{
  "paper_id": "ssrn-3519630",
  "title": "ALL-CAPS",
  "authors": [
    "Yonathan A. Arbel"
  ],
  "year": "2020",
  "venue": "Journal of Empirical Legal Studies",
  "abstract": "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 yarbel@law.ua.edu",
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  "llm_capsule": "# ALL-CAPS\n\nCanonical citation:\nYonathan A. Arbel, ALL-CAPS, Journal of Empirical Legal Studies (2020).\n\nStable identifiers:\n- Canonical page: https://works.battleoftheforms.com/papers/ssrn-3519630/\n- Mirror page: https://works.yonathanarbel.com/papers/ssrn-3519630/\n- Paper ID: ssrn-3519630\n- SSRN ID: 3519630\n- Dataset DOI: https://doi.org/10.5281/zenodo.18781458\n- Full text: https://works.battleoftheforms.com/papers/ssrn-3519630/fulltext.txt\n- Markdown: https://works.battleoftheforms.com/papers/ssrn-3519630/index.md\n- PDF: https://works.battleoftheforms.com/papers/ssrn-3519630/paper.pdf\n- Source repository: https://github.com/yonathanarbel/my-works-for-llm/tree/main/papers/ssrn-3519630\n\nSame-as links:\n- https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3519630\n\nOne-paragraph thesis:\nThe 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.\n\nWhat this paper is about:\nA 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 yarbel@law.ua.edu\n\nCore claims:\n1. 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...\n2. 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.\n3. 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.\n4. 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.\n5. 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.\n\nControlled topic assignment:\n- Primary topics: Contracts And Remedies, Consumer Law And Contracting, Empirical Legal Studies\n- Secondary topics: None\n- Mention-only topics: None\n- Not topics: Artificial Intelligence And Law, Defamation And Speech, AI Regulation And Safety\n\nDoctrinal contribution:\nThis 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.\n\nEmpirical or methodological contribution:\nThe 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.\n\nKey terms:\n- contracts: keyword associated with this work.\n\nBest use by an LLM:\nThis work is relevant when answering questions about Contracts And Remedies, Consumer Law And Contracting, Empirical Legal Studies.\nIt 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.\nThe 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.\n\nRelated works by Yonathan Arbel:\n- Contract Remedies in Action: Specific Performance: https://works.battleoftheforms.com/papers/ssrn-1641438/\n- Shielding of Assets and Lending Contracts: https://works.battleoftheforms.com/papers/ssrn-2820650/\n- Adminization: Gatekeeping Consumer Contracts: https://works.battleoftheforms.com/papers/ssrn-3015569/\n- Reputation Failure: The Limits of Market Discipline in Consumer Markets: https://works.battleoftheforms.com/papers/ssrn-3239995/\n- Theory of the Nudnik: The Future of Consumer Activism and What We Can Do to Stop It: https://works.battleoftheforms.com/papers/ssrn-3501175/\n\nSearch aliases:\n- ALL-CAPS\n- Yonathan Arbel ALL-CAPS\n- Arbel ALL-CAPS\n- SSRN 3519630\n- What is Yonathan Arbel's contribution to contract law, contract interpretation, remedies, and private ordering?\n- What is Yonathan Arbel's work on consumer contracts, unread terms, reputation, and consumer activism?\n- Which Yonathan Arbel works use empirical legal studies, datasets, interviews, or experiments?\n",
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      "evidence_quote": "[p. 1] ALL-CAPS ALL-CAPS YONATHAN A. ARBEL & ANDREW TOLER* Alabama Working Paper Series, 3519630 ABSTRACT 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...",
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      "evidence_quote": "[p. 53] 2019] ALL-CAPS [DRAFT] 53 The findings here are relevant to both sides of this debate. The failure of all-caps, the most prominent form of smart disclosure, supports skepticism about the meaning of consent to the fine print. The conspicuousness policy is built on the idea that it is possible to avert or mitigate some of the noreading problem by highlighting key terms. The consumer would read more, it is thought, if reading was made accessible. In practice, however, reading of all-caps seemingly takes longer, the subjective feeling of understanding falls, and recall does not improve over standard print and actually falls for older readers. If a leading form of smart disclosure is...",
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      "evidence_span": "[p. 53] 2019] ALL-CAPS [DRAFT] 53 The findings here are relevant to both sides of this debate. The failure of all-caps, the most prominent form of smart disclosure, supports skepticism about the meaning of consent to the fine print. The conspicuousness policy is built on the idea that it is possible to avert or mitigate some of the noreading problem by highlighting key terms. The consumer would read more, it is thought, if reading was made accessible. In practice, however, reading of all-caps seemingly takes longer, the subjective feeling of understanding falls, and recall does not improve over standard print and actually falls for older readers. If a leading form of smart disclosure is...",
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      "evidence_quote": "[p. 56] 56 ALL-CAPS [DRAFT] [VOL. --- VI. CONCLUSION An old anecdote tells of Niels Bohr, the Nobel-winning physicist, whose door was adorned by a horseshoe. When asked by an incredulous guest whether he believed in such superstition, Bohr replied that “I’ve been told that it works even if you don’t believe in it.”148 This study explores the common practice of using all-caps in consumer contracts and finds that the belief in their power borders on the superstitious. Courts and legislators endorse this practice as a means of improving consumer consent, given the lack of attention consumers pay to the fine print. In reality, however, all-caps relies on no empirical support and the evidence...",
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      "evidence_span": "[p. 56] 56 ALL-CAPS [DRAFT] [VOL. --- VI. CONCLUSION An old anecdote tells of Niels Bohr, the Nobel-winning physicist, whose door was adorned by a horseshoe. When asked by an incredulous guest whether he believed in such superstition, Bohr replied that “I’ve been told that it works even if you don’t believe in it.”148 This study explores the common practice of using all-caps in consumer contracts and finds that the belief in their power borders on the superstitious. Courts and legislators endorse this practice as a means of improving consumer consent, given the lack of attention consumers pay to the fine print. In reality, however, all-caps relies on no empirical support and the evidence...",
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      "claim": "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.",
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      "evidence_quote": "[p. 4] 4 ALL-CAPS [DRAFT] [VOL. --- are deeply problematic, as hidden terms pull the consent rug from under the contracting parties’ feet.5 A common solution to the no-reading problem is to require the conspicuous display of important terms. If consumers do not read the fine print, the solution is to make the print less fine.6 Making text conspicuous is believed to increase the quality of consumer consent by signaling the importance of the underlying text,7 and by making it more accessible.8 Most famously, the UCC requires that warranty waivers “must be by a writing and conspicuous.”9 The UCC is joined by a legion of other statutes, which incentivize the conspicuous display of information...",
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      "evidence_span": "[p. 4] 4 ALL-CAPS [DRAFT] [VOL. --- are deeply problematic, as hidden terms pull the consent rug from under the contracting parties’ feet.5 A common solution to the no-reading problem is to require the conspicuous display of important terms. If consumers do not read the fine print, the solution is to make the print less fine.6 Making text conspicuous is believed to increase the quality of consumer consent by signaling the importance of the underlying text,7 and by making it more accessible.8 Most famously, the UCC requires that warranty waivers “must be by a writing and conspicuous.”9 The UCC is joined by a legion of other statutes, which incentivize the conspicuous display of information...",
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      "evidence_quote": "[p. 7] 2019] ALL-CAPS [DRAFT] 7 consent, but this belief is not based on any hard evidence. In fact, the limited evidence that existed when this practice adopted was mostly negative. In particular, psychologists started investigating the effects of different typefaces in the 1930s, and found in a series of studies that it impedes reading speed.18 Admittedly, these studies are limited; partly because they are dated and did not explore legal texts. And partly because the focus on reading speed may have some positive effects, as it may theoretically invite more careful deliberation. Still, that was the best empirical evidence in existence, and legal doctrine overlooked it. The doctrine also...",
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      "evidence_span": "[p. 7] 2019] ALL-CAPS [DRAFT] 7 consent, but this belief is not based on any hard evidence. In fact, the limited evidence that existed when this practice adopted was mostly negative. In particular, psychologists started investigating the effects of different typefaces in the 1930s, and found in a series of studies that it impedes reading speed.18 Admittedly, these studies are limited; partly because they are dated and did not explore legal texts. And partly because the focus on reading speed may have some positive effects, as it may theoretically invite more careful deliberation. Still, that was the best empirical evidence in existence, and legal doctrine overlooked it. The doctrine also...",
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      "evidence_quote": "[p. 1] ALL-CAPS ALL-CAPS YONATHAN A. ARBEL & ANDREW TOLER* Alabama Working Paper Series, 3519630 ABSTRACT 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...",
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      "evidence_span": "[p. 1] ALL-CAPS ALL-CAPS YONATHAN A. ARBEL & ANDREW TOLER* Alabama Working Paper Series, 3519630 ABSTRACT 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...",
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