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In 1947, the Bulletin of Atomic Scientists, a Chicago-based nonprofit organization, created the Doomsday Clock to symbolize how close they believed the Earth was to human extinction.

In 1947, the Bulletin of Atomic Scientists, a Chicago-based nonprofit organization, created the Doomsday Clock to symbolize how close they believed the Earth was to human extinction.

At the time, the clock was set at 11:53 p.m., seven minutes to midnight.

Through the years, the scientists shortened the time period and in January 2025, they set the clock at 89 seconds -- 89 seconds, a second less than in January 2023 and January 2024, the closest they believe the world has been to “global catastrophe.”

In making their judgment the scientists consider a variety of factors: nuclear war threats, global warming, water and food shortages, biological dangers, and disruptive technologies like artificial intelligence.

But, as I have written in these articles, scientists throughout the world believe we face human extinction from the climate crisis alone.

And, sadly, there are no signs that we will leave the path to “final destruction.” Why? Because we face huge political and economic hurdles that cannot be overcome. The failure “to do anything” at the 29 annual international summit conferences we mentioned in one article prove the point.

The “solutions” on the table presently do little, if anything, to solve the crisis.

Electric cars: The vehicles use lithium-ion batteries that require cobalt and nickel, leading to mining and the destruction of some of the most pristine areas in the world.

Recycling: Not everything can be recycled, particularly almost all plastics. Many recycling operations use poisonous chemicals and some emit dangerous fumes. Finally, recycling, even if successful, may slow some contamination; it does not eliminate it.

Solar energy: The panels use hazardous materials and large projects need huge swaths of land, and disposal of the panels create enormous problems.

Wind: The turbines invade bird habitats, and create noise pollution and tremor issues on land and, if located on water, in the seas. Also, large projects require significant acreage.

Then there are suggestions on what all of us can do to save the planet, like not opening refrigerators too often, or using an old T-shirt instead of a sponge to clean a counter, or walk, bike, or take public transit.

Yup, we are on the brink of disaster and we are advised that using a T-shirt to clean a counter can help. The other recommendations fall into the same category.

So, what to do? One word defines what needs to be done: We need to sacrifice. And I mean really sacrifice.

As I stated in the introduction, I am a layperson, not an environmental scientist, but here are examples of what I believe we should do. If you believe any of them have even a remote chance of being adopted, contact me.

--Population growth. We need not only to control population but we need to reduce it, perhaps as much as 50 percent. It’s pure logic that if the population continues to grow, we will need more food, water, energy and land on which to expand. Growth will prove deadly. The Earth’s resources are, ultimately, finite.

--We must create a worldwide economy that does not depend on growth. Unless we create a financial system that makes saving the environment profitable, there is little reason to hope that the world will respond effectively. We live by the god of profits. We are ruled by the dollar, ruble, shekel, peso, euro, kopeck, dinar, franc. I would be more hopeful if the international conglomerates and corporations began offering stock in environmental protection programs.

--We need to consider the crisis not in term of decades, but in hundreds and thousands of years. Presently, we propose solutions with target dates of 2030, 2050, etc. What about 500 years from now, or 1,000 years (only 35 to 40 generations). I hear the response already: Who cares? Well, we are talking about saving humanity and hundreds of years is just a blink of an eye in the history of humanity on the planet.

--Drive cars that get 200 to 300 miles a gallon or more and have maximum speeds of, let’s say, 50 miles an hour. That would help. In 1973, after OPEC initiated an oil embargo, the auto industry built smaller cars. But, given that manufacturers considered profit margins unsatisfactory, they sold the public on SUVs.

--Reduce the number of flights daily from 100,000 in half or more.  Remember, aviation emits one billion tons of CO2 every year. And opening your refrigerator less frequently will not help.

--Stop ravaging rain forests which are essential to our survival because they absorb CO2.  Every hour forests the size of three footballs fields are cut down.  Studies project that by 2030, only 10 percent of the world’s forests will remain standing.  

--We must reduce cattle farming because cattle release methane gases which are more deadline than CO2.

--Starkly reduce both commercial and residential construction.

 --We must cut back, drastically, on logging, mining, fishing, farming, the use of pesticides, etc.  

Then there is plastic. We need -- must -- must, cut back or even eliminate its use. Indeed, it is probably impossible to repair the damage plastics have already done.

I cite these few examples only as illustrations of the kind of commitment that is needed to assure a habitable planet. But regrettably that will never happen because no community in the world will ever adopt projects that eliminate jobs, or temper the insatiable appetite for profit. The politics and economics are insurmountable.

Twenty-seven countries have levied “carbon taxes” on manufacturers emitting CO2 hoping the financial burden will reduce contamination. Of course, that does not solve the problem; many just pay the tax.

Former vice president, Al Gore, for all his fine work with his book and movie “An Inconvenient Truth,” in discussing possible solutions, does not mention one that requires sacrifice -- from halting population growth to curbing air traffic. (In 2007, he shared the Nobel Prize for his work on the environment with the Intergovernmental Panel on Climate Change.)

The optimists and climate deniers tell us not to worry. The Earth is very resilient.  True.  But to give the Earth a chance to recover we must stop the assault. We are using resources faster than they can be replenished.

To conclude: I finished this series on a beautiful day. I went outside, scanned a blue cloudless sky and then realized that we are polluting space as well. Yes, space.

In what is called the low Earth orbit (LEO), there are 6,000 tons (12 million pounds) of “junk” -- paint from spacecrafts, rocket parts, “dead” satellites -- flying around the planet at 18,000 miles per hour.

I went to NASA’s website to see what it says about this, expecting it to be defensive since it is the country’s space agency. But it wasn’t.” It called the LEO the “world’s largest garbage dump,” posing threats to manned and unmanned flights.

“The space around the planet is filled with rubbish,” because, NASA adds, it is too expensive to clean up the mess -- just like on Earth.

“It’s time to take out the trash!” NASA says.  

Yes, but where do we put it?

So, the Doomsday Clock will steadily continue its countdown on when the Earth will become inhabitable. But it’s not the symbolic one we have to worry about.

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This is the fifth and concluding column in a series of articles on the environment.

There has been significant buzz around the progression of legislation aimed at restricting minors’ use of social media.

Bhashit (Sheek) Shah and Marisa K McConnell
Varnum

There has been significant buzz around the progression of legislation aimed at restricting minors’ use of social media. This trend has been ongoing for years but continues to face resistance. This is largely due to strong arguments that all-out bans on social media use not only infringe on a minor’s First Amendment rights but, in many cases, also create an environment that allows for the violation of that minor’s privacy.

Although companies subject to these laws must be wary of the potential ramifications and challenges if such legislation is enacted, these concerns should be integrated into product development rather than driving business decisions.

Design-Code Laws

A parallel trend emerging in children’s privacy is an influx in legislation aimed at mandating companies to proactively consider the best interest of minors as they design their websites (Design-Code Laws). These Design-Code Laws would require companies to implement and maintain controls to minimize harms that minors could face using their offerings.

At the federal level, although not exclusively a Design-Code Law, the Kids Online Safety Act (KOSA) included similar elements, and like those proposed bills, placed the responsibility on covered platforms to protect children from potential harms arising from their offerings. Specifically, KOSA introduced the concept of “duty of care,” wherein covered platforms would be required to act in the best interests of minors under 18 and protect them from online harms. Additionally, KOSA would require covered platforms to adhere to multiple design requirements, including enabling default safeguard settings for minors and providing parents with tools to manage and monitor their children’s online activity. Although the bill has seemed to slow as supporters try to account for prospective challenges in each subsequent draft of the law, the bill remains active and has received renewed support from members of the current administration.

At the state level, there is more activity around Design-Code Laws, with both California and Maryland enacting legislation. California’s law, which was enacted in 2022, has yet to go into effect and continues to face opposition largely centered around the law’s alleged violation of the First Amendment. Similarly, Maryland’s 2024 law is currently being challenged. Nonetheless, seven other states (Illinois, Nebraska, New Mexico, Michigan, Minnesota, South Carolina and Vermont) have introduced similar Design-Code Laws, each taking into consideration challenges that other states have faced and attempting to further tailor the language to withstand those challenges while still addressing the core issue of protecting minors online.

Why Does This Matter?

While opposition to laws banning social media use for minors has demonstrated success in the bright line rule restricting social media use, Design-Code Laws not only have stronger support, but they will also likely continue to evolve to withstand challenges over time. Although it’s unclear exactly where the Design-Code Laws will end up (which states will enact them, which will withstand challenges and what the core elements of the laws that withstand challenges will be), the following trends are clear:

There is a desire to regulate how companies collect data from or target their offerings to minors in order to protect this audience. The scope of the Design-Code Laws often does not stop at social media companies, rather, the law is intended to regulate those companies that provide an online offering that is likely to be accessed by children under the age of 18. Given the nature and accessibility of the web, many more companies will be within the scope of this law than the hotly contested laws banning social media use.

These laws bring the issue of conducting data privacy impact assessments (DPIAs) to the forefront. Already mandated by various state and international data protection laws, DPIA requirements compel companies to establish processes to proactively identify, assess and mitigate risks associated with processing personal information. Companies dealing with minor data in these jurisdictions will need to:

- Create a DPIA process if they do not have one

- Build in additional time in their product development cycle to conduct a DPIA and address the findings.

- Consider how to treat product roll-out in jurisdictions that do not have the same stringent requirements as those that have implemented Design-Code Laws.

As attention to children’s privacy continues to escalate, particularly on the state level, companies must continue to be vigilant and proactive in how they address these concerns. Although the enactment of these laws may seem far off with continued challenges, the emerging trends are clear. Proactively creating processes will mitigate the effects these laws may have on existing offerings and will also allow a company to slowly build out processes that are both effective and minimize the burden on the business.

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Varnum partner Bhashit (Sheek) Shah advises clients on data privacy best practices and regulatory compliance. With experience in global privacy frameworks and laws including GDPR, CCPA and COPPA, he helps businesses build and implement compliance programs and manage data breaches. Associate Marisa K. McConnell focuses on litigation and data privacy, with a focus on children’s privacy issues, regulatory and compliance challenges in the mobility sector, commercial business disputes and general litigation matters.

What if there were a non-divisive public policy change that would save the country billions and benefit the average American worker? Well, there is one, and it is ripe for action: The enactment of legislation that restricts how Social Security Disability Benefits may be used by private insurers to “offset” their own financial obligations.

When most of us think of Social Security, we think of retirement benefits. The Social Security Act is a Depression-era law whose original purpose was to protect widows and children when the family’s provider died.

Over time, Social Security’s scope of coverage expanded. It became a primary retirement plan while continuing to provide death benefits to minor children. It also expanded to protect workers who became permanently disabled with the creation of the Disability Insurance Benefits program, known as SSDI. It is this SSDI coverage that has been exploited by the disability insurance industry.

Here’s how:

The typical employee with disability insurance is often covered through their employer’s group long-term disability plan, often an ERISA-qualified plan. If this employee becomes seriously ill or is hurt, they can file a claim with the employer’s disability insurer. When a claim is filed, the insurer sends the employee a packet of forms that includes a contract requiring them to file a claim with Social Security and simultaneously claim disability benefits from the federal government.
The insurer will condition the payment of benefits on the claimant’s filing an application with Social Security and pursuing all avenues of appeal. Some insurers will even provide the disabled employee with legal representation to pursue a Social Security claim. This is done right when the claim is filed.

The problem is that, in most cases, Social Security’s legal standard of disability is much stricter than what a private disability contract requires. A private disability contract may pay a benefit if an employee cannot do their own job. Social Security requires proof of an inability to perform any job in the national economy.

So, already, the private disability insurer is forcing an employee to file a claim for benefits paid by the federal government when that same employee has a private contract of insurance. And, worse still, the insurer is requiring the filing of an SSDIB claim when the employee may not yet be eligible.

The reason for this is that the private disability insurer receives a dollar for dollar offset (or credit) for any monies paid by Social Security.

To illustrate this point, take the case of a 40-year-old female with two minor children earning $75,000 per year. If the employer’s disability contract pays her a benefit equal to 60% of her salary, she would be entitled to a monthly payment of $3,750 per month or $45,000 per year.

If she were required to apply for SSDI, and her monthly Social Security benefit was $1,600 and $750 for each of her two children, the government would be paying her $3100. If she is awarded that amount from Social Security– voila – the insurance company’s responsibility drops to $650 per month.

During the period of “own occupation” benefits, typically two years, the insurer’s $90,000 obligation drops to $15,600, and the U.S. Taxpayer is now responsible for paying the claimant $74,400, even though, in our example, the employee had private insurance.

Given the original purpose of the Social Security Act, even with its subsequent amendments, it seems inappropriate to require the U.S. Taxpayer to pay for a benefit where a person has private insurance and may not even qualify for SSDI.

There are, of course, exceptions. In the case of a seriously injured or ill person or the victim of, for example, a stroke, an early claim seeking Social Security benefits is entirely appropriate. And Social Security claimants also received Medicare benefits. So, there are other considerations. But in those cases where an individual’s illness or injury has not yet risen to the level of a permanent disability, this practice seems to benefit no one but the insurance industry.

So, what can be done?

State insurance commissioners have been ineffective at combatting this practice, so the Social Security Act or the ERISA statute could be amended and updated to curb these practices. Here are three suggested reform propositions that could be added:

1) A disability insurer could not require a disabled employee to file a claim for Social Security Disability benefits any earlier that the first 36 months of continuous disability unless the employee wishes to do so voluntarily.

2) A disability insurance company would not be permitted to take an offset for Social Security for any period where the insurer denied a claim for disability benefits; and

3) If a private disability claim in “approved” status is later terminated and then reinstated, no Social Security offset could be claimed for any period where the private contract benefits were not paid.

These are common sense reforms that would bring about real and meaningful change in the lives of the occupationally disabled worker. They would save the federal government billions in actual benefit and administrative costs. And, as a bonus, these changes would clean up questionable claims-handling practices within the disability insurance industry.

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John Joseph (J.J.) Conway is an employee benefits and ERISA attorney and litigator and founder of J.J. Conway Law in Royal Oak.

The social and legal history of Diversity, Equity and Inclusion (known today known as “DEI”) emerged from the early civil rights movements leading to the Civil Rights Act of 1964.

A. Vince Colella
Moss & Colella P.C.

The social and legal history of Diversity, Equity and Inclusion (known today known as “DEI”) emerged from the early civil rights movements leading to the Civil Rights Act of 1964. In the late 1970s/early 1980s, America embraced the moral imperative of “affirmative action” recognizing the practice as a vital tool to eradicate historical inequities. The term “diversity” became popular in Corporate America in 1987, after an article was published by the Hudson Institute (a New York City “liberal think tank”) predicting a commercial advantage of demographic workforce changes. By the 2000s, the term DEI became synonymous with a workplace that was not only tolerant of a diverse class of workers but also embraced it!

Recent political developments

President Trump’s January 2025 Executive Orders, while not federal law, have started the domino effect of tumbling DEI initiatives in the federal workforce. By his own account, the impetus behind the president’s orders is to “restore values of individual dignity, hard work, and excellence.” Many feel that this may be a dog whistle to corporations that it is now fair game to reinstate institutional barriers to “equal” employment. While federal employees are encouraged to report their colleagues who continue to further DEI efforts, legal challenges are anticipated.

But Michigan is not budging. In response to the president’s orders, Gov. Gretchen Whitmer has issued Executive Directive 2025-1 reaffirming our state’s commitment to diversity while ensuring federal compliance. The governor’s directive makes clear that while Michigan remains committed to following federal actions, it will rail against initiatives that violate constitutional law.  

Meanwhile, the private sector remains divided, with some companies restricting DEI policies while others continue to adopt them.

The ‘not so’ quiet dismantling of civil rights protections

In 2023, the Supreme Court ruling in Students for Fair Admissions (SFFA) v. Harvard signaled a major shift in affirmative action ideology, potentially opening floodgates to erosion of civil rights protections in employment, housing, and other areas. In this decision, Justice Clarence Thomas paradoxically argued that “affirmative action imposes a stigma on minorities” suggesting that minorities are already protected under the constitutional principle that “all men are created equal.” A suggestion that has not historically been the case.  

 This year, the Supreme Court will hear oral argument in Ames v. Ohio Department of Youth Services, a reverse discrimination case where a heterosexual employee alleged she was passed over for promotion in favor of a gay woman. The case tests the “background circumstances” requirement used by the Sixth Circuit, which requires plaintiffs to show either an employer’s inclination to discriminate against the majority or something “fishy” about the hiring decision.

While Ames doesn’t directly challenge DEI programs, the case carries significant implications for such initiatives. If the Supreme Court sides with Ames and eliminates the “background circumstances” requirement, it could lower the evidentiary threshold for reverse discrimination claims. The potential consequence? Companies might face more lawsuits challenging DEI policies, potentially creating a chilling effect on diversity initiatives as organizations weigh increased legal risks against their inclusion goals.

What can be gleaned from these two cases is that the U.S. Supreme Court has shown a recent trend of protecting the majority interests at the expense of minority rights.

DEI impact on discrimination lawsuits

Research on DEI initiatives’ impact on discrimination lawsuits shows mixed results. While some studies indicate companies with robust DEI policies face fewer lawsuits, others suggest these programs increase discrimination reporting by raising awareness. EEOC data reveals workplace discrimination charges have fluctuated despite widespread DEI adoption, with retaliation claims becoming more prevalent and discrimination categories expanding to include age, disability, and sexual orientation.

However, DEI policies alone cannot prevent lawsuits. It will require comprehensive programs featuring clear reporting mechanisms to resolve issues internally before legal escalation. The effectiveness of these initiatives in preventing litigation depends critically on senior leadership commitment, integration with core business processes, regular monitoring, quality implementation, and accessible grievance procedures.

The bottom line for employers

Should the Supreme Court rule in favor of Ames, how should companies respond? Those that value diversity in the workplace and recognize its benefits should thoughtfully consider designed policies to maintain their legal protection. Management that places a priority on employment decisions (hiring, firing, promoting, or demoting) based on legitimate business factors rather than protected characteristics will continue to have strong legal standing.

Executives that consistently apply neutral policies (and maintain detailed records of its decision-making process) will remain well-positioned to defend against any discrimination claims, regardless of the Ames outcome.  

Practically speaking, employers would be wise to consider implementing an objective evaluation criterion for employment decisions, document performance-based reasons for management decisions, and educate corporate leadership about the sources of bias to provide insight into their own subconscious proclivities. Today, nearly 2/3 of all mid-size companies employ DEI initiatives with higher percentages in Fortune 500 businesses.  Implementing sound business management practices will serve as a crucial safeguard against liability arising from discriminatory conduct.


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A. Vince Colella is a founding partner of Southfield-based personal injury and civil rights law firm Moss & Colella.

The Earth reached an historic milestone at year-end 2023 which should have been met with a woeful outcry but instead was greeted with a deafening silence.

The Earth reached an historic milestone at year-end 2023 which should have been met with a woeful outcry but instead was greeted with a deafening silence.

The world population of 7.9 billion slipped over the 8 billion mark. Worse, projections are that we will hit 9.1 billion by 2050, just 25 years away. This addition of another 1.1 billion people will require huge supplies of clean water, land, shelter, food, and energy, and it will further invade wildlife habitats.

Not only was this growth greeted with a yawn, but those who reported on the growth discussed it in entirely economic terms. Hardly a word was said about what it meant in terms of our environmental future.

Just one “minor” example: The New York Times in April 2023, reported that India will soon pass China in population, writing: “With size -- a population that now exceeds 1.4 billion -- comes geopolitical, economic and cultural power…And with growth comes the prospect of a ‘demographic dividend’.’’

The Times devoted three pages analyzing this development. There was not one word on what this meant to the environment.

Now, you don’t have to be a climate change expert, scientist or scholar to know that growth requires resources. We will now need more land for shelter, food, water, and energy -- resources which are already at a minimum. We are already using resources faster than the Earth can replenish them.

The dire warnings regarding population growth are not new; many experts in the past have tried to get the attention of the world on the threat that population growth poses to our existence.

For instance, the United Nations has estimated the planet will need twice as much food by 2050 than we are producing now. Its Food and Agriculture Organization (FAO) has reported we will need to increase world food production by 60 to 70 percent to feed 9 billion people.

In 2006, when former Vice President Al Gore released his award-winning book and movie, “An Inconvenient Truth,” which warned about the environmental challenges we face, the world population stood at 6.6 billion. We have witnessed an increase of 1.4 billion people or a 21.2 percent jump in just 19 years.

In 1968, Paul R. Ehrlich, and his wife, Anne Howland Ehrlich, two Stanford University researchers, warned in their book, “The Population Bomb,” that the Earth cannot sustain the growth it was experiencing.
The population at the time: a mere 3.5 billion.

In 2016, Edward Osborne Wilson, a biologist known as the Darwin of the 21st century who won two Pulitzer Prizes, warned in his book, “Half-Earth: Our Planet’s Fight for Life,” that to survive, mankind needs to reserve half the Earth for wildlife. He also warned in his studies that the Earth has only the capacity to support 9 to 10 billion people.

In the early 1970s, a small group of scientists created a computer model called World3 which analyzed population growth.  Its findings were published in a book, “The Limits to Growth.” The conclusion?

“…humanity was despoiling nature so fast that civilizational collapse would occur sometime within the next one hundred years.”

To give these abstract forecasts some meaning let’s look at Kenya. In 1971, it had a population of 11 million which grew to 53.7 million by 2021. In 1971, the country had 160,000 elephants and 20,000 black rhinos. By 2021, those numbers dropped to 35,000 elephants and 1,000 black rhinos and only two white rhinos (both female.) The same scenario is playing out throughout the world.  (I chose Kenya as an example because I visited the country on a photo safari in 1996. It was an experience of a lifetime.)

Let’s focus on a place closer to home: Oakland County. Every time friends would point to a beautiful new subdivision, I would reply, “that’s pollution” because it took habitat from insects, bees, deer, coyotes, skunks, racoons, etc., all essential to the “circle of life.” Of course, the growth also created problems of water supply and pollution in the county’s many lakes.

When I was in my teens in the 1950s (yes, I’m old), much of where I now live, West Bloomfield, was farmland. I paid a farmer a couple of bucks to go horseback riding. It was a win-win for the farmer. He earned a few dollars and I exercised his horses. Now, when I sit in a traffic jam at Orchard Lake Road and Maple, I wish I was back in the saddle again.  

I doubt there is much land left on which to expand in my suburb. Space is, after all, finite.

The problem: by the time the world understands the meaning of the emergency flashes on the radar and tries to respond appropriately, it will probably be too late.  

The NATO Review, reported under the headline, “Population Growth, the Defining Challenge of the 21st Century:”

“Without taking action now, billions of people across the world will face thirst, hunger, slum conditions and conflict in response to droughts, food shortages, urban squalor, migration and ever depleting natural resources, while capacity tries to catch up with demand.”

The Population Center wrote:

“Slowing down, stopping and eventually reversing human population growth ---these are ethical imperatives that will help improve the chances for future generations establishing living scenarios with the planet. The most ethical gift we can give people and creatures of the last 21st century and early 22nd century is a chance.”

Regrettably, we are not living up to our moral and ethical obligation.

(Editor’s Note: This is the second in a series of five columns on the environment.)

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Berl Falbaum is a political author and journalist and the author of several books.

The Federal Arbitration Act (FAA), enacted on February 12, 1925, has been a cornerstone of American dispute resolution for a century. It transformed arbitration from a seldom-used alternative into a central feature of the U.S. legal system.

Introduction

The Federal Arbitration Act (FAA), enacted on February 12, 1925, has been a cornerstone of American dispute resolution for a century. It transformed arbitration from a seldom-used alternative into a central feature of the U.S. legal system. Over the past 100 years, the FAA has evolved through legislative amendments, judicial interpretations, and policy shifts, establishing arbitration as a preferred method for resolving disputes in commercial, labor, and consumer contexts, as evidenced by the widespread inclusion of arbitration clauses in contracts across these sectors. This article explores the origins of the FAA, its legislative history, and recent U.S. Supreme Court cases that may shape its future.

Historical Origins of the FAA

A. Pre-FAA: Hostility Toward Arbitration in Early America

Before the FAA's enactment, arbitration faced significant resistance in the United States. Influenced by English common law, the U.S. legal system was often hostile toward arbitration agreements, viewing them as attempts to bypass judicial authority. Courts frequently refused to enforce arbitration clauses, compelling parties to litigate despite prior agreements to arbitrate disputes.

This reluctance was rooted in concerns that arbitration lacked procedural safeguards and the belief that private dispute resolution should not supplant formal judicial processes. Many state laws rendered arbitration agreements unenforceable, making arbitration an impractical alternative to litigation.

B. The Need for Reform: Rise of Commercial Arbitration

In the early 20th century, the rapid expansion of commerce and industry in the U.S. led to increased litigation, congesting court dockets and creating inefficiencies in contract enforcement. Business leaders and trade organizations advocated for arbitration reform, viewing it as a more efficient and cost-effective method for resolving commercial disputes.

The American Bar Association (ABA) and the New York Chamber of Commerce spearheaded efforts for federal legislation to ensure the enforceability of arbitration agreements. These efforts culminated in the drafting of the United States Arbitration Act, later known as the Federal Arbitration Act.

Passage of the Federal Arbitration Act

A. Congressional Sponsors and Presidential Signing

The Federal Arbitration Act was enacted on February 12, 1925, and became effective on January 1, 1926. It was introduced by Senator Charles L. Bernheimer, who was also a dry goods merchant in Manhattan, and supported by members of Congress who viewed arbitration as essential for American commerce. President Calvin Coolidge signed the Act into law, marking a significant shift in the legal landscape regarding arbitration agreements. The FAA aimed to:

1. Make arbitration agreements legally enforceable, preventing courts from arbitrarily invalidating them.

2. Reduce judicial hostility toward arbitration.

3. Promote efficiency and finality in dispute resolution by diverting disputes from congested courts.

Initially, the FAA applied primarily to maritime and commercial contracts, leaving employment and consumer arbitration largely unregulated at the time. This changed gradually over the decades, largely due to judicial interpretation rather than legislative amendments. The expansion of the FAA’s reach, particularly into employment contracts, occurred through a series of Supreme Court decisions that broadened its scope beyond its original intent. Examples include:

1.    Gilmer v. Interstate/ Johnson Lane Corp., 500 U.S. 20 (1991) – Employment Arbitration Expansion. In Gilmer the Supreme Court ruled that employment arbitration agreements were enforceable under the FAA unless Congress had explicitly stated otherwise. This decision marked a significant shift in how the FAA applied to workers, effectively allowing employers to compel arbitration of employment disputes. The ruling encouraged employers across industries to adopt mandatory arbitration clauses in employment contracts.

2.    Circuit City Stores v. Adams, 532 U.S. 105 (2001) – Narrowing the FAA's Employment Exemption. Held that the FAA contains a transportation worker exemption in 9 U.S.C. § 1, excluding “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.”

3.    AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011)– Consumer Arbitration Expansion. In AT&T Mobility the Supreme Court held that the FAA preempted state laws that prohibited mandatory arbitration clauses in consumer contracts. This ruling overturned state laws that had attempted to restrict forced arbitration, leading to widespread enforcement of arbitration agreements in consumer contracts. After this case, businesses increasingly included class action waivers in arbitration agreements, limiting consumers' ability to bring collective lawsuits.

4. Epic Sys. Corp. v. Lewis, 584 U.S. 497 (2018)– Class Action Waivers Upheld. The Supreme Court ruled that employers could enforce arbitration clauses that require employees to waive their right to collective or class action lawsuits. This decision further strengthened employer-controlled arbitration, limiting workers' ability to pursue legal claims collectively.

Legislative inaction also played a key role in the expansion of arbitration, as Congress has not amended the FAA to limit its scope, effectively allowing the courts to determine its application. Additionally, pro-business policy shifts contributed to this expansion, as arbitration became increasingly favored by businesses due to its cost-effectiveness and efficiency compared to litigation. Finally, preemption of state laws further solidified arbitration’s dominance, with the Supreme Court consistently striking down state attempts to restrict arbitration agreements in employment and consumer contracts.

B.    Worker Exemptions Under the FAA

Certain classifications of workers are exempt from the FAA, despite its broad applicability to most private-sector employees. Among these exemptions, transportation workers, seamen, federal government employees, and independent contractors in the transportation industry are notably excluded from FAA provisions due to industry-specific regulations and legal precedents. These exemptions highlight a congressional intent to exclude certain workers reach of the FAA due to the presence of other statutory frameworks that govern their labor rights, such as the Railway Labor Act (RLA) (railroad and airline employees), Civil Service Reform Act (CSRA)(federal employees), and 9 U.S.C. § 1(seamen and maritime workers).

C. Restoring Choice: The End of Forced Arbitration in Sexual Misconduct Cases

On March 3, 2022, President Joseph Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFASHA). This landmark legislation amended the FAA rendering pre-dispute arbitration agreements unenforceable for claims involving sexual assault or sexual harassment. The Act empowers survivors to choose between pursuing their claims in court or through arbitration, rather than being compelled into private arbitration proceedings. Notably, the law applies to any dispute or claim that arises on or after its enactment date, regardless of when the underlying conduct occurred. This ensures that individuals who experience such misconduct have the autonomy to decide the forum in which to seek justice.

Recent U.S. Supreme Court Cases Impacting the FAA

• Morgan v. Sundance, Inc., 596 U.S. 411(2022): Clarified that a party does not have to prove prejudice when arguing that another party has waived their right to arbitration.

• Viking River Cruises, Inc. v. Moriana, 596 U.S. 639 (2022): The Supreme Court ruled that California’s Private Attorneys General Act (PAGA) claims can be subject to arbitration, limiting employees’ ability to
bring representative labor law claims.

• Coinbase, Inc. v. Bielski, 599 U.S. 736 (2023): Held that when a federal district court denies a motion to compel arbitration, the losing party has a statutory right to an interlocutory appeal. 9 U.S.C.S. § 16(a).
The district court must stay its pre-trial and trial proceedings while an interlocutory appeal is ongoing.

Then in 2024 alone, the Supreme Court issued several significant decisions regarding arbitration:

• Smith v. Spizzirri, 601 U.S. 472 (2024): The Court unanimously held that under Section 3 of the FAA, federal courts are required to stay proceedings when a dispute is referred to arbitration, rather than dismissing the case. This decision emphasizes the mandatory nature of staying proceedings pending arbitration, ensuring that parties can return to court, if necessary, after arbitration concludes.

• Coinbase, Inc. v. Suski, 602 U.S. 143 (2024): The Court stressed the contractual foundation of arbitration agreements, ruling that disputes over the applicability of arbitration clauses should be resolved based on traditional contract principles. The decision underscores that parties are bound by the terms to which they have mutually agreed, reinforcing the importance of clear and explicit arbitration provisions in contracts. The Court also ruled that when parties have agreed to two contracts, one that sends arbitrability disputes to arbitration, and the other either explicitly or implicitly sends arbitrability disputes to the courts, a court must decide which contract governs.

• Bissonnette v. LePage Bakeries Park St., LLC, 601 U.S. 246 (2024): In a unanimous decision, the Court clarified that transportation workers do not need to be employed within the transportation industry to qualify for the FAA's exemption. This ruling broadens the scope of workers who can seek exemption from mandatory arbitration under the FAA, focusing on the nature of the work performed rather than the employer's industry classification.

Conclusion

For the last century, the Federal Arbitration Act has shaped the way Americans resolve disputes. Initially enacted to promote efficiency and fairness in commercial transactions, the FAA has since expanded to nearly all areas of law, including employment, consumer rights, and international commerce. As arbitration continues to evolve, debates over its fairness and accessibility remain at the forefront. The next century will determine whether arbitration remains dominant or faces greater regulation. As we mark its 100th anniversary, the FAA’s legacy remains unparalleled in American law.

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Lisa W. Timmons, Esq., has over 27 years of experience in alternative dispute resolution (ADR). She is the chair of the ADR Section of the Michigan State Bar, and the Executive Director of the Mediation Tribunal Association. Timmons serves as an arbitrator, mediator, and case evaluator of labor, employment, and commercial cases with the American Arbitration Association (AAA), FMCS, USPS, MERC, FINRA, and several other public and private arbitration and mediation panels.