Back in 1993, there was considerable confusion in New York caused by defendants raising type-size defenses in contract and landlord and tenant litigation. Many litigants were defending contract actions by claiming that the contract was not printed in a type-size that complied with the New York statutes. As a result, my files were becoming crowded with letters from attorneys inquiring about the size of the type in Blumberg forms. It became such a problem that I was asked by the Office of Court of Administration if I could draft a bill that would clarify the issue and eliminate the confusion.
The confusion originated in the convoluted history of type-size. Traditionally, the graphic arts industry uses the size designated by the type foundry or the typesetting equipment manufacturer. Meanwhile, the measurement system of the foundries goes back to practices developed with the first moveable wood type. Back then, the height of the wood block determined the size of the type. The block had to be big enough to cut the image of all characters in the alphabet. (In North America and Great Britain the basic unit of measure in typography is the point. One point = .351mm, 12 points = 1 pica, 6 picas = 1 inch, 72 points = 1 inch.)
Thus, while foundries designate size based on the point measurement from the top of the ascender (capital letter) to the bottom of the descender (lower case “y” or “g”), no single character in a typeface printed on paper measures up to the size designated by the foundry. If you measure the capitals or lower case letters in a 12 pt. type, they would be about 8 ½” pt. and 6 ½” pt. respectively.
To add to the confusion, type designers have exercised great freedom over the years in designing typefaces to create variety and excitement in their graphic designs. They did not follow any size protocols for the face of each letter or number. This freedom, while it allowed for an immense variety and styles of typefaces confounded the measurement of type. The letters on a 10 pt. body would, if you measured it with a point rule, differ in physical size depending on the typeface. Just compare the letters of a 12 pt. Arial “e” with a 12 pt. Calibri “e.”
Lawyers, unfamiliar with industry practice, often relied on wrong assumptions about type-size measurement. They tended to measure type as it appeared on the document in question. If the capital letters on the documents did not measure up to the point size required by law, they challenged the admissibility of the document.
To help me respond to the request of the OCA, I called upon Frank J. Romano a leading expert in the field of graphic arts. To create certainty, we drafted a simple defense to an attack on admissibility of documents based on type size. The x-height (height of the lower case letters) of the type as it appears on the document must be at least 45% of the specified point size. This enables the issue to be resolved by a simple measurement with a printer’s point ruler.
We chose the x-height reference because lower case letters appear in documents more frequently than capital letters. Forty-five percent is a fairly demanding requirement. As a general rule it is easier to read a typeface with a larger x-height than a smaller one. A type-specifier choosing an unusual typeface with a small x-height should choose a type size a point larger than the mandated size to make this defense available. This would encourage more readable documents, which after all, is the basic goal of the law.
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