Negligence suit beats liability waiver at kids' gym

Stuck in the Middle, 2010
DieselDemon via Flickr CC BY 2.0

A liability waiver at a children's gym cannot block a negligence suit over a five-year-old's broken arm, the Massachusetts Supreme Judicial Court ruled earlier this week.

The ruling is straightforward and on point. What's surprising is that the high court's reversal was needed in the face a of a state law plainly nullifying gym waivers—and that the law exists, in contravention of American law's usual passion to enforce boilerplate.

Ava was five when she broke her arm falling off a beam at The Little Gym of West Boylston, west of Boston. It was Ava's second year at The Little Gym, part of a global network of recreational facilities "dedicated to helping kids build strength and confidence ... one cartwheel at a time." Ava's father had signed a standard waiver, or release—formally, an express assumption of risk—promising not to sue the gym for negligence if there were an accident, the court opinion recounted.

Alas, Massachusetts has a law that says, "No contract for health club services may contain any provisions whereby the buyer agrees not to assert against the seller ... of the health club services contract any claim or defense arising out of ... the buyer's activities at the health club."

Most of the statute is about consumer protection, limiting the shady contract practices for which gyms were once renowned and still are teased, such as excessively long membership terms and difficult-to-escape automatic renewals. Even the statutory provision here at issue focused on lawsuits about club contracts, before the legislature added the "buyer's activities" phrase in 1985.

The dispute resolved by the high court focused on whether The Little Gym, with its specialized focus on children and services structured in classes, is a "health club" within the meaning of the waiver ban. The statutory definition is broad, comprising businesses offering "instruction, training or assistance in the preservation, maintenance, encouragement or development of physical fitness, conditioning or well being." 

The definition then employs that loathsome legal-ese, "includ[ing], but not limited to," and lists a plethora of examples: "health spas, sports, tennis, racquet ball, platform tennis and health clubs, figure salons, health studios, gymnasiums, weight control centers or studios, martial arts and self-defense schools, or any other similar course of physical training."

"Including, but not limited to" is a safeguard against application of the interpretive canon, expressio unius est exclusio alterius, meaning the specification of some items suggests the intentional exclusion of others. I say "loathsome," because "including" is supposed to indicate non-exhaustiveness by definition. 

But lawyers will lawyer. The Little Gym here tried to differentiate its market niche by pointing to dissimilarities from a conventional adult gym. The court had little difficulty illustrating the controlling commonality of The Little Gym's wellness mission. I was surprised that the lower court had been seduced by the gym's argument.

What surprised me most, though, is the existence of the waiver-nullifying statute. I teach torts in Massachusetts, and, I confess, I did not know about this law.

As it turns out, Massachusetts is not unique, but such laws are rare. A 2019 survey by Dalby Wyant found laws nullifying gym negligence waivers in five other states: Connecticut, Louisiana, Montana, New York, and Virginia. Elsewhere, some states have much more modest limitations, disallowing waiver for gross negligence or recklessness, for example, but allowing waiver for negligence. Poking around online, I found that bills to override gym waivers are popular rallying causes for legislators but rarely pass. Industry advocates such as the Health & Fitness Association research and track such legislation.

The statutory nullification of a waiver, especially one signed by and restricting recovery for an adult, cuts against the American ethos of freedom of contract. Despite consumer frustration with boilerplate, and despite the now-well-known impossibility of reading all of the clickwrap terms and conditions that attach to our every transaction, the overwhelming trend in American law is to favor enforceability. Inroads on the approach are few and far between, and as European-law-driven cookie-notice banners online demonstrate, enhancing the informedness of consumer acquiescence is easier said than done.

Though usually I'm quick to rush to the ramparts for consumers, I find appealing the enforceability of negligence waivers for gyms. The theory of the enforceability of such contracts regardless of subjective consumer understanding, and amid a dearth of market alternatives, is that the freedom to contract allows a business model to thrive without the burden of potential tort liability—if with the tandem drawback that some people will get hurt and have no recourse.

Me at Anytime Fitness, Hong Kong Mong Kok, unsupervised, 2026

RJ Peltz-Steele CC BY-NC-SA 4.0

I'm a member of Anytime Fitness (AF), and I get unabashedly giddy over the 24/7 business model. I can visit AF any time, any day, regardless of whether staff are present. After a long day, or a night class, I don't have to race to the gym before it closes, like I did at the YMCA. Moreover, I use AFs around the country and around the world. A midnight gym visit when my body hasn't adjusted to Hong Kong time can be just the thing.

I've signed a liability waiver at my local AF, in Rhode Island, which presumably controls at all locations—likely including Massachusetts, per choice of law conventions. Yet I've often wondered how AF can exist, legally, and get insurance. I try to imagine how the conversation went down when someone who owned a line of gyms went to general counsel and proposed opening 24/7 with no staff.

If I were counsel, I would have said, You must have lost your mind. Waiver or no waiver, you want to let ordinary, untrained people, the unwashed masses, just walk around with unfettered access to our heavy equipment that is designed specifically to strain their bodies to the breaking point, and with no supervision whatsoever? Ha. Haha. Hahaha. 

Now I find out that AFs operate even in states where those waivers might be nullified by statute. It's enough to make one suspect that what chambers of commerce bemoan as the unbearable weight of an out-of-control tort system is not actually stifling business innovation in America. 

It ought be remembered, surviving a motion to dismiss is still a far cry from winning a negligence suit. At least based on the preliminary factual record as summarized by the court, I'm doubtful that Ava can show negligence by The Little Gym. It seems to me that a kid falling off a beam now and then, even landing the wrong way on an arm, is something that's going to happen at a kids' gym no matter how close the supervision. But we'll see. Ava's attorney lives to rush the ramparts for another day.

The case is Cross v. BeFree Enterprises (Mass. Nov. 10, 2026). Associate Justice Gabrielle R. Wolohojian wrote the unanimous opinion of the court.

See you at the gym. 

Perry pieces blast business model of higher ed

George MJ Perry has lately published two superb commentaries on dysfunction in higher education, both citing Prof. Kenneth Westhues's classic, The Envy of Excellence: Administrative Mobbing of High-Achieving Professors (Mellen Press 2006).

Perry is always worth reading at "Abuse of Process," and he publishes widely besides. I met Perry virtually through the most recent Niagara Conference on Workplace Mobbing (NCWM) in July. I became a fan immediately, and we connected after the conference. 

Perry and I have in common an interest in the intersection of law, journalism, and sport. Perry is a track-and-field athlete, sport performance coach, businessperson, and writer. As well, Perry is a U.S. Navy veteran who specialized in submarine warfare, coincidentally the same as law librarian and veteran Misty Peltz-Steele, my wife and chief strategist.

At the Niagara Conference, Perry led an informative and riveting panel, "From Organizational Mobbing to Public Exile." The panel posited the credible and distressing thesis that contemporary media transform workplace mobbings into public cancellations—see the congruity I described in 2021—thus compounding the trauma inflicted on mobbing victims. The panel discussion touched on the adjacent subjects of media ethics, defamation law, and the right to erasure in data protection.

RJ Peltz-Steele with Google Gemini CC0 1.0

Last week, Perry published "When Universities Pretend to Be Businesses" at The James G. Martin Center for Academic Renewal. In the lead, he explained: 

Since at least the early twentieth century, universities have flirted with America's penchant for "running things like a business." But like government, non-profits, and other non-businesses that try to be something they are not, universities' scattershot copycatting of business practices creates new harms to the institutions and the people within them.

More than "flirting," I'd say full-on embracing. 

The thesis resonated with me, especially working at a public university that is not the state system's well endowed "flagship." Faculty achievement at my university often is quantified in dollars, i.e., how much grant money a faculty member brings in. Meanwhile we take precious few measurements of student attainment and do almost nothing to assess how our alumni enrich the world.

Similarly, curricular programs are assessed according to cost-benefit analysis. As a result, market demand in fields such as business and technology drives resource allocation to those departments. The likes of liberal arts are edged out. Poorly remunerative fields such as journalism operate at threadbare minimums.

My university is not unusual in this vein. But that's not how universities are supposed to work. In the classical conception, the university is a bastion of knowledge for its intrinsic worth. It is axiomatic that the preservation and dissemination of knowledge in all fields is essential for the advancement of human civilization. The founding of the University of Bologna in 1088 marked the endpoint of the Dark Ages, a time when Roman knowledge and law were rediscovered.

Today, higher education, especially in the United States and increasingly elsewhere in the world, is dominated by private commercial interests, a worrisomely pervasive demonstration of capitalism run amuck. In such an environment, the historical, civic responsibility of the public university should only be heightened over financial incentives.

Yet funding models for public universities such as mine run flatly contrary to the civic mission. Budgets come vanishingly from public subsidies, and rather from sport-aligned private fundraising (the "flagship" model) or eat-what-you-kill tuition and fees (the rest of us). Unsurprisingly, the result is a higher ed system that reflects ever expanding socioeconomic disparity as nakedly as K12 schools funded by property taxes—the original American sin, one might say.

Perry observed the irony that universities teach business, management, and public administration, yet seem themselves not to understand the important social role dictated by their not-for-profit status. And among the many hazards of running a university like a business is a deterioration of professional relationships built on trust, or what Westhues described as "unwritten rules [and] reciprocal loyalties."

Instead, academic interaction is reduced to the bottom-line letter of the business contract. Characteristically, at my university, where faculty are compulsorily unionized, the collective bargaining agreement (CBA) is the be-all-end-all. If a benefit or privilege is not in the CBA, faculty can forgeddaboudit. If there is a faculty duty in the CBA, then it is meticulously enforced, regardless of whether it serves evolving educational needs.

Perry quoted Westhues at the Niagara conference: "'Academic life has grown emptier, merely contractual. A market mentality has penetrated into more and more aspects of life. When everything has a price, nothing really matters.'"

That very deterioration of professionalism on the university campus leads to the problem Perry wrote about in an earlier piece in late October. For "Reality's Last Stand," he published "The University's War on Excellence." The piece explained why workplace mobbing and social cancellation occur with alarming frequency in the academic environment.

"Elaborate contracts are the prototypical 'inaccessible texts,' of which university bureaucracies are particularly prolific producers," Perry posited. Corollary to arcane contracts and procedures are written and unwritten human-resource assessments of who is and who is not a "team player." Such "[i]naccessible texts are easily weaponized in workplace mobbing," he wrote.

Antithetically, but correspondingly with the civic responsibility of the university, faculty are in a "weird" and very not-corporate employment arrangement. The administration works for the faculty, not the other way around. Tenure is a feature of this arrangement. It was designed to protect faculty from firing or other adverse employment action, both to shield expression of informed opinion on matters of public affairs, and to shield unpopular decisions in academic governance.

This arrangement is all but forgotten in the contemporary university-as-business model. Tenure has withered on the vine, as universities figured out how to circumvent it contractually. Courts shirked any role in social accountability for the university and deferred to reductionist contractualism. Perry aptly quoted Paul Siskind, legislative director at New York Healthy Workplace Advocates:

"Tenure, as a doctrine, says you can only be fired for just cause. In real life, employers can come up with very flimsy reasons and even lies that justify their 'just cause.' There is no accountability outside of the school itself unless you work for a union school, and then you have a grievance process."

But that, too, is a shallow promise.

"Due process doesn't mean that the procedure itself has to be fair and it doesn't mean that the outcome has to be fair. It just means they have a procedure and they followed it." 

Mobbing researchers such as Prof. Peter Wylie (video) have demonstrated that unions, owing to their nature as collective actors, are as likely to be perpetrators of mobbing as defenders of victims.

With professional values undermined and labor guardrails stripped away, faculty are no longer shining guardians of the ivory tower. They are mere cogs in the machine, toiling to satisfy corporatocratic taskmasters. In this environment, excellence and merit give way to group-think and sycophancy. Base instincts run roughshod, and conditions are ripe for social dysfunctions in the workplace, such as mobbing.

At a union meeting last week—I went in my capacity as a representative of the law faculty, though I am not a union member—the brokenness of the system was evident. Rank distrust of the institution and abysmal morale were cautiously buoyed by "blue wave" election results. But, I thought but did not say, I have no confidence that purportedly labor-friendly legislators will care to effect any systemic change. They have in the past rather only shifted benefits to their own favored interest groups.

"Universities are upstream of culture, society, and politics," Perry observed. Ultimately, dysfunction in the university "is a cultural problem within universities, not a legislative or regulatory one."

So fixated are today's universities on the almighty dollar, I am skeptical that the ship can be turned around; that the creation and transmission of knowledge might ever again be the overriding university mission; that, dare I suggest it, we might reimagine universities as institutions that are supposed to lose money. Universities are supposed to be investments in the greater good, generating unquantifiable intangibles in the people who support, protect, and grow our very democracy and the rule of law.

I hope my skepticism is ill founded. It is disappointing to think that in the journey of human enlightenment since 1088, we are not on an ever ascendant curve, but on the downslope of a repeating waveform.

Trekkers commit two admirals to eternal rest

Ensign Pavel Chekov manned navigation, foreground, 
in Star Trek: The Original Series. The set lives on at Star 
Trek: The Original Series Set Tour, where I visited in 2025.
RJ Peltz-Steele CC BY-NC-SA 4.0

Star Trek fans lost two storied admirals last week in Patrick Stewart, "Captain Jean-Luc Picard" of The Next Generation franchise, and Walter Koenig, "Ensign Pavel Chekov" of The Original Series cast.

Stewart and Koenig contributed vitally to making Star Trek the paradigmatically utopian science-fiction exploration of the human condition that it has been for 60 years. Both actors embraced their Trek stardom, rather than, as many actors do, wringing their hands over typecasting in fanciful fiction. 

A classically trained Shakespearean stage actor, Stewart nonetheless reveled in science fiction in film and television, taking on roles such as Charles Xavier in the X-Men universe, and, in his 80s, reprising the role of Captain Picard for three seasons of an eponymous Paramount TV series, 2020-23. 

"For huge numbers of people, I will always be Jean-Luc Picard, and that's fine," Stewart told The Independent in 2003, Ars Technica repeated. "I really believe we created an admirable individual." No pun intended, I'm sure; Star Trek stories saw both the captain and ensign promoted to admiral before all was said and done.

Koenig was a favored guest on the Star Trek convention circuit and joined fan fiction projects, such as New Voyages and Renegades, as a writer and actor. (More on Star Trek fan fiction upon my visit to Star Trek: The Original Series Set Tour in Ticonderoga, New York, a year ago.)

A Gen-Xer, I grew up in the Cold War 1970s and 1980s, devouring reruns of the 1966-69 Original Series. 

Walter Koenig in 1967, 2013
Left: promotional image via Pixabay CC0 1.0
Right: Gage Skidmore via Wikimedia Commons CC BY-SA 3.0 

Conventional wisdom back then held that Chekov was added to the cast in season 2 to correct the omission of a Russian on the multi-ethnic bridge crew. According to The Making of Star Trek (1968), a book ostensibly co-authored by Star Trek creator Gene Roddenberry, the Russian daily Pravda had called out Star Trek utopianism as hypocritical American imperialism for want of a Russian character. Roddenberry accepted the critique and moved to make amends with the addition of ship's navigator Chekov. 

William Shatner told a different story, however, in his co-authored Star Trek Memories (1993). Shatner wrote that the Pravda story was a publicity stunt that Roddenberry made up. 

No Pravda story as Roddenberry described has ever been found. Yet the truth might lie somewhere in between. Snopes co-founder David Mikkelson took a deep dive on the question in 1999. He concluded that someone had told Roddenberry about a Pravda story, and Roddenberry probably was genuine in saying he acted on it. And why not? Chekov was good for both franchise publicity and Roddenberry's transcultural vision.

Roddenberry's and Shatner's narratives agreed on a different aspect of the character. Regardless of ethnicity, Roddenberry and Star Trek's Paramount producers wanted a younger character on the bridge to draw in youthful viewers. According to Mikkelson, Roddenberry, insightfully keyed into the popular culture, conceived of a character evocative of The Beatles or The Monkees, specifically teen idol Davy Jones. When Koenig first appeared as Chekov, he even wore a mop-top wig until he could grow out Davy-esque locks.

Anton Yelchin, 2011
Georges Biard via
Wikimedia Commons
CC BY-SA 3.0

A good related story about Chekov's debut concerns his Eastern European accent. Koenig said he drew on his heritage to come up with the speech pattern. Born to Russian-Jewish parents, he was, however, a Chicago native. The accent was wholly affected, and critics often have described it as "campy," more caricature than authentic rendering. Long before both perestroika and the internet, most American viewers knew no better. 

Yet cast as Chekov in the 2009 Star Trek reboot film, Anton Yelchin was capable of the real thing. Also of Russian-Jewish origin, Yelchin was born in St. Petersburg and moved to the United States as a baby with his parents. He grew up speaking Russian at home.

Though Yelchin could have put on an authentic accent, he chose to embrace some Cold War camp as a nod to the original Koenig portrayal. 

A tip off to Yelchin's homage is the substitution of a w sound for the letter v, as in "nuclear wessels": a line that Koenig self-deprecatingly repeated to comedic effect as Chekov in Star Trek IV. Yelchin, who died in a tragic accident in 2016, at age 27, knew that a true Eastern European-accented English rather tends to substitute a v sound for the letter w, not the other way around.

Anyway, for me as a kid, the Chekov strategy fired on all warp cylinders; I bought what Roddenberry was selling. I did identify with Chekov's youth. I became a supporter of both the United Federation of Planets and, to end the Cold War, the United Nations. And I became a Trekker for life. 

Patrick Stewart, 2013
Gage Skidmore via Flickr CC BY-SA 2.0

Patrick Stewart hit the small screen as Captain Picard in 1987. I was 16. I remember having friends over to watch the Encounter at Farpoint premiere. 

Stewart's Received Pronunciation of the Shakespearean school was hardly Davy Jones's Mancunian. But it was just the thing for the countless stirring lines he delivered on themes of humanity, liberty, and leadership.

Stewart the actor spoke often of being inspired by a grade-school English teacher; I am indebted to a few of mine. I'm not sure I have "the right stuff" of a Captain Picard. But already by the end of the 1990s, I had the hair.

I am grateful to Walter Koenig and Patrick Stewart for the characters they gave us. May their souls travel at warp speed in eternal exploration of the heavens.

Professional coach explains mobbing, other social dysfunctions that cause workplace trauma

Coach Heffernan analogizes workplace mobbing
to William Golding's Lord of the Flies (1954).

Cry of the Hunters (2011) by Eljiasan,
via DeviantArt, CC BY-NC-ND 3.0

Personal and executive coach Lynda Heffernan, architect of "A Kaizen Mind," has posted a brilliant video explainer of workplace mobbing.

I admit, I can be a person who rolls the eyes upon hearing words such as "cognitive behavioral hypnotherapy," or just "coach" when not attached to a sport team. But after spending some time with Heffernan's substantive content and video channel, I've concluded that this coach is worth listening to. She's the real deal, clinically trained in cognitive neuroscience.

"Kaizen" refers to a Japanese philosophy of continuous, incremental betterment (Forbes, Medium). Lausanne, Switzerland-based Heffernan has adapted the concept to a strategic mindset for self-improvement. In plain English, she does leadership and development training for organizations and executives.

The video on workplace mobbing (Oct. 19, 2026, embedded below) is the fourth in a series about related, trauma-inducing social dynamics, including workplace bullying, gaslighting, and ostracism. Here is the description of the video on mobbing:

In this video, I introduce you to the Island, and to workplace mobbing. If you read Lord of the Flies at school, you'll remember how a group of perfectly ordinary boys, stranded together, gradually turned on one of their own. Nobody set out to be cruel. But once the group had chosen its target, each small act made the next one easier. Mobbing is closely related to bullying, but with one important difference. It isn't one person. It's a whole island. 

Gratifyingly, Heffernan is well versed in the sociological origins and research of workplace mobbing, so she recognizes its discrete nature, especially thanks to the work of my friend and colleague, Dr. Kenneth Westhues. Somewhat jealously defining that distinctiveness is a key part of the mission of the World Association for Research on Workplace Mobbing (WARWM), which I have served as a co-founder and officer along with Dr. Qingli Meng and Dr. Westhues, and of WARWM's annual Conference on Workplace Mobbing at Niagara University (at The Savory Tort), ably led by Dr. Meng.

Incidentally, the fifth entry in the video series also might be of especial interest to the legal community, as Heffernan spoke on the bystander effect. She referenced the classic film 12 Angry Men (1957), and the 1964 Kitty Genovese case, eye-openingly explored in the James Solomon documentary, The Witness (2015) (YouTube). Bystander effect and "Kitty Genovese syndrome" are discussed in connection with tort law in my Tortz, volume 2 (pp. 400-02, 2026 ed.) (SSRN, Lulu).

Understanding workplace mobbing, especially as distinct from its close relative, bullying, literally can save lives. As Heffernan observed in the video, "[B]eing targeted by a group is not proof that the group is right. Very often it's proof that you were willing to see something that they weren't."

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Haunting legal panel talks human history of witchcraft

RJ Peltz-Steele with Google Gemini CC0 1.0

Halloween offers occasion to revisit last year's instant-classic continuing legal education program, "Malleus Maleficarium: Witchcraft Persecution in the 21st Century."

Recorded just before Halloween in 2025 by the International Criminal Law Committee of the International Law Section, American Bar Association, "Malleus Maleficarium" is free to stream (and embedded below) at the time of this writing.

The topic is historical and fanciful, yet surprisingly contemporary and serious at the same time. Here is the narrative abstract:

The "witch trials" in Early European history and during the U.S. colonial period have left an indelible mark on the way society understands how and why the "witch hunts" took place. Since the witch trials which were held in Europe and in Salem [Massachusetts], many of the women who were found to be alleged witches have been exonerated. Unfortunately, this has not necessarily translated into the end of witch hunts or the persecution of innocent people in the name of sorcery or other forms of "magic." This session examines witchcraft persecution occurring in the 21st century across the world, with impunity. The panel also discusses how communities respond to these acts and what lessons can be gleaned from history to prevent persecution of innocent people.

Two of my outstanding students moderated the program, Grace Nguyen and Erasmus Ablernarh. Both are officers of the International Law Students Association, which I co-advise at UMass Law with my colleague, office neighbor, and fellow former Arkansan, Professor Frances Rudko.

Presently a 3L in my Comparative Law class and a participant in the Global Law Classroom, Nguyen worked last summer as a certified law clerk at the Orange County District Attorney's Office, Santa Ana, in her native area of Greater Los Angeles, California. Also a 3L, Ablernarh clerked last summer at Cellai Law Offices in Braintree, Massachusetts. Ablernarh holds a master's in languages and business and European management from Université d'Orléans, Centre-Val de Loire, France, and earned his bachelor's in education from the University of Cape Coast, Ghana, one of my favorite places on the African continent.

English translation in the Internet Archive

The actual "Malleus Maleficarium" is a book, written in Latin and first published in Germany in 1486. Author Heinrich Kramer was commissioned by Pope Innocent VIII to investigate witchcraft, and the Malleus Maleficarium, which translates as "hammer of witches," was his report. Kramer fixated weirdly on women's sexuality and hyperbolized the threat of witchcraft to the church and social order.

The report was not well received by the French Inquisition, which regarded it as too severe. The French Inquisition, a papal task force to combat heresy, was not known for the brutality that later characterized the Spanish Inquisition. But still, when the Inquisition thinks you're taking something too seriously, .... 

The church distanced itself from the Malleus, and from Kramer, who was increasingly regarded as unhinged. Unfortunately for generations of women, however, common people still identified the Malleus with church authority, and the book appealed to the zeitgeist. The Malleus inspired periodic movements of barbaric persecution from the 16th to 18th centuries, including the Salem witch trials of the 1690s.

Witchcraft—and the fear of it, and fascination with it—are not unique to European-American tradition and are not relegated to history. The 2026 FIFA World Cup sparked news reports about the Ghanaian witch doctor whose curse prevented UK striker Harry Kane from scoring. A true-crime docuseries on Hulu now, "Swipe Right on the Devil," is winning audiences with a tale of murder and "so-called witchcraft." 

The "Malleus Maleficarium" panel discussed both the history and present-day persecution of witches around the world, and speculated on what it is about human nature that so doggedly insists that there be witches.

These were the expert panelists:

• Govind Kelkar, Ph.D. in the political economy of China; professor and executive director of the GenDev Centre for Research and Innovation, Gurgaon, Haryana, India; and visiting professor at the Council for Social Development and Institute for Human Development, New Delhi, India. A feminist scholar, she has authored 16 books focusing on gender relations in Asia.
• Dev Nathan, research director at the GenDev Centre for Research and Innovation, Gurgaon, Haryana, India; and visiting professor at the Institute for Human Development, New Delhi, iIndia. An economist, he is co-author with Kelkar of Witch Hunts: Culture, Patriarchy and Structural Transformation (Cambridge Univ. Press 2020).
• Jacqueline Mbogo, a Ph.D. candidate in African women studies; a consultant on women, peace, and security development, based in Nairobi, Kenya; and at the time of the program, chief of party and team leader for the UKAID Reducing Insecurity and Violent Extremism Programme, Kenya. She was awarded the Order of Golden Warrior (OGW) by the President of Kenya for her contribution to Kenyan peace and security.
• Jan Machielsen, historian and reader in early modern history at Cardiff University, Wales, UK. An expert on early modern witchcraft and demonology, he is author of The Basque Witch-Hunt: A Secret History (Bloomsbury 2025), winner of the 2025 American Association of Publishers PROSE award for best book in European History.

Have a look at the video. It's enchanting.

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Seeking to fund climate mitigation with 'super tort' relief, U.S. cities, states struggle with federalism

RJ Peltz-Steele with Google Gemini CC0 1.0

In today's First Monday in the U.S. Supreme Court, the Court heard and livestreamed oral arguments in a bellwether climate case.

In Suncor Energy Inc. v. County Commissioners of Boulder County, the city and county of Boulder, Colorado, demand compensation from Big Oil actors for damage wrought by fossil-fuel-driven climate change, such as floods, droughts, extreme heat, heavy precipitation, floods, and wildfires.

Before the Court are issues far preliminary to the substantive. The corporate defendants argue that the public suits are preempted by federal statutes and by constitutional limitations on state power vis-à-vis both the federal government and other states.

The Court decision in the case will have implications for a wave of similar lawsuits by local governments across the country, such as Honolulu, San Francisco, and Baltimore, and by states, such as Minnesota and Rhode Island. Writ large, the suit has implications for state- and municipal-government efforts to use litigation to fill coffers to respond to a range of crises, not limited to climate change, such as air and water pollution, epidemics of drug addiction, failures of physical infrastructure, and vulnerabilities in cybersecurity.

State and local governments invoke multiple legal theories with tort law, sometimes in this context called "super tort," leading the way. The federal government, with either party in the White House, has resisted super tort theories—excepting an impulse of the Biden Administration—viewing them as a threat to coherent national policy. Meanwhile public plaintiffs naturally want to keep their claims in state courts, which they rate as friendliest to state claims, and in which the states naturally have the most sway over interpretation of state law. 

Pumpjacks in Williams County, North Dakota, 2026.
RJ Peltz-Steele CC BY-NC-SA 4.0

A skeptic such as I might say that federal resistance is grounded in bought-and-sold federal politicians having more interest in perpetuating campaign contributions from the corporatocracy than in ensuring public health and security. At the same time, I recognize that there must be some guardrails on a state's latitude to so distort tort litigation as to effectuate tax or confiscation.

Today's argument was wide-ranging, from disparate understandings of causation in state tort law, to choice-of-law principles, federal preemption, and limitations on state power over interstate commerce and U.S. foreign affairs.

"Everybody agrees that state tort law is a form of regulation," Justice Amy Coney Barrett prefaced one question to Boulder County attorney Kevin Russell. The observation highlights the balance that courts in tort cases try to maintain in constraining their power in corrective justice, that is, righting wrongs between parties before the court, while acknowledging that tort litigation has, and is supposed to have, reverberations in politics and public policy.

Suncor Energy attorney Kannon Shanmugam summed up the defense position in context: "This case and others like it reflect an all too regrettable trend of trying to resolve major political issues in court rather than leaving them to the political branches where they belong."

As I asserted some years ago, the courts are being drawn more and more into the uncomfortable domain of political disputes as the public grows frustrated with the dysfunctions that paralyze the political branches.

Post-argument analyses will abound. I suggest checking out SCOTUSblog and Reason. The oral argument at C-SPAN is embedded below. The case, again, is Suncor Energy (U.S.A.), Inc. v. County Commissioners of Boulder County, No. 25-70 (U.S. oral argument Oct. 5, 2026).

War on Iran threatens global economy, but worse, rattles 'just world' ethic in places such as Malawi

Malawi, east of Lilongwe, looking toward Lake Malawi
RJ Peltz-Steele CC BY-NC-SA 4.0

Americans are suffering an affordability crisis wrought in large part by the Middle East war. But the impact of the conflict is global. And the lasting message to the world's poorest places might be less about economic setback, and more about the unreliability of western capitalism.

Driven especially if not exclusively by the Iran war, record fuel prices in the United States make local and national news every day and are sending ripples through the economy, worsening the affordability crisis that the White House alternatively grapples with and declares "fake."

It's easy to be self-absorbed in this crisis. I've lately lamented the $65 tab to fill my gas tank. Traveling to join family for an upcoming weekend wedding will cost my wife, daughter, and me more than $3,000. 

We're blessed; for now, we can absorb these costs. But as we consider our retirement plan with airfare inflation topping 23%, I worry about an impending need to decide what family we want to be close to in the States, presumably a parent or child, and to move there, understanding that we will rarely see other family again. 

It's like going back in time to when Americans moved west knowing they might never see their loved ones again. Shouldn't that be a forgotten era with modern transportation technologies? Both political parties purport to support the American family, but neither takes responsibility for our geographic fragmentation in the national labor market. We have no long-distance, high-speed trains, and we treat air travel like a free-market luxury.

Many Americans are in that bind already, tethered to work, if they can find it, and isolated from family. As Americans talk on the news about increasingly having to choose between fuel and food, it can be hard to remember how much better off we are than people elsewhere in the world. 

In May this year, I visited Malawi, a small country in southern Africa. The Iran war was then only a couple months on, but it reverberated worldwide already. I traveled overland from the Zambian border to Lake Malawi and back with Colby Mughogho, an entrepreneur, developer, and tourism operator. 

Drivers await a fuel delivery at a station outside Lilongwe.
RJ Peltz-Steele CC BY-NC-SA 4.0

Open fuel stations were hard to find. A station might get one delivery per day, then dispense fuel until the tanks went dry. At any station, a glut of trucks and motorcycles waited for hours in anticipation of a delivery. Petrol usually was delivered a few times per week; some areas were deserts for diesel, which we needed.

Colby worked the phone to call ahead to friends, sometimes to nail down the delivery time for a fuel station, or if we were lucky, to enlist someone to set aside a couple of liters for us. Police patrolled the main streets and watched fuel stations closely, enforcing a purchase limit of 15 liters (3.96 gallons) per customer.

With that limit, a fill-up would not get us the whole way. A pickup on Malawi's rough roads might at best get 9.3 km/L (22 mpg), so 140 km (87 miles) on a legal-limit fill-up. The distance from Lilongwe to our destination, Chembe, on Lake Malawi, was 216 km (134 miles), each way.

Motorcyclists queue for petrol at a fuel station outside Lilongwe.
RJ Peltz-Steele CC BY-NC-SA 4.0

At a fuel station, petrol cost about MK7,000 (Malawian kwacha) per liter (US$4.04/L). That's US$15.29 per gallon. Before the war, the fixed price had been about MK5,000/L (US$2.89/L), or US$10.92 per gallon.

If we were unlucky, we could leave the main road in search of scant and risky supplies of black-market fuel, sold curbside by men looking over their shoulders while they juggled ragtag containers. Black-market sellers commanded MK12,000/L, or US$26.20 per gallon.

The government blames black-market sellers, fairly, for amplifying scarcity and driving up prices. The quality of fuel also is suspect, possibly diluted, and tainted fuel can damage engines, a further drain on a fragile economy.

At the same time, black-market sellers disperse supply so that small-capacity users such as motorcycle taxis can continue to operate without losing productive hours in lines. A great deal of downstream commerce that depends on transportation is thereby protected, as well as beneficial noncommercial needs, such as health care, family connections, and schooling.

A billboard in Lilongwe touts the "Malawi 2063 National Vision."
RJ Peltz-Steele CC BY-NC-SA 4.0

For me, our fuel search was a "#FirstWorldProblem," a matter of convenience. I could have hitched a ride to the airport if I'd needed to. I was more worried about Colby making his way back to his wife and kids.

And I was more worried still about the impact of the shortage on people whose livelihoods depended on the fuel supply. No fuel meant no work for many, and no work meant nothing to eat. The food supply itself, for everyone, would be in jeopardy when fisherman and farmers could no longer fill the tanks of boats and tractors.

That was then. Now the war drags on and is expanding in Yemen and Saudi Arabia.

The New York Times reported last week that rising fuel prices have touched off furious protests around the world, "from Indonesia to Guatemala to Syria." The Times reported on work stoppages with insufficient fuel for boats, tractors, and factory machinery, and people responding angrily with marches, horns, and burning tires.

Malawi managed to cut fuel prices later in the summer. With fixed government pricing, petrol has held steady at US$3.24/L, or $12.26 per gallon, and diesel has closed in toward that number, about 12% higher. That's still an increase for petrol of 122% over the price a year ago. And I know that the official price says nothing about availability on the ground. Authorities say demand is being met, though in "good times" in 2024, an NGO reported Malawi fuel retailers operating at only 30% of capacity.

Boys play football beside their school in Chembe.
RJ Peltz-Steele CC BY-NC-SA 4.0

The Iran war is not the only reason that fuel shortages hit hard in Malawi, where fuel already was expensive and in short supply. Part of the problem is simply geology and geography. Malawi has no oil reserves and no domestic fossil fuel production. The landlocked country depends on imported oil products, though finds some relief by blending in domestic ethanol.

Other key factors in Malawi's fuel pain, predating the war, are economic: a foreign currency deficit and stubborn price fixing (e.g., BBC). People I talked to in Malawi were quick to blame their government, observing that surrounding countries were better managing the latest crisis. 

There's truth to that. In the long term, Malawian politicians have been unwilling to make unpopular choices to get a grip on the economy. But in fairness to Malawi, its economic woes are less a result of misfeasance than of the seemingly insurmountable poverty cycle that plagues developing countries in the contemporary global economy. 

With reinvested revenues, hard-won grants, and a great deal of grit and hard labor, Colby and his brilliant better half, Violet, have been developing tourism infrastructure in Malawi, especially in the north, around Mzuzu, the capital of the northern region and the country's third-largest city. Mzuzu is superbly located as a base for Malawi tourism, because it affords ready access to the small country's stunning range of landscapes, from iconic Lake Malawi to wildlife safariing, and to trekking through plains, forests, and mountain ranges. Colby and Violet have built camps and miles of trails and employed hundreds of Malawians in the process. 

Near Lilongwe: Some modes of transportation require no petrol.
RJ Peltz-Steele CC BY-NC-SA 4.0

The problem now is getting people there. Besides fuel prices, the Iran war is tanking tourism in Africa. Airline routes have been reduced, and demand for travel services has fallen off. The retreat of U.S. (and others') foreign aid from Africa is destabilizing governments, spilling red ink across the continent on the travel advisory map, spooking travelers. Malawi and its neighbor Mozambique are hanging on to their "level 2" status (travel with caution), though neighboring Tanzania, home to Kilimanjaro, has slipped to "level 3" ("reconsider travel"). (Neighboring Zambia boasts a remarkable "level 1" ("normal precautions"), though the rating system seems suspiciously aligned with a U.S. appetite for African resources; read more.)

I had not intended to come home from Malawi to write about fuel woes and war effects; rather, I wanted to write about the Mughoghos' investments in "community tourism" through homegrown enterprise, admirably independent of the foreign quid pro quo that haunts so much of the African economy. The latter is still an important story. Tourism is the bellwether of foreign investment that will be essential to bolster the Malawian economy and give the people a fighting chance at socioeconomic mobility and a healthy, middle-class standard of living.

Right now, though, it's hard to see the road to that prosperity. Like many countries and many peoples in the developing world, Malawians are captive to an emerging geopolitical catastrophe that they had no hand in making. What for Americans is a crisis of affordability means, for people elsewhere in the world, development paralysis, and worse: a betrayal of the western economic promise, that hard work pays off. The "just world hypothesis" holds that good people will reap rewards. It's sometimes called the "just world fallacy." But it is a motivating ideal that keeps the peace in much of the world, and it's an ideal worth striving to make real.

Sign at a Lilongwe bus stop along a Chinese-financed highway
touts foreign aid.
RJ Peltz-Steele CC BY-NC-SA 4.0

If you are inclined go to Malawi, please do. It is safe and open for business. Flights are available; Ethiopian Airlines hedges against economic downturn with a diversified fuel supply. Please consider planning your time in Malawi with Adventures with Colby; Colby and Violet reinvest proceeds in communities. They'll store fuel if they know you're coming. (Nothing received for this endorsement.)

Western dollars and a little bit of faith are needed to help Malawi, "the warm heart of Africa," to weather this storm, and to get back on its feet.

Let's hope that the current strategy in U.S. foreign relations has not completely undermined the just-world hypothesis in places such as Malawi. Because if it has, there are other nations with less benevolent intentions waiting in the wings to export a very different worldview.

(This post was updated on Sept. 25 to restore the sentences about the "just world hypothesis," which disappeared inexplicably after the original posting, in the paragraph beginning "Right now ....")
 

Tort, torte, 'Torteweizen' all please palates

RJ Peltz-Steele CC0 1.0 (no claim to product art)

"Torteweizen"?

Of course I had to try it. The "salted watermelon" creation of Moniker Brewing in Providence, R.I., near where I live, is a self-described "Berliner-Weisse-style" sour wheat (Hopgrail).

The label indicated strawberry flavoring, besides watermelon, with hints of salt and jalapeño. The strawberry flavoring came on stronger to me, hardly watermelon at all, and that was unexpected. But when I became accustomed to it, I liked it.

I don't think sour counts as savory, and the beer conjures torte, not tort, so the beer won't replace this page's banner. Still, it's just the thing to quench the thirst after a hard day at court.

Speaking of torte, "the plum torte" at The New York Times is the paper's "most requested recipe," favored across decades since its first 1983 publication and recently republished as "remixed." I've never made the Times plum torte, but we did just purchase to try the Canadian-made Trader Joe's plum torte ("limited time") before tariffs and seasons take their toll and it disappears into a pumpkin-spice sea.

And speaking of tort, it occurs to me that I have never quite shared here my textbook treatment of that word. From 1 Tortz (2025 ed.) ch. 1(D), pp. 5-6, here is an excerpt:

The origin of the word “tort” is hazy.  It probably comes from the Latin torquere, which meant principally to turn, twist, or wind.  The term was extended metaphorically in Medieval Latin to signify a “distortion” of justice, and then made its way to English via Old French.  The same Latin root gives us the related words torment and torture, signifying the infliction of injury.

The word torte, meaning an egg-rich cake, is unrelated.  Torte comes from Latin torta, for a kind of cake or bread, and yielded similar words in Germanic and Romance languages.  Torte is related to today’s tortilla and, probably, tart.

The adjective for a tort is tortious, meaning wrongful, or constituting a tort.  The word has been in use since Middle English, yet, to the great annoyance of a generation of law students, was excluded from spell-check software for decades and even designated for autocorrection to tortuous.  Tortuous conduct might indeed be tortious, but the words are not interchangeable.

There is no verb to describe the effectuation of a tort.  Informally, we may speak of committing a tort.  Formally, though, we prefer to reserve the term commit for the effectuation of a crime, rather than a civil wrong.  A person who “commits” a tort is a tortfeasor, the suffix -feasor also derived from Latin, facere, to do or make, via the French faire.  While a criminal defendant is found guilty, a tortfeasor is held responsible or liable.  Because a tort is a civil wrong and may result from an accident just as well as intentionality, the concept of guilt is implicated neither legally nor morally, as a general matter.

Cheers. 

Communities mourn teacher, writer, missionary; Chidzero modeled faith from Rhodesia to Rhode Island

Alice Chidzero
1963-2026
Tharp Funeral Home

A worship service at Thomas Road Baptist Church in Lynchburg, Va., on Friday memorialized teacher, writer, and missionary Alice Chidzero.

Alice Rumbidzaishe Bwerinofa was born to the Shona people in the village of Gutu, Masvingo, in what is today Zimbabwe, Rhodesia in 1963, about 230 km south of Harare. As her friend Lesley Hamer of the Providence Classical School, Williamsburg, Va., shared at the service, what Alice regarded most important about her identity was that she was a follower of Jesus Christ.

Alice often visited Rhode Island, where she lived with her husband Felix Chidzero for their first years in America. They came as students and earned degrees at Rhode Island Bible College.

For some years in Rhode Island, Alice and family attended Barrington Baptist Church (BBC). She worked early in her teaching career at Barrington Christian Academy. Alice attended BBC before my family joined in 2012, but I came to know her through her return visits and legendary reputation.

Alice told the astounding story of her life in a memoir, When the Brook Runs Dry: My Journey from Africa to America ... And Back a Few Times (N.Y. Free Press 2018) (Amazon). As the narrative traces Alice's journey from Rhodesia to Rhode Island, Sierra Leone, and Virginia, the book demonstrates the beliefs that sustained Alice through life's hills and valleys, both the customary community ethos of hunhu and an abiding, foundational faith in God.

Valleys there were. At the service, Hamer told an anecdote, also recounted in the book, of when Alice was stuck in a catch-22 between an expiring visa and compulsion to leave the United States, on the one hand, and airline refusal to let her fly without a visa for transit, on the other hand. 

"Why is Alice's life so hard?," Hamer asked herself at the time, she said.

That was exactly what I asked myself, repeatedly, reading Alice's memoir. She lost a child, a spouse, and parents in too short order. She finished her higher education despite the strain of single-parenting in a foreign country. She navigated the long road to U.S. citizenship. She battled the lifelong effects of rheumatic fever, and later, cancer. All the while, she ministered tirelessly to others, persons in need physically and spiritually, from the U.S. east to West Africa.

Well deserved self-pity is the opposite of how Alice met every challenge in her life. Eschewing any self-indulgence, she carried on and trusted relentlessly in God (Ps. 91). And the memoir demonstrates time and again the endless expanse of his provision.

Alice left this world on September 7. She is survived by her children, Simbarashe and Shekinah, and her grandchildren, Avianna, Zenai, and Xavier. She was predeceased by her parents, Levi and Catherine, by her husband, Felix, and by her daughter, Vimbainashe.

The family welcomes contributions at GoFundMe to help honor Alice's wish that she be laid to rest in Zimbabwe.

Do I have to choose between Trump and communism?

Re-creation, RJ Peltz-Steele with Google Gemini CC0 1.0

A sign on my commute distracts me every time, and I find myself thinking about it way too much:

"TRUMP OR COMMUNISM."

So we're clear, that's not actually a choice anyone is being asked to make. 

For Slate, Alexander Sammon wrote today about the rhetoric of a new Red Scare:

"On the occasion of America’s 250th anniversary, President Donald Trump took time away from the birthday revelry to warn of a grave and imposing adversary. 

"'Communism is a mortal threat to American liberty. It is the greatest threat to our country, including World War I, World War II, Pearl Harbor, or even 9/11,' he said on July Fourth weekend this year, in South Dakota...."

And in Georgia a few days earlier, "according to the Atlantic, Trump mentioned communism or communist 15 times ... 'starting less than a minute into his hour-plus speech.'"

My family, on one side, escaped communism in Ukraine. I have seen the aftermath of communism in central and eastern Europe since the wall fell. If "communism" is that communism, then I'll take the democratically elected leader every time, regardless of our policy agreements and disagreements.

But as I wrote about Vietnam last year, "communism" today looks more like capitalism run amuck; it's hard to tell from the street which side won that war. Even historically, behind the iron curtain, the authoritarian bureaucracy of red Russia hardly lived up to any Marxian ideal.

So if "communism" means making filthy profits from global cartels and bathing in the social largesse of murderous oligarchy— well, then, I'm not sure how the sign's two choices are different. 

If "communism" means a living wage for one's work, and healthcare for one's hefty taxes; breaking up anti-competitive trusts and leveling the field for a free marketplace; and access to education for those who are willing to put in the work— 

Well, then, I guess I have to think about it some more.