CITES BY TOPIC:  reasonable notice

Powell v. Alabama, 287 U.S. 45 (1932)

It never has been doubted by this court, or any other, so far as we know, that notice and hearing are preliminary steps essential to the passing of an enforceable judgment, and that they, together with a legally competent tribunal having jurisdiction of the case, constitute basic elements of the constitutional requirement of due process of law.  The words of Webster, so often quoted, that, by "the law of the land" is intended "a law which hears before it condemns" have been repeated in varying forms of expression in a multitude of decisions.  In Holden v. Hardy, 169 U.S. 366, 389, the necessity of due notice and an opportunity of being heard is described as among the "immutable principles of justice which inhere in the very idea of free government which no member of the Union may disregard."  And Mr. Justice Field, in an earlier case, Galpin v. Page, 18 Wall. 350, 368-369, said that the rule that no one shall be personally bound until he has had his day in court was as old as the law, and it meant that he must be cited to appear and afforded an opportunity to be heard.

Judgment without such citation and opportunity wants all the attributes of a judicial determination; it is judicial usurpation and oppression, and never can be upheld where justice is justly administered.”

[Powell v. Alabama, 287 U.S. 45 (1932)]


Holden v. Hardy, 169 U.S. 366 (1898):

“It is sufficient to say that there are certain immutable principles of justice which inhere in the very idea of free government which no member of the Union may disregard, as that no man shall be condemned in his person or property without due notice and an opportunity of being heard in his own defense.

[Holden v. Hardy, 169 U.S. 366 (1898)]


Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)

"An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."

[Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)]


Administrative Law and Process in a Nutshell, Ernest Gellhorn, 1990, West Publishing, p. 214

"An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."  Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).  Without proper prior notice to those who may be affected by a government decision, all other procedural rights may be nullified.  The exact contents of the notice required by due process will, of course, vary with the circumstances.

[Administrative Law and Process in a Nutshell, Ernest Gellhorn, 1990, West Publishing, p. 214]


Administrative Law and Process in a Nutshell, Ernest Gellhorn, 1990, West Publishing, p. 302

2. Binding and nonbinding rules.  The most important and familiar type of rule is the legislative rule (sometimes called a substantive rule).  It has several distinctive characteristics.  It has “the force and effect of law” and is always “rooted in a grant of [quasi-legislative] power by the Congress.”  Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979) .  A valid legislative rule conclusively settles the matters it addresses, at least at the administrative level.  Of course, to say that such a rule has “the force and effect of law” does not mean that it is immune from judicial review; courts can entertain challenges to the rule on various grounds. [. . .]  It does mean, however, that unless the rule is overturned by a court (or rescinded by the agency), it is binding on both private parties and the government itself.  This binding effect is the chief identifying feature of a legislative rule: its nature and purpose is to alter [private] citizens’ legal rights in a decisive fashion.

 Of course, not all agency pronouncements that fit within the APA’s broad definition of “rule” are legislative rules.  The courts have explored the boundaries of the narrower term in the course of applying the APA’s rulemaking provisions.  The APA generally requires that the issuance of rules be preceded by a public procedure, usually a notice-and-comment process, but it exempts “interpretive rules, generally statements of policy, [and rules of agency organization, procedure, and practice” from this command.  5 U.S.C.A. 553(b)(A).  Congress excluded interpretive rules and policy statements from the APA’s procedural obligations because they are not legislative rules.

[Administrative Law and Process in a Nutshell, Ernest Gellhorn, 1990, West Publishing, p. 302]


Administrative Law and Process in a Nutshell, Ernest Gellhorn, 1990, West Publishing, p. 307

Finally, 553(b)(A) [of U.S.C. Title 5] permits agencies to issue procedural rules without prior notice.  This exemption reflects “the congressional judgment that such rules, because they do not directly guide public conduct, do not merit the administrative burdens of public input proceedings.

[Administrative Law and Process in a Nutshell, Ernest Gellhorn, 1990, West Publishing, p. 307]


Windsor v. McVeigh, 93 U.S. 274, 1876 WL 19687 (U.S.,1876)

That there must be notice to a party of some kind, actual or constructive, to a valid judgment affecting his rights, is admitted. Until notice is given, the court has no jurisdiction in any case to proceed to judgment, whatever its authority may be, by the law of its organization, over the subject-matter. But notice is only for the purpose of affording the party an opportunity of being heard upon the claim or the charges made; it is a summons to him to appear and speak, if he has any thing to say, why the judgment sought should not be rendered. A denial to a party of the benefit of a notice would be in effect to *278 deny that he is entitled to notice at all, and the sham and deceptive proceeding had better be omitted altogether. It would be like saying to a party, Appear, and you shall be heard; and, when he has appeared, saying, Your appearance shall not be recognized, and you shall not be heard. In the present case, the District Court not only in effect said this, but immediately added a decree of condemnation, reciting that the default of all persons had been duly entered. It is difficult to speak of a decree thus rendered with moderation; it was in fact a mere arbitrary edict, clothed in the form of a judicial sentence.

**5 The law is, and always has been, that whenever notice or citation is required, the party cited has the right to appear and be heard; and when the latter is denied, the former is ineffectual for any purpose. The denial to a party in such a case of the right to appear is in legal effect the recall of the citation to him. The period within which the appearance must be made and the right to be heard exercised, is, of course, a matter of regulation, depending either upon positive law, or the rules or orders of the court, or the established practice in such cases. And if the appearance be not made, and the right to be heard be not exercised, within the period thus prescribed, the default of the party prosecuted, or possible claimants of the property, may, of course, be entered, and the allegations of the libel be taken as true for the purpose of the proceeding. But the denial of the right to appear and be heard at all is a different matter altogether.

[Windsor v. McVeigh, 93 U.S. 274, 1876 WL 19687 (U.S.,1876)]


26 C.F.R. 601.702 Publication and public inspection

26 C.F.R. 601.702 Publication and public inspection

 (a)(2)(ii) Effect of failure to publish

 Except to the extent that a person has actual and timely notice of the terms of any matter referred to in subparagraph (1) of this paragraph which is required to be published in the Federal Register TA \s "Federal Register" , such person is not required in any manner to resort to, or be adversely affected by, such matter if it is not so published or is not incorporated by reference therein pursuant to subdivision (i) of this subparagraph.  Thus, for example, any such matter which imposes an obligation and which is not so published or incorporated by reference will not adversely change or affect a person's rights.


Specht v. Netscape Communications Corporation, 306 F.3d 17 (2d Cir. 10/01/2002)

Defendants argue that plaintiffs must be held to a standard of reasonable prudence and that, because notice of the existence of SmartDownload license terms was on the next scrollable screen, plaintiffs were on "inquiry notice" of those terms. *fn14 We disagree with the proposition that a reasonably prudent offeree in plaintiffs' position would necessarily have known or learned of the existence of the SmartDownload license agreement prior to acting, so that plaintiffs may be held to have assented to that agreement with constructive notice of its terms. See Cal. Civ. Code 1589 ("A voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obligations arising from it, so far as the facts are known, or ought to be known, to the person accepting."). It is true that "[a] party cannot avoid the terms of a contract on the ground that he or she failed to read it before signing." Marin Storage & Trucking, 107 Cal. Rptr. 2d at 651. But courts are quick to add: "An exception to this general rule exists when the writing does not appear to be a contract and the terms are not called to the attention of the recipient. In such a case, no contract is formed with respect to the undisclosed term." Id.; cf. Cory v. Golden State Bank, 157 Cal. Rptr. 538, 541 (Cal. Ct. App. 1979) ("[T]he provision in question is effectively hidden from the view of money order purchasers until after the transactions are completed. . . . Under these circumstances, it must be concluded that the Bank's money order purchasers are not chargeable with either actual or constructive notice of the service charge provision, and therefore cannot be deemed to have consented to the provision as part of their transaction with the Bank.").

Most of the cases cited by defendants in support of their inquiry-notice argument are drawn from the world of paper contracting. See, e.g., Taussig v. Bode & Haslett, 66 P. 259, 265-66 (Cal. 1901) (where party had opportunity to read leakage disclaimer printed on warehouse receipt, he had duty to do so); In re First Capital Life Ins. Co., 40 Cal. Rptr. 2d 816, 820 (Cal. Ct. App. 1995) (purchase of insurance policy after opportunity to read and understand policy terms creates binding agreement); King v. Larsen Realty, Inc., 175 Cal. Rptr. 226, 231 (Cal. Ct. App. 1981) (where realtors' board manual specifying that party was required to arbitrate was "readily available," party was "on notice" that he was agreeing to mandatory arbitration); Cal. State Auto. Ass'n Inter-Ins. Bureau v. Barrett Garages, Inc., 64 Cal. Rptr. 699, 703 (Cal. Ct. App. 1967) (recipient of airport parking claim check was bound by terms printed on claim check, because a "ordinarily prudent" person would have been alerted to the terms); Larrus v. First Nat'l Bank, 266 P.2d 143, 147 (Cal. Dist. Ct. App. 1954) ("clearly printed" statement on bank card stating that depositor agreed to bank's regulations provided sufficient notice to create agreement, where party had opportunity to view statement and to ask for full text of regulations, but did not do so); see also Hux v. Butler, 339 F.2d 696, 700 (6th Cir. 1964) (constructive notice found where "slightest inquiry" would have disclosed relevant facts to offeree); Walker v. Carnival Cruise Lines, 63 F. Supp. 2d 1083, 1089 (N.D. Cal. 1999) (under California and federal law, "conspicuous notice" directing the attention of parties to existence of contract terms renders terms binding) (quotation marks omitted); Shacket v. Roger Smith Aircraft Sales, Inc., 651 F. Supp. 675, 691 (N.D. Ill. 1986) (constructive notice found where "minimal investigation" would have revealed facts to offeree).

As the foregoing cases suggest, receipt of a physical document containing contract terms or notice thereof is frequently deemed, in the world of paper transactions, a sufficient circumstance to place the offeree on inquiry notice of those terms. "Every person who has actual notice of circumstances sufficient to put a prudent man upon inquiry as to a particular fact, has constructive notice of the fact itself in all cases in which, by prosecuting such inquiry, he might have learned such fact." Cal. Civ. Code 19. These principles apply equally to the emergent world of online product delivery, pop-up screens, hyperlinked pages, clickwrap licensing, scrollable documents, and urgent admonitions to "Download Now!". What plaintiffs saw when they were being invited by defendants to download this fast, free plug-in called SmartDownload was a screen containing praise for the product and, at the very bottom of the screen, a "Download" button. Defendants argue that under the principles set forth in the cases cited above, a "fair and prudent person using ordinary care" would have been on inquiry notice of SmartDownload's license terms. Shacket, 651 F. Supp. at 690.

[Specht v. Netscape Communications Corporation, 306 F.3d 17 (2d Cir. 10/01/2002)]