Unmasking Mullane: Due Process, Common Trust Funds, and the Class Action Wars

Abstract

Although Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306 (1950) is a classic Civil Procedure case, its history has never before been written. This Article reveals that history, traced among other sources, in the papers of New York's Governor Herbert Lehman, whose misgivings did not prevent his signing the legislation that the Supreme Court struck down, and of Justice Robert Jackson, who wrote the opinion striking it down. More or less behind the scenes, two struggles were going on. One involved and prefigured all of the tensions of the modern class action: conflicts within the class, the relative functions of notice and adequate representation, the attempt to secure "global peace" by binding nonparticipants, and more. The other struggle concerned the efforts of trust companies to enlarge their turf and get into the investment business while barring liability to their customers. The due process holding for which we remember Mullane thus emerged from and glossed over deeper and more particularized conflicts. This Article explores both the history and the contemporary relevance of Mullane.