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Why I Don't Plan to Blog on the FLDS Case:
In light of the blogging here on the FLDS case, and its relevance to my area, criminal procedure, I thought I would say a word on why I'm not planning on blogging about the case.

  There are two closely-related reasons. First, the facts are still unclear. In my view, the facts are everything in these cases; it's hard to judge what happened when you don't really know what happened. Second, cases such as this often trigger tremendous emotion among libertarians who identify to varying degrees with the targets. As a result of these two reasons, coverage of such cases usually emits more heat than light; folks often have extremely strong views even if no one really knows what is going on.

  Some bloggers enjoy blogging in those situations, but I generally don't — or at least I don't unless I have a lot of time to delve into the details. With peak grading season upon us, I don't have that time, so I don't expect to blog on the topic beyond this meta-post.
Tracy Johnson (www):
But you just did!
4.29.2008 5:46pm
Sean M:
If Orin doesn't blog on this case, that's it. I'm canceling my subscription. I want my money back.
4.29.2008 5:47pm
Frog Leg (mail):
I would suggest also disabling comments on this entry, if you really want to avoid being nutjob-bait.
4.29.2008 5:48pm
b.:
"Blogger Blogs What He Promised not to Blog": news at 11.
4.29.2008 5:56pm
clever and snarky guy (mail):
Not blogging when you don't have the facts? Coward.
4.29.2008 5:59pm
OrinKerr:
Tracy, B., please note the end of this sentence: "With peak grading season upon us, I don't have that time, so I don't expect to blog on the topic beyond this meta-post." (emphasis added)
4.29.2008 6:09pm
Duffy Pratt (mail):
Who is this "us"? Have you taken to the royal "we:"?

I'm looking forward to hearing which topics you will not be blogging in the future.
4.29.2008 6:19pm
OrinKerr:
Duffy,

"Us" = the bloggers at the Volokh Conspiracy.
4.29.2008 6:23pm
Roger Schlafly (www):
Even if you don't know what facts will ultimately be determined, you can still have an opinion about whether the judge acted properly based on the evidence presented.
4.29.2008 6:23pm
Oren:
I thought us = academics. I'm not a blogger here and I have plenty of grading to do!
4.29.2008 6:24pm
Dilan Esper (mail) (www):
I agree totally with Professor Kerr's meta-point. There's simply a fundamental divide between people who look at the FLDS and say "that group's practices are scary" and people who look at Texas' efforts to break up an insular homeschooling religious group with distinctive practices and say "that government's tactics are scary". It's hard to reach any sort of consensus, even on first principles.
4.29.2008 6:39pm
ithaqua (mail):

[C]overage of such cases usually emits more heat than light; folks often have extremely strong views even if no one really knows what is going on [...] Some bloggers enjoy blogging in those situations, but I generally don't[.]

What, no baseless vituperation? No whipping your commentarizerg into a frenzy? Reserving comment until you have an actual understanding of the situation?

...are you sure you're really a blogger?
4.29.2008 6:47pm
Fub:
Dilan Esper wrote at 4.29.2008 5:39pm:
... There's simply a fundamental divide between people who look at the FLDS and say "that group's practices are scary" and people who look at Texas' efforts to break up an insular homeschooling religious group with distinctive practices and say "that government's tactics are scary". It's hard to reach any sort of consensus, even on first principles.
Here's my first principle, at least for this kind of case. It's empirical: Any injustice, unfairness, unconstitutional or bad law, that we the people permit government to use against the most despicable and frightening people, can be used and inevitably will be used against the most innocent and benign people.

I think that most can agree with that to some degree. It's the basic reasoning for supporting most rights.
4.29.2008 7:04pm
OrinKerr:
Fub,

I'm curious, what's your answer to Buf, the anti-Fub, who writes the following:
Here's my first principle, at least for this kind of case. It's empirical: Any child molestation, or massive scale abuse of minors, that can be stopped by the authorities pursuant to court orders and judicial review should be so stopped.

I think that most can agree with that to some degree. It's the basic reasoning for having criminal laws in the first place.
Of course, that's not to see Buf is right -- just that Fub and Buf probably should appreciate the others' perspective.
4.29.2008 7:10pm
Ryan Waxx (mail):
No one is denying that child molestation should be stopped, OrinKerr... that is a strawman. People are disagreeing with the METHODS by which it may have been stopped, and the weather the EVIDENCE available at the time justified the actions.
4.29.2008 7:29pm
JosephSlater (mail):
I'm impressed that, during the height of grading season, Orin isn't looking for things to blog about simply to avoid grading. Frankly, that's why I'm posting here now.
4.29.2008 7:36pm
MarkField (mail):

No one is denying that child molestation should be stopped, OrinKerr... that is a strawman. People are disagreeing with the METHODS by which it may have been stopped, and the weather the EVIDENCE available at the time justified the actions.


No wonder those same people question the METHODS the Bush Administration's has employed towards accused terrorists and whether the EVIDENCE available at the time justified the actions.
4.29.2008 8:19pm
Kathi Smith (mail):
Orin Kerr said, "cases such as this often trigger tremendous emotion among libertarians who identify to varying degrees with the targets."
Question: What if the 14-year-old mothers are libertarians? Or would be, if allowed the liberty necessary to develop into libertarians?
4.29.2008 8:28pm
NR:
This post sets a dangerous precedent. In the future, commenters will demand to know why Orin hasn't blogged on some other Matter of Earhtshaking Importance (MEI), or at least explained his obstinate refusal to blog on that MEI, as he has done in this post with respect to the FLDS. Then Orin will appear in the comment thread, good-natured fellow that he is, to patiently explain why his explanation of his non-blogging of the FLDS issue does not oblige him to justify his non-blogging of any other MEI. Then commenters will argue about whether Orin's explanation about the giving and non-giving of explanations of his non-blogging is tenable in light of the relative importance of various MEIs, with some commenters questioning Orin's integrity, others questioning his libertarian bona fides, and still others telling everyone else to shut up and/or admit they are stupid, hypocritical lefties/wingnuts with nothing to add to the discussion. Eventually, Orin will be forced to resort to sarcasm and/or closing the thread, and the meta-issues will remain unresolved to resurface in future posts or non-posts on other MEIs.
4.29.2008 8:49pm
OrinKerr:
NR,

Hilarious. Next time someone demands to know why I am not posting on a MEI, I will refer them to your comment.
4.29.2008 8:51pm
hattio1:
Dilan Esper says;

There's simply a fundamental divide between people who look at the FLDS and say "that group's practices are scary" and people who look at Texas' efforts to break up an insular homeschooling religious group with distinctive practices and say "that government's tactics are scary".


Damn, I must be schizophrenic (or however you spell it) because I agree with both of those sentences. Do I need to be shrunk????
4.29.2008 9:29pm
LM (mail):

What if the 14-year-old mothers are libertarians? Or would be, if allowed the liberty necessary to develop into libertarians?

Don't go there.
4.29.2008 9:36pm
Oren:
Hattio, I don't think it's schizo. I believe that the FLDS is structured in a way that promotes the continuing abuse of children (explusion for the boys, sham marriage for the girls).

As far as the government, I'm deferring to their better judgment for the time being in the belief that they will be vindicated at a fair and full trial on the merits. Such a trial would restore my faith in the process of the system and the production of serious evidence by the state would reaffirm my faith in their actions.

If they come up emptyhanded or the trial ends up being a sham, I will have to reevaluate the level of deference due to CPS but, for the time being, I'm going to stick with the good-faith argument.
4.29.2008 11:43pm
Barry P. (mail):
Second, cases such as this often trigger tremendous emotion among libertarians who identify to varying degrees with the targets.

I'm a fairly strindent libertarian, Orin. I think that society would be better served if about 90% of the apparatus of the state was disassembled. But one of the things I want the state doing is stopping dirty old men from raping children.

The defence and support that those cretinous perverts have been getting from VC principals and commenters is nothing short of vile. This really is this forum's nadir.
4.30.2008 12:34am
Barry P. (mail):
"strindent"? Damn my fat fingers!
4.30.2008 1:24am
zippypinhead:
Barry P. wrote:
But one of the things I want the state doing is stopping dirty old men from raping children.

The defence and support that those cretinous perverts have been getting from VC principals and commenters is nothing short of vile. This really is this forum's nadir.
Amen... Which underscores the wisdom of Professor Kerr's decision to not wade into this swamp on the merits (leaving aside the apparent attractive nuisance problem that nevertheless enticed him to splash around a bit in the comment ooze a bit after professing that he'd be somewhere else peacefully grading finals instead). Reading the posts and thread comments really underscores how toxic the topic has become, regardless where you come down.

But next time you're offering such pearls of wisdom, Professor, I do wish you'd do so several hours sooner, so pinheads like myself can take your cue and run, not walk, to the nearest fire exit (or browser "back" button as the case may be).
4.30.2008 7:46am
Fub:
OrinKerr wrote at 4.29.2008 6:10pm:
Fub,

I'm curious, what's your answer to Buf, the anti-Fub, who writes the following:

Here's my first principle, at least for this kind of case. It's empirical: Any child molestation, or massive scale abuse of minors, that can be stopped by the authorities pursuant to court orders and judicial review should be so stopped.

I think that most can agree with that to some degree. It's the basic reasoning for having criminal laws in the first place.

Of course, that's not to see Buf is right -- just that Fub and Buf probably should appreciate the others' perspective.
Professor Kerr,

I am honored that you would pose a question to me. I am also shocked and surprised that my vastly smarter evil twin, Buf, would contact you. Buf rarely contacts anyone outside his secretive inner circle of associates. He has kept that low profile ever since 1958 when, as an enfant terrible on the Washington scene he advised Mr. Adams and Mr. Goldfine about a vicuna coat. He did remain active behind the scenes, though. His clients later included Mr. Baker, Mr. Nixon and his staff, Mr. Lance, several senators involved in S&L regulation, Mr. Poindexter, Mr. Secord, and Mr. North. Of course, he remained obsessed with secrecy. When some Hollywood moguls approached him a few years ago to make a movie about his pre-Washington career advising professional sports team owners, he turned them down flat. So "Buf the Umpire Payer" was never filmed.

Yet Buf contacted you. The internet is a very strange place. Are you sure it wasn't just some dog?

But I digress. I cannot deny the statement you cite is from Buf. It bears his earmarks. He has a penchant for carefully constructing slightly skewed and not quite apposite analogies, which irregularities often go undetected without close reading and observation. That is but one means by which he seduces his patrons.

In this case, Buf's misbegotten analogy invites his audience to logical error. The salient feature of my original principle is the fair and constitutional enforcement of just laws. Buf's analogy, however, invites the conclusion that fairness in enforcement of just laws is tantamount to no enforcement, or no laws at all. Thus he seduces his audience to make the error of the excluded middle. He invites them to conclude "Of course government must enforce laws, even unjust laws, and even by unjust means."

But, I would never "answer" Buf, as he is unlikely to be persuaded by my feeble logical arguments. I would, though, advise those who find themselves seduced into thinking that ethical, constitutional and fair enforcement of just laws is tantamount to not enforcing laws or not having laws, that they should rethink their conclusion carefully.

I would further submit that any populace who cannot make that distinction will find itself as bereft of rights and justice as Buf's clients were bereft of ethics.

I thank you for passing along Buf's statement, and I hope I have answered your question satisfactorily.
4.30.2008 3:43pm
LM (mail):
Fub,

Apart from the question of constitutionality, you beg the question of what's ethical, fair enforcement and what's a just law. At least Buf gives us some specific guidance about what he has in mind.
4.30.2008 5:36pm
Fub:
LM 4.30.2008 4:36pm:
Apart from the question of constitutionality, you beg the question of what's ethical, fair enforcement and what's a just law. At least Buf gives us some specific guidance about what he has in mind.
A fair point.

First, my sense of what is wrong with the FLDS raid is not the substantive laws on age of majority, rape, bigamy, and the like which may be operative in the case. I think such laws are generally constitutional, although disagreements exist among many whether their particular elements are wise.

What I, and I believe many others, think unjust about the FDLS raids are essentially procedural issues -- a warrant based on an apparently feigned "good faith" belief that an anonymous caller was truthfully reporting an observed fact; CPS internal procedures that remove all children from all families and dwellings, based upon one unreliable report of abuse of one child in one family and dwelling, and the like.

If crimes were actually being committed, there are ample means to bring the particular perpetrators to justice without resorting to arresting everybody in sight and taking their children away.

My principle, stated more concretely, is that if such procedures are acceptable against the unpopular FDLS religion, then nothing prevents government from using the same procedures to round up all Catholics and take their children away, based upon one anonymous report that one priest abused one child. Every Catholic would be jailed pending investigation of whether he delivered his children to the Church for molestation by priests.

I do not oppose, and in fact endorse, prosecuting the particular individuals for the particular crimes, based upon actual probable cause that the individuals committed those crimes.

Buf implicitly confounds questioning dangerously bad procedure with opposition to the substantive laws.
4.30.2008 7:41pm
Oren:
If crimes were actually being committed, there are ample means to bring the particular perpetrators to justice without resorting to arresting everybody in sight and taking their children away.
I don't think anyone was arrested (temporarily detained pending the search, sure, but not arrested).

At any rate, the FLDS poses a unique problem since all property is jointly owned (thus making it particularly hard to write a warrant for one household) and there is ample evidence that wives and children are swapped between families, even sent between the 3 major strongholds. Write a warrant for one household and the kids will just get moved next door (or to Utah, if you aren't careful).

To make matters worse, the FLDS has made it purposefully difficult to even figure out who is who. Their birth records are unreliable (and sometimes not even filed with the state to begin with) and the children (once separated) give wildly inconsistent stories about matters as simple as who their parents are. How the hell are you supposed to write a warrant for a particular wrong-doer when you can't even sort out the basic identities? Combine this with a lack of internal addresses, and it becomes clear that you aren't going to make any headway without a systematic approach.

Which brings me to my last point, which is that the individual crimes committed are not particularly heinous when taken alone, but, when taken together, form a particularly nasty picture. In the face of systematic child abuse (which is well-documented by former FLDS members who have fled), a piecemeal approach just doesn't make sense.
5.1.2008 4:32am