What is the Unemployment Rate?

In the months leading up to President Obama's State of the Union address, unemployment has been steadily increasing. From 7.7% in January 2009, when Obama took office, to 10% in December 2009. Shortly after Obama gave his address, the Department of Labor issued a press release, noting that 20,000 jobs have been lost in January, and yet the unemployment rate has decreased to 9.7%, a reduction of 0.3% from January, which is good news.

However, as I learned from reading an Israeli article (published in Hebrew) and after playing a little bit with the Bureau of Labor Statistics to verify the data, the picture is not that simple.

The Department of Labor apparently has at least two ways of calculating the unemployment rate. The difference between the two depends on who counts as unemployed. the 9.7% figure is, as it turns out, rather conservative. A more comprehensive method, termed U-6, shows that the figures are much bleaker. This is the "Alternative measure of labor underutilization." It includes "Total unemployed, plus all marginally attached workers plus total employed part time". This might be a better indicator, since it includes those who have given up on finding a job and those who work part time, usually because of cutbacks. As can be seen from the chart below, the unemployment rate in January 2010 was actually a whopping 16.5%, less than 1% from the highest rate since WWII (according to the Israeli article). This means that the number of unemployed is not around 15 million, but more like 26 million. However, there's good news too. Even according to this method, we are back to the level of June 2009, after peaking at 17.4% in October 2009.

Year	Jan	Feb	Mar	Apr	May	Jun	Jul	Aug	Sep	Oct	Nov	Dec	Annual
2000	7.1	7.2	7.1	6.9	7.1	7.0	7.0	7.1	7.0	6.8	7.1	6.9
2001	7.3	7.4	7.3	7.4	7.5	7.9	7.8	8.1	8.7	9.3	9.4	9.6
2002	9.5	9.5	9.4	9.7	9.5	9.5	9.6	9.6	9.6	9.6	9.7	9.8
2003	10.0	10.2	10.0	10.2	10.1	10.3	10.3	10.1	10.4	10.2	10.0	9.8
2004	9.9	9.7	10.0	9.6	9.6	9.5	9.5	9.4	9.4	9.7	9.4	9.2
2005	9.3	9.3	9.1	8.9	8.9	9.0	8.8	8.9	9.0	8.7	8.7	8.6
2006	8.4	8.4	8.2	8.1	8.2	8.4	8.5	8.4	8.0	8.2	8.1	8.0
2007	8.3	8.1	8.0	8.2	8.2	8.2	8.3	8.5	8.4	8.4	8.5	8.8
2008	9.1	8.9	9.0	9.2	9.7	10.0	10.5	10.9	11.2	11.9	12.8	13.7
2009	14.0	15.0	15.6	15.8	16.4	16.5	16.4	16.8	17.0	17.4	17.2	17.3
2010	16.5

Living in Wellington

As some of Persuasive Authorities’ co-bloggers know, I recently accepted a position at the Faculty of Law, Victoria University of Wellington. I arrived to Wellington last Sunday; everyone at the faculty has been extremely welcoming and collegial, I simply could not ask for more.

But after living for four years in Toronto (which is also a great city), I have been surprised of how helpful Wellingtonians are. Just to give you an example. For the last few days I have been looking for a house to rent, so I have been going around the city by public transit most of the time. Today, I asked a bus driver for directions. He had never heard about the street I was looking for, so he called about four different bus drivers and asked them. These other drivers did not know where this street was either (apparently Bould Street is somewhat unknown), and immediately there was a discussion among the other six bus passengers about how to get there. Eventually, we ended up finding Bould Street in a map that one of the passengers offered me, and with another passenger helping me to find the street after we got off the bus.

Hopefully, I would be able to find a place soon, so I can begin worrying about more interesting things, like the Treaty of Waitangi, the Bill of Rights, and Parliamentary Sovereignty and Human Rights in New Zealand.

Stephanie Enyart Beats the Bar

I was surprised when the National Conference of Bar Examiners (NCBE) opposed Stephanie Enyart's request for permission to use special software on the California bar exam. Ms. Enyart is visually-impaired, and the software she requested would allow her to sit for the test on an equal footing with other test-takers.

But I was not at all surprised, and indeed was quite relieved, when federal court Judge Charles Breyer of the Northern District of California recently issued a preliminary injunction requiring the NCBE to make the software available to Ms. Enyart.

That is the only just result.

Hilary Swank, Esq.

Coming to a theater near you!

The Rolling Stones of Legal Practice

Last week my local DA told me this joke: "What’s law? That’s when you’re arresting someone who has the right to remain silent. And what’s legal practice? That’s when you’re arresting someone who is guilty." I’m not sure it’s actually a joke. Not just because it’s not very funny. Poor ivory tower constitutional scholars like me are always told that we don't know about legal practice, that we don't care enough about the real world of law, and that there is a difference between law and legal practice. Well, there isn’t. There is no such thing as legal practice.

Me and my colleagues we’re in something that’s called Referendariat, a great German invention that makes young lawyers after completion of their JD go around for two years from civil to penal courts to administrative agencies to law firms. The idea is: To get some of that sweet legal practice. The one thing that we’re told over and over again is this: "Law – you’ve seen the theory, now look how it’s actually done". That’s great. We’re forced to do it (you don't get admitted to the bar if you don't), and we get paid very badly (some have to ask their parents for an iPhone) but what we learn is very interesting (it really is). Yet what we learn is not legal practice. Because there is no such thing as legal practice.

When lawyers talk about legal practice they generally mean two separate things: 

1. There is much more to law than the law. There are ways that lawyers work, there is bureaucracy before you can render a judgment, you need a good secretary to run a legal office, you need to be prepared when you’re in court and to know how to prepare, you need to be good with people, you got to have a pen with you, you need to know how to organize your files. That’s very important. But it’s not law. They are skills. But not law.

2. The second thing that is meant by legal practice is this: What you learn at law school is one thing, what we do here (at the DA's office, at the court, at the firm), well, that’s something else. And that’s the interesting part. Because what this argument is mainly about is this: The law might say one thing, but we the practitioners we do it slightly differently. That’s not law either. That’s praeter legem. What my funny District Attorney (who is in charge of educating not me personally but a lot of other young lawyers), meant was that a lot of things that not just academia (they don't really care about scholarship at a DA's office) but especially higher courts present as chains for executive powers is not transferable into the real world, that it is – not practical. That might be true or untrue, but it is not the law. If the prosecution or the detective’s office does not follow a legal guideline as it is presented by courts or the legislature they are not within the law. What they do is practice. But it’s not legal practice.

There is no difference between law and its practice. Law is a normative order. It’s theory, and theory only. No matter how often you apply it, it remains what it is: law. There is no such thing as a sociological law; there is law and there is sociology (and, yes, I believe Pound would not smack me if he could). A court renders a judgment. That’s a judgment. It might be lawful and it might be unlawful (ask the Supreme Court), but it is not legal practice. A court decision decides a case. The proof of the pudding might be in the eating, but a pudding will not teach you how to cook. Law remains theory. And to point a legal scholar to legal practice is like asking how practical a theory is. A theory can never be practical. That’s why it’s a theory. And the fact that law is mere theory is not so bad, either. It means that law does not live within society, but is made by it (in a possibly democratic fashion). That’s a huge difference. (Some) practitioners will hate me for being such a Kelsen. But when you’re a lawyer being a theorist has a tiny, but essential advantage: You can watch the practitioners and observe much better whether what they do is all lawful or not. And that’s why I smiled to the District Attorney and said: "Sir, what can a poor boy do except to do constitutional law?" He didn’t smile. He didn’t know the Stones too well. I said: "That’s funny, Sir. They are practitioners."

University of Massachusetts School of Law

... is one step closer to reality. Yesterday, the Board of Higher Education voted to approve the establishment of the first public law school in the Commonwealth of Massachusetts.

Freedom of Religion: for what? for whom?

Never say they did not go all Obama (yes, I just used it as a verb) on this.

As the Prop 8 trial continues in sunny California, supporters of same-sex marriage might have found common ground with their opponents: the language of religious freedom. Backed by Equality California and the California Council of Churches (strange bedfellows?), Senate Bill 906, introduced by Senator Mark Leno, protects clergy from performing any civil marriage that is contrary to the tenets of his or her faith and provides clear distinctions between civil and religious marriage in state law. In addition, refusals to perform such marriages will not result to any loss of tax exemptions for the religious institutions concerned.

Across the pond, the London Times has a story on the Equality Bill pending before the Parliament, sponsored by the leader of the House of Commons, Harriet Harman. The bill consolidates several existing anti-discrimination laws and limits the exemptions that can be availed of by institutions in hiring employees.

Constitutional Reform in California

Loyola Law School will host what, in my view, promises to be a terrific conference exploring the possibility of a California Constitutional Convention. Here are the conference details, and here is the call for papers.

More on Citizens United

Harvard Law School has collected the opinions of several Harvard Law profs who discuss the implications of the Court's recent decision in Citizens United. Larry Lessig's position seems sensible to me, though unlike him I am probably a little more concerned about the disproportinate power exerted by corporations during campaigns. Professors Mark Tushnet and Mark Roe discuss the interesting corporate aspects of the decision, while Professor Jed Shugerman highlights some of the lesser discussed parts relating to labor union campaign activity.

Check it out here.

Dan Markel is the Best

Dan Markel, a law professor at Florida State University, is one of my favorite persons. For several reasons.

I now have yet another reason to add to my growing list as to why Dan Markel is the best. Take a look at this: Dan and his family have pledged to match contributions to Haitian relief efforts in any amount up to $1200.

I rest my case.

Overcoming Citizens United

Jack Balkin and Ian Ayers have an oped in the Washington Post that explains how Congress can overcome the Court's recent decision in Citizens United. Basically, they propose limiting the scope of the decision by enacting legislation which will ban companies who do business with the federal government from "endorsing or opposing a candidate for public office." While this doesn't take care of all potential companies affected by the Court's ruling, it does include many companies, including three quarters of the 100 biggest firms traded on Wall Street.

Good idea? Over at Balkinization, Sandy Levinson thinks not, because such legislation will run afoul of the unconstitutional conditions doctrine. Meaning, Congress stipulating that the condition to contract with the government is dependent on not endorsing or opposing a candidate amounts to a sort of coercion on the company, thus depriving it of its First Amendment rights, recently held by the Court. Furthermore, Sandy thinks that such legislation will not survive the current conservative majority on the Court.

My view is different, and therefore I disagree with Sandy. The unconsitutional conditions doctrine is one of the quagmires of U.S. constitutional law, and I can see a plausible case to be made that such legislation will not be considered an unconstitutional condition. My analysis goes something like this: