Society suffers erosion of trust; Skechers isn't helping

Google Gemini CC0

Trust seems in short supply in contemporary American culture, and secret surveillance of our children feels unhelpful.

At the start of each academic year in 1L Torts, I introduce students to 20th-century legal scholar Roscoe Pound and his observation that tort law tends in a socially evolving society to redress ever more abstract injury, as if on a trajectory from physical trauma to mere hurt feelings (YouTube). I want students to see that it's important to put the brakes on this trend at some point, lest tort law so invade the province of everyday life that we refrain from social interaction for fear of liability. Much of the study of tort law is about this braking, drawing the line.

It was alarming, then, to hear a discussion on the National Public Radio (NPR) podcast It's Been a Minute describing what many people regard as "cheating," in tandem with the view that cheating can be equated with abuse. Host Brittany Luse related results of a YouGov poll: "55% of Americans believe flirting with another person is cheating. 64% say the same about holding hands with another person, and 73% say the same about forming an intense emotional attachment to another person." 

Luse further explained, "Some people are claiming that cheating is abuse. There's actually a whole community of people that have been cheated on who call themselves Chump Nation, and some of them are really adamant about this interpretation." The Cut writer Kathryn Jezer-Morton suggested that from this perspective, which she did not endorse, cheating would effect a legal wrong, specifically, a breach of contract—or, I would suggest, in the absence of a contract, a tort.

Jezer-Morton aired my reaction to the proposition: "I don't feel comfortable equating cheating with abuse, personally." Just as overuse of tort law can strangle social and economic relationships, freelance culture journalist Shannon Keating worked out the unintended consequences:

I mean, I think one quite negative effect of [sensitivity to cheating] being so hyper-present in dating culture is that, if you think about how easy it is for someone to feel slighted and then go post about it online, there's high stakes just going into a relationship when you don't necessarily have the presumption of privacy. Or of being able to trust that you'll be able to work something out with your partner directly and give each other grace for tough stuff. 

I get that an errant lustful look is adultery in the heart (Matthew 5:28). But I'm not sure that's a workable rule for legal liability. And in a romantic relationship, truth is essential, and grace is divine. In any event, and decidedly unlike physical abuse or the most extreme cases of infliction of emotional distress, these are matters of social norms and morality, not law. 

On the moral front, meanwhile, I worry that mistrust is becoming an endemic characteristic of our culture in more than just intimate relationships. I suspect that growth in mistrust is fueled by politicians' strategic sewing of hate. 

In this vein, I was struck by a radio ad that aired incessantly as I was driving around Nevada for two weeks this summer with few channels to choose from. The ad was for a new kids' shoe by Skechers. Skechers online describes the new shoes and their special feature: "Each pair is designed with a secure, hidden pocket under the insole that perfectly fits most locator tags, so you can always know where their favorite shoes are."

So there are distressing implications if we are living in a society in which kids need to LoJack their $60 shoes. But you might've already worked out that missing shoes is not really the problem. My suspicions were aroused when, toward the end of the radio ad, the announcer said that the hidden compartment in the shoes would be undetectable to the wearer. 

The website doesn't mention the "Find My Child" take on the "Find My Skechers" feature. But radio ad or not, the functionality has not been lost on consumers (e.g., Instagram reviewer, KTLA).

I don't put myself on any pedestal for parenting. It was a trial-and-error adventure. Sometimes I did well, sometimes not so much. And we did once flirt with phone tracking software. But we were all upfront about it. I don't remember ever thinking that secret surveillance would build healthy family dynamics.

Maybe kids victimized by Find My Skechers should be able to sue their parents for data protection infringement.

That should make the world better.

Conflict ebbs in West Africa; entrepreneurs ready to welcome tourism, spark economic development

Conflict is ebbing in West Africa, and local business are hoping to spur tourism and economic development to restore ravaged communities.

Many parts of West Africa have been difficult to reach in recent years, owing to armed conflicts and social turmoil. That means cultural treasures such as UNESCO World Heritage Site Timbuktu have been off limits, and communities that would benefit from foreign spending suffer economic paralysis or worse.

The situation is improving, if at a two-steps-forward-one-step-back pace. To navigate the changing terrain and start restoring tourism and economic opportunity, local entrepreneurs such as Mali-based Satimbe Travel are stepping up.

Ouologuem dances at the Ouidah Voodoo Festival, Benin, 2020.

RJ Peltz-Steele CC BY-NC-SA 4.0

I hope to travel with Satimbe because my friend Hamadou Ouologuem is one of its founders and a tour leader extraordinaire. I am happy to give him and his partners some positive press in the interest of regional development. This is in no way a compensated promotion.

Satimbe has been in the works for many years. The project has prevailed over potentially ruinous setbacks in the pandemic, in 2020 and 2021, and in the outbreak of violence in the Central Sahel (Burkina Faso, Mali, and Niger), in 2023. The latter conflict devastated communities, as rival factions—one being the Russia-based Wagner mercenary force—deployed scorched-earth tactics against civilians, inflicting crises of hunger and housing. 

The conflicts have not wholly abated, but have been scaled back to hot spots that guides can plan around so travelers avoid. 

In August, the Mali government felt comfortable enough with security in Timbuktu to return there ancient documents that were removed to the capital Bamako before al-Qaeda militants occupied the city in 2012 (PBS NewsHour). Meanwhile, in a positive development for civilian security, Wagner forces in Mali have experienced what The Sentry, a D.C.-based nonprofit and war-crime investigative organization, described in an August report as a "meltdown."

Satimbe mask
(In Museum CC0)

My two cents: attacks on civilians and resulting humanitarian crises in the Sehel would headline the world news were it not for the West's peculiar blind spot for Africa. The region needs foreign investment, and as importantly to get started, needs foreign interest and understanding. The way to help is simply to go, responsibly, all the better relying on a homegrown service provider such as Ouologuem.

Ouologuem's experience in the region is renowned; he is the on-the-ground coordinator to whom professional producers turn, especially in Mali. He worked on public broadcasting's Finding Your Roots with Henry Louis Gates, Jr.; BBC One's Sahara with Michael Palin; Into the Unknown with Josh Bernstein: Lost Gold of Tumbuktu; and Digging for the Truth: Timbuktu.

A "satimbe" is a ceremonial funerary mask of the Dogon people in Mali and Burkina Faso. The mask is associated with a female figure, like in the Satimbe Travel logo, placed on top.

Satimbe Travel can arrange tours in Mali, Burkina Faso, Benin, Togo, and Ghana. The company can tailor flexible itineraries for two days to two weeks, or more. The company is prepared to make arrangements for tourists, NGOs, missionaries, and corporations.

Podcast features legal ed collab in 13 countries

On October 1, colleagues and I will start a new eight-week run of the Global Law Classroom (GLC), and program leader Professor Melanie Reid has published a GLC podcast.

The GLC uses Zoom to bring together students and faculty around the world to study issues in international and comparative law. Students work in geographically diverse breakout groups, so get to know their counterparts from other countries. I've wrote here at The Savory Tort about the GLC in 2024, and colleagues and I discussed the project at Global Legal Skills conference in Brno, Czechia, in May 2025.

Professor Reid, at the Duncan School of Law, Lincoln Memorial University, conceived of the GLC when Zoom became instrumental to legal education in the pandemic, and has led the initiative since. This year, Professor Reid recorded a podcast to go along with the GLC, Beyond the Global Law Classroom. The podcast comprises 22 episodes, each an interview with a GLC faculty member to learn more about the perspective from that person's legal system and personal experience.

Professor Reid kindly featured me and The Savory Tort in episode 14. 

This year's GLC will welcome students and faculty from China, France, Germany, Hungary, India, Italy, Lithuania, Mexico, Poland, Portugal, Spain, and Turkey, besides the United States. My Comparative Law class will participate from Massachusetts. 

Our subject-matter units include global lawyering, environmental law, human rights, criminal law, security and energy law, artificial intelligence, and negotiation. For the faculty, I have served as coordinator of the environmental law team, and as a member of the human rights team, developing curriculum for those units.

'Liberal Playmaker' goes Substack; Boston awaits FIFA

"The Liberal Playmaker," a.k.a. Jose Benavides, is now on Substack.

Benavides, a Texas attorney, past co-author, and excellent former student, has been producing informative and compelling content about soccer (football) and politics since launching a year ago (featured at The Savory Tort in March 2025).

Benavides has a passion for the beautiful game, and it is contagious through his writing. His narrative pieces recall great players and great games and also comment on the current business and art of the sport. 

Here are recent titles:

• The Ghost of Old Trafford: Fernando Redondo's Masterclass
• The Triangle That Endured: Croatia’s Lesson in Collective Control 
• Finding Young Del Piero (and What Modern Football Forgot)
• Totti The Thief
• The Misunderstood Final: Milan vs Juventus, 2003

The Liberal Playmaker will be a content maker to watch as we near World Cup 2026. Boston has deployed a massive publicity campaign to gin up interest, e.g., Boston's South Station, below, in July (RJ Peltz-Steele CC BY-NC-SA 4.0), though the relevant venue is Gillette Stadium in Foxborough, Massachusetts, home to the MLS New England Revolution and NFL Patriots.

 

 

U.S. FOIA committee contemplates research, reform

The federal Freedom of Information Act (FOIA) Advisory Committee, on which I serve as a non-governmental member, held a public meeting Thursday, live-streamed and recorded on YouTube, and there's a lot cooking, including research on unduly burdensome requests and compliance barriers, and recommendations for statutory reform.

National Archives and Records Administration (NARA) Chief Operating Officer Jay Trainer spoke at the opening of the meeting. He observed a rise in overall public trust in the federal government from 23% in 2024 to 33% in 2025 in Gallup survey results and lauded the role of the FOIA and the Office of Government Information Services (OGIS) in building trust in the federal government.

I agree with him. But I also agree with Kevin Bell, a former member of the Advisory Committee who this year resigned his government post at the Federal Energy Regulatory Commission, and thus his government seat on the Advisory Committee. Bell's resignation to me demonstrated how the Elon Musk-led administration efficiency initiative cost us talented public servants while doing little actually to achieve efficiency, or even while thereby undermining efficiency.

Bell spoke in the public comment period of the public meeting and observed that the poll results are somewhat skewed, in that people probably answer the question with outsized reference to elected officials and little knowledge of the civil service. His supposition is support by the fact that digging into the poll data shows that the uptick since 2024 is largely in a swell in Republican confidence. And what has changed since 2024 is the political landscape, not the workaday civil service, whatever Muskian bluster might have us believe.

However, Bell pointed out, if Americans really knew what civil servants do everyday, as demonstrated by the informed dedication of the public employees who serve on the Advisory Committee, the poll numbers would indicate vastly higher confidence in the federal government than one in three Americans.

By the way, that's not to say that there isn't room for efficiency improvements, including cuts, in the federal government. There are plenty of ways to do that without depriving the taxpayers of their best workers. Corporate welfare would be a good starting point, or at least a shift in those subsidies to investments that would stimulate exactly the kind of economic growth the Trump administration purports to desire. That's another story.

Maybe it's because I am teaching comparative law right now, but I was delighted to hear a comparative perspective in the work of the volume-and-frequency subcommittee, among the three subcommittees the Advisory Committee has organized. 

Regarding volume and frequency, the Advisory Committee heard a presentation by members David Cuillier, University of Florida, and Shelley Kimball, Johns Hopkins University, as well as guest Ben Worthy, University of London, on their work, also with Suzanne Piotrowski, Rutgers University, on "unduly burdensome" requests—also known as "vexatious requests," though that term is not preferred because of its normative hint of ill intention. Piotrowski, incidentally, is the founding coordinator of the Global Conference on Transparency Research; I posted GCTR's call for papers for 2026 here at The Savory Tort earlier this month.

Cuillier, Kimball, Worthy, and Piotrowski's research is ongoing, but thus far they have drawn up a list of strategies that might help to manage the problem of unduly burdensome requests, and a list of strategies that do not work, or that represent non-constructive policy choices. They shared with the committee these strategies that are positive or might have potential is implemented thoughtfully (my comments bracketed):

• Training (for staff and public)
• Technology/resources (e.g., line-item budget)
• Proactive posting
• Front-end discussions
• Express lanes [expediting some requests, such as first-person] and "zippering" [managing one request from a multiple requester, then another from another requester, then another from the multiple requester, then another from another requester, and so on]
• Staggered dissemination
• Differential copy fees
• Independent commission (e.g., Connecticut [Freedom of Information Commission])

These are ill advised strategies, some of which, concerningly, are growing go-tos:

• Search/redaction fees
• Vague laws to allow denial
• Time extensions
• Quotas/caps
• Fines and jail time
• Signed promises to be good
• Prohibitions on anonymous requests
• Bans on AI

Another problematic strategy is to probe the intentions, or motives, of the requester for some kind of legitimacy measure. Co-authors and I opined 15 years ago on requester motive immateriality as a core common law and statutory norm of access law, and it should be preserved. It makes no sense to give a record to one requester and not to another, owing to motive, and risks discriminatory judgment about the merits of record use. A record's public disposition should be decided on its content, within its four corners.

The research is inherently comparative owing to Worthy's involvement as a scholar of the UK Freedom of Information Act. But the authors' multinational cognizance is broader still. For example, the team is studying standards employed by the Connecticut commission that Connecticut borrowed from Canadian law in Ontario.

Cuillier mentioned that other countries almost uniformly distinguish commercial requesters, that is, those which will make money from information processing, such as information brokers, from first-person and public-interest requesters, with regard to fees. The former fairly might be required to pay their way, while the latter may be entitled to free access. Co-authors and I also memorialized in our previous work how this commercial-requester distinction worked a modest but justifiable compromise to the historical common law and statutory norm of requester identity neutrality. However laudable that norm in theory, it predated the information era, when information brokering became a business model.

Advisory Committee member and Professor Margaret Kwoka asked whether the researchers and subcommittee were parsing their conception of fees, understanding that, my words: not all fees are created equal. That is, a fee might be used for a laudable purpose, such as having a commercial requester pay its way, or, in contrast, for an objectionable purpose, such as discouraging public access generally.

In discussion of the point, Worthy referenced Ireland's experiment changing a free access under the Irish Freedom of Information Act to a flat fee of €15 in 2003. The purported objective, he said, was to deter unduly burdensome requests. But there was little evidence that happened. What did happen was a 75% drop across all requests. Cuillier said that Irish usage of the public records law still has not rebounded since the fee was rescinded. Yet, he added, Canadian provinces are now busy about adopting fees upon the same ill-informed theory.

Slides from Cuillier, et al.'s presentation are available on the volume-and-frequency subcommittee are available on the Sept. 11, 2025, meeting page of the FOIA Advisory Committee. They include QR codes to locate three papers the researchers have presented previously, two at the GCTR conference in Brussels in May 2024, and one at the conference of the Southern Political Science Association in Puerto Rico in January 2025. The volume-and-frequency subcommittee is co-chaired by Advisory Committee members Nick Wittenberg, corporate counsel at Armedia, and Nieva Brock, Associate General Counsel at the Defense Department.

For the statutory reform subcommittee, Advisory Committee members Ryan Mulvey, policy counsel for Americans for Prosperity, reported several subjects on which the subcommittee aims to draft recommendations:

• Adding affirmative disclosure categories
• Making FOIA logs available affirmatively
• Ensuring judicial review of affirmative disclosure, that is, FOIA "reading rooms"
• Incentivizing alternative to FOIA requests
• Assisting agencies with Rehabilitation Act accessibility compliance
• Empowering agency officials to make affirmative disclosures
• Making the FOIA Advisory Committee a non-discretionary federal advisory committee

The statutory reform subcommittee is co-chaired by Mulvey and Advisory Committee member Whitney Frazier-Jenkins, Pension Benefit Guaranty Corporation, which, by the way, is a high-achieving if lesser-known agency in FOIA compliance.

For the implementation subcommittee, Advisory Committee member Deborah Moore, chief FOIA officer for the Department of Education, reported on an initiative to study barriers to FOIA implementation by engaging with focus groups of FOIA officers within agencies. Kimball and Advisory Committee member Sarah Jones Weicksel, executive director of the American Historical Association, designed the research project, in which I will participate this fall.

Also for the implementation subcommittee, I reported on the Comment of Freedom of Information Scholars submitted by academic colleagues and me regarding the ongoing revision of the Federal Acquisition Regulation, reported here at The Savory Tort in July and now also among public comments to OGIS for the Advisory Committee. The subcommittee is co-chaired by Jason Baron, University of Maryland, who co-signed the comment, along with Cuillier, Kimball, and Kwoka, and by Marianne Manheim, supervisory government information specialist at the National Heart, Lung, and Blood Institute. Advisory Committee member Frank LoMonte, a recovering academic now senior counsel at CNN, also gave invaluable advice on the comment.

This was the sixth meeting of the sixth term of the Advisory Committee. The next public meeting is scheduled for December 4, at 10 a.m. U.S. EST. Public comments are invited online at OGIS and at public meetings. Read more about the Advisory Committee, its members, and OGIS FOIA compliance work at the OGIS blog, The FOIA Ombuds. The Advisory Committee is chaired by OGIS Director Alina Semo and afforded essential coordination by the many-hatted Kirsten Mitchell, compliance team lead, federal FOIA ombudsman, and designated federal officer at OGIS.

Greenberg: 'Why American Libel Law Is a Disaster'

My friend and colleague Dan Greenberg, a senior research fellow at the Cato Institute, has penned an editorial in which he explains "Why American Libel Law Is a Disaster" (free sign-up).  

The Eleventh Circuit affirmed dismissal of Alan Dershowitz's libel suit against CNN at the end of August for lack of evidence of "actual malice," the extraordinary standard of U.S. First Amendment law that requires public-figure plaintiffs to prove defendants' intent, knowledge, or smoking-gun recklessness as to the falsity of what they utter.

I don't disagree with the outcome in Dershowitz. But like concurring Judge Barbara Lagoa, I have serious reservations about the "actual malice" rule. The standard, calcified in constitutional law by New York Times v. Sullivan (U.S. 1964), is unique in the world in its broad application in tort litigation in purported protection of the freedom of expression.

Brigitte and Emmanuel Macron, 2019
PICRYL public domain

Though I am a free speech and press advocate six days out of seven, I have long been persona non grata in media defense circles when the subject of Sullivan rolls around. As a torts teacher, I understand that under-compensating victims of genuine harm, and of letting tortfeasors off the hook for socially intolerable conduct, have far-reaching adverse consequences for the social order. And I daresay that our present epidemic of misinformation has a direct lineage to Sullivan.

Dan Greenberg, who bears scars similar to mine as a plaintiff-survivor of formally unsuccessful defamation litigation, has written an op-ed for The Dispatch, "Why American Libel Law Is a Disaster."  He uses as case in point the libel suit (CNN) of French President Emmanuel Macron and his wife Brigitte against "self-styled independent journalist" Candace Owens—and the fact that the Macrons almost surely will lose, despite the absurd and damaging assertions of the defendant.

Here are the opening paragraphs. 

Did you know that the president of France and his wife Brigitte are actually blood relatives in an incestuous marriage? Or that Brigitte is a transgender woman? Or that President Emmanuel Macron was manipulated into becoming the president of France through a CIA mind control program? Or that the Macrons conducted an extensive campaign of violence, fraud, and identity theft to cover all of this up?

Well, you probably didn’t know this, because nothing would lead a reasonable person to believe any of it is true. But this didn’t stop Candace Owens, a self-styled independent journalist, from propagating that delusional narrative. Over the last year, Owens produced an eight-part podcast, Becoming Brigitte, that placed the Macrons at the center of a vast and incredible conspiracy. In July, the Macrons sued Owens for libel in Delaware.

Professor Eugene Volokh at Reason has key excerpts from Dershowitz v. CNN, Inc. (11th Cir. Aug. 29, 2025), from Judge Lagoa's concurrence, and from the contrary concurrence of Judge Charles Wilson.

There is more on the Sullivan debate, including an edited version of the complaint in Greenberg's 2013 defamation suit against an Arkansas newspaper, in my textbook, 2 Tortz, ch. 15(B)(5)(c), "Reconsidering Sullivan," from page 516.

Conference launches 'Journal of Workplace Mobbing'

In July, I participated virtually in the second Niagara Conference on Workplace Mobbing, which launched the Journal of Workplace Mobbing.

As a co-organizer and a founder of the conference in 2024, I was privileged to address the assembly on this year's opening morning, in a panel that reviewed, "What Was Learned Last Year." 

The panel also comprised my friends and colleagues, Eve Seguin, University of Quebec in Montreal; Peter Wylie, University of British Columbia; Kenneth Westhues, University of Waterloo; and Caroline Crawford, University of Houston Clear Lake, chair. Dr. Qingli Meng was again the brilliant conference organizer in Niagara.

I will share more from the conference when videos are posted.

Meanwhile, I'm pleased to celebrate the launch of the Journal of Workplace Mobbing. The journal is an online, open source. Here is the table of contents of volume 1, number 1, comprising selected papers from the 2024 conference.

• Qingli Meng, Foreword, Honoring the Pioneers
• Kenneth Westhues, Address, Top Twenty Takeaways from Research on Workplace Mobbing
• Qingli Meng, Workplace Mobbing vs. Workplace Bullying: Understanding the Distinction
• Janice Harper, The Brave New World at Work: From the MeToo Movement to Donald Trump, Political Litmus Tests Transform the Workplace
• Ann Marie Flynn, Executive Action as the Cure: The Essential Role of University Leadership in Mobbing Prevention
• Frances Widdowson, Mobbing and Wokeism: Experience and Analysis
• Peter Wylie, Shoot the Messenger: A Personal Account of Academic Mobbing

Here is the ISSN-registered Journal's "About":

Journal of Workplace Mobbing is a cognitive, intellectual, scholarly, and academic platform dedicated to the rigorous study of workplace mobbing. As the first refereed, open access journal focused exclusively on this phenomenon, this interdisciplinary journal serves as a critical space for researchers, practitioners, and policymakers to explore the complexities of mobbing.

We invite scholars to actively engage in this critical academic discourse, contributing to the advancement of knowledge, the deepening of global awareness and understanding of workplace mobbing, and the development of informed policies and effective interventions—ultimately fostering healthier, more equitable, and just workplace environments.

Authors can find guidelines and submission instructions here. 

Here is the journal editorial team:

• Senior Editorial Advisor: Kenneth Westhues, Sociology, Emeritus, University of Waterloo, Canada
• Editor-in-Chief: Qingli Meng, Criminology, Niagara University, USA
• Lead Editor: Richard Peltz-Steele, Law, University of Massachusetts, USA
• Managing Editor: Peter Wylie, Socioeconomics, Retired, University of British Columbia, Kelowna, Canada 
• Editorial Advisory Board: 
• Emily Godbey, Art History, Retired, Iowa State University, USA
• Janice Harper, Anthropology, Independent Scholar, USA
• Gorazd Meško, Criminology, University of Maribor, Slovenia
• Florencia Peña, Anthropology, National School of Anthropology and History, Mexico 
• Stephen Petrina, Educational Technology Support, University of British Columbia, Canada
• Copy Editor: Martin Sawma, Sociology, Mellen University 

Court ruling against union furthers 'labor peace' fantasy

The union-management duopoly holds the 
American worker captive.

Google Gemini image CC0

The Massachusetts Appeals Court decided a First Amendment case against a labor union yesterday, and—hold on to your hat—I'm with the union and think the case wrongly decided.

The case involved a school employees' union in Andover, Massachusetts (different school, same Andover, which has curious recent resonance, but that's another story). According to the court's recounting, the education union and Andover school committee discussed a one-time $800 payment to instructional assistants in negotiation, but the payment did not make into the contract.

After the contract was concluded, the union went to the Andover town meeting with a warrant article, a way for citizens to put items on the meeting agenda, and asked for the town's endorsement of the $800 payment. The town approved the measure, and the union then sought to enforce it with the school committee.

The school committee accused the union of bargaining in bad faith by, from the committee's perspective, going behind their backs to the town meeting to secure a term that had failed to make it through the negotiation. The union defended on the merits under state law requiring employers and unions to negotiate in good faith, and also defended on First Amendment grounds for its right to petition the town meeting.

The court ruled for the committee on both issues. The union had conducted itself in bad faith, and the First Amendment did not preclude application of the good faith requirement in state law.

I think both conclusions are wrong. And if they're not wrong as a matter of regulatory requirement and constitutional constraints, then, at minimum, the outcome is bad policy.

First, the court concluded, in agreement with the Commonwealth Employment Relations Board, that the union acted in bad faith. The court relied on prior examples in case law of "double crosses," accepting the premise that the union went behind the back of the school committee. The court used the word "bypass" three times, describing the union conduct as having "bypassed" negotiation with the committee. That's one way to look at it. 

Another way to look at it is that the union "bypassed" nothing. The union negotiated in good faith and the bargain was concluded. Thereafter, the union used a different means to reach a desired end.

The warrant article was an extant feature of local government. Bargaining never took the warrant article off the table. If the school committee wanted to extract from the union a pledge not to seek the $800 payment through any alternative channel, or not to pursue warrant articles at all, then the committee could have put that ask on the table. Maybe the two would have settled on $400 instead of $800. We'll never know.

The union engaged in no deception. The union violated no term of the agreed upon contract. The union availed itself of a lawful process. Town voters were free to say to the union, "If you wanted that $800, you should have bargained for it in the contract." The town meeting was free to say no. Apparently, meeting voters rather agreed with the union that the negotiated contract needed an $800 enhancement. The school committee might ought search its soul to determine why the town meeting, another and more democratic part of the same local government, thought ill of the concluded terms.

Second, the court concluded that the "good faith" argument survived First Amendment strict scrutiny as applied. Following the example of the U.S. Supreme Court, the Appeals Court applied strict scrutiny prophylactically, as the former Court has not made clear whether the appropriate standard is strict scrutiny or something less. 

The Appeals Court reasoned that labor peace is a compelling governmental interest under strict scrutiny, and that the good faith requirement, applied in this context, narrowly furthers the governmental interest in labor speaking with one voice in furtherance of an exclusive bargaining prerogative.

I can illustrate the problem with this reasoning with reference to my own workplace, where the university faculty is unionized. 

Savory Tort readers will know that I am no fan of the union, and I am not a member. In 2020, amid the pandemic, the union that purported to represent me and all faculty colluded with the university to cut faculty pay. Over my objection, the union asked for progressive cuts that hit the higher compensation packages in the law school especially hard—for me, to the tune of 12%—while sparing others across the campus. That did not strike me as fair and equal representation of the members of the bargaining unit. So I sued.

Kudos to the Liberty Justice Center, which carried on the lawsuit magnificently. No fault of theirs, we lost. I expected that outcome in the heavily pro-union First Circuit. I always knew that the cause likely would be an uphill slog to the U.S. Supreme Court. And unsurprisingly, after having unsettled the waters in other respects in recent years, SCOTUS by the time we got there seemed to have lost its appetite for further forays into labor law. The Court passed on our appeal. 

I'm content that I had the chance to get my story out there. And lo and behold, to their credit, the university later repaid the covid cuts to faculty. Did my lawsuit have anything to do with that? Did the university have to put its money where its mouth was on its declarations to the courts that alleged losses of aggrieved faculty were overblown? Well, .... 

You're welcome, faculty and union. Though my thank-you card might have been lost in the mail—?

Like the Appeals Court in the instant case, the First Circuit demonstrated either ignorance or indifference to the reality on the ground. The analysis adopts the fiction that an exclusive bargainer represents the interests simultaneously of each and every worker, whose individual needs are uniform and fungible. Never would nor could the union act contrary to the interests of any minority class within the bargaining unit. 

Fantasy.

There are plenty of faculty in my law school who, after seeing how the union treated us when the going got rough, are ready to vote ourselves out and into our own separate bargaining unit. The problem is that non-tenured faculty are afraid that the university will give us a raw deal as punishment for separating.

One might think that management would be delighted to see a union broken. Far from it. The exclusive bargaining prerogative of a unitary union preserves the status quo, keeping those in power in power, on both the union side and the management side. Multiple bargaining units would challenge the duopoly. One bargaining unit might gain an advantage over the other, and the other might try to leverage that advantage against management. 

There's a term for that dynamic, by the way: "the free market."

In the law school, we might be able to form our own bargaining unit, to further our interests, if we could speak to the university and reach agreement that current contractual protections are a baseline, to which either party may retreat if going-forward negotiations fail on the first round.

However, the good faith standard binds management, as well as the union. The duopoly union-university, which does not want the hassle of a separate bargaining unit anyway, will claim that the good faith standard prohibits management from even speaking to minority interests. (I would disagree.)

The status quo is thus preserved indefinitely. And the consequence is that the union remains in power indefinitely, long past even the lives of its founding members, and despite its work at cross-purposes with the the legal obligation to serve the workers. The institution of the union becomes a thing apart from the workforce and hellbent on self-preservation.

I grant that the application of strict scrutiny, as in the instant case, is something of an "eye of the beholder" problem. If one thinks that "labor peace" as a compelling governmental interest means a power duopoly that binds workers to terms that are not in their best interests, then yes, I can see my way to preservation of exclusive voice as a means to that end. 

I rather challenge the initial premise. "Labor peace" to me means a functional system in which workers and management have a meaningful opportunity to negotiate terms of employment. If that is the compelling governmental interest, and I contend that that is Congress's express purpose, then a rule applied so as to disarm both union and management from lawful means to advance their causes is hardly narrowly tailored to any legitimate end.

Yesterday's Appeals Court decision commits workers to imprisonment on the union-management hamster wheel. The loser is not so much the union, but the worker.

The case is Andover Education Association v. Commonwealth Employment Relations Board, No. AC 24-P-465 (Mass. App. Ct. Sept. 9, 2025). Justice Joseph M. Ditkoff authored the unanimous opinion of the panel, which also comprised Justices Desmond and Englander.

Gutting consumer protection is not libertarian

The Trump administration is gutting consumer protection upon a policy at odds with market freedom.

Moves such as the dismantling of the Consumer Finance Protection Bureau (CFPB), OK'd by the courts three weeks ago, are rationalized by libertarians as market efficiency measures. Yet even as an economic conservative myself, I have trouble seeing how predatory lending, hidden fees and terms, and unfair competition—all of which the CFPB combated—facilitate a level marketplace. 

Free market theory depends on a series of preconditions, including a free flow of information between buyer and seller. Misrepresentation unlevels the playing field, undermining the freedom of the market actor who is deceived. Knee-jerk libertarian absolutists are shilling either ignorantly or willfully for corporatocrats, ironically at the expense of individual economic liberty.

Late last week the administration abandoned rule-making on modest compensation for airline passengers upon the delays and cancellations that have become our everyday experience in air travel in America. I wrote about the EU compensation system in 2023. That system has now turned 20, while the United States becomes ever more an outlier for its passionate embrace of oligopoly and disdain for consumers. Well, we have Russia to keep us company.

Soon, my 1L Torts students will reach our study of express assumption of risk as a liability defense. They will learn how profoundly permissive are American courts of binding boilerplate, notwithstanding any realistic showing of assent, much less understanding, on the part of consumers. (More.) Solutions to this problem have been theorized capably by scholars for more than a decade, yet policy makers, even constitutional originalists supposedly committed to express liberties such as the Seventh Amendment right to a jury trial, show no serious interest in reform.

Given the futility of the consumer's plight, I got a laugh out of an on-screen notice my television recently delivered from HBO Max. 

"Your continued subscription to and/or use of HBO Max confirms that you have"—the text started, before hitting the end of the screen.

"OK" was the only permitted response.

I could have shut down my Roku and walked away. 

I didn't. I agreed and continued.

What's an immortal soul when Peacemaker season 2 beckons?

Stornaiolo publishes book of memoir, travel tracts

Ugo S. Stornaiolo Silva has published a new book, Wandering Meanderings (Into the Idea of Love): The Libertarian Catholic Essays (2023-2025) (2025) (Amazon).

Polymath Stornaiolo writes on political theory, history, and law, and authors poetry, besides. His poetry is collected in Princely Rhymes (2023) (Amazon). This latest book is deeply personal, intermingling interests with memoir and travel log. Here is the publisher's description.

Wandering Meanderings is a memoir-in-essays by a man between homelands, Catholic by anchor, boundless by culture, who keeps a passport in one pocket and notebook in the other.

From Kraków trams, Viennese Mass, and Westminster corridors to nameless winter streets, these essays track how love, friendship, and meaning are made at human scale: slowly, locally, face to face.

For him, beauty wrestles with the sublime, proximity argues with digital distance, and mentors, muses, and peers form the living triad of a life, as Erasmus and Thomas More hover like friendly ghosts, Lords Acton and Byron quarrel on his shoulders, and Leo Tolstoy and Mark Fisher speak across the dark. Travel becomes a way of thinking, and thinking a way of keeping faith with places and people.

This is a conservative book of affections, a romantic book of cities, and a refusal of modern affectations. Attention is not love, algorithms aren’t providence, and abundance without presence is a desert. The remedy is old and demanding: fidelity to the near until meaning appears.

Part travel log, part philosophical meditation and part confession, Wandering Meanderings invites anyone who has felt out of place yet alive to truth, beauty, and goodness to step back onto the pilgrim’s road into the idea of love itself.

Stornaiolo works as a legal researcher for the Centre for Law and Religious Freedom at Jagiellonian University in Kraków, Poland. He serves as an associate editor for The Miskatonian and writes as well for The Libertarian Catholic and for the Mises Institute.

I have featured Stornaiolo's work here on The Savory Tort before, including two books that preceded Princely Rhymes: Jueces Como Soberanos: Una Exploración Jurídico-Política del Poder Supremo de la Corte Constitucional Ecuatoriana (2022) (Amazon), and Achaean Disputes: Eight Centuries of Succession Conflicts for the Title of Prince of Achaea (2024) (Amazon).

Stornaiolo is an Ecuadorean and European attorney, now living in Kraków, and a friend, colleague, and former LL.M. student of mine. He kindly has visited my U.S. classes via Zoom to speak on topics such as comparative constitutional law and the Ecuadorean case law on the rights of nature.

Corporate leader shares world beyond the boardroom

Rare glimpse of Lavery joining a photo subject
on the other side of the camera, Guinea-Bissau.
The photo is blurry because I took it.
RJ Peltz-Steele CC BY-NC-SA 4.0

Jersey (UK)-based corporate governance consultant Siobhan Lavery, when she's not calling the shots in the boardroom, is a brilliant photographer and travel writer, besides my dear friend, and I'm eager to share my enthusiasm for her work.

Lavery is virtually an anthropologist when on the road, loving to roll up her sleeves, literally, to immerse herself in the customs of indigenous people, from West Africa to Oceania. Having long kept handwritten travel journals, she is making use of her time now to share her adventures through both text and images.

Lavery has started transferring journals to her Odyssey Diary on Substack. Her writings recount not only the joys of exploring the world, but sometimes the drama of navigating a home culture of business and politics that doesn't value personal growth through absence from the office. She ultimately left her full-time position to start a consultancy. If you're stuck on the workaday hamster wheel, you will relate and might even be inspired.

Lavery meanwhile is publishing her spectacular photography from around the world at Odyssey, on Smugmug. There's lots to explore there. Images are filed by "Countries," "Photo Essays," and "Stories." Content dates to 2010 and covers the Alaska, the Arctic, Angola, Benin, Borneo, Chile, Ethiopia, Ghana, Greenland, Haiti, Iran, Ivory Coast, Jordan, Kyrgyzstan, Moldova and Transnistria, Papua New Guinea, Romania, Tajikstan, Togo, Turkmenistan, Ukraine, and Uzbekistan.

In 2020, just before the pandemic struck, Lavery and I traveled for Carnival to Guinea-Bissau, which is not yet on the website. So I know she has more photos and stories yet to share.

Nuclear arms, testing still imperil life on earth

The August Atlantic published a few select photos of nuclear tests by military photographers in Nevada amid a series of stories on nuclear arms.

Nuclear power plants aim to fire back up around the country and around the world. That's causing those of us who remember The China Syndrome and The Day After, not to mention real-life Three Mile Island and Chernobyl, to feel anxious. 

Our anxiety is fed by the additionally burgeoning risk of a new nuclear arms race. Like many people, I, and apparently the editors of The Atlantic, are thinking back on the Cold War, when a nuclear holocaust seemed about as likely as not.

I'll republish here in low resolution four photos The Atlantic featured from the era of above-ground nuclear testing. The photos are in public domain, as they are in the possession of the National Archives and Records Administration (NARA)—collaterally, a reminder of NARA's importance amid its recent, inimical politicization. The photos were published previously in a military-photo compilation edited by Michael Light, 100 Suns: 1945-1962 (2003) (cover inset above).

 

The Atlantic issue, captioned "Eighty Years on the Edge" (cover inset at left), is well worth examining in whole. Coverage ranged from the historical to the contemporary. Inter alia, Noah Hawley traced the origin of Kurt Vonnegut's Cat's Cradle (1963) to the advent of the atomic bomb. And Ross Andersen explained how American absence in world leadership is setting the stage for the new nuclear arms race. 

I spent two weeks in Nevada this summer and saw that its atomic history persists, for better and for worse. 

To my surprise, there is an active program monitoring ongoing radiological risk, and a federal program only recently ended to compensate people for radiation exposure that resulted in illness. 

The Radiation Exposure and Compensation Act of 1990 expired in 2024 and afforded modest compensation to persons made ill, mostly by cancers. Onsite participants in atmospheric tests were entitled to $75,000; "downwinders" of atmospheric tests, present in specified areas near the Nevada Test Site, now called the Nevada National Security Site (NNSS), were entitled to $50,000; and uranium miners working from 1942 to 1971 were entitled to $100,000. I picked up a pamphlet from an education program of the School of Medicine at the University of Nevada Las Vegas that encouraged claimants (pictured below).

The Desert Research Institute of the Nevada System of Higher Education, in collaboration with the National Nuclear Security Administration Nevada Field Office of the U.S. Department of Energy, maintains a network of air and groundwater monitoring stations surrounding the NNSS. The NNSS describes itself today as a government "enterprise of multi-mission, high-hazard experimentation facilities." The Community Environmental Monitoring Program watches for "manmade radioactivity that could result from NNSS activities" and publishes its data online with an interactive map. At right is a map of CEMP monitoring stations, and below (RJ Peltz-Steele CC BY-NC-SA 4.0), is one of two CEMP monitoring stations at Tonopah, Nevada.

Though nuclear testing has abated above ground and below, government test sites of all kinds abound still in Nevada. The sites encompass vast swaths of desert, and active sites are well cordoned off with fences and warning signs—including but far from limited to the famous Area 51. (All below photos, RJ Peltz-Steele CC BY-NC-SA 4.0.) 

A CEMP station in Tonopah, Nevada, monitors air quality and dispenses pamphlets for curious onlookers.

The U.S. Department of Energy shares and leases the Tonopah Test Range ("Area 52") with the Defense Department and contractors.

Signs warn of a U.S. Air Force test site between "Extraterrestrial Highway" Nevada Route 375 and Groom Lake "Area 51."

The U.S. Bureau of Land Management now preserves Lunar Crater, where astronauts once practiced moon landing.

Still operational, a small U.S. Defense Department installation near Lunar Crater affords a staging area.

Displays at the Nevada State Museum and even a bawdy show at the Venetian in Las Vegas highlight Nevada's nuclear history.

"Earth Station," on the Extraterrestrial Highway in Hiko, Nevada, near Area 51, stocks alien-themed souvenirs.

Roberts publishes critique of U.S. government in crisis, endures harassment after criticizing accreditor

Professor Alasdair Roberts, a friend and colleague at UMass Amherst Public Policy, recently published a new article, "The Crisis of Design in American Government." Meanwhile, he endured a baseless investigation after criticizing an academic accrediting organization.

Professor Roberts generously workshopped his thinking on the mismatch between the constitutional design of American government and the needs of contemporary society in a lecture at my law school in March 2025. I wrote then about his compelling ideas.

The refined version became the 2025 Charles Levine Memorial Lecture, which Professor Roberts delivered at the School of Public Affairs, American University, in May 2025. From those remarks, he developed the article in the Asia Pacific Journal of Public Administration, published by Routledge at the start of July 2025 (SSRN). Here is the abstract.

The American political system confronts two distinct crises. The first is the crisis of the moment, stemming from President Trump’s controversial actions since January 2025. The second is the deeper crisis of design, relating to flaws in the system’s architecture that predate Trump and will persist beyond his presidency. In the long run, the crisis of design is more consequential. Over-centralisation within the system has contributed to four pathologies: overload, gridlock, societal polarisation, and programmatic inefficiency and sclerosis. A better-designed system would be one in which authority was devolved and central institutions reconfigured. Systemic reform will be hard to accomplish because of constitutional constraints and a culture of anti-governmentalism. Still, structural changes are essential. History demonstrates that large and complex political systems are fragile. They are particularly prone to collapse under turbulent conditions like those facing the American system in coming decades.

Professor Roberts published an eight-minute explainer video, too:

Meanwhile, Professor Roberts endured this year a suspiciously unfortunate series of events, reaching a culmination also at the start of July 2025.

As Roberts explained on his Substack: "For seven years, I have been asking questions about the governance and policies of NASPAA [Network of Schools of Public Policy, Affairs, and Administration], an accrediting organization for graduate public policy and public administration programs. I have never succeeded in getting on-the-record answers to these questions."

In January 2025, Roberts published an article, "False globalism: Public Administration in the United States in the Twenty-First Century," in the journal, Administrative Theory & Praxis. The article challenged NASPAA for asserting that its claims to global authority as an accrediting authority belie a U.S.-centric hegemony that eschews genuine efforts of diversity and inclusion.

Subsequently, Taylor & Francis (T&F), the publisher of the journal and parent company of Routledge, received a complaint against Roberts, alleging that "False Globalism" contained "inaccurate data." T&F opened an investigation. Roberts observed that T&F also publishes the Journal of Public Affairs Education, the "official journal" of NASPAA.

T&F's investigation found some minor misstatements, described on the Substack, one arguable, one based on a mistaken report by NASPAA itself. Roberts agreed to minor corrections accordingly. Nothing was discovered that would come close to undermining the integrity or thesis of the article.

To Roberts's surprise, the complaint persisted for months. He continued to cooperate with the investigation and provide supporting data for his assertions. T&F demanded further changes to the article. But this time, as Roberts described, proposed changes were more in the nature of added "rejoinder" than mere correction. In July, Roberts refused further changes. T&F backed down and at last closed the investigation.

Roberts wrote, "For me, this investigation was a prolonged, lonely, time-consuming, and costly experience."

In eagerness to protect itself, T&F seems to be running a process that facilitates the abuse of academic researchers while protecting complainants who effect harassment by transaction costs. Roberts is meticulous in his work and willing to defend his integrity, and he enjoys some protection of status in tenure. T&F's process meanwhile facilitates a problematic chilling effect on academics who might be more junior or less idealistic than Roberts. 

Rep. Dan Webster (R-Fla.) wrote, "Power tends to protect itself merely to maintain its own status and control. Principle gives up power for the sake of the highest good and to create the best public policy.... Power and principle cannot coexist."