressure.

Teach in the heteronormative situation to teach women, to teach girls to not feel pressured, but also to teach the other people involved, the other half of the equation, to not apply the pressure. A hundred percent. And what happened to you, I mean, is terrible. And, you know, I don't doubt that you felt violated or that you didn't want to do that. No, I'm is outraged by

honestly can i tell you something i actually think it belittles the cause that we're actually concerned about which is terrible things that happen to women to consider mike caplan's un-unconsented doggy style sex as an example of what I mean this is so far afield you're wrong that's not true it doesn't at all I think that the point is that also

my thought is that like you know I'm guessing you guys are teenagers or something like that girl also probably didn't really know for exactly why we're saying is because you didn't say anything. Right. And you didn't feel like you could say anything. Yes. Leslie, we got to wrap it up. Let me leave you with one thought.

I mean, we, we, we are, we are verging in the law. No, I'm you're silencing me. Please go on. Oh no, no, no. I I'm that I'm, I'm a comedian. Please continue. I'm figuratively giving it to you in the ass right now. I consent. Sorry, sorry. We'll cut that out. We seem to be getting into the law, moving with the law into areas where we're really not sure if human nature will not have the upper hand. Like in other words, there is a certain programmed mating dance in every male. There are certain cues and things, and it's quite unlikely, no matter what we say or do, that we're going to really reprogram what humans have found hot in sexual

situations, including the two people look at each other's eyes and overcome with passion and unite. Similarly, and I don't know what the answer is, we have all these rules now against um you know romances in the workplace but the fact is i guarantee you in the biden white house right now there's at least five affairs going on that are not supposed to be going on amongst the the crowd and milieu of people who are most outraged by this kind of thing in the in in the workplace and at some point these laws, and maybe it's just, we have to live with it are just setting us up for a lot of people, good people getting in trouble, you know, because, because you just, you're not going to have people working together day in, day out and not hooking up. You're just not going to have it.

It's just not going to happen no matter how much you make it illegal. And like, like Bill Gates was accused. He asked this girl out and she said no and he said well just forget it ever happened i i don't know like are you are you going to be able to really stop that from happening do you know how many as a boss can i tell you know how many times an employee in my life has sidled up to me and wanted to date me or gone out or written you married one of them as if memory serves i married one i'm saying like this is so so it's just so once to me that we're almost at the point now where we're going to try to rewire human nature through laws and it's gonna be a lot of bad outcomes from that but maybe you know in the greater good we're gonna you know it's

the right thing to do but i'm skeptical professor i think we're doing it through education as well and i think that is the way you know we pretend that education is working but but it's that's why i say like all those people you're the one who's talking about your law education is it not working look at look at all the cuomos who are out there talking about yes no means no and we have to believe all women blah blah blah it's all for show and then they're behind closed doors they're all you know being boorish and all this stuff all the two cuomos you know i'm saying that there's a lot of people saying stuff claiming to be on board with this but in their private lives they're hooking up with the girl in the cubicle next door that's all i'm saying the professor i don't know i'm sure there's like there's still professors going

sleeping with students there's still law professors sleeping with each other. There's still administration. It's always going to happen. It's not going to stop. Go ahead, professor. So a few years ago at my school, we did have this debate

about whether we needed to make it actually against the rules for professors and students, any teacher and any student of any kind, even if they're not your student, to make that just against the rules. And we had a big contentious debate about it. And the school did ultimately vote

to make that illegal at our school. So what if no professor can sleep with any student of any Yeah, or date or have any kind of romantic interaction with any student. What about if it's a grad student that's still married? Doesn't matter. Doesn't matter. It could be a student who's older than you. It could be like a 10th year PhD student. Doesn't matter. We're not, that's not, no longer allowed. But, you know, some, a lot of people in my profession did marry their students at one time, not even that long ago. They're going to go into academia if they can't have sex with their students.

Let her finish. That's not, you know, it used to be, it may be that back in the day, that was one of the perks of the job. That is no longer considered a perk of the job. So, I guess what I, one thing that I agree with you on, Noam, is there are certain ways in which you, if you make a rule over inclusive, so that almost everybody who's having sex is technically in violation of it. And I do believe that if you have a verbal affirmative consent policy, pretty much like almost everybody who's having sex, like very few are actually complying with it because these consent policies say for every single thing, like touch this part of your body, touch that part, it's not just like one blanket consent that's going to work. It's like for every step of the

way. People aren't really doing that. It'd be the rare couple that's actually doing that. So then what that means is everybody is violating, but not everybody's going to get in trouble. You said a lot of people know only a few select people will get in trouble. And what I worry about is the impact on people who are already marginalized or already like seeing a suspect, you know, people of color or men of color or, you know, like immigrants or people who don't, or, you know, people who might have like, you know, Asperger's or, you know, like immigrants or people who don't, or, you know, people who might have like, you know, Asperger's or, you know, don't read social cues right or whatever, you know, so it's just, it's not that all of us are going to get in trouble. It's that only a few of us are, and that selection is probably going to have some systematic bias against people who

already are pretty disadvantaged in a university setting. And that's what I worry about. And by the way, you touched on something, maybe another time to have another conversation about it, but it's like a pet thing of mine. I always think about it is that these people who don't read social cues in life, which I believe is very likely a genetic thing. People are disadvantaged in everything. They can't, these are the people who get in trouble in sexual situations. They try to kiss, they have no indication that the girl has no interest whatsoever. Where another guy who can read social cues just never gets in trouble because he doesn't try to kiss a girl unless he's correct that she wants to kiss him back.

And these people innocently go around trying to be happy, trying to engage with, but in every aspect of their lives, people who can't read social cues are tremendously disadvantaged and get in trouble all the time. And I would also say that I think I would have voted that the professors cannot have sex with students. I think that's, that one I would say is correct. It's common sense, I think. Yeah. Yeah. It's, it's, you know, if, if it's that bad, then one of you needs to drop out, you know, but. Or just wait. Or just wait. Yeah. Wait till they graduate. Four years? Waiting is not realistic. Nobody can wait. Don't you know nobody can wait? Have you ever been in a relationship where you tried to wait? It doesn't work. Yes. It doesn't work yes the answer is yes it doesn't work and what we most well go ahead i mean just if everybody would just deal in good faith too like in all

these things i'm as a we said this when you got um cut off but i own a restaurant and what happens is a law which is well intended like people who are negligent should be responsible for the injuries that happen from the negligence. As a restaurant owner, you know, 90 times out of a hundred, they're just ways for somebody to try to get money from me or get me in trouble or get even with me or get even because they were unhappy with something, you know, because bad faith ruins everything. And it's kind of what I'm reading in some of these sexual cases. Like, it's not that we don't want people who are abused to have recourse. It's that when you hear all these stories about couples that he, you know, somebody I've been showering with for years, all of a sudden he looked at my genitals and now we're getting the law involved.

Like, you know, this is just- Not the law, the campus bureaucracy. Well, and, you know, and perhaps he would want the law to be able to get involved if possible. I'm going to research that story about that. You can't have a good thing if you don't have people, when I say good thing, I mean a positive thing for society if people are not acting in good faith. Anyway, we should end there, Noam, unless anybody else has something that they're burning to say.

I will just add one thing. I mean, bad faith, good faith, yes, unless anybody else has something that they're burning to say. I will just add one thing. I mean, bad faith, good faith, yes. But sometimes I think that there's a whole other hour we could do on the idea that sometimes people don't always know exactly what they want in the moment. And then afterwards, they know a little better that they didn't want it in the moment. It wasn't as clear to them in the

moment so i think wanted it in the moment and then when the moment is over they but that's bad that's bad faith i mean that's bad faith but i guess what i'm saying is there's there's just sometimes there's ambivalence around sexuality all around and you don't quite know what you want and mike in the experience you had maybe it was clear to you in the moment that you didn't want it. Maybe it wasn't that clear. And so I think that just the idea of that there's this clear cut distinction between good faith and bad faith can also be, you know, I doubt that sometimes that it's you, you know, that there's confusion. And then you have these rules that you can fall back on right but if there's confusion then you can't turn around and go back and like blame that other person then either right that doesn't seem entirely fair either it may not be fair but it may be that you're you're you know the way

human minds work it may be that like you weren't sure in the moment but then as time goes on you become more convinced right sincerely sincerely not in bad faith sincerely convinced that you were violated yeah yeah absolutely very interesting um where that you wrote this said the bureaucracy of sex this was a a law review article for Harvard Law Review. Is that it? It's called The Sex Bureaucracy. I wrote it. It's in the California Law Review, but there's a version in the Chronicle of Higher Education that's shorter. For our listeners, the Chronicle of Higher Education, wherever chronicles are sold, you can buy that and read all about the politics of sexual bureaucracy on campus. We thank our very special guests. I just, by the way, read on your Wikipedia article that you were born in Seoul, South Korea.

I was. But you obviously came as a very young person because you have no accent of any kind. I came when I was six years old and spent a year in Youngstown, Ohio, which is where I got my completely neutral American accent. That's as undiverse a place as I can think of. Thank you so much for coming, Professor Gerson. I'll leave with this. Camille Paglia, who I know is a very controversial figure in feminist circles, but she's a provocative writer. She said, sex is a dark, dangerous force force of nature and I think that's exactly right and so everything that you're saying about this ambivalence and ambiguity and regrets and good

faith bad faith is it's all true it's all true in various times the only thing that I'm going to call bullshit on is the fact that Mike Kaplan was actually abused. Oh, come on. If it had just been you were on the bottom, I could have given it to you, Mike. But being back, being in control of the event, I'm sorry, I'm laughing you out of Dwarven Court. Okay, Professor Gerson, it was a pleasure to meet you. Of course, you are welcome anytime you're in there to stop by and discuss this or other things with us in person.

Mike Kaplan, bye. I would love to have you at the Comedy Cellar, Professor. Do you ever come to New York? I would love it. Yes, I would love it. Oh, my God. Perry Elk, here we go. A.K.A. is his latest and greatest album.

Thank you, Dan. If I may just real quick also say, Noam, I hope that your home life improves. Okay, thank you. And we will see you on our podcast at ComedyCellar.com for questions, comments, suggestions. See you next time. Bye-bye. Bye-bye. Thank you so much, guys.

Thank you. Thank you. Thank you.