Individual Rights in the US and the UK
Fall 2004
Thursdays 10 am-1 pm
Professor Joseph R. Reisert
office: 020 7580 1138
home: 020 7483 3372
The United States prides itself on the individual rights protections that are enshrined in our written Constitution and enforced by our Supreme Court, which is empowered to invalidate even acts of Congress. In the United Kingdom, by contrast, judges historically lacked the authority to invalidate acts of Parliament. Even today, the Human Rights Act, which makes the European Convention on Human Rights enforceable in British courts, still leaves room for Parliament to violate the Convention when it deems necessary. Despite these institutional differences, and despite some significant differences in their treatment of certain particular liberties, both the US and UK are undeniably liberal and democratic constitutional states.
The course examines three issue areas--freedom of speech, the rights of subversives and terrorists, and religious liberty--in order to examine the practical consequences of the different institutional arrangements adopted by the two countries. Are we Americans more or less free than the British? Does judicial review protect our rights as much as we tend to think it does? Or do other factors matter more? If so, what are they?
We will also look at some of the changes over time in the degree of protection afforded to certain rights, both in the U.S. and in the U.K., and at the mechanisms by which those changes occurred, contrasting for example the "rights revolution" in the jurisprudence of the U.S. Supreme Court with some of the contemporary political controversies in the U.K. over constitutional change (e.g., the adoption of the Human Rights Act, whether the Law Lords should be replaced by an independent Supreme Court).
Course Requirements
and Grading
Classes will be conducted primarily in a seminar format, with an emphasis on class discussion. It is, therefore, essential that students will have read and thought about the assigned reading before class.
Attendance. You are required to attend every class. One missed class will result in a reduction of your participation grade by a full letter grade (e.g., A to B). Two missed classes will result in a reduction of your participation by another full letter grade (e.g., B to C). A third absence will result in your failing the course. Accommodation will ordinarily be made for students who must miss a class session due to the requirements of another CBB course.
Grades will be determined according to either of the following two formulas:
Standard Requirements:
• Class participation, including presentations and (possible) in-class quizzes -- 25%.
• Mid-term examination -- 15%
• One paper of approximately 2500 words (8 pages) due in class on November 18 -- 30%.
• A final examination to be held during the examination period -- 30%.
Long
Paper Option:
• Class participation, including presentations and (possible) in-class quizzes -- 33%
• One semester-long research paper (25-30 pages) contrasting US and UK law in a specific area; these papers must reference cases not assigned in class and draw upon materials drawn from the secondary literature (from US law reviews or political science journals, and UK equivalents) -- 67%
Late Papers will be penalized one third of a letter grade for each day (24 hour period) that they are late. No extensions will be granted, except when they are necessitated by critical and verifiable emergencies (e.g., an illness requiring hospitalization). All students are responsible for keeping copies of their papers until graded submissions are returned.
Required Text
Bailey, Harris & Jones, Civil Liberties: Cases and Materials, fifth edition. London: Butterworths, 2001.
Sept 2: Introduction -- Individual Rights in the USA
US Declaration of Independence (handout)
US Constitution (handout)
Roe v. Wade (handout)
United States v. Lopez (handout)
Sept 9: Individual Rights in the UK
BHJ, chapter 1
Charter of Fundamental Rights of the European Union (proposed) -- pdf
"Judicial Work of the House of Lords" -- pdf
Recommended
Politics UK, chapters 15 (constitution), 17 (Commons), 19 (cabinet and PM), 23 (judiciary) -- copies available in Centre library
Sept 16: Free Speech I -- Threats to Public Order
BHJ, chapter 4
Schenck v. United States
Gitlow v. New York
Dennis v. United States
Brandenberg v. Ohio
Collin v. Smith (7th Circuit)
Sept 23: Free Speech II -- Defamation
New York Times Co. v. Sullivan
Defamation Act of 1996 (UK)
Kentridge, "Freedom of Speech: Is it the Primary Right?" -- pdf
Reynolds v. Times Newspapers [1999] 4 All ER 609
Sept 30: Free Speech III - Obscenity and Hate Speech
BHJ, chapters 6 and 11
Miller v. California
Paris Adult Theater v. Slaton
New York v. Ferber
R.A.V. v. City of Saint Paul, Minnesota
Rosenfeld, "Hate Speech in Constitutional Jurisprudence: A Comparative Analysis"
Oct 7: Free Speech IV-- Free Speech v. Fair Trials
BHJ, chapter 7.
Brandwood, "You Say 'fair trial' and I say 'free press': British and American Approaches to Protecting Defendants Rights in High Profile Trials"
Bridges v. California
Times-Mirror v. California
Oct 14: Mid-term examination
Oct 21: No class session -- Fall Break
Oct 28: Personal Liberties and National Security I
BHJ, chapter 5
Nov 4: Personal Liberties and National Security II
Rasul v. Bush
Hamdi v. Rumsfeld
Nov 11: Freedom of Religion I -- Free Exercise
BHJ, chapter 10
Wisconsin v. Yoder
Employment Division v. Smith
Nov 18: Freedom of Religion II -- Establishment
Elk Grove School District v. Newdow (9th Circuit)
Nov 25: No Class Session -- Thanksgiving
Dec 2: Conclusion: A Supreme Court for Britain?
Readings TBA
A comprehensive final examination will be held at the scheduled time