Journal of Empirical Legal Studies, Forthcoming 2020
56 Pages Posted: 16 Jan 2020 Last revised: 11 Jun 2020
Date Written: January 15, 2020
A hallmark of consumer contracts is their use of long blocks of capitalized text. These “all-caps” clauses are meant to alert consumers to non-standard, 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 warranty 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 fails to appreciably improve consent. Moreover, some preliminary evidence suggests that all-caps is harmful to older consumers. We collect evidence from standard form agreements used by America’s largest companies and find that, despite its limitations, three-quarters of consumer 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.
Keywords: consumer contracts, consent, experiments, empirical evidence, conspicuous, disclosure, waivers, UCC
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