Asha Kaushal

Class of 2012-2013

The Allard School of Law is pleased to welcome Dr. Asha Kaushal, who recently joined the faculty as an Assistant Professor (tenure-track). Dr. Kaushal is an alumna of the Allard School of Law, where she earned her Ph.D. in 2013. She holds an LL.B. from Osgoode Hall and an LL.M. from Harvard, along with an M.Sc. in International Political Economy from the London School of Economics. She joins the Allard School of Law following a SSHRC Postdoctoral Research Fellowship in Law at the University of Toronto. Prior to embarking on her Ph.D., Dr. Kaushal worked as a lawyer for Paliare Roland Rosenberg Rothstein LLP and was an Associate with Appleton & Associates. Dr. Kaushal ‘s research interests lie in the areas of legal theory, law and difference, and immigration and citizenship law.

Did you always plan to go to law school?

I always wanted to go into law. I think that any astute observer of the world is looking for a way into some of our intractable challenges. For me, law is a set of hard skills that can be used to tackle a variety of problems. It isn’t the solution to every problem, but it is a powerful toolbox.

Why did you decide to leave practice to pursue academia?

There are a lot of special qualities to practicing law that I miss: collaborative lawyering, the process of assembling a claim, the rush of a weeklong, no-sleep hearing. But I think that the nature of law as a service profession is not always at the forefront of law school classrooms, which makes it hard to know what practice is really about. Everyone knows that being a good lawyer involves advocacy skills. The less acknowledged truth is that clients are the heart of lawyering. Most successful lawyers have to find clients and they have to keep them. This means strategizing and arguing their client’s case to the height of their ability. It turns out that I prefer law teaching – both as a student and a teacher – to law practice. There is more space to consider legal problems writ large, outside of the confines of a particular client dispute. There is more room for thoughtful critique. That is how I found my way back to academia.

How did you first get involved in immigration and refugee law? What drew you to it?

I think I have always been interested in questions of power and mobility. In the beginning, I was more interested in how wealth and goods moved across international borders so I studied the political economy of international trade and investment. After law school, I became more curious about the regimes for people crossing borders. My initial research melded these interests, examining the NAFTA provisions on mobility, but eventually I came to rest more squarely on the mobility side. Immigration law is constantly reflecting and building the national community and this makes it endlessly fascinating – although there are undoubtedly national narratives to tell about shrimps and turtles in the World Trade Organization too! In general, it’s important to situate immigration in this broader context of cross-broader regimes, to juxtapose the national regimes for people with the international regimes for investments and goods. It signals the complicated relationship between inequality and immigration.

You served as chair of the Liu Migration Network for a number of years. What were some highlights for you during your time with this organization?

I think that being part of a community is important and creating epistemic communities is helpful for the social life of research. Migration is about people, which means it has an endless array of determinants. Migration research is more robust if researchers share a common understanding of the various frameworks in play. For example, migration works at different scales (international global regimes, national laws, individual people) and it involves a breadth of issues (climate change, security concerns, brain drain). The migration network was a venue for that sharing. I think the highlight was that I liaised with professors and student groups on campus to host discussions that gave me snapshots of knowledge about particular issues. We listened to a visiting French professor explain the religious symbols ban in France, a Canadian philosopher make the case for citizenship as democratic freedom, an Oxford researcher explain the dynamics of South-South migration and internal displacement, and a Canadian professor untangle how LGBTQ claims are (poorly) represented in the refugee claims process.

You have helped organize public information sessions, lectured, and moderated discussions around Canada’s immigration, citizenship and refugee laws and practices. Do you think most people (inside or outside of law) have a strong understanding of how that system works? Are there any particular misconceptions you see often which you would want to expose?

I think your question alludes to the answer, which is that Canada’s immigration, refugee, and citizenship laws are pretty opaque for most people. This has something to do with the particularity of their legal definitions. Immigration law is notoriously technical - in the United States, it is second in complexity only to the Internal Revenue Code – and, in Canada, it is buried in regulations, ministerial instructions, and guidelines. But it also has something to do with the fact that most people do not need to pay much attention to these laws if they are already citizens. They have already crossed the threshold, so to speak. This is an interesting moment, though, because recent data confirms that Canada has reached its demographic tipping point, making it dependent on immigrants for growth. This means we will continue to see a steady uptick in immigrants and they will hold a variety of different statuses, making our understanding of these legal rules even more important.

In terms of misconceptions, I’ll choose two areas. First, the common understanding of who qualifies as a refugee is very different from the narrow legal definition, which requires persecution on one of five enumerated grounds. Victims of natural disasters or some kinds of war and people displaced within their own borders do not strictly qualify. This is important to understand when we hear European politicians talk about people crossing the Mediterranean Sea as ‘economic migrants’. It does not mean they are not fleeing terrible circumstances; only that they do not meet the narrow confines of the refugee definition. Second, the well-known human capital model of skilled immigration based on the famous Canadian points system has given way to an online matchmaking system called Express Entry. This online system is closely tied to the labour market and the provinces. This change is not well-understood because it was implemented under ministerial instructions, which do not require notice, comment, or debate and are shielded from review. Skilled workers are the largest cohort of immigrants to Canada in any given year, yet this move away from the points system has occurred completely under the radar.

Some of your research deals with the idea that jurisdiction is both political and negotiable. Can you explain why this idea is so important and what this really means?

This is a great question. It’s hard but useful to boil down jurisdiction to an elevator pitch. What I mean is that the concept of jurisdiction is often over- or under-rated. It exists at a high level of abstraction (as a theoretical term for the force of law) or at a doctrinal level of technicality (as a question of whether the tribunal can hear the case).

My work tries to reclaim the concept of jurisdiction as a way to talk about how we organize the terms of our co-existence. Who gets the authority of law and who does not? On what terms? So, for example, constitutional jurisdiction created the provinces. Once we ask how jurisdiction is parceled out and distributed, we can think about the justification for those decisions. That’s the political part. And, once we are on the terrain of justification, we can think about how and why it might be different. We can imagine other configurations. That’s the negotiable part.

This idea is important as societies confront diversity and difference in the context of demographic dependence on immigration. Our societies will only get more heterogeneous as time ticks on. We need to go beyond the platitudes of multiculturalism and the limits of constitutional rights frameworks to think about other ways of living together. If we take identities and diverse beliefs seriously, then we need to see jurisdiction as a way of distributing legal power.

What are you most looking forward to about returning to Allard Law?

The people! Doctoral and post-doctoral studies offer a lot of time for thoughtful introspection and big projects, but not a lot of community. It will be invigorating to be part of such a dynamic faculty and to be engaged with such enthusiastic students.

What is the one thing that you would like the Allard School of Law community to know about you?

I come from a mixed ethno-cultural background and I am part of a diverse extended family. One part of my work tries to make sense of what diverse identities mean to people and how the law ought to encounter them. Another part of my work, however, is to join the project of building a diverse and inclusive community here at Allard School of Law. I want the Allard community to know that my door is always open to students and colleagues.