56 Pages Posted: 16 Jan 2020
Date Written: January 15, 2020
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 all-caps 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.
Keywords: consumer contracts, consent, experiments, empirical evidence, conspicuous, disclosure, waivers, UCC
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