William and Mary Law Review
In 1972, when the Supreme Court held two state statutes allowing prejudgment replevin of chattels without prior notice or an opportunity to be heard violative of the fourteenth amendment of the United States Constitution (Fuentes v. Shevin) consumer advocates applauded the expansion of due process principles. Fear that increased costs and delay resulting from disruption of creditors' remedies might impair the operation of the consumer credit market, however, led the Court to call for legislative innovations designed to minimize these effects.
Two years later, the expansion of due process protections for consumer debtors subsided when, in Mitchell v. W.T. Grant Co., the Court upheld a Louisiana sequestration procedure allowing prejudgment seizure of chattels on a creditor's ex parte application. By approving a prejudgment seizure remedy which required neither notice nor prior adversary hearing, as long as other procedural safeguards were employed, the Court made the desirability of prior notice and hearing as much a question of legislative discretion as one of constitutional mandate; now state lawmakers may decide whether these particular procedural safeguards are beneficial to both consumer and creditor interests. While resolution of this problem may hinge upon subjective notions of fairness and justice, responsible legislative decisions also will require careful analysis of the economic effects of providing prior notice and hearing to allegedly defaulting consumer debtors.
Mandatory arbitration to test the creditor's claims prior to repossession can provide one procedure that will ensure fairness to the consumer while minimizing burdens on creditors and the consumer credit market. Providing an economical opportunity to be heard by means of mandatory consumer credit arbitration can resolve the present constitutional uncertainty by guaranteeing procedural due process rights in prejudgment replevin proceedings.
Alan N. Resnick,
Consumer Arbitration as an Alternative to Judicial Preseizure Replevin Proceedings, 16 Wm. & Mary L. Rev. 269
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