Llewellyn famously called consumer consent to standard form contract
terms a fiction.89 And consumers who do read a policy are likely to find it
incomprehensible, despite recent efforts to prepare readable text.90
Important details may be hard to find, such as coverage exclusions tucked
into the definition of terms.91 Such textual vagaries give some courts
reason to interpret insurance policy provisions to favor the policyholder.
Fourth, and of special importance for ACA plans, the full policy rarely
answers the questions a consumer may want or need to know. Some
scholars have recommended more specific disclosure of plan terms to
compensate for the disadvantages consumers face in purchasing almost any
type of insurance.92 But disclosure of ACA plan terms is not enough.
There is evidence that consumers have trouble understanding or using
standard disclosures in many contexts.93 ACA plans present the more
difficult problem that the plan itself cannot fully disclose everything that
will (or will not) be covered. As noted above, the description of EHB
categories is so broad and vague that, apart from a few dental and vision
services, the policy itself cannot make explicit all covered benefits or
exclusions. Thus, it is impossible to assume that had the consumer read the
policy she would have recognized the limits of coverage. Furthermore,
The Tested Language Defense, 95 Iowa L. Rev. 1075, 1077 (2010); Restatement (Second) of
Contracts § 211 cmt. b. (1981) (“ A party who makes regular use of a standardized form of
agreement does not ordinarily expect his customers to understand or even to read the
89. Karl. N. Llewellyn, The Common Law Tradition: Deciding Appeals 370 (1960).
90. See Schwarcz, supra note 85, at 1327; see generally Tesa Wilkinson-Ryan, A
Psychological Account of Consent to Fine Print, 99 Iowa L. Rev. 1745 (2014); Russell
Korobkin, Bounded Rationality, Standard Form Contracts, and Unconscionability, 70 U.
Chi. L. Rev. 1203 (2003); see also Melvin Aron Eisenberg, The Limits of Cognition and the
Limits of Contract, 47 Stan. L. Rev. 211, 213 (1995); see also Michael I. Meyerson, The
Efficient Consumer Form Contract: Law and Economics Meets the Real World, 24 Ga. L.
Rev. 583, 595 (1990).
91. Some versions of the reasonable expectations doctrine are applied where
exclusionary language is found to be hidden, obscure, or misleadingly drafted. See Stempel,
supra note 45, at 192; John Dwight Ingram, The Insured’s Expectations Should Be Honored
Only If They Are Reasonable, 23 Wm. Mitchell L. Rev. 813, 822 (1997).
92. See Rakoff, supra note 56; Edith R. Warkentine, Beyond Unconscionability: The
Case for Using “Knowing Assent” as the Basis for Analyzing Unbargained-for Terms in
Standard Form Contracts, 31 Seattle U. L. Rev. 469, 512 (2008). See also, Melissa T.
Lonegrass, Finding Room for Fairness in Formalism – The Sliding Scale Approach to
Unconscionability, 44 Loy. U. Chi. L.J. 1, 29–34 (2012) (describing literacy, lack of
familiarity with the subject matter, time, psychological and other barriers that make actual
consumer assent to standard form contract terms unrealistic).
93. See Omri Ben-Shahar & Carl E. Schneider, More Than You Wanted to Know: The
Failure of Mandated Disclosure 14–31, 26–32, 69 (2014) (summarizing research finding that
required disclosures are not necessarily read, understood or used by consumers to make