“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)]
“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)]
"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
(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)]
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