INTENDED ONLY FOR FIRST-YEAR STUDENTS AT DUKE UNIVERSITY SCHOOL OF LAW DO NOT CITE OR DISTRIBUTE This document includes five sample casenotes that the Duke Law Journal is making available to first-year students in the spring of 2008. All five received strong scores from DLJ in the 2007 casenote competition, although the authors may not have “written-on” to the Journal. These five casenotes represent a range of approaches to last year’s case. The Journal cannot speak to how these casenotes were scored by any other law journal. WARNING: These casenotes may contain errors. They have not been checked for conformity to the Bluebook, and DLJ does not vouch for the formatting of the citations.
CASENOTE EXAMPLE 1
J O U R N A L
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THE TRIVIALIZATION OF OCCUPATIONAL LIBERTY: FORGET THE FIGHT; FIND A NEW CAREER
I. INTRODUCTION The court in Engquist v. Oregon Department of Agriculture1 allows the principles of substantive due process to serve as a supposed “safeguard” for public employees who are deprived of the liberty and the freedom to pursue their choice occupation. However, defining liberty as the freedom to seek one’s preferred employment is not a new concept and has been recognized in numerous cases such as Board of Regents of State Colleges v. Roth2. In Roth, liberty is described poetically as “broad and majestic” and is defined “not merely [as] freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life . . . and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.”3 However, this liberty is not as “broad and majestic” as the court so eloquently describes it to be; it is more of an abstract concept that the Court strictly constrains under the rather reassuring tone that the liberty is available subject only to “reasonable government regulation.”4 The Due Process Clause of the Fourteenth Amendment theoretically offers individuals hope: hope that they will be able to seek justice if they are shut out of a career by the actions of a government employer.5 While the Engquist court recognizes this right under a theory of substantive due process, 6 it does little more than state that an individual is entitled to bring such a claim before a court. Relying on the tests utilized by other jurisdictions for similar claims, the 1 2
478 F.3d 985 (9th Cir. 2007). 408 U.S. 564, 572 (1972). 3 Id. 4 See Conn v. Gabbert, 526 U.S. 286, 292 (1999) (Stevens, J., concurring). 5 See Engquist, 478 F.3d at 998. 6 Id.
DUKE L.J. EXAMPLE 1
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Ninth Circuit adopts a test that requires a plaintiff to prove that it is “virtually impossible for the employee to find employment in his chosen field.”7 By creating a standard that is practically unattainable in most circumstances, the court trivializes plaintiffs’ claims, allowing cases to be casually dismissed for lack of evidence, leaving plaintiffs with little alternative than to seek a different career. II. FACTS This case originated upon Plaintiff Anup Engquist’s termination from her position with the Export Service Center (ESC) as an international food standards specialist.8 Engquist qualified as a public employee of Oregon as her department was part of the Oregon Department of Agriculture.9 After approximately ten years of service and an ongoing conflict with the manager of ESC, Engquist’s position was “eliminated” after ESC was reorganized.10 Among other causes of action, Engquist brought a claim for a substantive due process violation.11 This substantive due process claim was a plausible cause of action as the Supreme Court had previously adjudicated that “liberty” under the Fourteenth Amendment included some right to pursue a desired profession.12 The court therefore denied Defendants’ motion for summary judgment as to this claim, and the case...