This podcast episode accompanies the article from Professor Marissa Jackson Sow: Protect and Serve.

Transcript

Speakers: Taylor Graham, Marissa Jackson Sow

0:01

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? Welcome to the California Law Review podcast. Our goal is to provide an accessible and thought provoking overview of the scholarship we publish. Today we will be discussing protected serve a piece by University of Richmond School of Law Professor Marisa Jackson Sow, published in issue 3, volume 110, June of 2022. Professor, thank you so much for taking the time to talk with us today about your article.

0:41

It thank you for taking the time to give me this opportunity and platform to discuss it with you. It's a real pleasure.

0:46

So to begin with, can you summarize your main argument in the space? Absolutely.

0:50

I mean, so the piece is called Protect and Serve. And it's a sort of an obvious play on the sort of mainstream model of police in America. And you know, there's a sort of headache, the hagiography of policing is sort of the, you know, the guy who was like, maybe a little chubby, and who likes doughnuts and helps old ladies share their groceries across the street. And it's not that that doesn't exist. But there's also a problem. If you are, you know, a marginalized person, your experience with policing is a lot different. And you may feel that you are neither protected nor serve. So this paper seeks to sort of break down where where that gap is, and it makes the case that no police always have protected and serve and they are protecting and serving. But the question is a question of what the police are protecting and serving. And so there's a history of protecting property, and then protecting this idea of order. And I think the problem for marginalized people is that we have a legacy of both being property and because we are still thought of as property, we are often considered to be out of order. So that is why we suffer over policing over surveillance and brutality.

2:08

And what was it that motivated you to write this article living

2:10

in New York, it's serving in New York City government, specifically, so I live in Baltimore now, and I left on June 7, June 7 2020. So there's two things going on the pandemic. And I was living in the South Bronx with my family. And it was, of course, this now notorious crackdown that, you know, Human Rights Watch has issued reports on happening literally above my building, my apartment building, and my husband was an essential worker. And I had every time he went to work at night, I had to fear for his life, because there was a risk that he would be Billy clubbed and beaten, you know, or suspected of being a US Civil Rights protester, by the police. And so after footage started to emerge, of the police, really rough roughing people up, my own former Boston Mayor sort of taking like not doing enough, in my view, to protect people's civil liberties. I just started to really look at it not just from a personal perspective, but then from an academic research perspective.

3:18

It seems like in this country, there is a growing understanding that race and whiteness specifically are not biological, but are constructed through law and policy. And your piece uses the concept of whiteness as contract and critical contract theory to describe this process of constructing and maintaining whiteness and racial capitalism. Can you describe these terms and outline how this process works? To as you right premise the benefits of citizenship of some upon the deprivation of others of those same benefits?

3:46

Yes, absolutely. So the tricky thing about race is that it's not biological, but of course, it's biology dies, right? It has to be woven into biology in order to perpetuate itself. But but it is a system. It's a political and legal system, like racism, legal designation. So I have one of my best friends is considered black in the United States. But in her native country of Zimbabwe, she's actually considered colored. Right. And so it's, it's about, you know, how in this country, the US Census Bureau Bureau decides to break things down. It's about what you know, in the in the mid 19th century, what the US Supreme Court said, right, whether you could be white or not the impact of those decisions, right? I mean, if I'm thinking about that, that string of cases we're not the people who we now understand to be non white in the US context, said no, please let me be white. And it's like, well, why? Well, because if I am white, I can vote I can become a citizen. I and if I can vote and be a citizen, then that means there are all these other material benefits. There's all these other economic assets that become available to me. And of course, if you don't have those civil, civil and political rights, then you also don't have the economic, right and social capital that comes with it. So there is this clear line between, right, this clear connection between whiteness, and access to capital, but also the ability to join together with other fellow citizens and contract and negotiate a political future. visa vie voting and, you know, lobbying for policy, outcomes, etc. So when we talk about racial capitalism, we're talking about, you know, an economic system that privileges certain racial groups over others. But I also like to look at it another way, I think of the I think of the capital first, right? So if you have a capital, you are at the top of society, right? You are, like class at the top of society. And then we attribute race to those to those classes. So that to be non white means that you are necessarily part of an underclass, and then it's about where you fall, right? How close to blackness Are you on the on that totem pole, but then also within whiteness? And I don't talk about this in this paper, but there's a paper I'm working on right now, we talk about the classing of white people. Right? Are you Western European? Or are you more of the Off White? Eastern European, right? And what does that mean? Even within the fraternity of whiteness, you there's a minimum guarantee of rights and possibilities for you. But at a minimum guarantee of protections under law enforcement, importantly, right. But you still may not have as much power to negotiate. Let's say, if you're Ukrainian, you're self defense, as if you are a NATO state.

6:47

So turning to the role of police, can you tell us about the origins of policing in the United States?

6:53

That's a good question. Can I tell you, and I say it that way, because there are multiple histories of policing. Right? And it all depends on what your understanding of what policing is, or what policing is meant to be. So for the purposes of this project I focused on there's a southern legacy of policing that sort of originates in slave condition to slave patrolling. Where there The goal was to protect the property right of the of the of the planter class, and that property was what's enslaved people. And so you're trying to sort of make sure that enslaved people are not running away. And when they run away, you bring them back. But there's also a second history, there's a history of modern, or more contemporary, northern policing that kind of has been traced to 1838. Boston. It is also racialized, right? It's this idea that there are all of these, as I call like, off white immigrants coming to northern cities, and the more established settler class, felt threatened by them, and really wanted to have a mechanism of rounding these folks up and containing them. And that mechanism became sort of more emboldened and more, there was more incentivized once slavery, right, was abolished. And it wasn't just, you know, poor European immigrants that were considered undesirable, but also now, newly freed people of African descent, who people were terrified of, and also didn't, we're not interested in sharing space with or competing for economic resources with

8:31

and when police commit violence against black people, a common response, I think we've heard recently is to point out that the system is broken. But you argue that the commitment of American police to protect and serve is in concert rather than in conflict with police abuse of black people. In other words, the system is working as it was intended to, can you describe for us the role police play in enforcing the contract your article describes?

8:54

Sure, race has a lot to do with place and space. Okay, so if this idea that if you are not white, not male, not sis, not perhaps Christian. Because race is also gendered. It's also class, right? As we talked about, that there are limitations. And there should be limitations on where you can be and what you should be doing. Some of those limitations are expressed and maybe articulated in law, loitering policies, etc. But many of them are tacit. Right. And so, I think we got a real we were getting a real contemporary example. That's not obviously racialized, but will have racial impacts with some of these abortion rulings that have been taking place over the last 10 months. So if if, you know, can you travel to get an abortion if you can't get one in your state? This question of bounty hunters, right, who can travel to find you, right? So, uh, I'm because we know that because of poverty and classing that people of color, black and brown indigenous woman are likely to be more vulnerable to those policies, those new laws. That's sort of an idea of how law enforcement works in terms of like, ordering place in space and ordering bodies and containing and detaining bodies to maintain order. Right. It's not just riots. But we also saw two or three years ago, this spate of video recordings of people rounding up black people for sitting in Starbucks, right? Why are you sitting in Starbucks? Shouldn't you be at home, or write situations where students, black students at colleges work had the police called on them for being in the library. And it's this idea that, well, you couldn't be a student at this university. So you must be out of place, and we need the police to come and put you back in your place. When Black people talk amongst themselves about being in their place, it's usually with this historical legacy of this idea of us being uppity. And so there's this, like, this vertical idea of black people couldn't get too high, and the sort of state and citizens would bring them back down. But I also like to think of it as sort of lateral right, if you leave your home, you are liable to be attacked by the police. And more frighteningly, you don't have to leave your home anymore. You can be bought some gene eating ice cream, you can be atatiana, Jefferson playing video games with her nephew. You can be Breanna Taylor, who was asleep. And because there's this idea that no matter where we are, we're not in the right place. We become susceptible to containment, detention elimination by the state through law enforcement.

11:51

And you know that in this in this role that police are playing that you're describing that the police themselves are not the contractors in this contractual relationship, but rather they are the tools for enforcing the contract, akin to modern day overseers who enforced the commercial contracts that effectuated the sales of kidnapping enslaved Africans through this lens. What do people hope to gain from becoming police officers? And what are they denied?

12:17

Hoping to gain a foothold in middle class Americana. Hoping to achieve a fuller swath of benefits of American citizenship, it is not by accident, that many police are ethnic, ethnic, like sort of ethnically, we know I've used this term off white people right to have this, this this racialized history of their own in New York City, right? It's about the being the Italian, the Irish cup. And we know that for a long time, those are groups of people who are not considered to be white, who were discriminated against for work and housing. And so by joining right, the police force, you have some economic security, you have some legitimacy, right? In the state you you as a professor, as a professional, professional, even though it's not white collar, right? There's this respect, is that your badge, you've got your uniform, you've got what again, your salary, your pension you can provide for your family. And so there is the kind of bargaining for that, that you're doing with the planter classes, right? The Wall Street folks who need their they need their peace and quiet so that they can do capitalism, that you're bargaining that okay, we will give you well, we'll let you make up to $200,000 a year with overtime, if you will just keep these black and brown and indigenous people quiet and out of our way. Because we as bankers, we want to look like cool, liberal, elite, non racist people, we don't want to get our hands dirty. So you have to get your hands dirty with the brutality. Keep them quiet, so that we can make our money. And we'll give you a little bit of that money. Right. And so I think that, you know, again, that's why I was saying even within whiteness, you have to pay attention to ethnicity and class to understand why there is this drive to not just maintain policing, but to actually join policing. Right. And so, once you started to see the sort of the civil rights, the Human Rights backlash, it makes police very, very frustrated, right? But not just because of this idea of having physical power questioned, you're actually questioning or challenging one's ability to have that place in American society to have that place on the totem pole of whiteness, that keeps them from falling below that minimum guarantee of security, ownership and contracting authority.

15:00

In your article you write at the role of policing to enforce this contractual relationship seeks to reduce black people's existence to that which is just human enough to fulfill the demand of their labor but not human, nor citizens enough to enjoy due process rights or the equal protection of law. Thus, the racial contract your outline your article outlines is informed by theories of racial formations and constructions of legal personhood. Why is this denial of personhood such a crucial ingredient in the construction and maintenance of the racial contract?

15:31

Because the contract is materially offered altered, if most poor black grocery workers, right, are able to negotiate the terms of what of their citizenship, right? That is, it's the idea like I was explaining, like with my husband, being an essential worker, like we didn't need him to get to work. We need him we don't, we don't care if he contracts COVID. And even if he does, we need him to go to work. Don't tell anybody, right, you get all these things like, don't tell anybody to get sick, just go to work. Now how you get to work, if you catch a beating from the police on the way to work. That's not our business. And as a matter of fact, we don't mind because it keeps you afraid enough that you won't, you know, make a huge stick, right. So you're going to just be as quiet as you can hop on the train as quickly as you can report to work or you know, put it get jump into your scrubs and get into get into your your job. If you have contracting authority, if you have time to show up to the polls, if you have time to organize, the contract is materially altered. So we do need police to be on the streets actually actively bullying people in order to sort of keep that down. And so I think that's why you saw that I described in the paper, these really absurd incidents of police actually just cruising around neighborhoods, and her you know, not harassing anyone in particular, just harassing the entire neighborhood. While in uniform while in police cruisers, right playing, you know, Trump like propaganda out of the cars in Flatbush. Playing the ice cream song, which is you know, laden with racial slurs, just it's just to remind people that we can kill you, we will make you miserable. Keep, you know, just literally keep quiet. You know, don't get any bright ideas about protesting or, you know, being on the street organizing a political revolution or something like that. Go to work, make money for the planters go home.

17:57

Returning to your central analysis, in the legal world, we would generally think that human and civil rights law are the best tools to analyze the issue of police violence against black people. But your article uses theories from contract law to address the issue. For listeners who might not be familiar with these terms. Could you describe what contract law is and why you chose to analyze these issues through that lens? Yeah,

18:20

Um, I have a long sort of professional history of human rights practice, and civil rights practice as well. I teach contracts. And I have found that there is I think the gap between private and public law is unnecessary and very harmful if you're trying to understand race. And if you're trying to understand gender, class, and things of that nature, those sorts of ways that we ordered people, because it lets private law get off scot free. And and private law and commercial law are ways that we have of ordering society that are often undetected. So I pay attention to the reason why I use contract law, as opposed to focusing primarily on human rights law is that I have come to view human rights law as like, while I believe in it, and I believe it should work. I think it's a foil. And it's sort of I look over here at these human rights conventions. And these gives you formal equality, while commercial law does all this dirty work. And so I really have devoted my research agenda to sort of bringing more of that up for people to say no, you actually need to look at contracts and how how contracts are used to determine who can access property and who can't. Because once you understand that, then you're able to understand why it is that the police or why it is the state does what it does. If you're looking primarily at human rights law, you will be perpetually stuck in that gap. Oh, If the law says this, and so the system has failed us, no system has not failed us. There's a provision in the UCC that allows sheriffs to go and get their property back. And there's a time, right. So the UCC is was written like way after slavery. But there was a time when we had an understanding of what that meant. I want to share if going back and getting their property that that meant a person that meant I meant old people. And so you want to sort of pay attention to the legacy of that and how commercial law and contract contracts have been constructed, what the the ways in which we understand contracting authority, contractual capacity, how all of those factors are informed by our history as a slave society, and as a society in which men have significantly more authority than non men. Right? And so, when I teach, when I teach my contracts class, that's the lens in which I teach all those cases where the in Re BBM v. Walker Furniture. I like we we actually get you and get into the facts of the cases, they look at the parties, right, like Lucy lady Duff Gordon and right, there's justice Cardozo's, you know, extremely sexist of, you know, sort of ruling about her and her capacity, that's a woman. What he said about her became law, and we now teach it to one else as a matter of course. And so that had that necessarily has an impact, and how we understand our right to negotiate, and maintain and protect capital, and then how those contracts, how those how those agreements are actually enforced and maintained. So because that plays such a big part in how we order our lives, and how we expect the property that we negotiate, negotiate to be protected. I think that's really critical to, to the discussion of law enforcement.

22:05

As a law student, I feel like I left contracts behind in the first semester of my first year of law school, but this was so this was such a, I mean, I think it's such an important research agenda, it was such a good wake up call, for me a reminder of the role that kind of law plays in our society. And so I really appreciate it that that move. Can you describe some of the ways that classical contract theory fails to account for the inequality and injustice in our societies? You did that a little bit here with your discussion of those cases, but I'd love you to expand on that.

22:34

This idea that everybody has equal contracting authority, and that when people don't, it's okay. And so I, there's actually a case that actually is often relegated to property classes called State vs man that I like to bring into my contracts classes, where it's a contractual dispute about subletting a slave, an enslaved woman, and whether the person who had the sublease was able to shoot was was was wrong for shooting the person to the inflame person. Right, because you're shooting the person, the the actual proprietors property. And, you know, students are like, whoa, whoa, whoa, starting the semester off with big energy? And I'm like, Well, yeah, we should teach more of those cases, because, you know, we're not always just talking about contracts of adhesion about furniture, and washing machines, and that have their own those have their own racial and gendered aspects. But here's an actual, this is an actual court case, where the courts are weighing in on, you know, whose contractual rights were breached. And what the court decides, actually, is law that is now the law of the relevant jurisdiction, I think, in this case, North Carolina. So I think that classical contract theory fails in that respect to account for the very fundamental role that racialized gendered, you know, ordering, play in the ability of people to participate in contracting and also ignores the fundamental role that contracting has played in actually sort of ordering. People like like the enslaved woman, Lydia, right. She was actually the consideration, like she was actually the object, she's the object being contracted. And until we have some really frank conversations in these casebooks in these classrooms about what that means, I think we're doing our serve our students a humongous disservice in their understandings of private and commercial law.

24:51

And your article proceeds to analyze this racial contract we've discussed and apply these concepts of contracting that that we've been talking about Through the use of oops, sorry, I got myself a little mixed up. Let me step back for a second. Your article proceeds to analyze this racial contract with disgust, which is maintained by the police and relies on the denial of black personhood through the use of these contract theories you described, can you outline this analysis for us?

25:21

Sure. Um, let's go back to the Starbucks scenario, right? If two guys coming in, and their real estate brokers, I think they were coming in to have a real estate meeting about or like a real estate transaction that they want to get into two young black men dress pretty casually as one is in Starbucks. And because they didn't like immediately order like venti green tea, frappuccinos, like, barista calls the tops of them and they're arrested. And, um, contracts obviously play a huge role there, right? It's this idea that if you don't engage in contract with Starbucks, like, like, you didn't actually give to hand your money over, you weren't supposed to be there, even though there is a tacit agreement in society that Starbucks is a watering hole. Right? So you got everybody's, everybody's in there, you know, some people are ordering one drinks, some people are ordering several drinks with refills, some people are just sitting down doing nothing, you know, you can go and start Starbucks by my house, and I'll probably go to right after we get off is there's a lady comes in with her daughter every day, and the daughter does origami. She's four. Right? And it's like, it's Starbucks. You know, like, that's, that's what it's about. But in this case, for whatever reason, right? I mean, I think I know the reason is, but because these guys are just sitting here, they were out of place, need to be put back in their place. And the cops were called on them, and they were arrested. Now, the irony is that they were in their right, trying to actually negotiate their own contracts. And the state steps in and actually interrupts that meeting. And of course, for all the reasons that we are all sort of tacitly aware, young people don't have as much space to like working like offices. And so when they're getting their businesses off the ground, they rely on, right, these kind of places of public accommodation, to do work, they can't all afford, we work in memberships, right? They are dead, right? They don't all and all members of the wings. And so sometimes they need to do their work and Starbucks. So you actually have a situation where the state came in, arrested them, put them at physical risk, actually could have imposed harm upon them, physical harm upon them. But also, right in the context that was at play here also stopped two black men from actually doing business with each other that would have ostensibly brought wealth into black communities that they were from. So that's like a real for me a real pertinent example. Another example, is Ryan Coogler. Right? The director, producer of Black Panther, young as well black, obviously, because of Black Panther, the Black Panther movie super rich now, right? He pulls up to Bank of America and Atlanta, I think it was Bank of America, and I hope I'm not defaming America. He pulls up and I think he had like, what a member of his like, he's like how staffer was and he was going to pay them, you know, their salary, and for whatever reason he needed to pay them in cash. So he goes to the bank, the bank with whom he has a contractual relationship. He's an account holder, but large account holder, he's Ryan Coogler. He goes up and he does what you're supposed to do when you need a large withdrawal. And you can't get it out of the ATM. Because I think it was like $12,000. So he writes a note he has his ID. He's like, I think the note says, Hey, I'm Ryan Coogler. Very famous. Can you like give me this withdrawal very discreetly. I don't want anyone to know I'm here. They call the cops. He's arrested. Now, the rub here is that the people call the cops on him. The employees of blank bank were also black. But right, they are part of this institution that has its own troubled history with using slave enslaved people as collateral and right making their money off of slavery. They call the police officers, police officers arrest him. He was actually trying to engage in contractual activity. He also he was actually a contract holder. And it just goes to show that when you are right, a person of color, even the contracts you have don't necessarily hold and the state is not actually working to enforce your contracts. They're interrupting interfering with your contracts all the time.

29:51

And finally, your article talks about how white people in this country are kind of the folks who are in a are able to contract too and allowed to contract while marginalized communities are often I guess, forced into these contracts relationships, but not beneficiaries of them. So could you describe to us, I guess what grounds marginalized people have to void the contract or the social contract that we've discussed.

30:21

I think black people do it all the time. I can only speak most authoritatively on black communities, because that's the community I'm most part of. We do it all the time. We try to create our own neighborhoods, we try to create our own banks, we try to create our own schools, our own we have our own churches. I don't think there's any of those sort of institutions or community entities that I've mentioned that haven't been breached by law enforcement in the past, right, whether it's through the like Tulsa race riots, or rosewood, where it's like, we're specifically going to destroy this community, because you're doing too well. And you're asserting independence. You're not supposed to be independent, we need you working for us. But also thinking about Emanuel AME, right Dylann Roof comes into the black church. hospitable people and like, let you in, you shoot us, right, you kill us. Buffalo going to the grocery store, you're going to engage in contract, not just because you need groceries for yourself, but those the only grocery store in that community as a food desert. And that's the community that that's the grocery store that fed that black community, and to have it be terrorized by a vigilante right, this is another type of law enforcement that, you know, we can talk about on you know, but also, then, once that act of terror happens, we're now reliance upon the states to effectuate justice, first of all, so justice that can ever be full because the people who are dead or dead, they can't come back. But there are now all these procedural hurdles. And there are all these other ways for the shooters whiteness to be privileged visa vie that community, right? If you're if you are pro death penalty, right, it's like, you know, you might say, okay, this person is going to keep their life and these people lost their lives. But there's other just we don't know what's gonna happen with him, because this will reset again. But I'll say, for example, like with the Flint water crisis, it was two days ago, that the Michigan supreme court threw out the indictments on the state officials that were, you know, sort of responsible for the Flint water crisis. And it's like, Oh, my God, goodness, like, this is like there's like two rounds of indictments. You're not throwing it out. It's like, when will we ever get justice for this breached contract when we have an understanding that we will have clean water we pay for the water every month, and the water was literally sickening and killing us? And because of procedure and technicalities, right, Michigan Supreme Court says nope, we can't we can't move ahead. And it's been it's been nine years now, since though the corroded pipes were you. So I think those are just exhausting examples of things that people do, like we do to do try to create our own safe havens. But those are regularly breached, if you will, by the state. And it's hard to say use the word breach because of the the authority that the state has. But the impact is that have a breach.

33:38

And I'm wondering if, before we before we close, if you have anything else to add, or anything else that you'd like to discuss them at all, thank you.

33:46

There's just so much going on in my mind, because it's just such a time, legally and politically. So I honestly don't know where I would start. I would just say to readers that while it's been a real pleasure for me to do this academic work, I think it's very important to always try to connect the work to things that are happening right now. And so whether it is right, administrative court rulings or immigration or reproductive justice, you kind of want to follow people say follow the money, I say follow the contracting, follow the ordering. Because sometimes, if you look at things from the formal, right, the formal provisions and guarantees of civil rights, which I don't know that we will have this time next year, you will, you will, like I said before, you will be stuck in this idea of okay. They say we have these rights, but I don't I'm not living that. And it's a disempowering position because you're being gaslit by the law, essentially. I'm looking at what the Supreme Court is doing to dismantle our institutions and our states from it. position of or from the lens of, no, there's a social contract that is being renegotiated. And they're using a results oriented sort of rationales to get to that, the terms of that new agreement that might help you understand why everything seems to be happening so fast. And why everything is seems to be so partisan, right. I think it's just a more helpful lens. And so I'm encouraging anyone under the sound of my voice is still sort of look at the changes in our law, or laws and the subsequent political alterations through those lenses. I think it will be very helpful. Thank you.

35:45

Yeah. Thank you, Professor, Professor Jackson. So thank you so much for joining us to discuss your article.

35:50

Thanks for having me. And thanks again for publishing the article. It's been a joy to work with you all.

35:58

We hope you've enjoyed this episode of The California Law Review podcast. If you would like to read Professor Jackson Sow’s article. You can find it in volume 110 of the California law review at californialawreview.org. For updates on new episodes and articles, please follow us on Twitter. You can find the list of the editors worked on this volume of the podcast in the show notes. We'll see you in the next episode.