Anil Kalhan

Abstract:

In recent years, scholars have drawn attention to the myriad ways in which the lines between criminal enforcement and immigration control have blurred in law and public discourse. This essay analyzes this convergence in the context of immigration detention. For decades, courts and observers have documented and analyzed a wide range of detention-related concerns, including mandatory and presumed custody, coercion and other due process violations, inadequate access to counsel, prolonged and indefinite custody, inadequate conditions of confinement, and violations of international law obligations. With the number of detainees skyrocketing since the 1990s, these concerns have rapidly proliferated – to the point where some commentators resist the very term “detention” in this context as sanitized and misleading, masking quasi-punitive circumstances that approximate criminal “incarceration” or “imprisonment.” If convergence of immigration control and criminal enforcement more generally has given rise to a system of crimmigration law, as some observers maintain, then perhaps excessive immigration detention practices have evolved into a quasi-punitive system of immcarceration.

A recent report by Dora Schriro, a senior Homeland Security official, gives official imprimatur to crucial aspects of this picture, acknowledging explicitly that most detainees are – systematically and unnecessarily – held under circumstances inappropriate for immigration detention’s noncriminal purposes. In response, the Obama Administration has pledged reforms to reconstruct this regime as a “truly civil detention system.” This essay considers the possibilities and limits of these initiatives, which target excessive conditions of confinement but leave other excessive practices intact. Notwithstanding these proposed reforms, the expansion of existing enforcement initiatives means that the government will continue to detain noncitizens, in the words of its own head of Immigration and Customs Enforcement, “on a grand scale” – which may constrain its ability to dismantle many of the detention regime’s quasi-punitive features. While excessive detention conditions may well be tempered for many individuals, large-scale immcarceration seems here to stay for the foreseeable future.

Full article available here….

Symposium: Perspectives on Fundamental Rights in South Asia, Drexel Law Review, Vol. 2 No. 2 (Spring 2010):

Guest Editor’s Preface
by: Anil Kalhan | download this article (pdf)

This symposium issue of the Drexel Law Review marks the anticipated launch of a new section on Law and South Asian Studies of the Association of American Law Schools, including several contributions that were initially presented during a session of the proposed section at the AALS Annual Meeting for 2010. The proposed AALS section comes at a moment of heightened interest in the region among lawyers, policymakers, and the public at large in the United States, and is part of a rapidly growing constellation of scholarly initiatives on law in South Asia that have emerged internationally in recent years.

Foreword: World of Our Cousins
by: Marc Galanter | download this article (pdf)

Most of the people who live under some version of the common law today live in South Asia, as do a large portion (perhaps a majority) of those who live under a working constitutional democracy. Nevertheless, until very recently this part of our world was quite invisible to the American legal academy and profession. It is a pleasure to introduce this symposium, apparently the first of any mainstream American law review to focus on South Asian law. Its appearance is one of several markers that the neglect of South Asia by American law schools is being left behind.

The Substance of the Constitution: Engaging with Foreign Judgements in India, Sri Lanka, and South Africa
by: Shylashri Shankar | download this article (pdf)

The last two decades have seen an expansion of judicial power in developing and newly democratizing countries across the globe. The enhanced role for the judiciary, which some scholars have categorized as a “juristocracy,” has accompanied a dialogue or at least a tendency for judges to look beyond their national borders at other courts for assistance in resolving difficult national, legal, and political disputes. The Supreme Court of Pakistan has drawn on the rationale of India’s apex court to support public interest litigation, while India’s courts have referred to judgments from South Africa, the United States, Canada and the European Convention on Human Rights (ECHR) to argue for a right to life with dignity. Such engagement with foreign laws has provoked criticism from influential judges like Justice Antonin Scalia of the U.S. Supreme Court for eroding national sovereignty and even imposing foreign interpretations on culturally contextual national issues.

No Justice, No Peace: Conflict, Socio-Economic Rights, and the New Constitution in Nepal
by: Elisabeth Wickeri | download this article (pdf)

One day after the signing of the November 21, 2006 Comprehensive Peace Accord (CPA) between the Nepali government and the Communist Party of Nepal (Maoist), Kathmandu’s The Himalayan Times editorial board declared, “Nepal has entered into a new era of peace, democracy and governance.” The CPA formally ended the more than ten-year conflict waged by Maoist insurgents since 1996. Over the next thirteen months, a new interim constitution was adopted, the royal family’s property was nationalized, and a republic was declared, dissolving the world’s last Hindu royal kingdom. National elections were held the following year. For hundreds of thousands of Nepalis, peace was a welcomed change. In the southern plains and hill regions, where much of the guerilla fighting had been concentrated, farmers were finally able to return to work.

Uterine Prolapse and Maternal Morbidity in Nepal: A Human Rights Imperative
by: Payal Shah | download this article (pdf)

In 2008, the Supreme Court of Nepal recognized what maternal health advocates in Nepal had known for decades: the status of reproductive health of women in Nepal is in a serious state, and it is also clear that no plan has been made to address this problem. In the present context, there are approximately six hundred thousand women suffering from the problem of uterus prolapse and it is also evident that no preventive or remedial programs focusing on problems relating to reproductive health and uterus prolapse have been initiated. The Supreme Court’s proclamation in this case, Prakash Mani Sharma v. Government of Nepal (Sharma), marked the first time that a legal body, international or national, has recognized explicitly that a high incidence of uterine prolapse may constitute a violation of human rights, including specifically women’s reproductive rights.

The Jammu and Kashmir State Subjects Controversy of 2004
by: Sehla Ashai | download this article (pdf)

In 2004, the Jammu and Kashmir Legislative Assembly passed the Jammu and Kashmir Permanent Residents Disqualification Bill (the “Disqualification Bill”), which proposed that women who married nonstate subjects could no longer claim state subject status and would thereby lose both preferential treatment in government hiring and the ability to acquire new property in the State. Various political actors decried the Disqualification Bill’s violation of Kashmiri women’s fundamental rights under the Indian Constitution, while proponents of the Disqualification Bill issued apocalyptic pronouncements about the end of constitutionally guaranteed autonomy for Jammu and Kashmir if the Disqualification Bill failed to pass. Arguments for and against the Disqualification Bill fell largely along the lines of a false and dangerous dichotomy, casting feminism and Kashmiri autonomy as inherent opposites.

Political Censorship and Indian Cinematographic Laws: A Functionalist-Liberal Analysis
by: Arpan Banerjee | download this article (pdf)

India produces more motion pictures than any other country. Indian cinema is synonymous with the extravagant musicals of “Bollywood,” a portmanteau word that the Oxford English Dictionary credits the British detective novelist H.R.F. Keating with inventing. There also exists a parallel arthouse genre of Indian cinema. Internationally, the most well-known proponent of the latter school is probably the late Bengali director Satyajit Ray, whose many laurels include an honorary Oscar for Lifetime Achievement. Throughout history, these two divergent cinematic schools have shared an unfortunate common characteristic—that of rigorous state censorship.

Drexel Summer Theory Institute

About the Institute

The Drexel Summer Theory Institute is a new initiative for 2010 for Drexel students with public interest law internships in the greater Philadelphia area. The Institute is modeled on a similar program established by two public interest lawyers, Nisha Agarwal and Jocelyn Simonson, for Harvard law students with public interest internships in New York City. Institute Fellows will meet with the facilitators one evening a week to discuss works of social and critical theory as they relate to the Fellows’ public interest work. Although the conveners will seek to tailor the readings to the interests of the group, some examples of the kinds of thinkers we might engage with include Michel Foucault, F.A. Hayek, bell hooks, Martha Nussbaum, and Pierre Bourdieu.

The Summer Theory Institute will involve a significant but not overwhelming commitment on the part of the Fellows. The Fellows will be asked to attend all ten evening sessions, prepare for each meeting ahead of time, write short response papers to the readings, participate in the discussions, and lead one week’s discussion. If feasible, we may also arrange a joint session or event towards the end of the summer in New York with our counterparts from the Harvard program.

The goal of the Institute is to provide a space in which students can think critically about and reflect more deeply upon their everyday experiences practicing public interest law, using social theory as a lens through which to do so. Working together to think through the role that social theory can play in legal practice and activism allows the Fellows to engage more meaningfully with their organizations’ methods of pursuing justice on a day-to-day basis. By creating the space to discuss larger theoretical concepts outside of the work environment, the Institute enhances the Fellows’ senses of the potential for intellectual rigor and personal fulfillment in public interest work. The Institute also aims to foster a community of leaders who will bring their enthusiasm for pursuing social change through the law back to the Drexel community at the end of the summer.

How to Apply

If you are a 1L or 2L interested in becoming a Fellow in the Drexel Summer Theory Institute, please submit a statement of interest by April 26, 2010. Statements of interest should be emailed to dsti2010 [at] kalhan-dot-com. In your statement of interest, please explain:

1) Your anticipated internship plans for the summer;
2) Your interest in the Summer Theory Institute.

No prior experience with social or critical theory is necessary to participate. Instead, we are looking for a group of Fellows who are excited about public interest work and open to thinking in innovative and sometimes critical ways about that work. Fellows must be located in the Philadelphia area for the full ten weeks of the Institute.

About the Conveners

The 2010 Drexel Summer Theory Institute will be convened and facilitated by Umbreen Bhatti, Anil Kalhan, and Blair Thompson ’11.

Umbreen Bhatti is the Staff Attorney at the American Civil Liberties Union of Delaware, where she conducts litigation and non-litigation advocacy on a broad range of civil liberties issues, including free speech, religious liberty, racial justice, privacy, students’ rights, prisoners’ rights, and police misconduct. Umbreen is the Delaware State Bar Association’s Roxana C. Arsht Fellow, a Fellow of the American Muslim Civic Leadership Institute, and a member of the board of Public Allies Delaware. Prior to joining the ACLU, Umbreen was an associate in the Washington, DC office of Latham & Watkins, LLP.

Anil Kalhan is an Associate Professor of Law at Drexel University, where he has taught immigration law, criminal law, First Amendment, and comparative constitutional law. He is an affiliated faculty member at the South Asia Center at the University of Pennsylvania and serves on the board of directors of the South Asian Bar Association of New York, the council of advisors for South Asian Americans Leading Together, and the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He previously has worked at Cleary Gottlieb, Steen & Hamilton, where he served as co-coordinator of the firm’s immigration and international human rights pro bono practice group, and the ACLU Immigrants’ Rights Project.

Blair Thompson is a second-year law student at Drexel University. Since starting law school, she has been an intern at the Juvenile Division of the Public Defender in Baltimore, the Juvenile Law Center in Philadelphia, and a co-op student at Philadelphia Legal Assistance. Before law school, Blair taught in Hong Kong and in Cape Town, South Africa, where she implemented a program in high schools involving group discussion of classical texts. She graduated from St. John’s College in Annapolis, Maryland where she studied philosophy and the history of math and science.

Questions

Questions may be directed to the conveners at dsti2010 [at] kalhan-dot-com.

Links:

• Harvard Summer Theory Institute – Overview
• Harvard Summer Theory Institute – Final Report for 2008
• Harvard Summer Theory Institute – Final Report for 2009
• Nisha Agarwal & Jocelyn Simonson, Thinking Like a Public Interest Lawyer: Theory, Practice, and Pedagogy, 34 N.Y.U. Rev. L. & Soc. Change __ (2010)

Call for Papers – Drexel Law Review Symposium on Law and South Asia:

The Drexel Law Review is pleased to announce a symposium issue focusing on law and policy in South Asia to be published during Spring/Summer 2010. We invite the submission of articles, essays, and book reviews on any topic related to law or public policy in one or more countries in South Asia, including Afghanistan, Bangladesh, Bhutan, Burma/Myanmar, India, Iran, Maldives, Nepal, Pakistan, Sikkim, or Sri Lanka.

Submission guidelines:

• There are no minimum or maximum length requirements for submission, but we encourage submissions ranging between 10-65 journal pages (between 3,000 and 20,000 words, including text and footnotes). We encourage authors to target the lengths of their submissions to this range.
• Please include with your submission (1) a short cover letter explaining your interest in publishing in the symposium issue and the scholarly contribution that your article makes, and (2) a curriculum vitae.
• Articles should be fully supported and citations should conform to The Bluebook: A Uniform System of Citation (18th ed.) (http://www.legalbluebook.com)
• We accept Adobe PDF or Microsoft Word submissions, but authors should be prepared to use Microsoft Word 2003 or 2007 during the editing process.

Submissions should be sent by email to lawrev@drexel.edu, with the subject heading: 2010 Symposium Submission. In the email, please include your name, institutional affiliation, email address, postal address, and phone number.

Please direct any questions to the Symposium Editor at lawrev@drexel.edu.

Submission deadline: Submissions will be accepted and reviewed on a rolling basis through December 31, 2009.

For more information about the Drexel Law Review visit:
http://drexel.edu/law/lawreview

Inquiries should be directed to the Symposium Editor at lawrev@drexel.edu.

http://www.thefacultylounge.org/2009/11/call-for-papers-articles-essays-and-reviews-about-south-asia.html

From the Leitner Center for International Law and Justice at Fordham Law School:

Land access, land tenure security, and related land rights are fundamental bases for the right to an adequate standard of living and are tied to the indigenous, ethnic, and cultural identities of peoples. Yet the problem of landlessness is growing worldwide: A quarter of the world’s population is landless. In Nepal, estimates suggest that over half the population is functionally landless.

For two weeks beginning May 9, Fordham Law School Professors Elisabeth Wickeri, Martha Rayner, and James Kainen will lead a delegation including eight law students on an overseas project to investigate and document the impact that inadequate access to land has on the rights of landless and land-poor people in Nepal, a country of 29 million in South Asia where landless people are disproportionately indigenous, of lower castes, and are women.

The Leitner Center delegation will document the impact that inadequate access to land has on human rights, including the rights to housing, food, water, and political participation. The delegation will also examine the evolving legal framework for landless people to secure their rights in a country emerging from ten years of conflict.

Professors Wickeri, Rayner, and Kainen will be joined by two additional human rights experts, Professors Anil Kalhan and Aoife Nolan. The Fordham Law School students participating in the documentation project are Crowley Scholars Amal Bouhabib, Corey Calabrese, Millie Canter, Benjamin Goldstein, Ganesh Krishna, Noushin Ketabi, David Mandel-Anthony, and Amisha Sharma. The delegation is happy to be working with the Kathmandu-based Community Self-Reliance Center.

The delegation will conduct wide-ranging interviews with members of the government, the judiciary, academics, lawyers, non-governmental and inter-governmental organizations, land rights organizers, men and women in rural landless communities, landlords, and local leaders whose expertise will inform a deeper understanding of the issues.

The delegation spent the spring semester studying human rights and Nepali culture and history. Following the fieldwork, the Leitner Center will publish a report of their findings which will be distributed in Nepal and internationally.

The Leitner Center for International Law and Justice at Fordham Law School promotes teaching, scholarship, and advocacy in the field of public international law. The Center sponsors programs designed to prepare law students for work as human rights lawyers and seeks to have a real and measurable impact on the level of respect for international human rights standards.

Contact: Elisabeth Wickeri
Email: wickeri@law.fordham.edu
Website: http://law.fordham.edu/Leitner.htm

Now available on SSRN:

This Article proposes privacy as a descriptive and normative framework to analyze the constellation of recent initiatives to expand interior enforcement of federal immigration laws. By expanding the circumstances in which individuals are expected to demonstrate their lawful presence in the United States, these various initiatives seek to transform the significance of immigration and citizenship status in day-to-day life from something largely invisible and irrelevant to something visible and salient in a variety of settings. This transformation, however, carries underappreciated social costs. Building upon scholarship theorizing privacy as protecting a set of social or structural interests, and using the Supreme Court’s decision in Katz v. United States as a conceptual starting point, the Article argues that recognizing and protecting immigration and citizenship status privacy in certain contexts serves valuable social purposes. While the Fourth Amendment itself may ultimately establish a weak constraint against interior enforcement, in other contexts courts and state and local governments have increasingly recognized and protected privacy interests in immigration and citizenship status in precisely these structural terms. Although these responses represent only a partial solution to the privacy-related harms that may arise from expanded interior enforcement, they contribute to a public conversation that may recognize more directly the social value of preserving zones in society in which status remains invisible, irrelevant, and private.

Your Call, Jan. 2, 2008 – Pakistan After Benazir (KALW 91.7 FM)

What has been the fall-out of Benazir Bhutto’s assassination? On the next Your Call we speak with a panel of South Asians about the events since the bomb in Liaquat National Park. Bhutto’s 19-year-old son has been pushed to the helm of the Pakistan People’s Party. President Musharraf says elections will be delayed until February but can the weakened Musharraf stay in power until then? The United States has had close involvement in the politics of Pakistan for nearly four decades: what role should it play now? It’s Your Call, with Sandip Roy and you.

Guests:
Anil Kalhan in New York
Visiting Professor of Law at Fordham University Law School

Sharmeen Obaid in Pakistan
Documentary filmmaker and reporter who has covered the aftermath of terrorism’s rise in South Asia

Ahmed Junaid in Williamsburg, VA
Author and a leader in Pakistan’s expatriate community of liberal Muslims.

Click to Listen: Pakistan After Bhutto