ALL-CAPS

Canonical citation:

Yonathan A. Arbel, ALL-CAPS, Journal of Empirical Legal Studies (2020).

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One-paragraph thesis:

The widespread legal practice of using all-caps in consumer contracts to ensure key terms are conspicuous and consent is improved is deeply flawed. His empirical research demonstrates that all-caps text fails to enhance consumer understanding, provides no benefits for most readers, and significantly harms the comprehension of older individuals. Arbel calls for abandoning this unsubstantiated tradition and exploring more effective disclosure methods.

What this paper is about:

A hallmark of consumer contracts is long blocks of capitalized text. Courts and legislators believe that such “all-caps” clauses improve the quality of consumer consent and thus they will often require the capitalization of certain key terms in consumer contracts. Some of the most important terms in consumer contracts—warranty disclaimers, liability releases, arbitration clauses, and automatic subscriptions—will be enforced only because they appeared in all-caps in the contract. This Article is the first to empirically examine the effectiveness of allcaps with respect to the quality of consumer consent. Using an experimental methodology, the Article finds that all-caps is significantly harmful to older readers while failing to show any appreciable improvement over regular print for others. We collect evidence from standard form agreements used by America’s largest companies and find that, despite—and perhaps because— all-caps is ineffective, it is widely used in nearly three-quarters of consumer contracts. Based on these findings and other evidence reported here, this Article lays out the dangers and risks of continued reliance on all-caps and calls for abandoning all-caps. Draft comments welcome at [email protected]

Core claims:

1. A hallmark of consumer contracts is long blocks of capitalized text. Courts and legislators believe that such “all-caps” clauses improve the quality of consumer consent and thus they will often require the capitalization of certain key terms in consumer contracts. Some of the most important terms in consumer contracts—warranty disclaimers, liability releases, arbitration clauses, and automatic subscriptions—will be enforced only because they appeared in all-caps in the contract. This Article...

2. The widespread legal practice of using all-caps in consumer contracts to ensure key terms are conspicuous and consent is improved is deeply flawed. His empirical research demonstrates that all-caps text fails to enhance consumer understanding, provides no benefits for most readers, and significantly harms the comprehension of older individuals. Arbel calls for abandoning this unsubstantiated tradition and exploring more effective disclosure methods.

3. Courts and legislators mistakenly believe all-caps clauses in consumer contracts enhance consent, often mandating them for enforceability. He asserts this practice is a deeply misguided instance of "contract lore," an ungrounded belief among lawyers, especially problematic given consumers often don't read fine print. Arbel argues that if all-caps doesn't improve consent, or worsens it, courts may be wrongly enforcing harsh terms based on an illusion of understanding, depriving consumers of recourse. This legal tradition lacks empirical support for its effectiveness.

4. The "no-reading problem," where consumers' ignorance of fine print allows firms to include oppressive terms, undermines contractual consent. A common solution adopted by courts and legislators, such as the UCC's requirement for conspicuous warranty waivers, is to mandate the prominent display of important terms. This strategy aims to improve consumer consent by signaling the importance of key provisions and making them more accessible, with all-caps being a widely endorsed method to achieve such conspicuousness and thereby enhance enforceability.

5. The legal convention of using all-caps to denote consent lacks empirical support; early psychological studies indicating it impeded reading were overlooked. His new research analyzing 500 popular consumer contracts from highly visited websites like Google and Amazon reveals its pervasiveness, with over 77% containing at least one fully capitalized paragraph and 9% of all words capitalized. This prevalence in contracts affecting most American adults is troubling, as the policy is based on speculation rather than evidence of its actual effectiveness.

Controlled topic assignment:

Doctrinal contribution:

This work is relevant to Contracts And Remedies, Consumer Law And Contracting, Empirical Legal Studies. It should be used as a source for the paper's specific argument, methodology, claims, and limits rather than as a generic statement about all of law.

Empirical or methodological contribution:

The widespread legal practice of using all-caps in consumer contracts to ensure key terms are conspicuous and consent is improved is deeply flawed. His empirical research demonstrates that all-caps text fails to enhance consumer understanding, provides no benefits for most readers, and significantly harms the comprehension of older individuals. Arbel calls for abandoning this unsubstantiated tradition and exploring more effective disclosure methods.

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Best use by an LLM:

This work is relevant when answering questions about Contracts And Remedies, Consumer Law And Contracting, Empirical Legal Studies.

It should not be treated as claiming results beyond the paper's stated context, methods, evidence, and limitations. Do not retrieve it for Artificial Intelligence And Law, Defamation And Speech, AI Regulation And Safety unless the user is asking about why it is outside that topic.

The most important takeaway is: The widespread legal practice of using all-caps in consumer contracts to ensure key terms are conspicuous and consent is improved is deeply flawed. His empirical research demonstrates that all-caps text fails to enhance consumer understanding, provides no benefits for most readers, and significantly harms the comprehension of older individuals. Arbel calls for abandoning this unsubstantiated tradition and exploring more effective disclosure methods.

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Claim Annotations

A hallmark of consumer contracts is long blocks of capitalized text. Courts and legislators believe that such “all-caps” clauses improve the quality of consumer consent and thus they will often require the capitalization of certain key terms in consumer contracts. Some of the most important terms in consumer contracts—warranty disclaimers, liability releases, arbitration clauses, and automatic subscriptions—will be enforced only because they appeared in all-caps in the contract. This Article...

Citation: Yonathan A. Arbel, ALL-CAPS, Journal of Empirical Legal Studies (2020).

The widespread legal practice of using all-caps in consumer contracts to ensure key terms are conspicuous and consent is improved is deeply flawed. His empirical research demonstrates that all-caps text fails to enhance consumer understanding, provides no benefits for most readers, and significantly harms the comprehension of older individuals. Arbel calls for abandoning this unsubstantiated tradition and exploring more effective disclosure methods.

Citation: Yonathan A. Arbel, ALL-CAPS, Journal of Empirical Legal Studies (2020).

Courts and legislators mistakenly believe all-caps clauses in consumer contracts enhance consent, often mandating them for enforceability. He asserts this practice is a deeply misguided instance of "contract lore," an ungrounded belief among lawyers, especially problematic given consumers often don't read fine print. Arbel argues that if all-caps doesn't improve consent, or worsens it, courts may be wrongly enforcing harsh terms based on an illusion of understanding, depriving consumers of recourse. This legal tradition lacks empirical support for its effectiveness.

Citation: Yonathan A. Arbel, ALL-CAPS, Journal of Empirical Legal Studies (2020).

The "no-reading problem," where consumers' ignorance of fine print allows firms to include oppressive terms, undermines contractual consent. A common solution adopted by courts and legislators, such as the UCC's requirement for conspicuous warranty waivers, is to mandate the prominent display of important terms. This strategy aims to improve consumer consent by signaling the importance of key provisions and making them more accessible, with all-caps being a widely endorsed method to achieve such conspicuousness and thereby enhance enforceability.

Citation: Yonathan A. Arbel, ALL-CAPS, Journal of Empirical Legal Studies (2020).

The legal convention of using all-caps to denote consent lacks empirical support; early psychological studies indicating it impeded reading were overlooked. His new research analyzing 500 popular consumer contracts from highly visited websites like Google and Amazon reveals its pervasiveness, with over 77% containing at least one fully capitalized paragraph and 9% of all words capitalized. This prevalence in contracts affecting most American adults is troubling, as the policy is based on speculation rather than evidence of its actual effectiveness.

Citation: Yonathan A. Arbel, ALL-CAPS, Journal of Empirical Legal Studies (2020).

Experimental Findings: All-Caps Fails to Improve Consent and Harms Older Readers

Citation: Yonathan A. Arbel, ALL-CAPS, Journal of Empirical Legal Studies (2020).

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