ALL‐CAPS

• Author: Andrew Toler,Yonathan A. Arbel
• Date: 01 December 2020
• DOI: http://doi.org/10.1111/jels.12272
• Published date: 01 December 2020

Journal of Empirical Legal Studies

Volume 17, Issue 4, 862–896, December 2020

ALL-CAPS

Yonathan A. Arbel*and Andrew Toler

A hallmark of consumer contracts is their use of long blocks of capitalized text. These

“all-caps” clauses are meant to alert consumers to nonstandard, risky, or important aspects

of the transaction that would otherwise be hidden in the f‌ine print. Based on a belief in

the power of all-caps, courts will often deny enforcement of many key terms—such as war-

ranty disclaimers, liability releases, arbitration clauses, and automatic billing—unless they

are presented in all-caps. This article is the f‌irst to empirically examine the effectiveness of

all-caps. Using an experimental methodology, the article f‌inds that all-caps fail to apprecia-

bly improve consent. Moreover, some evidence suggests that all-caps are harmful to older

consumers. We collect evidence from standard form agreements used by the largest com-

panies in the United States and f‌ind that, despite its limitations, three-quarters of con-

sumer contracts contain at least one all-caps paragraph. 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.

I. Introduction

All-caps, blocks of fully capitalized text, are a hallmark of modern contracts.

1

The ubiq-

uity of this unique staple of the legal genre owes to a century-old belief, held by courts,

legislators, and consumer protection agencies alike, that all-caps improve consumer

notice of important terms in their agreements. Courts refuse to enforce key terms with-

out all-caps or similar formatting, citing a lack of notice that impairs consumer consent,

thus entrenching and incentivizing the frequent use of all-caps. Despite the prevalence of

*Address correspondence to Yonathan A. Arbel, Assistant Professor of Law, The University of Alabama School of

Law, East Tuscaloosa, AL; email: yarbel@law.ua.edu. Yonathan A. Arbel is Assistant Professor of Law, The Univer-

sity of Alabama School of Law, East Tuscaloosa, AL; Andrew Toler is Lawyer of Law, University of Alabama School

of Law.

We thank Oren Bar-Gill, Hillel Bavli, Shawn Bayern, Omri Ben Shahar, Uri Beonliel, Chris Bradley, Kevin Davis,

Shahar Dillbary, Meirav Furth-Matzkin, Robert Hillman, Dave Hoffman, Nancy Kim, Ben McMichael, Mike Pardo,

and Steve Shavell for helpful comments. We are also thankful to participants in the American Law & Economics

Conference, Conference on Empirical Legal Studies, and Contracts Conference XIV. For research support, we

thank William Brand, Bret Linley, McGavin Brown, Tamara Imam, Angelica Mamani, and Victoria Moffa.

1

See, e.g., American Bar Association, Warranties and Online Sales, available at https://www.americanbar.org/

groups/business_law/migrated/safeselling/warranties/ (Sept. 26, 2016), (noting the scope of the practice). The

mixture of uppercase and lowercase letters originated in typography printing customs around 1465; the terms

themselves refer to the different cases where the different letters were stored. Charles Bigelow, Typeface Features

and Legibility Research, 165 Vision Res. 162, 167 (2019).

862

this supposed pro-consumer mechanism, its eff‌icacy in improving consumer notice was

never tested. This study attempts to f‌ill this gap.

Contract scholarship tends to pay relatively little attention to contract formatting

and appearance. In practice, however, the stakes of contract design, and all-caps in partic-

ular, are surprisingly high. Courts will readily deny a wrongful death claim if the format-

ting of an exculpatory waiver in the f‌ine print appears in all-caps or similar “conspicuous”

formatting.

2

Across the nation, statutes and courts rely on the supposed eff‌icacy of all-

caps to protect consumers, potentially substituting away from other, more substantive

measures.

3

When the parties fail to capitalize a contractual term, courts often deny

enforcement.

4

Given its practical signif‌icance, studying the eff‌icacy of all-caps is important for sev-

eral reasons. If all-caps do not improve consumer notice and the meaningfulness of

assent, then courts have been erroneously enforcing onerous terms in myriad cases—

depriving consumers of recourse based on faulty assumptions. To commentators who

believe consumers do not read contracts, this f‌inding would have particular signif‌icance

in demonstrating that even the most sustained effort to improve consumer readership

fails.

5

Such a f‌inding can undermine the logic in all cases where courts denied enforce-

ment because of a lack of capitalization. Moreover, if all-caps are ineffective as a means of

consumer protection, then alternative measures should be developed and implemented,

and courts should desist the century-old policy of encouraging f‌irms to use them in their

contracts.

6

Not the f‌irst to express interest in capitalization, we are the f‌irst to study block capi-

talization in the consumer contract context. A surprisingly small and fairly dated body of

2

See, e.g., Enserch Corp. v. Parker, 794 S.W.2d 2 (Tex. 1990) (requiring conspicuous indemnity language); Dona-

hue v. Ledgends, Inc., 331 P.3d 342 (Alaska 2014); Dye v. Tamko Bldg. Prod., Inc., 908 F.3d 675, 678 (11th

Cir. 2018).

3

See Section II.

4

See notes 44–49.

5

See Ian Ayres & Alan Schwartz, The No-Reading Problem in Consumer Contract Law, 66 Stan. L. Rev 545 (2014).

See also Yanees Bakos, Florencia Marotta-Wurgler & David R. Trossen, Does Anyone Read the Fine Print? Con-

sumer Attention to Standard Form Contracts, 43 J. Legal Stud. 1 (2014) (providing empirical data that virtually no

consumers read end users license agreements); Shmuel I. Becher & Esther Unger-Aviram, The Law of Standard

Form Contracts: Misguided Intuitions and Suggestions for Reconstruction, 8 DePaul Bus. & Com. L.J. 199, 206

(2010) (providing empirical data that most consumers are not likely to read contracts ex ante); Clayton P. Gillette,

Rolling Contracts as an Agency Problem, 2004 Wis. L. Rev. 679, 680 (2004) (“commentators agree that buyers, or

the vast majority of them, do not read the terms presented to them by sellers”); Lewis A. Kornhauser, Comment,

Unconscionability in Standard Forms, 64 Cal. L. Rev. 1151, 1163 (1976) (“In general the consumer will not have

read any of the clauses, and most will be written in obscure legal terms.”). For the formatting of conspicuous dis-

closures generally, see Mary Beth Beazley, Hiding in Plain Sight: “Conspicuous Type” Standards in Mandated Com-

munication Statutes, 40 J. Legis. 1, 1–2 (2014).

6

See also Beazley, supra note 5, at 2 (arguing that f‌irms intentionally obfuscate disclaimers); Lauren E. Willis,

Performance-Based Consumer Law, 82 U. Chi. L. Rev. 1309, 1311 (2015) (arguing that f‌irms hamstring the disclo-

sure project through the framing of disclosures).

ALL-CAPS 863

research studied the legibility of capital letters, originating with the work of Miles

A. Tinker.

7

This research focuses mostly on legibility—rather than notice or

understanding—and has ambiguous implications for contracts. In general, it f‌inds that

capitalized letters are more perceptible and read more accurately, although they tend to

slow down reading speeds and are not well liked by readers.

8

In terms of application, one

study f‌inds that patients can more accurately distinguish drug names if part of the name

is capitalized.

9

However, the applicability of these studies to the modern consumer con-

tract context is quite limited. Perceptibility at a distance plays a minor role and slow read-

ing times may actually prove advantageous, with slower reading encouraging greater

attention and deliberation. The research is also very dated, which raises special concerns

given changing norms in print, reading habit, and printing technology. The key question

of whether all-caps improve notice—and thus assent—was left open, which is possibly why

this research was mostly ignored by courts and legislators.

The article starts in Section II by tracing the development of all-caps and conspicu-

ous disclosure in contract law. Evolving during the 19th century, around the same time as

mass-printed consumer contracts (mostly common carrier tickets), all-caps was developed

as a solution to the problem of f‌ine print. If a term appears in all-caps or larger type, the

courts assumed that the consumer actually noticed it and, thus, the consumer’s assent to

the contract also encompasses this term. To this day, courts and legislators hold a deep

commitment to the behavioral theory that all-caps improve consumer notice by drawing

attention to key terms, and will deny enforcement to certain terms if they are not

capitalized.

In Section III we present evidence on the pervasiveness of all-caps “in the wild.” To

this end, we collected and analyzed the standard form contracts of 500 of the most popu-

lar consumer companies in the United States—for example, Amazon and Uber. These

forms are the basis of hundreds of millions of individual contracts between consumers

and these companies. We use this database to generate the f‌irst-ever evidence of the per-

vasiveness of long blocks of text in consumer contracts. We f‌ind that over three-quarters

of these contracts (77 percent) contain at least one all-caps clause.

7

Miles A. Tinker, Legibility of Print (1963).

8

See id at 33–35, 58–59 (1963); Miles A. Tinker & Donald G. Paterson, Inf‌luence of Type Form on Speed of Read-

ing, 12 J. Applied Psychol. 359 (1928); Miles A. Tinker & Donald G. Paterson, The Effect of Typographical Varia-

tions upon Eye Movement in Reading, 49 J. Educ. Res. 171, 181 (1955); Miles A. Tinker, Prolonged Reading Tasks

in Visual Research, 39 J. Applied Psychol. 444 (1955); Maribeth Henney The Effect of All-Capital vs. Regular Mixed

Print, as Presented on a Computer Screen, on Reading Rate and Accuracy, 16 AEDS J. 205–17 (1983). But see

Jeremy J. Foster & Margaret Bruce, Reading Upper and Lower Case on Viewdata, 13 Appl. Ergon. 145 (1982) (f‌ind-

ing no difference in reading speeds of nonsense passages in either upper- or lowercase); James E. Sheedy et al.,

Text Legibility and the Letter Superiority Effect 47 Hum. Factors 797 (2005) (f‌inding that capital letters are 35 per-

cent more legible than lowercase words). For a recent reviews, see Maria Lonsdale, Typographic Features of Text:

Outcomes from Research and Practice, 48 Visible Lang. 29, 37–40 (2014) (review); and Willis, supra note 6,

at 1349.

9

R. Filik, K. Purdy, A. Gale & D. Gerrett, Drug Name Confusion: Evaluating the Effectiveness of Capital (“Tall

Man”) Letters Using Eye Movement Data, 59 Soc. Sci. & Med. 2597–01 (2004), doi:10.1016/j.socscimed.200 4.0.

864 Arbel and Toler