The proliferation of mandatory arbitration clauses in our everyday borrowing, purchasing and even working lives is once again making news.
In their excellent New York Times series, business writers Jessica Silver-Greenberg, Robert Gebeloff and Michael Corkery note that the use of this constitutional-rights-limiting language has become commonplace to the point that we’ve come to accept it without challenge.
Why? Because we have no choice but to do so.
I first wrote about this matter more than a year ago. I was trying to understand why so few class-action lawsuits were initiated despite the enormous volume of grievous complaints that had been (and continue to be) lodged against companies that administer public and private student loan agreements.
Then I learned that it’s because the governing documents subject such disputes to individual arbitration.
There’s an awful lot of money at stake here, as the industry’s defenders are making plain with fresh attack ads. Still, aggrieved borrowers have little recourse but to wait for others to take up the battle: Until the Justice Department challenges practices it deems “unfair and deceptive,” the Department of Education cites and fines its transgressing subcontractors, Congress elects to legislate a permanent solution, or the Consumer Financial Protection Bureau addresses the issue as the Dodd-Frank Act authorized it to do (which is what’s made the agency the target of the aforementioned ad campaign).
For student borrowers, however, the use of arbitration clauses in education-related loan agreements is just one more example of how the financial-services industry has tipped the scale in its own favor. A case in point is the virtual inability to discharge these debt obligations in bankruptcy. Thanks to an effective lobbying effort by college-tuition lenders and others, Congress assured second-class citizenship for student borrowers within the context of its 2005 overhaul of the bankruptcy statutes.
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