Yonathan A. Arbel & Andrew Toler, ALL-CAPS, 17 J. Empirical Legal Stud. 862 (2020).

Legal reliance on blocks of capital letters is unsupported contract lore rather than an evidence-based method of improving consumer consent

Professor Yonathan A. Arbel and Andrew Toler claim, in “ALL-CAPS” on manuscript pages 3–7, that courts and legislatures inherited all-caps from typewriter-era practice and repeatedly treat it as proof that onerous terms were conspicuous, read, and understood. That policy developed without direct evidence of improved consent and despite early legibility research pointing toward slower reading. This is significant because an untested typographic convention determines whether consequential waivers and disclaimers bind consumers. It connects to contract lore, conspicuousness, informed consent, legal formalism, typography, and evidence-based law.

The opening reframes a familiar drafting convention as a high-stakes empirical legal claim requiring validation.

contract lore
conspicuousness
informed consent
legal formalism
typography
evidence-based law

The authors challenge standard blocks of all-caps, not every possible use of capitalization or every nonbehavioral contractual formality.

The introduction traces the practice to assumption rather than proof and identifies negative historical evidence on reading speed.


Consumer inattention to fine print permits firms to shroud onerous terms, creating the no-reading problem that conspicuous disclosure is supposed to solve

Professor Yonathan A. Arbel and Andrew Toler claim, in “ALL-CAPS” on manuscript pages 3–4, that consumers usually know salient price and quantity terms but remain ignorant of arbitration provisions, automatic renewal, damages limits, warranty waivers, and other fine print. Firms can cut costs by hiding unfavorable terms that do not affect demand and may actively make them difficult to process. This is significant because the conspicuousness project responds to a genuine consent failure even if its chosen typography fails. It connects to rational ignorance, shrouded attributes, standard forms, asymmetric information, boilerplate, and consumer consent.

The no-reading problem supplies the regulatory purpose against which all-caps must be evaluated.

rational ignorance
shrouded attributes
standard forms
asymmetric information
boilerplate
consumer consent

Consumers may know some terms from context or experience, and the paper does not claim that full reading is always efficient or sufficient.

The introduction describes widespread ignorance of nonsalient clauses and firms’ incentives to hide unfavorable terms.


Conspicuous-disclosure rules make typography a gateway to enforcement of especially consequential consumer terms

Professor Yonathan A. Arbel and Andrew Toler claim, in “ALL-CAPS” on manuscript pages 4–6, that statutes and courts often condition enforcement of warranty disclaimers, liability releases, arbitration clauses, automatic subscriptions, and other important terms on conspicuous presentation. Capitalization is frequently treated as strong or dispositive evidence of conspicuousness. This is significant because formatting can determine compensation after wrongful death or serious property loss even when it did not change the consumer’s understanding. It connects to UCC section 2-316, warranty disclaimer, liability waiver, arbitration, automatic renewal, and procedural assent.

The doctrine gives empirical claims about visual design direct distributive and remedial consequences.

UCC section 2-316
warranty disclaimer
liability waiver
arbitration
automatic renewal
procedural assent

All-caps is sometimes one factor among several, and courts can reject capitalized terms when placement or surrounding formatting defeats notice.

The introduction catalogs statutes and cases that rely on capitalization to render onerous provisions enforceable.


Conspicuous Disclosure and Asymmetric Information

Courts and statutes widely equate capitalization with conspicuousness even though the supporting empirical record is absent and legibility evidence is mostly negative

Professor Yonathan A. Arbel and Andrew Toler claim, in “ALL-CAPS” on manuscript pages 11–16, that conspicuousness rules are a dominant response to uninformed contracting and that all-caps has become their principal mechanical implementation. Yet the authors find no empirical validation for improved consent. Typography studies dating to 1928 instead associate capitals with slower reading, plausibly because uniform letter height removes ascenders and descenders. This is significant because doctrine ignored the best available evidence while imposing serious consumer consequences. It connects to mandatory disclosure, conspicuous type, reading speed, ascenders and descenders, judicial notice, and regulatory evidence.

The literature review shifts the burden from critics to institutions that adopted the convention without testing it.

mandatory disclosure
conspicuous type
reading speed
ascenders and descenders
judicial notice
regulatory evidence

Older psychology studies used nonlegal text, and slower reading could theoretically promote deliberation rather than reduce understanding.

Part I documents legal endorsement, finds no supporting empirical study, and reviews mostly negative legibility research and professional skepticism.


A computational study of standard forms from 500 high-traffic websites measures capitalization in contracts governing hundreds of millions of consumer relationships

Professor Yonathan A. Arbel and Andrew Toler claim, in “ALL-CAPS” on manuscript pages 17–19, that the prevalence of formatting matters to the proof demanded for its effectiveness. They analyze forms from 500 popular websites selected through Alexa traffic rankings and use a Python script to classify capitalization at word, sentence, paragraph, and header levels, defining a capitalized paragraph by an eighty-percent threshold. This is significant because it supplies systematic evidence about legal typography in use rather than relying on memorable cases. It connects to computational legal studies, standard-form contracts, web traffic, text classification, prevalence measurement, and corpus methods.

The industry study establishes the scale at which an ineffective convention could affect consumer obligations.

computational legal studies
standard-form contracts
web traffic
text classification
prevalence measurement
corpus methods

Header and paragraph boundaries lack unique definitions, and popular website terms may not represent every offline or small-firm contract.

Part II describes the 500-contract sample, Alexa selection, and automated capitalization-detection rules with manual verification.


All-caps is pervasive in major consumer contracts, with roughly seventy-seven percent containing a capitalized paragraph

Professor Yonathan A. Arbel and Andrew Toler claim, in “ALL-CAPS” on manuscript pages 18–20, that about seventy-seven percent of the sampled standard forms contain at least one all-caps paragraph; approximately 17.4 percent of detected headers and nine percent of words are capitalized. Because the sample includes firms such as Amazon, Facebook, Uber, and Dell, these forms structure a vast number of individual relationships. This is significant because even modest comprehension harm is multiplied across widespread contractual use. It connects to boilerplate prevalence, consumer scale, uppercase paragraphs, contract design, online services, and cumulative harm.

The prevalence finding converts a technical drafting choice into a population-level consumer-law issue.

boilerplate prevalence
consumer scale
uppercase paragraphs
contract design
online services
cumulative harm

The automated estimates can be under- or overinclusive, and observed prevalence does not by itself establish motivation or effect.

Table 1 reports capitalization rates and the authors explain the reach of forms used by leading websites.


The near absence of all-caps from persuasive marketing is evidence against its effectiveness when firms genuinely want consumers to understand a message

Professor Yonathan A. Arbel and Andrew Toler claim, in “ALL-CAPS” on manuscript pages 19–20, that advertising uses many fonts, sizes, colors, and layouts but almost never long blocks of capitals. When firms have direct financial incentives to make attractive information comprehensible, professional guidance tells them to avoid all-caps. The convention appears principally in legal text used to bind consumers. This is significant because firms’ revealed design choices cast doubt on the claim that capitals communicate effectively. It connects to revealed preference, advertising design, copywriting, persuasive communication, legal genre, and disclosure incentives.

The marketing comparison provides a real-world behavioral check on legal intuitions about typography.

revealed preference
advertising design
copywriting
persuasive communication
legal genre
disclosure incentives

Marketing and legal disclosure serve different purposes, so absence from advertising is suggestive rather than a controlled causal test.

The manuscript contrasts widespread contractual capitals with professional marketing practice that avoids capitalized blocks.


Every plausible behavioral justification for all-caps predicts improved recall, whether the mechanism is attention allocation, readability, warning, or slower deliberation

Professor Yonathan A. Arbel and Andrew Toler claim, in “ALL-CAPS” on manuscript pages 20–21, that capitalization might hypothetically direct a limited attention budget, make letters accessible, operate as a fire-siren warning of onerousness, or slow reading enough to promote reflection. Despite different mechanisms, each functional account predicts that the highlighted obligation should be remembered more accurately than ordinary text. This is significant because recall supplies a common, falsifiable outcome for otherwise vague judicial intuitions. It connects to salience, attention budgets, readability, warning signals, deliberation, and testable hypotheses.

The framework turns an implicit doctrinal premise into an empirical proposition capable of rejection.

salience
attention budgets
readability
warning signals
deliberation
testable hypotheses

Recall is not the entirety of consent, and formalities may be defended on evidentiary, cautionary, or channeling grounds not directly measured.

Part III enumerates four functional theories and explains why each should generate better retention of the capitalized term.


All-caps should not satisfy conspicuousness without a meaningful behavioral effect because the error cost is enforcement of unknown and onerous terms

Professor Yonathan A. Arbel and Andrew Toler claim, in “ALL-CAPS” on manuscript pages 21–22, that a purely formal defense is normatively inadequate where capitalization supplies the but-for basis for enforcing a wrongful-death release or comparable limitation. If the type choice does not measurably improve understanding, it cannot plausibly solve nonreading merely by shifting responsibility to the consumer. This is significant because the severity of enforcement error determines how demanding the evidentiary burden should be. It connects to error-cost analysis, formal requirements, burden shifting, meaningful assent, liability releases, and consumer remedies.

The normative claim links the required strength of proof to the stakes of false assumptions about consent.

error-cost analysis
formal requirements
burden shifting
meaningful assent
liability releases
consumer remedies

The paper does not empirically test every possible nonbehavioral function, but argues that none articulated is compelling enough for high-stakes enforcement.

The authors state that capitalization should not count as conspicuous absent meaningful effect because enforcing unknown onerous terms creates large error costs.


A randomized experiment isolates capitalization by presenting 570 American respondents with an identical fifteen-paragraph subscription contract and varying one cancellation paragraph

Professor Yonathan A. Arbel and Andrew Toler claim, in “ALL-CAPS” on manuscript pages 22–27, that a controlled design can overcome confounding in field observation. Participants recruited online read a two-page TideTunes contract adapted from a music-service agreement; one group saw normal print and the other saw the automatic-billing and cancellation paragraph in capitals. They then chose among five cancellation rules without returning to the text. This is significant because randomization makes formatting the key systematic difference between groups. It connects to randomized controlled trials, MTurk, automatic renewal, experimental contracts, treatment assignment, and recall measurement.

The design directly tests whether the standard legal intervention improves knowledge of a consequential obligation.

randomized controlled trials
MTurk
automatic renewal
experimental contracts
treatment assignment
recall measurement

The online laboratory setting cannot reproduce every sales interaction, negotiation, product, or real-world incentive.

The methods section details the sample, control and treatment contracts, cancellation question, attention safeguards, and timing measures.


The experiment uses demographic comparison, geolocation, digital fingerprints, attention checks, reading time, and multiple answer choices to improve response validity

Professor Yonathan A. Arbel and Andrew Toler claim, in “ALL-CAPS” on manuscript pages 22–27, that online samples require quality controls. The study compares sample demographics with the United States, uses Positly screening, verifies unique domestic participants through digital fingerprints and geolocation, includes attention checks, records an average 102-second reading period, and offers five plausible answers to reduce guessing. This is significant because the credibility of a null or harmful effect depends on subjects actually engaging with the contract. It connects to data quality, sample representativeness, attention checks, geolocation, statistical power, and construct validity.

The safeguards answer the concern that equal performance merely reflects random clicking or disengagement.

data quality
sample representativeness
attention checks
geolocation
statistical power
construct validity

The sample remained more educated and somewhat more male, white, and lower-income than the general population, and external validity remains limited.

The authors report recruitment checks, demographic skews, power analysis, observed reading time, and participant feedback indicating engagement.


Capitalizing the cancellation paragraph produced no improvement at all in respondents’ ability to identify the contract’s cancellation rule

Professor Yonathan A. Arbel and Andrew Toler claim, in “ALL-CAPS” on manuscript pages 27–30, that the primary experiment yielded the same proportion of correct answers in the all-caps and low-caps conditions. A non-inferiority analysis also rejects the hypothesis that capitalization supplied a policy-relevant benefit of ten percentage points or more. Thus the result is not merely a failure to obtain conventional statistical significance; the data affirmatively undermine a meaningful benefit. This is significant because the dominant legal convention failed its central comprehension test. It connects to null results, non-inferiority testing, statistical power, contract recall, conspicuousness, and evidence-based doctrine.

The analysis distinguishes absence of evidence from evidence against a practically important benefit.

null results
non-inferiority testing
statistical power
contract recall
conspicuousness
evidence-based doctrine

The test concerns recall of one cancellation paragraph in an online experimental contract rather than every term, font, or transaction.

The paper reports identical correctness rates across the two capitalization conditions and rejects a benefit of at least ten percentage points.


All-caps did not act as a fire-siren warning that alerted readers to the existence or importance of the tested cancellation term

Professor Yonathan A. Arbel and Andrew Toler claim, in “ALL-CAPS” on manuscript pages 29–30, that the data provide no support for the fire-siren theory. Readers exposed to the capitalized paragraph were no more likely to retrieve the automatic-renewal and cancellation rule than readers who saw ordinary type. A visual signal cannot justify enforcement as a warning if it does not change the relevant response. This is significant because conspicuousness doctrine often assumes that visual distinctiveness itself creates notice. It connects to salience, warning design, attention capture, inquiry notice, automatic renewal, and consumer cognition.

The result tests and rejects a common functional rationale for treating conspicuous formatting as legally sufficient notice.

salience
warning design
attention capture
inquiry notice
automatic renewal
consumer cognition

The experiment measured answer accuracy rather than eye movements or subjective awareness, so it does not show that no participant ever noticed the formatting.

The authors interpret unchanged recall as inconsistent with the claim that capitalization operates like an alarm or warning signal.


All-caps substantially harmed older readers: respondents over fifty-five made errors at roughly twice the rate of peers who saw low-caps text

Professor Yonathan A. Arbel and Andrew Toler claim, in “ALL-CAPS” on manuscript pages 30–32, that capitalization has a sharply heterogeneous age effect. Among respondents older than fifty-five, about sixty percent in the all-caps condition answered incorrectly, compared with about thirty-one percent in the low-caps condition—a twenty-nine-point difference. The estimated effect for younger participants was negligible. This is significant because a supposed consumer-protection device may selectively burden a vulnerable group rather than merely fail on average. It connects to aging and vision, heterogeneous treatment effects, accessibility, disparate impact, consumer vulnerability, and inclusive design.

The subgroup result changes the policy question from whether capitals are useless to whether they can affirmatively worsen comprehension for older consumers.

aging and vision
heterogeneous treatment effects
accessibility
disparate impact
consumer vulnerability
inclusive design

The age analysis is a subgroup result from one experiment and the authors offer possible perceptual and cultural explanations rather than establishing the mechanism.

Regression and descriptive results show a twenty-nine-point error increase for participants over fifty-five, with little difference among younger readers.


A null average benefit combined with substantial harm to older readers shifts the justificatory burden to defenders of all-caps

Professor Yonathan A. Arbel and Andrew Toler claim, in “ALL-CAPS” on manuscript pages 30–32, that the conventional presumption should reverse. The primary study finds no general comprehension gain and evidence of substantial harm among older participants, while capitalization can determine whether onerous clauses are enforced. On that evidence, continued reliance requires an affirmative justification rather than inertia. This is significant because it reframes a familiar drafting practice as an intervention that must earn legal legitimacy. It connects to precaution, evidentiary burdens, status quo bias, age-sensitive regulation, contract enforcement, and empirical legal studies.

The proposition converts the empirical findings into a burden-shifting argument for doctrinal reform.

precaution
evidentiary burdens
status quo bias
age-sensitive regulation
contract enforcement
empirical legal studies

The proposed burden shift rests on the authors’ normative assessment of the evidence and enforcement stakes, not on a universally accepted statistical rule.

The authors combine the lack of overall benefit, age-related harm, and high legal stakes to argue that defenders must justify continued use.


A second experiment tests whether all-caps becomes useful under severe time pressure by randomizing capitalization across three short contracts with strict reading limits

Professor Yonathan A. Arbel and Andrew Toler claim, in “ALL-CAPS” on manuscript pages 32–34, that any attention-allocation advantage should be most visible when readers have little time. Eighty-one participants encountered three contracts with key clauses randomly shown in capitals or ordinary type and faced respective reading limits of twenty-three, twenty, and fifteen seconds, producing 240 usable responses. This is significant because the design gives the salience theory a deliberately favorable stress test. It connects to bounded attention, time scarcity, randomized experiments, contract skimming, cognitive load, and ecological validity.

The study isolates the circumstance in which visual highlighting should have its strongest plausible advantage.

bounded attention
time scarcity
randomized experiments
contract skimming
cognitive load
ecological validity

The small sample and artificial time limits make this an exploratory test rather than a definitive estimate for real contracting environments.

The authors describe three timed contract tasks, randomized casing, eighty-one subjects, and 240 retained responses.


Even under strict time pressure, all-caps did not improve accuracy and ordinary type performed somewhat better in two of the three tests

Professor Yonathan A. Arbel and Andrew Toler claim, in “ALL-CAPS” on manuscript pages 34–35, that the timed study supplies no evidence of a capitalization advantage. Low-caps participants did somewhat better in the second and third contracts, although only one comparison approached conventional significance and the study was underpowered. The authors therefore treat the pattern cautiously while emphasizing that it again fails to rescue the fire-siren theory. This is significant because the format remains ineffective under the condition thought most likely to favor it. It connects to time pressure, exploratory evidence, statistical uncertainty, attention allocation, replication, and contract design.

The finding extends the primary null result to hurried reading while preserving appropriate caution about sample size.

time pressure
exploratory evidence
statistical uncertainty
attention allocation
replication
contract design

The sample is small, one difference only approaches significance, and the direction and magnitude should not be generalized without replication.

Across three timed tests capitalization never improved accuracy; low-caps did better in two, with limited statistical precision.


Readers rated an all-caps contract substantially harder to read and somewhat harder to understand than the same contract in ordinary type

Professor Yonathan A. Arbel and Andrew Toler claim, in “ALL-CAPS” on manuscript pages 35–38, that subjective experience points in the opposite direction from the convention’s justification. In a 102-person study, respondents randomly assigned the fully capitalized contract rated it about twenty-two percent harder to read, a statistically significant difference, and about thirteen percent harder to understand, a difference that was not statistically significant. This is significant because conspicuousness should facilitate access to information rather than impose perceptual friction. It connects to readability, subjective difficulty, typography, cognitive fluency, user experience, and informed consent.

The finding supplies direct reader-reported evidence that capitalization degrades rather than improves the experience of processing contract text.

readability
subjective difficulty
typography
cognitive fluency
user experience
informed consent

Difficulty ratings are self-reported, and the smaller understanding difference is statistically uncertain.

The study reports a significant twenty-two-percent increase in perceived reading difficulty and a nonsignificant thirteen-percent increase in perceived comprehension difficulty.


All-caps readers took about thirteen percent longer to finish, a directionally important but statistically inconclusive result

Professor Yonathan A. Arbel and Andrew Toler claim, in “ALL-CAPS” on manuscript pages 38–39, that capitalization may slow readers rather than promote efficient review. Participants assigned all-caps took about 94.7 seconds on average, compared with 83.4 seconds for low-caps, but large variance prevented a statistically confident conclusion. The authors note that reading-time data may also mix careful reading with skimming or disengagement. This is significant because slower processing would compound the costs of already unread standard forms. It connects to reading speed, processing fluency, measurement error, skimming, transaction costs, and accessibility.

The directional result accords with earlier typography research but is presented as suggestive rather than conclusive.

reading speed
processing fluency
measurement error
skimming
transaction costs
accessibility

The difference is not statistically significant, the variance is large, and elapsed time does not reveal whether a participant read carefully or disengaged.

Mean completion time was 94.7 seconds for all-caps and 83.4 seconds for low-caps, an approximately thirteen-percent nonsignificant gap.


Exploratory Study: Alternative Interventions

A four-arm experiment compares ordinary type, all-caps, a boxed clause, and bolding only the key sentence in a recreational-vehicle liability disclaimer

Professor Yonathan A. Arbel and Andrew Toler claim, in “ALL-CAPS” on manuscript pages 39–41, that comparative design can ask whether capitalization fails because disclosure design is futile or because lawyers chose the wrong intervention. The 241-person experiment presents a recreational-vehicle rental agreement and randomizes the liability disclaimer among low-caps, all-caps, a box, and selective bolding of the dispositive sentence. Questions separately test on-road and off-road injuries. This is significant because it benchmarks the legal default against plausible alternatives in the same text. It connects to comparative treatment design, liability waivers, selective emphasis, visual borders, comprehension testing, and legal design.

The experiment separates the general possibility of effective highlighting from the particular performance of capitals.

comparative treatment design
liability waivers
selective emphasis
visual borders
comprehension testing
legal design

The study tests one recreational-vehicle contract and selected implementations of each visual treatment, not every possible version.

The paper details four randomized formatting conditions and two outcome questions concerning different accident locations.


Selectively bolding the key sentence produced the lowest error rates and substantially outperformed ordinary text on the main liability question

Professor Yonathan A. Arbel and Andrew Toler claim, in “ALL-CAPS” on manuscript pages 41–43, that targeted bolding is a promising alternative to blanket capitalization. On the on-road-liability question, the bold condition produced a twenty-seven-percent error rate, compared with fifty-seven percent for low-caps, fifty-two percent for all-caps, and forty-eight percent for the box. On the off-road question, bold again had the lowest error rate—thirteen percent, versus twenty-one, thirty, and twenty-four percent—although that comparison was not statistically significant. This is significant because a simple design change can materially improve comprehension where the canonical method cannot. It connects to selective salience, information hierarchy, liability disclaimers, effect size, visual design, and consumer understanding.

The result offers affirmative evidence that formatting can help when it focuses attention on the actual legal rule.

selective salience
information hierarchy
liability disclaimers
effect size
visual design
consumer understanding

Only the first outcome yields a statistically significant advantage, and the authors do not claim that bolding will work across every contract or population.

The bold condition had the lowest error rates on both questions and a statistically significant advantage on the principal on-road question.


The bolding result is an existence proof that contract presentation can improve understanding, not a universal prescription for bold text

Professor Yonathan A. Arbel and Andrew Toler claim, in “ALL-CAPS” on manuscript pages 41–44, that selective bolding should be treated as an existence theorem rather than a finished regulatory formula. It shows that readers can respond to a well-targeted intervention, which makes the persistent failure of blanket capitals more informative. Yet only one bolding comparison was statistically significant, other attempted interventions did not succeed, and effective design is likely contextual. This is significant because it preserves the possibility of useful disclosure without converting one experiment into new drafting lore. It connects to proof of concept, replication, context-sensitive design, behavioral interventions, external validity, and regulatory humility.

The authors use positive evidence to reject fatalism about disclosure while explicitly resisting overgeneralization from a single treatment.

proof of concept
replication
context-sensitive design
behavioral interventions
external validity
regulatory humility

The study does not establish that bolding is optimal, that its effect will replicate, or that it works for different clauses and reader populations.

The manuscript characterizes the bold result as evidence that an effective intervention exists while noting failed alternatives and limited statistical precision.


Judicial reliance on all-caps has concrete high-stakes consequences, including denial of personal-injury recovery and enforcement of class-action waivers

Professor Yonathan A. Arbel and Andrew Toler claim, in “ALL-CAPS” on manuscript pages 45–47, that typography is not a harmless drafting eccentricity. Courts have invoked capitalized text when enforcing releases that foreclose compensation for serious injuries and clauses that prevent collective litigation. A person’s substantive legal position may therefore turn on a convention that the experiments find ineffective or harmful. This is significant because the costs of a false inference of notice are borne in lost remedies, not just awkward reading. It connects to exculpatory clauses, personal injury, class-action waivers, procedural rights, meaningful assent, and access to justice.

Concrete cases reveal why empirical validity matters when conspicuousness supplies a gateway to enforcement.

exculpatory clauses
personal injury
class-action waivers
procedural rights
meaningful assent
access to justice

The cited cases illustrate consequences but do not measure how often capitalization alone changes outcomes across all jurisdictions.

The policy discussion identifies cases in which capitalized clauses supported denial of compensation or enforcement of procedural waivers.


A formal all-caps safe haven gives firms incentives to satisfy the appearance of disclosure while preserving consumer ignorance

Professor Yonathan A. Arbel and Andrew Toler claim, in “ALL-CAPS” on manuscript pages 45–48, that the legal convention can align form with strategic nondisclosure. A firm obtains an enforcement advantage by capitalizing onerous language even if the format does not improve comprehension and may make reading harder. The contrast with marketing is revealing: when firms want audiences to understand favorable claims, they generally avoid long capitalized blocks. This is significant because a rule intended to discipline drafters may instead give them a cheap way to manufacture consent. It connects to safe harbors, strategic compliance, shrouded attributes, firm incentives, revealed preference, and consumer exploitation.

The claim explains persistence of the convention as incentive-compatible with enforcement rather than evidence that the format helps consumers.

safe harbors
strategic compliance
shrouded attributes
firm incentives
revealed preference
consumer exploitation

The incentive account is inferred from legal structure, usage patterns, and experimental evidence; it does not directly observe firms’ internal motives.

The authors combine firms’ legal gains from capitalization with its absence from persuasive marketing to argue that the convention can facilitate strategic formal compliance.


Courts and lawmakers should stop assigning all-caps any special weight in deciding whether a term was conspicuous or knowingly accepted

Professor Yonathan A. Arbel and Andrew Toler claim, in “ALL-CAPS” on manuscript pages 45–50, that the legal system should abandon its reliance on capitalization. The case rests on mutually reinforcing considerations: no affirmative empirical foundation supported adoption; prior reading research predicts difficulty; the authors’ main and exploratory studies show no benefit and possible harm; industry avoids capitals when comprehension matters; and erroneous enforcement can impose grave losses. This is significant because the remedy is not merely better drafting advice but removal of an evidentiary shortcut from contract doctrine. It connects to doctrinal abandonment, conspicuousness, evidentiary weight, judicial notice, statutory reform, and contract legitimacy.

The proposal directly translates accumulated behavioral evidence into a clear rule for courts and legislatures.

doctrinal abandonment
conspicuousness
evidentiary weight
judicial notice
statutory reform
contract legitimacy

Removing special weight from capitals does not itself determine whether a term is enforceable under every other doctrine or factual circumstance.

The authors synthesize historical, experimental, industry, and error-cost arguments in favor of giving all-caps no doctrinal significance.


Replacing all-caps with another universal formatting safe haven would recreate the same vulnerability to manipulation and contextual mismatch

Professor Yonathan A. Arbel and Andrew Toler claim, in “ALL-CAPS” on manuscript pages 50–51, that reform should not simply canonize a new font treatment. Any mechanical rule can be gamed by surrounding the nominally emphasized term with distracting text, overusing the required signal, or ignoring how the term functions in the document and transaction. Conspicuousness is relational and contextual, not an intrinsic property of a single typographic command. This is significant because it cautions against rebuilding the failed formalism under a different visual label. It connects to rules and standards, regulatory arbitrage, information overload, contextual interpretation, salience dilution, and legal formalism.

The argument identifies manipulability as a structural defect of rigid disclosure safe harbors rather than a defect unique to capital letters.

rules and standards
regulatory arbitrage
information overload
contextual interpretation
salience dilution
legal formalism

Context-sensitive review may increase uncertainty and adjudication costs compared with a bright-line formatting rule.

The manuscript explains how mechanical compliance can be diluted or manipulated and why effective notice depends on the surrounding presentation.


Contract design should separate a salient notice marker or heading from a readable low-caps explanation of the legal term

Professor Yonathan A. Arbel and Andrew Toler claim, in “ALL-CAPS” on manuscript pages 51–52, that two distinct disclosure functions need not be forced into the same typography. A brief heading, icon, or selectively bold sentence can alert a reader that an important issue exists, while the operative body remains in ordinary type that is easier to process. Blanket capitalization tries to supply both notice and explanation and may accomplish neither. This is significant because separating attention capture from substantive communication opens a more coherent design space. It connects to layered notice, information architecture, headings, icons, plain language, and progressive disclosure.

The proposal maps different cognitive tasks to different presentation tools instead of treating conspicuousness as one-dimensional.

layered notice
information architecture
headings
icons
plain language
progressive disclosure

The paper offers a design principle rather than validating a particular combination of markers and explanatory text across settings.

The authors suggest using a distinct attention signal while preserving readable ordinary-case text for the actual explanation.


Failure of the leading conspicuousness device supports skepticism about disclosure mandates, while success of selective bolding shows that disclosure is not necessarily futile

Professor Yonathan A. Arbel and Andrew Toler claim, in “ALL-CAPS” on manuscript pages 52–53, that the evidence cuts in two directions in the broader debate over mandatory disclosure. The entrenched intervention fails despite extraordinary legal confidence, which reinforces concern about untested disclosure mandates. But selective bolding improves performance in one study, indicating that presentation can sometimes help readers. This is significant because the right lesson is empirical discrimination among interventions, not categorical faith in or rejection of disclosure. It connects to mandatory disclosure, behavioral law and economics, policy experimentation, evidence-based regulation, debiasing, and consumer information.

The mixed implication avoids both disclosure optimism and disclosure nihilism by making performance the criterion.

mandatory disclosure
behavioral law and economics
policy experimentation
evidence-based regulation
debiasing
consumer information

The evidence base remains limited to several experiments and cannot resolve the effectiveness of disclosure regimes generally.

The authors contrast the repeated failure of capitalization with the more encouraging result for targeted bolding.


Onerous terms should be presumptively unenforceable unless the drafting firm can show that its disclosure method effectively communicated them

Professor Yonathan A. Arbel and Andrew Toler claim, in “ALL-CAPS” on manuscript pages 53–54, that conspicuousness should become performance-based. Instead of courts assuming that a prescribed format creates notice, a firm seeking to enforce an onerous term should bear the burden of showing that its chosen presentation actually communicated the term effectively. The default would be nonenforcement when that proof is absent. This is significant because it replaces a typographic proxy with an outcome-oriented accountability rule. It connects to burden shifting, performance standards, unconscionability, informed consent, evidentiary proof, and default rules.

The proposal makes enforceability depend on demonstrated communication and assigns proof to the party that designs and benefits from the form.

burden shifting
performance standards
unconscionability
informed consent
evidentiary proof
default rules

The paper does not fully specify acceptable study designs, thresholds, litigation procedures, or costs for proving effective communication in every case.

The policy section proposes presumptive nonenforcement of onerous terms unless firms demonstrate that their disclosure technique works.


A performance rule would use firms’ existing A/B-testing capacity to generate innovation and cumulative knowledge about effective contract communication

Professor Yonathan A. Arbel and Andrew Toler claim, in “ALL-CAPS” on manuscript pages 53–55, that firms are better positioned than courts or consumers to test competing presentations at scale. Companies routinely A/B test marketing and interface choices; if enforceability required effective communication, that capacity could be redirected toward contract terms. Successful practices could diffuse, while drafters would have skin in the game rather than receiving a free safe harbor. This is significant because the reform harnesses private experimentation to build an evidence base that doctrine currently lacks. It connects to A/B testing, regulatory incentives, innovation, information production, compliance design, and organizational learning.

The proposal is designed not only to screen bad disclosures but also to induce ongoing production of better methods and evidence.

A/B testing
regulatory incentives
innovation
information production
compliance design
organizational learning

Testing capacity varies across firms, and experimentation raises implementation, comparability, privacy, and distributional questions not fully developed here.

The authors argue that firms already test communications and would develop and share better practices if effectiveness affected enforceability.


Disclosure should be evaluated for vulnerable subgroups and may properly minimize misunderstanding rather than maximize average comprehension

Professor Yonathan A. Arbel and Andrew Toler claim, in “ALL-CAPS” on manuscript pages 54–55, that average treatment effects are an inadequate target when an intervention harms identifiable readers. Because the primary study shows a large adverse effect among older participants, a disclosure method that modestly raises the mean could still be unacceptable if it imposes concentrated misunderstanding. Regulators might therefore minimize error across groups or set protective floors. This is significant because accessibility and distribution belong inside the definition of effective communication. It connects to heterogeneous effects, vulnerability, social welfare functions, distributional analysis, universal design, and anti-discrimination norms.

The proposal makes subgroup harm a central performance criterion rather than an afterthought to aggregate accuracy.

heterogeneous effects
vulnerability
social welfare functions
distributional analysis
universal design
anti-discrimination norms

The paper identifies the normative choice but does not select a complete welfare function or precise subgroup-protection threshold.

The authors use the older-reader result to argue for attention to heterogeneous performance and objectives that constrain misunderstanding among vulnerable groups.


Contract law should abandon untested all-caps formalism, demand proof from firms, and pursue targeted methods that genuinely help consumers understand consequential terms

Professor Yonathan A. Arbel and Andrew Toler claim, in “ALL-CAPS” on manuscript pages 55–56, that capitalization should lose its privileged role in contract enforcement. Across prevalence evidence, a large primary experiment, exploratory tests, reader reports, and an alternative-format study, capitals do not improve comprehension and may harm older readers, while targeted highlighting shows qualified promise. The authors would shift proof to firms and encourage empirically validated design. This is significant because it turns an examination of typography into a general program for evidence-based consent. It connects to contract modernization, consumer protection, empirical legal reform, legal design, performance regulation, and meaningful choice.

The conclusion integrates diagnosis, doctrinal reform, and institutional incentives into a practical agenda for replacing inherited lore with tested communication.

contract modernization
consumer protection
empirical legal reform
legal design
performance regulation
meaningful choice

The proposed regime requires further work on proof standards, testing costs, implementation, and transferability across transactions.

The conclusion calls for abandoning legal reliance on all-caps, shifting the burden of proof, and developing targeted evidence-backed alternatives.