The Form and Extent of Notice
"The right to a hearing is meaningless without notice."1
"Notice by publication is a poor and sometimes a hopeless substitute for actual
service of notice."2
As we have seen in Chapter 3, the Due Process Clauses ordinarily require that the government afford a person notice and an opportunity to be heard before it deprives her of a protected interest. But what form must the notice take? What efforts must the government make to ensure that it has identified all persons who might have a protected interest? What efforts must the government make to locate and notify persons that it has identified as having a protected interest? And how much notice must the government provide a person before it takes action against her? It is to these issues that we now turn.
An inherent conflict exists between the interest of an individual whose life, liberty or property may be affected by governmental action and who therefore wants the best possible personal notice of the impending action and the government's interest in the quick and inexpensive resolution of claims. This conflict may be pronounced when the individual's identity is difficult to ascertain or her interest is remote or contingent. In such cases, the government may prefer to provide only notice by publication, rather than personal service. But notice by publication— notice published in the back pages of a newspaper—is unlikely to provide actual notice to the individual.
Prior to the Supreme Court's decision in Mullane v. Central Hanover Bank & Trust Co. in 1950, this conflict between the interests of the individual and the state was often resolved in favor of the government, especially in in rem actions—those resolving competing claims to property.3 The United States Supreme Court upheld notice by publication in in rem proceedings (even though