(FORTUNE Magazine) – AMAZING LIBERALS

This item might be viewed as an unintended consequence of a social gathering the other night at which the contestants got to talking about the Law of Unintended Consequences. The law is generally associated with Columbia sociologist Robert K. Merton, who propounded it almost 60 years ago, and it appears to be a subject of boundless interest to media folks (as evidenced by 835 articles in the Nexis database mentioning the phrase). Our own contribution to the babble was to cite and ringingly endorse the variant we have long associated with neoconservative heavyweight Irving Kristol, which is that government regulations always have unintended consequences and that their importance always outweighs the intended consequences. This led to a certain amount of acrimonious crosstalk worthy of the McLaughlin Group and resulted in our placing a call the day after to Kristol, just to be sure we had quoted him correctly. He said we were basically okay but warily added that the "always" references seemed a bit extreme to him. To your servant, they continue to sound perfect.

The law is for obvious reasons generally more congenial to conservatives than to liberals, since the libs sponsor most of the social engineering that keeps generating the astonishments. Among the consequences those guys presumably unintended in recent years are the half dozen below, especially beloved by Keeping Up's social policy desk.

Minimum-wage legislation, which, as repeatedly elaborated in these columns, increases unemployment.

The federally mandated CAFE (the auto companies' corporate average fuel economy standards), which resulted in lighter cars. Since cars' weights are inversely related to fatalities in accidents, the standards have also resulted in an estimated 2,200 to 3,900 additional highway deaths per year.

State and federal privacy statutes that have recurrently enabled convicted sex offenders to get jobs working with young children, with predictable results.

The program of Aid to Families With Dependent Children, enacted in the Thirties to help widows left with small kids, which since the Sixties has been a major engine of out-of-wedlock births.

The 1964 Civil Rights Act, which appears to firmly state that companies may not "deprive any individual of employment opportunities . because of such individual's race, color, religion, sex, or national origin" but which has become, with the help of some amazing Supreme Court logic, the major legal support under preferential hiring plans.

The deinstitutionalization movement of the Sixties, intended to create civil rights for the hospitalized mentally ill, which ended up dumping hundreds of thousands of crazy people on city streets.

Irving, you're too cautious.

ASK MR. STATISTICS

Dear Deviationist: In a recent (May 1) sermonette, you alluded with above-average snideness to a column by Max Frankel, erstwhile executive editor of the New York Times, in which it was sorrowfully noted that his august institution had on occasion been guilty of innumeracy. Can I take it for granted that in the wake of this in-house chiding and chastening, the world's arguably greatest newspaper (WAGN) has given its editors crash courses in number crunching so that mathematical miasma no longer menaces the undersigned every time he lifts the paper off his doormat?

STILL A WAGNERIAN

Dear Meisterzinger: It is interesting that you should raise the above question at this juncture in history, as Herr Statistics has only recently completed an unbiased survey of crunching at the Times during the assumedly typical five days April 19-23 and come up with a certain amount of evidence to suggest that some staffers remain, shall we say, a bit ill at ease in engagements on the quantitative front.

April 19: Marian Burros has an article in the Living section on single-malt Scotch whisky, the premise being that this booze is "becoming very popular in the United States." Underwhelming evidence for this statement: "Shipments . have risen 9% in the last five years." In other words, a paltry 1.7% growth rate, in a period when U.S. consumption of consumer goods generally was expanding at a rate of around 4%.

April 20: Judith H. Dobrzynski has an article about diversity in the workplace, in the course of which she joins the long list of journalists who have mindlessly cited the 1987 Hudson Institute study stating that between 1988 and 2000, white males would account for only 12% to 15% of those joining the work force. The statement was absurd in 1987 (and reflected a copyreading error in the executive summary of the Hudson report), as white males then and now have accounted for about 40% of all Americans in their late teens and early 20s--the ages when people are ready for the job market.

April 21: Would it be nitpickery to posit that Maria Newman is guilty of false imprecision in her article about New York City school buses, which states: "Of the city's 3,805 buses, some 2,537 are used exclusively to transport special-education students"? That's "some" in the sense of "approximately."

April 23: Jane E. Brody weighs in on the latest mysterious finding about the benefits of exercise. The news is that only very strenuous exercise reduces mortality rates, whereas the previous prevailing wisdom was that there are substantial reductions even from moderate exercise. Endeavoring to represent the earlier views of the Centers for Disease Control, Jane attributes to it the thought that "if every American who is sedentary would walk, work around the house, dance or do something comparable for 30 minutes a day, there would be an annual decline in deaths of about 250,000 a year." Deeming counterintuitive the possibility that he might attain immortality by waltzing for half an hour a day, Mr. Statistics glumly concludes that the CDC was talking about deaths postponed for a while, not deaths avoided, and that every one of the 250,000 will continue to be represented in annual shuffles off the mortal coil.

April 23: Writing about lottery mania in the Sunday Times Magazine, Lois Gould derides the folks who persist in fantasizing about their winning chances when the odds against them are "up to 18 million to 1." To the same end, we are told that "a game- theory professor once calculated the odds of winning as equal to a poker player's chances of drawing four royal flushes in a row, all in spades--then getting up from the card table and meeting four strangers, all with the same birthday." Oh? Has nobody told Lois or her editors that (a) the calculation has nothing to do with game theory and (b) the odds against all that stuff happening around the card table are quite a bit more than those in any known lottery in interstellar history. The odds are in fact about 22 decillion to 1. That's a 34-digit number, it is approximately 1.2 octillion times greater than 18 million, and it appears to leave us still being routed on the quantitative front.

GREAT MOMENTS IN DRINKING

Where a husband gets drunk at a bar and then [assaults] his wife, the wife can sue the bar under a state "Dram Shop Statute," says the Minnesota Court of Appeals. This is the first court in the country ever to allow a bar to be sued for domestic violence...

The couple in the case had both been drinking at a local tavern. They got into their van to go home and began to argue.

The wife claimed that as the husband began driving, he began to hit her in the face and pull her hair. To escape, she jumped from the van...and suffered severe injuries...

The wife sued under the state's dram shop statute, which says that a plaintiff who is injured "by an intoxicated person...has a right of action...against a person who caused the intoxication ..."

--From an article in Lawyers Weekly USA.

THE LAWYERS' FRIEND

One has recently spent a stupefied April afternoon reading EEOC Order 915.002, Section 902, Definition of the Term "Disability"--hard slogging all the way, but it seems to be what we get paid for these days. The document was created by the Equal Employment Opportunity Commission pursuant to its never-ending effort to find some clear operational meaning in the Americans With Disabilities Act of 1990, which it is charged with enforcing. Its basic mission this time: figuring out exactly who is covered by the act and therefore cannot be discriminated against by employers, who must instead offer the "reasonable accommodation" that will make it possible for someone who is disabled but otherwise qualified to do the job.

The effort is judged here to be an unqualified but understandable failure. The congressional language refers to physical and mental impairments that "substantially" limit "major" life activities. Not having a clue to what those terms might mean, the EEOC has engaged in a cop-out familiar to all readers of the Federal Register. It gives examples of covered and uncovered situations. In one example, we learn that folks whose knee problems generate pains when they walk over ten miles are not covered, since many normal people would develop aches or pains hiking such distances. The matching example tells us that those who start aching after "very short distances" are clearly covered. So--to proceed to the question being wondered about by any employer whose staff does a lot of walking--at what kind of distance does ADA coverage begin? The EEOC is naturally too cagey to get specific, which is also the case when its guidelines dwell on workers with major and minor hearing impairments, mild and serious cases of diabetes, slight and serious concussions.

Must impairments be permanent in order to qualify under the act? No, a temporary problem--a fractured arm, a case of laryngitis--may also qualify if it lasts long enough. So how long is that? Unhelpful answer: "The determination must be made on a case-by-case basis. There are no set time limits . . ." Once again it is all a matter of degree, and the regs do not specify which degrees really matter. All the employer really needs to know is the way to the courthouse.

The guidelines are litigation engendering in another respect as well. In addition to distinguishing between major and minor versions of some problem, they also make clear that much depends on whether the problem has a name--a name an expert witness can come into court with. If you yell and scream at your office colleagues because you have a "quick temper," you are not covered by ADA and, thankfully, may be fired. But if your screaming is said to reflect "bipolar disorder," you are covered and may need to be reasonably accommodated (presumably while getting treated). Mr. Employer, you may freely reject job candidates who cannot read because they got a rotten education, but you had better watch out if the illiteracy reflects what the expert witness characterizes as a "learning disability." The discrimination bar is in clover.