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In the go-go ’80s, George Washington University Law professor Lawrence E. Mitchell was a corporate lawyer running a never-ending stream of Wall Street stock offerings. “The entire time I was in practice I knew I didn’t like it, but everyone else did,” Mitchell recalls. “I thought there had to be something wrong with me.”
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Instead, Mitchell found that he was simply excited by teaching law. While serving as a corporate-law professor at Albany Law School and, later, at GW, Mitchell realized that the crux of the law was fairnessbut that the courts “didn’t have a clue about what that meant.” So Mitchell delved into philosophy and discovered that American culture, not just the law, was deeply conflicted about what “fairness” is.
So he began his new book Stacked Deck (Temple University Press), a volume of political and legal theory written for the popular market. Mitchell’s argument in the book will piss off anyone with faith in individualism. The author contends that people are limited by objective circumstances, and that the law, which presumes that one can act independently, does not protect America’s most vulnerable citizens. Indeed, in an interview, Mitchell goes so far as to suggest that “choicethe idea of free willis overrated….[W]e are always constrained by our circumstances.”
As a remedy, Stacked Deck envisions a world of “compassion without pity,” in which everyone understands fellow citizens’ weak spots and acts accordingly. It’s a concept Mitchell picked up from his father, a generous small-town lawyer in suburban New York. He also consulted, of all things, the writings of ur-capitalist Adam Smith and philosopher David Hume for ideas.
However, Mitchell declines to make policy prescriptions, and he fails, when asked, to come up with any nation that gets its moral structures right. He says he’s worried about America’s problems even as the economy chugs along and most Americans seem happy. He knows his views are not widely shared.
“Obviously, there are certain examples throughout history in which the comfort of a belief was more important than the discomfort of a reality,” he says. “If that’s true in this country, so be it. I would not be the first person to urinate windward.”