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Gregory Mitchell
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Mitchell Examines Human Behavior Models

Denise Forster

Legal scholars long used the “rational actor” model in analyzing economic theory before behaviorialists modified it into the “quasirational actor” model that maintains people more frequently make suboptimal decisions. But Gregory Mitchell, the latest addition to the Virginia Law faculty, thinks they went too far. He’s not an apologist for the rational actor model of human behavior—it’s not that easy. Rather, he examines how people make judgments and decisions, enter into contracts, evaluate options, and maximize utility, resulting in a more nuanced, complicated picture of human behavior.

 “One of the leading questions in legal theory is ‘Which of these models of human behavior—humans as perfectly rational actors or humans as quasi-rational actors—should guide courts and legislatures when they formulate the law or regulate transactions?’” said Mitchell. This question raises issues at the intersection of law and economics and psychology. What is at stake is the relative accuracy of the two models of human behavior.

The dominant model had been the rational actor model, which is respectful of individual’s ability to make decisions. Rational actors are capable when tasked with negotiation; they make the decisions that are best for them. Within the last ten years, the quasi-rational actor model has moved to the forefront of behavioral theory, seeking to amend or overthrow the rational actor model. This new model posits that many people are unable to make decisions in their best interest.

The primary basis for the overthrow has been psychological research—or, Mitchell asserts, the interpretation of that research—which demonstrates people often make suboptimal decisions and systematic errors when making judgments or reaching decisions.

“My view is that the advocates for the quasi-rational actor—or the advocates for a new model of human behavior that says that people often engage in suboptimal decision making—get it wrong,” he said. “Certainly we make mistakes, and the law has a role to play in fostering good judgment and decision-making, but case has not been made for wholesale changes to the law’s assumption of rationality that many legal theorists now advocate.”

Mitchell knows that he is bucking current trends in scholarship; he just wants to get it right. Using his PhD in Psychology from Berkeley, Mitchell gathers information about real-world phenomena and applies it to the law. Developments at the intersection of law and psychology and the prospect of greater use of social science by the legal system excite Mitchell, despite his concerns about some scholars overselling the negative portrait of human behavior.

“Virginia has been one of the leaders for years with respect to the use of empirical research in legal theory,” he said. Professors John Monahan and Larry Walker are longtime advocates for greater use of social science within the law, “And they do it in a very sophisticated way,” Mitchell added.

The respect is mutual. “I am delighted to have another social scientist on the faculty,” Monahan said. “Greg Mitchell is one of the nation’s most astute and creative scholars of the role that empirical research can play in legal scholarship and practice. We were very lucky to land him here.” Monahan is the Henry L. and Grace Doherty Charitable Foundation Professor of Law, as well as Professor of Psychology and Psychiatric Medicine with the University.

After teaching at Virginia for a semester in 2005, Mitchell was happy to be recruited to the Law faculty. “Being a law professor is the best job within the law. Now I am lucky enough to be at Virginia and am delighted with that, because it’s an amazing set of colleagues [here].”

Mitchell appreciates the richness found at each juncture in his career—as student and as professional. As an undergraduate at the University of Arkansas, he was intrigued by the work and study around the “Tragedy of the Commons,” an essay by ecologist Garrett Hardin that explored social dilemmas. In that 1968 essay, Hardin posited a hypothetical: A community has a commons area on which animals may graze. While individuals are motivated to add to their flocks for personal gain, every animal added to the commons degrades the land a small amount. Although the reward is clear for the individual—the rational actor—at each stage, if all individuals follow this pattern the commons will be destroyed—therein the tragedy.

How people manage social dilemmas where group and individual interests diverge became a continuing interest for Mitchell, and the question motivated him to start graduate studies in topics at the intersection of psychology, law and politics. Determining he needed to understand the law and legal systems better, he decided to go to law school while getting his PhD—all at Berkeley.

Here again, a path emerged; “I wound up enjoying the law much more than I expected. I decided I would clerk for a year and then resolve what to do next, thinking I would go back into academia right after clerking.” But Mitchell met his future wife while clerking in Nashville and chose to practice while she finished law school at Vanderbilt.

Most individuals with a JD and PhD head to academia after graduation, but Mitchell valued his practice and says the realities of civil litigation made him a better teacher. “You understand the rules in concrete ways. From my practice I appreciate the importance of the rules.” He brings those rules and realities to his classes on Civil Procedure, Evidence, and Law and Psychology.

After six years, wanting to return to scholarship, Mitchell began his teaching career at Michigan State. “I had been away from academia for so many years. I’m grateful Michigan State took a gamble on me,” he said. He was teaching and conducting research at Florida State when Virginia called.

“Greg Mitchell is doing foundational work in the area of behavioral law and economics. The field is exciting and important, and the Appointments Committee spent a couple of years reading the scholarship, looking for the most thoughtful and innovative authors. When we read Greg Mitchell’s work, we knew we had found the real deal,” said Anne Coughlin, the O.M. Vicars Professor of Law and Barron F. Black Research Professor who chaired the Law School’s Tenured Appointments Committee. “His research is meticulous, and his insights are significant and sophisticated.”

Mitchell believes that those who understand social science can answer a lot of questions about the law. He knows that he’s in good company at Virginia. “It is an honor to join the Virginia faculty. The work here on the appropriate role of social science and the law is the most important work done in this area in years. It’s an honor to join this faculty.”