On an Ordinary African-American Citizen Negotiating Voting Rights and Voter Intimidation in Ohio 2012
On an Ordinary African-American Citizen Negotiating Voting Rights and Voter Intimidation in Ohio 2012
Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law
I thank the Cardozo Journal for Conflict Resolution for the opportunity to present at the November 5, 2012 Symposium, “Negotiating the Extremes: Impossible Political Dialogues in the 21st Century.” This article builds on my presentation about my experience at a voter integrity group named True the Vote meeting at its Ohio Summit on August 25, 2012 and subsequently. As I have reflected on that experience it seemed that it might be useful to examine that experience through four lenses. First, I tell the personal story. Next, I reframe the experience in terms of negotiation theory with regard to difficult conversations. In making that reframing, it did occur to me that the negotiation theory analysis I was doing might be well informed by recent work on explicit bias, implicit bias and stereotype threat that could have been a second order frame around the negotiation. Third, given the positive and negative reactions to me in that space over that day and in subsequent events, I was drawn back again to Derrick Bell’s work on interest convergence theory. Fourth, with these three strands operating as the ordinary citizen experiencing a kind of dissociative moment that led to a certain galvanizing of my own activity, I was brought back to the work of Francesco Alberoni’s on how movements get started and in particular a person reaches what he terms the nascent state, seeks affinity with others and movement and institution were also relevant. Through these four lenses, I hope to assist reflection on a manner of thinking about negotiating extremes in settings of impossible political dialogue. Part II of this paper provides a version of the events that happened at the public meeting. Part III looks at those events from the point of view of negotiation theory. Part IV adds to the negotiation theory vision a look at the events in terms of explicit bias, implicit bias and stereotype threat theory. Part V builds on the above to examine the events in terms of interest convergence theory. Part VI draws on the previous parts to understand the events as generating the nascent state in Alberoni’s work. Part VII is a summary and conclusion.
On April 10, 2013, the Cardozo Journal of Conflict Resolution presented its 13th annual International Advocate for Peace (IAP) Award to Jimmy Carter, 39th President of the United States. In a packed Moot Court Room of 250 students, faculty, and alumni, President Carter delivered an address entitled “America as Global Mediator.” He discussed his career mediating international conflict, beginning with his time in the Oval Office and extending to his current work at the Carter Center.
Each year, the Journal gives the IAP Award to an individual with a lifetime commitment to peacemaking. That person is generally someone who embodies the principles of creative, tenacious problem-solving that Cardozo’s Program for Conflict Resolution teaches its young lawyers. The Symposium Editors and Symposium Assistants are charged with the selection of the IAP speaker, in consultation with the Executive Board (the Editor-in-Chief, Executive Editor, Senior Articles Editor and Senior Notes Editor). In recognizing the controversial nature of some of President Carter’s views on international issues and the unique sensitivity that those views pose to our University community, the Journal would like to note that the decision to invite President Carter does not reflect the views of every member of the Journal, nor of the University itself. Like all IAP awardees, President Carter was honored for his lifetime of achievements in and dedication to conflict resolution, not his opinions on any single issue.
During his time in office, President Carter oversaw significant foreign policy accomplishments, including the Panama Canal treaties, the Camp David Accords, the treaty of peace between Egypt and Israel, the SALT II treaty with the Soviet Union, and the establishment of U.S. diplomatic relations with the People’s Republic of China.
After leaving office, President Carter and his Carter Center have engaged in conflict mediation in countless regions, including Ethiopia and Eritrea (1989), Bosnia (1994), the Great Lakes region of Africa (1995-96), Sudan and Uganda (1999), Venezuela (2002-2003), Nepal (2004-2008), and Ecuador and Colombia (2008). The Carter Center also works to ensure consistency and reliability of democratic decision-making through its election monitoring programs. Those programs have overseen 94 elections in 37 countries. His other humanitarian achievements include pioneering new public health approaches to controlling devastating diseases in Africa and Latin America; leading a coalition that has reduced incidence of Guinea worm disease from an estimated 3.5 million cases in 1986 to fewer than 1,100 today; and shining light on human rights abuses in countries around the world.
President Carter’s post-presidential peace-building efforts were recognized in 2002 when he was awarded the Nobel Prize “for his decades of untiring effort to find peaceful solutions to international conflicts, to advance democracy and human rights, and to promote economic and social development.” He is the only American president to receive the Nobel Prize for work done primarily after his time in office.
Previous winners of the Journal of Conflict Resolution’s IAP Award have included President Bill Clinton, Ambassador Richard Holbrooke, Senator George Mitchell, Archbishop Desmond Tutu, Ambassador Dennis Ross, economist Jeffrey Sachs, General Amira Dotan, and playwright Eve Ensler.
The Cardozo Journal of Conflict Resolution proudly presents “Secret Courts? The Delaware Court of Chancery Arbitration Experiment.” Register here: http://goo.gl/jpo9R
Thursday, February 7, 2013
6:30 p.m. – 8:30 p.m.
Reception to Follow
Cardozo School of Law
Moot Court Room
55 Fifth Avenue at 12th Street
New York, NY 10003
You’re invited! On Monday, 11/5, Cardozo Law School’s Journal of Conflict Resolution will present its Annual Symposium entitled “Negotiating the Extremes: Impossible Political Dialogues in the 21st Century.” Despite the weather, we are moving full-steam ahead with this thought-provoking look into the intersection of ADR and polarized politics — all on the day before the 2012 election. The event is open to the public. Fabulous food and cutting-edge debate in election law, civil discourse, and the state of democratic dialogue.
Note that the event offers 1.5 CLE credits per panel. All events are in the Lobby and Moot Court Room:
CLE Articles for Attendees
Schedule of Events
Breakfast and Check-in: 9:00 – 9:30 a.m.
Opening Statements: 9:30 – 10:00 a.m.
Brian Farkas, Editor-in-Chief, Cardozo Journal of Conflict Resolution.
Dean Matthew Diller, Dean, Cardozo School of Law.
Professor Lela Love, Director, Kukin Program for Conflict Resolution, Cardozo School of Law.
Panel I: 10:00-11:30 a.m. Practical Examples of Promoting Civil Discourse
This panel will discuss examples from the United States and abroad of implementing ADR processes to promote public discourse. Panelists will explore approaches used to successfully resolve the most polarizing political debates.
Brad Heckman, (Moderator) Chief Executive Officer, The New York Peace Institute.
Ben Davis, Associate Professor, The University of Toledo, College of Law.
C.T. Butler, Author and Mediator.
Lunch and Mingling in Lobby: 11:45-12:45 p.m.
Panel II: 1:00-2:30 p.m. Civil Discourse: the Israel/Palestine Conflict
This panel will discuss the landscape of the Israeli/Palestinian conflict and focus on the use of ADR processes for facilitating conversation and useful political dialogue.
Moderator: Lela Love, Director, Kukin Program for Conflict Resolution, Cardozo School of Law.
David Matz, Professor, University of Massachusetts-Boston.
Muli Peleg, Visiting Scholar, Columbia University.
Michael Tsur, Adjunct Professor, Hebrew University, Hamline University and Cardozo School of Law.
Panel III: 2:45-4:15p.m. Civil Discourse: the United States
In 1860, on the eve of the Civil War, President James Buchanan famously praised the “noise of democracy.” In 2012, our democracy has never been noisier. This panel will examine issues of civil discourse and decision-making in America in light of the current polarized political environment.
Moderator: Richard Reuben, Professor, University of Missouri Law School.
Susan Podziba, Public Policy Mediator.
Joel Gora, Professor, Brooklyn Law School.
Howard Bellman, University of Wisconsin Law School/Marquette University Graduate Program in Dispute Resolution.
Joshua Douglas, Assistant Professor, University of Kentucky College of Law
Keynote Speaker & Closing Remarks: 4:30-5:30 p.m.
Speaker: Jo Berry, Founder, Building Bridges for Peace
Closing: Brian Farkas, Editor-in-Chief, Cardozo Journal of Conflict Resolution
Reception: 5:30-6:30 p.m., Law School Lobby
To register, visit http://goo.gl/bHU7u.
Questions? Contact Brian Farkas at firstname.lastname@example.org.
Yonatan Tammam, Notes Editor for the Journal of Conflict Resolution, recently co-authored an amicus brief for the United States Supreme Court through the Benjamin N. Cardozo School of Law Tax Clinic. The brief urges the Court to find that equitable tolling applies in a Medicare case and advising it that its decision will have implications for equitable tolling in the tax arena.
When parties agree to arbitrate rather than litigate a dispute, one of the shared goals is obtaining a decision that is final. However, once a decision has been reached, the dissatisfied party may abandon this goal and seek to vacate the award in court. “The Vacating of Arbitration Awards – Fact or Fiction?”, presented by Hon. Wayne R. Andersen and Hon. Julia M. Nowicki at the American Bar Association (ABA) Annual Meeting in Chicago, August 3, 2012, sought to explore issues that arise when judges are faced with these motions to vacate. I was fortunate enough to attend as a representative of the Journal of Conflict Resolution. The discussion began with a general description of the judiciary’s attitude toward confirming court-challenged arbitration awards. The panelists highlighted the deferential nature of the federal statute governing vacating arbitration awards, but also noted an institutional bias towards confirming such awards due to judicial workload. (If you vacate, you will most likely be assigned the case!*). The judiciary also recognizes the specialized knowledge of industry subject matter possessed by arbitration panels, compared with judges. Most in attendance were practicing arbitrators or attorneys, so the panelists tried to focus on what could be done to ensure an award would be confirmed if challenged. (8/14/12: The panelists would like to clarify that these comments were made tongue-in-cheek and judicial workload is not actually a factor when making such decisions).
If the arbitration panel denied either party the right to a fair hearing, it could be a basis for vacatur. “The essence of arbitration is the parties’ right to a hearing,” commented Judge Andersen. The judge further commented that “it would be a very good hook” in a motion to vacate to point to evidence that an arbitrator had not allowed in during the proceeding. Judge Nowicki added that in her experience as a prosecutor, she may have held objections to defense counsel entering certain evidence in order to “seal up the decision.” The strategy, of course, was that the defense could not then argue that they had not been able to put their best case forward. Some arbitrators, such as those qualified by the American Arbitration Association (AAA), are required to conclude proceedings by asking both parties to verify that they have had an opportunity to present their respective cases. Others will conclude by verifying that each party has had the opportunity to introduce all evidence each felt was relevant.
Following this reasoning, both panelists agreed that arbitrators should be reluctant to grant partial dispositive motions during proceeding. Stuart Widman, a litigator/arbitrator at Miller Shakman & Beem LLP of Chicago who was in attendance, commented that the standard for these motions— whether there is a genuine issue of material fact—is not a bright line rule. Therefore if an arbitrator were to grant such a motion, the attorney would expect an extremely detailed opinion. Judge Nowicki agreed; any stipulation of fact must be crystal clear to ensure that the arbitrator “will not hear a peep” of objection from either party thereafter. This raised interesting issues regarding what written opinions the parties should request from the arbitrator at the outset of the proceeding. If finality is the goal of the arbitration, does one really want a thoroughly reasoned award? The answer could easily be no. The longer and more detailed the opinion, the more exposure to a smart lawyer that will be able find questions to raise in a motion to vacate.
Some parties will agree to merely have the arbitrator “check a box” at the conclusion of the proceeding, and not provide a reasoned judicial-style opinion regarding the decision made. Judge Nowicki pointed out that the problem with these short decisions is always that the losing party’s attorney will be unable to explain to their client why they lost. All agreed that one of the most important parts of the arbitration is having the parties agree as to exactly what the questions the arbitrator is expected to answer, and how. This protects the award from challenges based on the arbitrator exceeding his powers.
— Lucy Martucci, Notes Editor
The Cardozo Journal of Conflict Resolution is proud to announce the selection of our full 2012-13 Editorial Board and Staff:
3L Editorial Board:
- Editor-in-Chief – Brian Farkas
- Executive Editor – Sam Markowitz
- Senior Articles Editor – Mathew Maggiacomo
- Senior Notes Editor – Simeng Han
- Symposium Editor – Kelley Chubb & Victoria Pagos
- Articles Editors – Jordan Hook, Louise Loeb, Erica Schwartz, Joshua Weiss
- Notes Editors – Lucy Martucci, Donna Salcedo, Yonatan Tammam, Aviva Vogelstein
- Submissions Editor – Christian Conti
- Business Editor – Daniel Levey
- Associate Editors – Kyle Epstein, Marissa Lewis, Carlos Quintana, Ted Slevin
2L Staff Members:
- Jessica Abramson
- Shira Alenick
- Emily Belfer
- Shawna Benston
- Perri Birnbach
- Ryan Casden
- Ross Clements
- Mark DeAngelis
- Karina DuQuesne
- Arielle Foni
- Allyson Fuchs
- Michael Galen
- Ariel Greenberg
- Avi Guttman
- Amanda Hamilton
- Annmary Ittan
- Evan Kass
- Scott Kestenbaum
- Jordan Klein
- Jessica Marshall
- Jessica Mayer
- Morgan Molinoff
- Madelyn Morris
- James Ng
- Elyse Patterson
- Yale Robinson
- Jessica Rubenstein
- Ilana Shapiro
- Eric Slepak
- Weiqi Tang
- Steven Tremblay
- Kerry Van Schoyck
- David Weitz
- Kyle Winnick