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When analyzing a claim under 42 U.S.C § 1983 that the government withheld exculpatory evidence from a criminal defendant, courts typically use the Fifth or Fourteenth Amendment’s due process standard as articulated in the iconic 1963 case of Brady v. Maryland. In Smith v. Almada, the Court of Appeals for the Ninth Circuit considered whether a police officer’s failure to disclose exculpatory evidence violated the plaintiff’s due process right to a fair trial—thereby exposing the officer to civil liability under Brady—where the plaintiff had spent over seventeen months in jail but had never been convicted. The Ninth Circuit initially answered that question very broadly, holding that relief under Brady is unavailable entirely in the absence of a conviction. On plaintiff’s motion for rehearing, however, the court superseded its original decision, transcribing the former majority’s opinion into a special concurrence, which, because of the court’s maneuverings, effectively remains as Smith’s de facto holding. . .
This Note will explore the effects and ramifications when the former employee chooses self-employment in an effort to mitigate the damages of the wrongful discharge. It will begin by providing an overview of the history of mitigating damages through self-employment, including an exploration of the different calculation methods used by courts. It will then discuss the current state of the law, relying heavily on cases decided under federal antidiscrimination statutes. Next, this Note will explore plummeting costs of self-employment due to the rise of the internet. Lastly, it will focus on possible ways to prevent former employers from essentially insuring against losses in the self-employed’s new venture, and then argue that the reasonable diligence standard may be too easy to satisfy. . .