Monday, January 4, 2021
Based on the assumption that text in contracts of adhesion written in ALLCAPS is more likely to be noticed by consumers, courts are more likely to give effect to terms in ALLCAPS. They assume consent to ALLCAPS terms because the terms are deemed to have been conspicuously displayed. This assumption has never been tested. . . .
Surprise! Yonathan Arbel (left) and Andrew Toler (right) have determined that, at least as currently deployed, ALLCAPS text is no more effective in relaying information to consumers than ordinary text. Statutes require that certain disclosures or provisions be printed in ALLCAPS; courts tend to enforce text in ALLCAPS that they would not enforce if that same text was not capitalized. The authors show that there is no basis for such a distinction other than conjecture. You can find their paper, published in the Journal of Empirical Legal Studies, here or on your preferred legal database.
Arbel and Toler first review the history of ALLCAPS, which arose as a solution to the problems posed by fine print. They next review standard form contracts, collecting 500 contracts from popular companies that offer products to consumers, such as Uber and Amazon. They find that 77 percent of such contracts contain at least one ALLCAPS provision. Finally, they conducted a study with 570 participants to test whether placing terms in ALLCAPS makes it more likely that consumers will read those terms. They presented contracts to the participants and then tested to see whether the participants in one group could better recall the terms in ALLCAPS than a second group presented with the same contract without an ALLCAPS provision. They found that placing a provision in ALLCAPS has no effect on comprehension or retention. In fact, participants over 55 understood the ALLCAPS terms 29% worse than they would have understood those terms if they were not capitalized.
The authors are cautious about the implications of their work. They cannot say that ALLCAPS are never effective in drawing attention to contractual language; they can only say that the standard usage of ALLCAPS in consumer contracts does not have the desired effect. There are alternatives. Boldface text does seem to have a positive effect on readers' retention of the highlighted text. The authors accordingly recommend that courts should stop enforcing ALLCAPS provisions that they would not enforce if those same provisions were not in ALLCAPS. The authors do not say anything about revising statutory provisions that require that certain disclosures or provisions be in ALLCAPS, but such a recommendation would seem to be supported by their study.
The piece is highly accessible. One could assign it to 1Ls without any concern that they will be intimidated by the authors' empiricism. In the alternative, as this post suggests, the article can be quickly summarized. Its message is simple, but the piece packs a considerable normative punch. Courts and legislatures act as though putting terms in ALLCAPS provides consumers with effective notice, but they never put that assumption to the test. The authors have done so, and ALLCAPS failed the test.