All first-year law students take contracts, where they learn about offer and acceptance and what makes a legally enforceable agreement. But what can contract theory tell us about police violence against black people in the United States?

Author: Marissa Jackson Sow, Assistant Professor of Law, University of Richmond School of LawHost: Taylor GrahamTechnology Editors: Hiep Nguyen (Volume 111 Senior Technology Editor), Taylor Graham (Volume 111 Technology Editor), Benji Martinez (Volume 111 Technology Editor)Soundtrack: Composed and performed by Carter Jansen (Volume 110 Technology Editor)

Article Abstract: There exists a substantial body of literature on racism and brutality in policing, police reform and abolition, the militarization of the police, and the relationship of the police to the State and its citizenry. Many theories abound with respect to the relationship between the police and Black people in the United States, and most of these theories rest upon the basic assumption—undergirded by constitutional, civil rights, and human rights law—that Black people in the United States are entitled to due process and equal protection when they are in contact with the police or other law enforcement officers.

This Article uses critical contract theory and the theory of Whiteness as Contract to challenge that basic assumption and instead advance the claim that the mandate that police “protect and serve” does not apply to Black people, notwithstanding the provisions of constitutional and statutory law, because Black people are the objects of racial contracting rather than participants therein. The police are charged with protecting the racial contract and serving the contract’s signatories; accordingly, they enforce the contract’s terms, requiring them to specifically target Black people for surveillance, harassment, deprivation, and even death, lest the contract be subject to breach or other interference.