Covering and the Classroom

I am going to continue a thread of conversation started by Bennett Capers while blogging on Prawfsblaw.  In a wonderful riff on Rupaul’s Drag Race, Capers discussed the performative aspect of being the classroom.

One way of thinking about what we do is “covering” in the sense used by Erving Goffman and Kenji Yoshino. Yoshino and Goffman use the term in the sense of toning down “disfavored” identities.  Yoshino’s primary example is covering sexuality — roughly it is not the pressure to stop being gay (assimilate) or don’t let people know you are gay (closet, pass), instead it is the pressure on openly gay people not to act too stereotypically gay.

I want to examine a slightly different idea of covering in this post, not the toning down of disfavored identities, but instead about how we cover elements of our viewpoints and identities in the classroom.

The place where my own covering in this sense is most obvious to me (and perhaps to my students) has to do with my political views and the ways in which they related to cases we tackle (for example, the pairing of Goldberg v. Kelly and Matthews v. Eldridge in Civ Pro). Very often I think I adopt what Socrates identified as a vice of the Sophists, to try and make the weaker argument the better, and merely play with the ideas and reasoning, rather than take sides.

What I have begun to wonder is, as a pedagogical matter, to what extent is this healthy. On the one hand, it models a skill our students will need: to make arguments in cases where they fundamentally disagree with the position of their clients. It also avoids having students who disagree with me politically tune out or treat my class as a “resistant read.”

On the other hand, I wonder if this form of covering causes us to come off as holding a pre-realist view of the law that few of us actually do. If I do not think the two cases can be reconciled but instead that they represent particular views of how the world should be, or pure politics, should I instead say that? And if I do (as I often do), should I take the further step and express a preference as to which world view I prefer?

In what other ways do we cover? Here is one that came to mind: In attempting to capture some of the aura of Kingsfield, the level of attachment, do we talk too little about ourselves as whole people basically hiding things like our families or interests? I tell my 1L students at the beginning of the year two things as a warning: (1) They were very interesting people before they came to law school with diverse interests, don’t let law school beat it out of them. (2) Law school is likely much more difficult for those close to them, in particular spouses and children, who are both the victims of the workload and also shut out of the intellectual engagement, and to try and bring those people in.

To the extent the professor does not discuss his interests or family in the classroom, is he thereby reinforcing these problematic vectors and expressing the view that the students should also strive to ‘cover’ in this way? When I switch the pronoun in the prior sentence of this post to “she” and “her” does this issue become still more fraught?

I’d also be curious about whether there are other domains where people feel they cover in the classroom?

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8 Responses

  1. A.J. Sutter says:

    Rather than a direct response to your specific question about covering, this is more of an encouragement to cover less: It’s true that many attorneys, especially early in their careers, will be working for someone else, and will have to take cases where they fundamentally disagree with their clients. But at some point in their careers, many of your current students will have more discretion about which representations to accept and which to decline. It might be helpful to some of them to see at a tender age that law isn’t just a sophistical exercise. (Unless perhaps if your sophistry is sincere. I had an undergrad class co-taught by a well-known HLS prof; whenever he proudly said “One look at the guy and you knew he did it!” — which was often, usually apropos of an alleged rapist or murderer, and inevitably a prelude to a story of how he got a non-guilty verdict — I thought “So don’t take his case!” The prof remained a useful negative example for me in the ensuing decades. But covering he wasn’t.)

  2. Bruce Boyden says:

    “On the other hand, I wonder if this form of covering causes us to come off as holding a pre-realist view of the law that few of us actually do.” That’s interesting. I find myself worried about the opposite problem: trying to get students not to jump too quickly to a simplistic realist conclusion about the outcome of the case, and instead grapple with the actual reasoning of the arguments on both sides.

  3. Lawrence Cunningham says:

    Must one choose? Why not approach problems both ways: explore together the technical, legal, doctrinal method to reconcile contending cases, showing law’s majesty; develop an account of differences according to political perspectives, including one’s own, revealing law’s limits? Cover and uncover? Contracts offers a wonderful chance, where both doctrinal and political oppositions appear throughout between Williston and Corbin, say, and in stark discrete settings pitting titans like Hand againt Traynor against each other.

  4. Bridget Crawford says:

    Great post, Glenn. You raise (or I chose to find) the question of whether self-disclosure has different consequences for male and female faculty members. My gut reaction is “yes,” but I suspect it is more complicated. In addition to gender, I think age, job status and subject matter factor into the mix. In other words, a senior, tenured woman (or man) may feel freer to talk about her children than a junior, untenured woman (or man) might. It seems “low cost” or even beneficial for me to use family-specific hypotheticals in teaching, say, my Federal Income Tax class. An occasional hypothetical involving my giving a birthday gift to my sister makes the transfer under consideration more real and understandable than, “A transfers Blackacre to B.” But too many examples drawn from my life would be TMI, I think.

  5. Ken Rhodes says:

    You wrote: “To the extent the professor does not discuss his interests or family in the classroom, is he thereby reinforcing these problematic vectors and expressing the view that the students should also strive to ‘cover’ in this way?”

    No, because that’s the wrong analogy. Your students are not your children. You do not owe it to them to share the rest of your life with them.

  6. Covering Lower Middle Class Upbringing says:

    Some biographer of Ernst Mayr said he maintained an immense sense of personal dignity by refusing to be “completely known.” I think that junior professors would do well to mimic that attitude, for a variety of reasons: they are often very close in age to their students, the classroom depends on a certain level of hierarchy and decorum to function properly, and for all the management-speak of “flat organizations,” the lecture/discussion needs to have a recognized leader and authority.

    That said, the questions posed remind me of Elizabeth Warren’s experience teaching Carnival Cruise Lines. The students in her class have framed themselves on some level as society’s skillful navigators or managers, and the hapless litigants in the case appear from that god’s eye perspective to be necessary losers given certain unchanging economic laws. Warren notes that, “If the deductive logic of economics is all-controlling, then empirical work–indeed, empirical questions–will always remain at the intellectual and political margins.” I think it was her experience growing up in some trying circumstances that made her ask those tough empirical questions, and insist that her students do the same.

  7. A.J. Sutter says:

    CLMCU’s comment is a good one. And BTW maybe we should recover, so to speak, some distinctions that seem to be getting muddied in this thread. Need covering be all-or-nothing? E.g., disclosure of political, ethical and professionally-relevant preferences can have a place — I’m still inspired by my septuagenarian, old New Dealer prof’s outrage at the suggestion of using Law & Economics to construe the Constitution, accompanied by a thundering slam of his cane on his desk — but I agree with Ken in the sense that too much about one’s family and private life may be TMI.

  8. Glenn Cohen says:

    Thanks for all the great comments. Let me try to re-group the ideas into 3 forms of covering, all of which were implicit in the initial post but (as A.J. suggests)could use some pulling apart.
    (1) Covering one’s political beliefs. Here I am largely in agreement with AJ, Bruce, and Lawrence — it is not a question of whether to cover but when and how much. Here is a tangible example I have struggled with: in the section of my reproductive technology, genetics, and the law course where we discuss stem cell funding we do several readings on fetal and preembryonic personhood and arguments for and against. This has been an area where I have tried very hard not to be open about my own views on the subject, in part because I want the students to feel free to “offend” me or at least not bend to an orthodoxy on the subject. I will largely sophistically push them on whatever theory of personhood they adopt. Is this an area where I should be more open about my own views on the matter, even if only at the end of the class?
    (2) Covering one’s person: So here I should emphasize that covering as Yoshino and Goffman use the term is meant to capture someone toning down what would be their otherwise normal level of expression of part of their identity, because it is a disfavored identity. Bridget, I definitely meant to tee up the gender question here, though my prior would have been that it would have cut the opposite way on gender lines (more pressure on women to cover than on men in this respect). Ken, I fully agree I do not “owe” my students this, but I think the point of covering is actually the reverse. If my natural inclination was to be open, should I tone it down, is that what I owe them in pedagogical terms? I see this as a larger question about the professorial role as transcendent versus imminent, or perhaps abstracted versus situated. I’ll also note that I think there is a cultural element to this as well — German law professors are MORE removed from their students as people, in my small experience, and some other countries’ legal professions may be less removed. CLMCU’s warning about junior faculty is, I think, a good one, but again it has an underlying view that there is a proper level pushquibble about how we know what that proper level is.
    (3) Covering race and sexual orientation. These are actually the categories closest to the ones Yoshino has in mind in his own work. To put the question provocatively: should gay or lesbian professors “tone down” elements of their dress, mannerisms, etc, associated with their sexual orientations as part of the process of teaching? To borrow from some of the Title VII dress cases, should African-American professors with cornrows remove them when the semester starts? Here I think the signaling to students is important in that law faculty are some of the first legal professionals students encounter, and students take their cues from their professors as to how much of their ethnic, sexual, or other identities it is appropriate to express freely in professional contexts versus how much covering they should do.
    Again, I don’t think the answer is obvious, but I want to tee up the classroom as a place where professors exhibit and possibly teach covering. But these were really wonderful comments and I hope the discussion continues…