Volume 78, Number 2

May 2003

Can Arbitration Do More for Consumers? The TILA Class Action Reconsidered

Robert Alexander Schwartz

In this Note, Robert Alexander Schwartz assesses the state of the debate in the latest chapter of the ever-unfolding law of arbitration. What works for high-value agreements between sophisticated parties in arms-length negotiation may not work for contracts of adhesion between businesses and consumers. Focusing on disputes arising under the Truth in Lending Act (TILA), Schwartz analyzes recent case law upholding arbitration agreements contained in consumer-lending contracts of adhesion, as well as recent scholarship criticizing the courts’ actions. He concludes that both the courts and the scholars have it wrong: Neither arbitration as presently constituted nor class action lawsuits can provide individual justice to TILA plaintiffs. Schwartz suggests an alternative legal framework for attacking unfair arbitration clauses while offering a set of modernizing improvements that might make arbitration a viable tool for the resolution of TILA claims and other consumer agreement disputes.