Corporate & Securities Law

Does Any Law Require All Capitals?

By Ken Adams

This post on use of all capitals in contracts?it’s from Legal Frontier, Andrew Mitton’s blog?reminded me of a question that I’ve asked myself occasionally.

The Legal Frontier post is about how use of all capitals makes contract text harder to read. That wouldn’t come as a surprise to anyone who pays the slightest attention to typography, but it bears repeating, as all capitals remains in widespread use among contract drafters. I particularly liked Andrew’s practice of using Word’s “change case” function to change all capitals when he’s reading a contract on screen.

If you’re using all caps for anything other than article headings and party names in the introductory clause and signature blocks, you might want to reconsider. I use instead bold italics. If that doesn’t make text conspicuous enough for you, put a box around it.

But here’s my question: Andrew says that some laws require that certain provisions be written in all capitals. Can anyone cite for me any such laws?

And no, the Uniform Commercial Code doesn’t count. Parts of the U.C.C. require that text be “conspicuous.” For example, section 2-316(2) states that a disclaimer of the implied warranty of merchantability must be conspicuous. But section 1-201(10) of the U.C.C. specifies that “language in the body of a form is ‘conspicuous’ if it is in larger or other contrasting type or color”; it doesn’t say anthing about all capitals.

And Amercian General Finance, Inc. v. Bassett, 285 F.3d 882 (9th Cir. 2002), debunked the notion that text needs to be in all caps to be conspicuous. I particularly like this sentence from that case: “Lawyers who think their caps lock keys are instant ‘make conspicuous’ buttons are deluded.”

Incidentally, I’m not sure that conspicuousness and readability are the same thing. You can make a particular provision catch the eye, for instance by using all capitals, but at the same time make it hard to read once readers focus their attention on it.

Full post as published by AdamsDrafting on February 04, 2008 (boomark / email).