Office Politics Author(S): Roderick A

Office Politics Author(s): Roderick A. MacDonald Source: The University of Toronto Law Journal, Vol. 40, No. 3, Special Issue on Administrative Law (Summer, 1990), pp. 419-476 Published by: University of Toronto Press Stable URL: http://www.jstor.org/stable/825818 . Accessed: 23/12/2013 03:35

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This content downloaded from 132.216.86.161 on Mon, 23 Dec 2013 03:35:54 AM All use subject to JSTOR Terms and Conditions PART3 Normativeorder in theadministrative state

Roderick A. Macdonald* OFFICE POLITICSt

Introduction

The followingallegory is designed to canvass the internalnormativity of administrativeagencies, bureaus, and tribunals.While theproblem stated is genuine and the structureof thepaper reflectsin large measure myown experiences as dean of a law faculty,I should like to record the standard literarydisclaimer: the characters portrayed are fictitious;any resemblance theymay bear to mycolleagues at McGillor elsewhereis purelyfortuitous. A successfulallegory needs no gloss (or even formalintroduction and conclusion) by its composer. In fact,an author does a disserviceboth to textand to readers by collapsing a parable's several possible lessons into one ex post facto officialreading. The collection of memos comprising 'OfficePolitics' is intended to makejust thispoint. It is also meantto reveal the peril for complex institutionsof an excessive reliance on formal instrumentsand canonical wisdom,and the value of constitutivepractice for reaffirmingthe subtle and informal normative orders that make associationallife possible. Of course,the uncharitable reader mayconclude thatin choosing the epistolaryform I have sought to hide (even though unwittinglybetraying) my own ideological position. By producing a bureaucratic text in which I speak behind the masks of my fictitious colleagues,I could standaccused of preferringmysticism and dissimulated power over authenticityand candour in social organization.

* Facultyof Law, McGill University t In preparing this essay I have benefited from the comments of several McGill professorsin relationto an actual exercise of officeallocation we undertook during the summer of 1984 and in relation to earlier draftsof this manuscript.I should like to acknowledgein particularProfessors Frank Buckley,Jane Glenn, and Ralph Simmonds and Associate Deans Yves-MarieMorissette and DanielJutras.Initial research assistance was provided by Leslie Kelleher, and working translationsof the French language memos were prepared by Gary Bell. Teresa Scassa and David Lametti, my research assistantsduring the summer of 1988, made a substantialcontribution to the paper as it now appears. Both were hired under a grant from the Meredith Research Fund of the Faculty of Law. Finally, I am indebted to my two commentatorsat the Law and Leviathan Conference, Professor Lorraine Weinrib and Dean John Whyte, whose probing of the paper as delivered has helped me to tell a betterstory in thispublished version.

(1990), 40 UNIVERSITY OF TORONTO LAW JOURNAL 419

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In confrontingthe puzzle of speaking authenticallyin thisintroduction withoutflattening the allegory-how to injectMacdonald the author into the text while preservingthe flaws of Macdonald the dean? - I asked several colleagues whatto do. One said thatI should simplywrite a precis of the storycomprising a matrixfor locating the point where each of my respondents fitsin respect of the themes I seek to illustrate.Another argued thatI should rehearse the feedback I have already received from professors at McGill. This would permit me to illustratesome of the possible readings of the textproferred by those to whom,and of whom,it speaks. The vice-principal(academic), to whom I had forwardedan earlier version of the paper, told me that what he missed most was not an introductionbut a conclusion.Why this allegory? Should I notexplain why I selectedthe university milieu (as opposed to a moreinformal setting such as a club or the family,or a highly structuredorganization such as a genuine agency or governmentbureau), and whyI chose the exercise of allocating offices (as opposed to establishing the teaching timetable, managing the process of professorial appointments,or prosecuting a dismissalcase) to make mypoint about how much law can be found within public agencies? In the end, I rejected all of these options for the same reason: theywould have required me to introducethe textby indicating in some veryexplicit manner what I thinkit mightmean. If conventionalbeginnings and endings are notappropriate, what other options forintroducing the paper are open? Obviously,I could carrythe allegoryone stage furtherwith yet another memo, placed at thebeginning so as to make the storyunfold as a flashback.Several such denouements were suggestedby my colleagues. One proposed thatI commencewith the judgment of a courtsitting in judicial reviewof the Grievance Committee decision. I was initiallyattracted by this idea, forI could then tellnot only the familiarstories about judicial reviewin dramaticfashion, but also the less well known tale of 'Bureaucratic Rationalityin theJudicial Process' and in doing so offeran effectivecounterpoint to the message implied in thispanel's title.But adopting thisstrategy would have moved the paper too far from its ostensible subject-matterand would implicitlyhave confirmedthe erroneous view that administrativedistributions can be transformedwithout cost into claims of commutativejustice determined throughadversarial adjudication. Anothersuggestion was to begin byresponding to the invitationset out in the finalmemo. One of myassociate deans thoughtthat an attemptat self-justificationshould markthe dean's passage fromsin to redemption. In a partingconfession to the vice-principal(academic) he would tender his resignation,embellished with lamentations for the faculty, complaints thathe had been misunderstoodor misrepresented,and a codificationof rules and procedures forattributing offices. However, to presentsuch a

This content downloaded from 132.216.86.161 on Mon, 23 Dec 2013 03:35:54 AM All use subject to JSTOR Terms and Conditions NORMATIVE ORDER IN THE ADMINISTRATIVE STATE 421 conclusion as an introductionpresumes both that deans can mature to omniscience and thatoccasions of corporate self-reflectionmust always end in martrydom. A thirdidea forpresenting the allegory I owe to mywife, who thought that the text should commence with extractsfrom the dean's personal diary. By revealinghow thisorganizational conundrum at the university bears on his otherlives as son, husband, and father,this approach would have had theadvantages of resituating the allegory in a contextof personal agency and of suggestinghow public agency is reciprocal to personal agency. It would also have reinforcedthe pointthat it is in the recognition of intimacyand vulnerabilityand in the reconstitutionof ourselves through our relationshipswith others that we understand why merely formalconceptions of authenticityare inadequate to capture fullythe meaning of institutionallife. As myreluctance to pursue thesedidactic strategies in detail shows,each seemed to be an unsatisfactoryprelude to the allegory.Yet as I workedon preparing the essay for publication, I continued to believe thatthe text would be incomplete were it to remain simplya collectionof interoffice memos. What the parable lacked was a record of non-discursiveand non- strategicinteractions among colleagues and betweenprofessors and dean duringthe allocation exercise. For thereis a tacitdimension to thefaculty's normativeorder whichgrounds mostof itsinstitutional knowledge. How ironicto have attemptedto make such a claim explicitin an introduction. In viewof the problemswith the above approaches, I have decided to use the exercise of reflectingupon how to compose thisintroduction as part of theintroduction itself. The questionsof organizationaland legal theory thatthese suggestions from friends and colleagues raise are indeed among the major themes of the allegory. It follows that I have no adequate preface forthose who decline to see in the parable of 'Office Politics'the same processes fornurturing an internalnormative order thatare found in our public institutions. The allegoryrests on the premise that the fundamentalchallenges of administrativelaw over the next decades do not lie in the perfectionof theoriesof regulationand instrumentchoice, of thelegal formsof agency organization,of mechanismsof judicial review,and of remedies against state action. Rather, the challenges are tied to the craftingof decision- makingstructures, procedures, and modes ofjustificationwithin agencies and bureaus. Normativeorder in the administrativestate emerges first fromthe internalmanagement and operations of itsvarious institutions. Only then does it appear in the public regulationsand decisions of any particularagency or bureau and in the specificrules and officesthrough whichadministrative activity is undertaken.I believe thatwe can no longer afford to analyse administrativelaw on the basis of sharp dichotomies

This content downloaded from 132.216.86.161 on Mon, 23 Dec 2013 03:35:54 AM All use subject to JSTOR Terms and Conditions 422 UNIVERSITY OF TORONTO LAW JOURNAL between state (public) and voluntary(private) associations,between law and politics,between legal rationalityand politicalarbitrariness, between explicit (propositional) knowledge and tacit(inchoate) knowledge, and between external regulatoryactivity and internalagency management. 'Office Politics'is about the politicsof administrativelaw and about the scope of legal ordering at all levels (fromfront-line inspectors and first- instance claims adjudicators to appellate tribunalsand ministersof the Crown) of our public bureaucracies. It engages three main questions of administrativeorganization and regulation: (i) what is the relationship between legal theory,management theory,processes of social ordering, and the substantiveprecepts of distributivejustice? Can the problem of justificationof administrativedecisions be separated fromthe problemof institutionalstructure? (2) How extensiveis traditionalnormativity within publicbureaucracies? What is therelative weight of legalismand authority in constitutingthe tacitnormativity of these agencies? (3) Can institutions acquire knowledgebeyond thatof theirmembers? Does the possibilityof institutionalknowledge mean thatimplicit normative orders are necessari- ly more democratic than explicit normativeorders? 'Office Politics' is meant to suggestthat each of thesequestions maybe asked of all decision- makersin all contextsof public administration;but, as John Willisnoted decades ago, while the big questions are the same the littleanswers will differfrom case to case. If the allegorythat follows seems too heavilyladen withdetail (Whose secretarytypes which memos? Is a secretaryused? How is the dean addressed? How is the issue characterized in the 'subject' part of the memos? What is the date of the memo? Which officiallanguage is used? What stylisticand rhetoricaldevices are deployed? To whomis the memo copied? Is the document a letter or a memo?) and too cluttered with apparentlyrepetitive memos whose authorsstate only marginally different positions,I can only say thatinstitutions themselves are laden withdetail and marginaldifferences. To borrowa figureof speech, the problemsof associationallife flow more fromthe damage we cause inadvertentlywith our elbows than fromthat which we cause intentionallywith our fists. Again, if the allegory contains no overriding prescriptivemodel of regulationand allocation,it is because I am scepticalthat any singleethical theoryof 'eunomic' principle presumptivelyapplies to all of our public agencies: the divergentmoral theories and models of decision-making advanced by officeclaimants themselves constitute as large a part of the normative discourse within the Faculty of Law as the constitutional structure- royal charter,university statutes, faculty regulations - upon which it rests. I am also sceptical that the particulartype of legal norm- ativitywe associatewith Max Weber's formallyrational model of authority should (or even could) be prescribedfor all administrativeagencies in all

This content downloaded from 132.216.86.161 on Mon, 23 Dec 2013 03:35:54 AM All use subject to JSTOR Terms and Conditions NORMATIVE ORDER IN THE ADMINISTRATIVE STATE 423 cases: a true normative order is most successfullysustained in public institutionssuch as agencies,bureaus, and tribunalswhich encourage the candid inter-subjectivecommunication among theirmembers that makes associational life rewarding. 'Office Politics' is meant to generate just this type of participatory response to the problemsof creating(and recognizing)normative order in the administrativestate.'

MCGILL UNIVERSITY Facultyof Law April 1, 1988

TO: All colleagues FROM:Roderick A. Macdonald SUBJECT:Office allocations It has come to myattention that several colleagues would be interestedin moving officesas a consequence of the departure of ProfessorSharon Eaton and the move of ProfessorsLindsay, Savard, Dupont, and Allan fromthe annex across the road to the new Centre of AdministrativeLaw and Practice. In view of the magnitude of the potentialdislocation this year,and the factthat this is the firstsuch exercise I have had to undertake as dean, I thoughtit wise to consultwith you beforereallocating these five vacant offices.I particularlywish to have yourviews on whetherI should attempt to elaborate a set of procedures and guidelines for choosing between claimants,and, if so, what these should be. It appears thatthe past practiceof the faculty,to theextent that any such practiceis discernible,has been that the allocation of officesis strictlya matter of decanal prerogative. I do not now propose to fetter my

1 I should like to set out here in alphabetical order the main works that have influenced the creation of 'Office Politics':Owen Barfield SavingtheAppearances: A Studyin Idolatry 2d ed. (Middletown,Conn.: Wesleyan UniversityPress 1988); Meir Dan-Cohen Rights, Personsand Organizations:A Legal Theoryfor Bureaucratic Society (Berkeley: Universityof California Press 1986); Mary Douglas How InstitutionsThink (Syracuse, NY: Syracuse UniversityPress 1986); Jon ElsterSour Grapes: Studies in theSubversion of Rationality (New York: Cambridge UniversityPress 1983); FranCois Ewald L'itat providence(Paris: B. Grasset 1986); Martin Foss The Idea of Perfectionin the WesternWorld (Princeton: PrincetonUniversity Press 1946); NorthropFrye TheEducated Imagination (Toronto: CBC Enterprises1983); K.I. Winston(ed.) ThePrinciples of Social Order:Selected Essays ofLon L. Fuller (Durham, Nc: Duke UniversityPress 1981); Alexandre Kojeve Esquisse d'une phinomenologiedu droit (Paris: Gallimard 1981); Suzanne Langer Mind:AnEssayon Human Feeling(Baltimore: Johns Hopkins UniversityPress 1988); Henry MintzbergStructure in Fives:Designing Effective Organizations (Englewood Cliffs,NJ: Prentice-Hall 1983); Michael Polanyi The TacitDimension (Gloucester, Mass.: Peter Smith 1983); Brayton Polka The Dialectic of Biblical Critique:Interpretation and Existence(Basingstoke: Macmillan 1986); Santi G. Romano L'ordrejuridique (Paris: Dalloz 1975); ChristopherD. Stone Earthand OtherEthics: The Case of Moral Pluralism(New York: Harper and Row 1987); Joseph Vining TheAuthoritative and theAuthoritarian (Chicago: Universityof Chicago Press 1986).

This content downloaded from 132.216.86.161 on Mon, 23 Dec 2013 03:35:54 AM All use subject to JSTOR Terms and Conditions 424 UNIVERSITY OF TORONTO LAW JOURNAL discretionto assign officeson the basis of what I consider to be the best overallinterest of the faculty.Nevertheless, given the oral representations I have already received on thisquestion, I have concluded thatthere are at least two widely accepted criteriathat could be employed in guiding officeallocation decisions, namely,length of service to the facultyand academic rank. Let me suggestthat, as a general rule and everythingelse being equal, wherelength of serviceto thefaculty is approximatelythe same as between competingclaimants, priority will be givento the facultymember with the more seniorrank. In othersituations decisions will be influencedprimarily by considerations of long service. You can appreciate, however, that I would be reluctantto favouran associate professorof considerable length of serviceover an incomingfull professor of notablestatus within the legal or academic community.Nor would I be inclined to apply standardized criteriablindly in cases where I perceive thatthis would be disruptiveto the dynamicof the faculty. Finally,and simplyto givesome indicationof thecomplexity of thisissue, I should like to mentionsome variablesthat bear the actual application of the above-mentionedcriteria. (1) Should lengthof timein one's present officebe relevant?(2) When a colleague returns,after having resigned or having takenan extended leave, should yearsof servicebe cumulated? (3) Should service on full-timereduced-load statuscount equally withfull- time service? (4) Should status as ex-dean be considered? (5) Should tenure, or even tenure-trackstatus, be factoredinto any equation? Please letme have yourthoughts if this matter is of concern to you,even ifyou do not now wishto be considered forone of the fiveoffices coming vacant. I expect to make a decision byMay 15,and I inviteyour comments before May i.

RAM /lc

MCGILL UNIVERSITY Facultyof Law April 3, 1988

TO: Dean Macdonald FROM: Prof. B. Paul SUBJECT:My new office I have to say I was surprisedto receiveyour memo about officeallocations. I've knownfor a long timethat Professor Eaton was leaving and thather officewould become available. I had assumed thatI would be gettingthat particular space. If you remember, Max promised me a proper office when I signed on here at the faculty.I had several otheroffers but I chose McGill on the basis of the whole package.

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I realize thatother people willbe puttingpressure on you forProfessor Eaton's office.They will all come up withtheir own reasons and criteria. People who insiston factorssuch as research, publications,etc., have to rememberthat to do anydecent workyou need a good office.I would like to see any of them tryto publish frommy little hole in the wall. Regardless of this,I don't thinktheir claims can stand up against mine. According to mycontract, I am entitledto a bona fide office.I don't see anyjustification for your disregardingthis contractual obligation just to please more senior professors.Their claims mightbe well and good ifall other things were equal, but I don't understand how any of those intangibleconsiderations can overridea valid and bindingpromise made by your predecessor.

/mb

UNIVERSITE MCGILL Faculte de droit 3 avril 1988

A: M. le doyen Macdonald DE: Prof. FranCoiseDugas OBJET:Attribution des bureaux C'est avec grand intreatquej'ai prisconnaissance de votrenote de service et des crit res que vous y suggerez.Je suis heureuse d'apprendre que les nouvelles affectationsdes professeursLindsay, Savard, Dupont et Allen nous donnerontplus d'espace. Maisje vous priviensque si vous allouez ces locaux selon les deux criteressuggeres, personne ne sera satisfait(sauf, evidemment,celles qui recevrontces bureaux). Vous m'avez demande mon opinion - et vous l'aurez! Je recommande fortementqu'un comite ad hoc se penche sur ce problkme.Je suis con- scientede la paperasse qu'un telcomitenecessite et engendre, maisje crois que c'estla seule favonde preserverla paix. Un telcomite pourra regarder tous les aspectsdu problemeet fairejusticeaux cas particuliers,mieux que vous ne le pourriez, etant donne vos nombreuses taches. Ce comite redigeraitune procedure et des principes directeurs qu'il soumettrait ensuite au Conseil de la faculte. Ainsi tous pourrons debattre de la question et participera la decision. Puis vous n'aurez qu'a appliquer la politique retenue pour arrivera un resultatobjectif que nul ne pourra contester. ' Vous trouverez,ci-joint, de la suivie l'universite copie politique otJj'ai passe mon annee sabbatique. Cette politique n'est pas suffisamment precise, mais ce serait au moins un point de depart. Je crois que vous

This content downloaded from 132.216.86.161 on Mon, 23 Dec 2013 03:35:54 AM All use subject to JSTOR Terms and Conditions 426 UNIVERSITY OF TORONTO LAW JOURNAL devrez adopter une telle approche si vous voulez un r6sultatobjectif qui eviteles d6bats i n'en plus finiret la contestationde vos decisions. En passant,si vous decidez de ne pas suivremes suggestions,sachez que j'ai un oeil sur le bureau de Sharon depuis un bon bout de temps. Ce bureau est grand,bien 6claireet a l'avantage d'etresitup sur le memeetage que la seule toilettepour femmesdu pavillon 'Chancellor Day Hall.' ay /

POLICY ON FACULTY OFFICE ALLOCATIONS ADOPTED:October 1979 i For the purposes of this policy, 'full-timetenured facultymember' means a person who (a) holds a teachingappointment carrying tenure at the University,and (b) holds his or her principalappointment in the Facultyof Law. 2 No full-time tenured faculty member and no full-time faculty members in the tenure stream will be required to give up an office under thispolicy, unless the allocationis being made forthe pruposes of distributionof space other than among membersof the Facultyof Law. 3 A full-timetenured faculty member who has givenup an officeto hold an administrativeposition withinthe Faculty of Law is entitled to reoccupy his or her officeupon the end of his or her administrative activities. 4 Full-timetenured facultymembers on sabbatical or other leave fora period not exceeding one year shall be entitled to reoccupy their officesupon returnfrom leave. During the period of theirabsence, theseoffices may be temporarilyreassigned by the dean. In thecase of leaves takenfor more thanone year,the dean willretain the discretion to permitreoccupation of the officespace bythe returningprofessor, or to assign thatprofessor another office. 5 The dean, on the expiryof his or her term,shall be placed at the top of the listof precedence for the purposes of officeallocation. 6 Subject to article5, the rightto occupy a vacant officeon a permanent basis shall be given to full-timetenured facultymembers in order of seniority.Seniority shall be determinedby the date of grantof tenure. 7 Where two or more full-timetenured facultymembers have equal seniorityon thelist of precedence foroffice allocation, priority shall be determined by lot.

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MCGILL UNIVERSITY Facultyof Law April 4, 1988

TO: Dean Macdonald FROM: Sarah Fleming SUBJECT:Your memo of i April Although the question of reallocation of offices doesn't affect me personally(I hope), as I am happy where I am, some of the points raised in the penultimate paragraph of your memo touched still-sensitive memoriesof myown effortsto bringto an end the 'time' I served in Barry Paul's office. 1 I thinkthe length of time a person has been in her present office should definitelybe relevant (perhaps as a 25 per cent factor) - especially if the office in question is one of the smaller converted closetsand washroomsin the shadow of the libraryon the westside of Chancellor Day Hall. Over theyears these become progressivelymore depressing for theiroccupants. 2 I thinkservice as 'full-timereduced-load' statusshould count equally withordinary full-time status if (as in thecase of Frangoise)the person is presentin the facultyeach day formost of the day. Alternatively,as in my formercase (when I was present only in the mornings)I agree thatsome allowance or discount should be made (of, say, to to 20 per cent). 3 I thinkthat tenure or tenure-trackdoes weigh in the balance, to some extent - perhaps even slightlymore than the previous factor (for example, 20 to 30 per cent). 4 Ex-deans and, to a lesser extent,ex-associate deans and ex-institute directorsshould have some priority. 5 I forgotpoint 2 of your memo. When a professor resigns and then returns,I thinkyears of service both times (though not the interim) should be cumulated. But if necessary,as a deciding factorbetween claimantsof equal lengthof actual service,it should count against. 6 Let's not have any more committeesto decide these administrative details. You've collected our viewsnow. Make yourdecision and then tell us the reasons.

/adb

MCGILL UNIVERSITY Facultyof Law April 4, 1988

TO: R. MacD. FROM: Randall Dawson SUBJECT:Office switches

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In allocating rooms, I should draw a sharp distinctionbetween (1) allocating individual rooms that for one reason or another become available, and (2) redistributingrooms that have already been allocated and are currentlyoccupied. In thelatter case, whichI appreciateis notthat whichnow confrontsthe faculty,I believe we should adopt the conservative posture in boundary matterstaken by the Organization of African States.We should agree thatan extraordinaryevent, such as the arrivalof a world-class senior professor or the rehabilitationof a formerdean, should be necessaryin order to effecta change requiringthe expulsion of an incumbent. As to point i, you don't need me to tell you that the more factorsyou take into account, the more impressionisticit all becomes. While I am inclinedto favourcriteria that highlight status over thosebased on length of service to the faculty,for personal reasons, which I know I need not state,I should not like too much emphasis to be placed on academic rank: there are, afterall, other indicia of seniority,such as years of teaching experience, reputation in a chosen field, and salary. Again, perhaps personal interestsintrude when I say thatlength of serviceconfined to the years spent at McGill is too narrow,especially, in the case of interrupted service,if limited to theyears following a prodigal'sreturn. Let me remind you that since we are talkingabout an initialallocation, there is no real question of vested rights'being disturbedif pre-prodigal years and years spent in an equivalent institutionare taken into consideration. As to the nice blockof fouroffices previously occupied byour emigrants to the Centre, I believe (let me stressyet again a personal interest)that those who signup well in advance so as to assistin thecreation of a healthy organismin an outlyingannex should be generallypreferred, regardless of seniority,to those who come late on the scene afterseeing thata viable unitis a clear possibility.Here you are tryingto createa satellitecommuni- ty,not merelyshuffling more or less fungibleaccommodation. There are times when 'firstcome, firstserved' is the appropriate distributional principle. This is one of them.

/hl

UNIVERSITEt MCGILL Faculte de droit 5 avril 1988

A: M. le doyen Roderick A. DE: M. le professeurSerge Macdonald Lapierre OBJET: Locaux

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Veuillez m'excuserde vous envoyerune lettremanuscrite: c'est queje ne voulais pas que qui que ce soit, ni meme ma secretaire,n'en prenne connaissance. J'esp re pouvoir compter sur vous pour en garder le contenu secret. ' Je vous ecris propos des nouveaux locaux. Comme vous le savez, j'occupe le present bureau depuis un certain nombre d'annies. Mon bureau actuel, sans etre fantastique,n'est pas ce qu'il y a de pire. Je demeure cependant convaincuque vous devez absolumentm'attribuer un meilleurlocal. Il ya dejalongtempsqueje vous ai faitpart de mon desirde changer de local. J'enseigneici depuis fortlongtemps. Meme si vous-estimezqu'au cours de ces dernieres annies je n'ai pas contribue autant que les jeunes professeurs,je ne crois pas que vous puissiez ignorer mes contributions anterieures.Je considereraiscomme un affronta mon honneur profes- sionnel le faitde ne pas recevoirun meilleurlocal simplementparce que je n'ai pas ete promu aun poste de ProfesseurTitulaire. Nous avons tous besoin du respectde nos collkgueset de nos etudiantspour bien fonction- ner dans un milieu universitaire.Le fait de ne pas recevoir un bureau correspondanta mon anciennete porteraitatteinte au respect qui m'est voue et aurait pour moi des consequences negatives tant sur le plan professionnelque personnel. Encore une fois j'insiste pour que ces remarques demeurent con- fidentielles.Je sais que votrediscretion est grande quand vientle temps d'attributerdes locaux. Vous pouvez me donner un nouveau local si vous le desirezvraiment. Si vous ne le faitespas, je saurai que vous avez prise la decision politique de diminuer mon rdle et ma reputation dans cette faculte.J'ai apprecid les annees passees ici et j'esp re que je pourrai en apprecier d'autres.

MCGILL UNIVERSITY Facultyof Law April 6, 1988

TO: Rod FROM: Prof. C. Billington SUBJECT: Office allocations and other perks

In myopinion your twocriteria do nothingto promoteexcellence within thisfaculty. You are simplyrewarding professors for not having had the talentto move up to a betterschool. Rank and lengthof service have no necessary correlation to academic merit and contribution.Your main object should be to reward quality and achievement. The best offices should go to the faculty'sbest people. On the basis of objectivecriteria of past performanceyou and I both know who theyare.

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If you publiclyreward professorsfor their real, tangiblecontributions you willbe doing two things.You willattract and keep some of the better candidates for teaching positions. You will also startto squeeze out the deadwood. Let's face it, given our space problems, a good office is a substantialperk. Any such perks should be used as incentivesto promote the typeof behaviour you wantwithin the faculty, and to preventtenured professorsfrom shirking on theirduties. If we wantto be competitivewith otherinstitutions we have to startbeing more competitivewithin our own faculty.A systemof incentiveswill regulate the behaviour of the teaching staffmore efficiently than any attemptsto be 'fair'in theabstract. After all, you have to ask to whom you're being fair.The communitywe serve has a rightto the bestlaw facultypossible. Don't missthis opportunity to send a few signals.

/he cc: Prof. Sam Reisman Prof. Ted Campeau

MCGILL UNIVERSITY Facultyof Law April 6, 1988

TO: Dean Macdonald FROM: ProfessorPearson ProfessorTremblay SUBJECT: New offices

We're glad to hear thatthere's new space in the faculty,and a chance for some of us to switch offices. With five vacant offices, four grouped togetheracross the road, now is the time to startdividing up the faculty according to specialty.For example, you could put all the civilianson one floorand all thecommon lawyers on another.Offices (and officelocation) are notjust a privateright. They are a public good whichyou mustdeploy to maximum advantage. If you remember,we spoke to you last semesterabout the possibilityof our being located in contiguousoffices, or at least on the same floor.This could be a firststep towardsestablishing a researchinstitute. We are both workingon similarprojects on the law of obligations,and would find it veryuseful tobe able to share ideas and resourceseasily. We hope you will make thisone ofyour main considerationsin assigningoffice space. There is a precedent for this. Others, such as Profs. Lindsay, Savard, Dupont, and Allan, have benefited fromspecial arrangementswhich permitted them to workin close proximitywith like-minded colleagues. That they have now been able to establishthe Centre for AdministrativeLaw and

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Practiceis proofthat the whole facultygains in thelong run fromthis type of specialization and grouping.

/adb

MCGILL UNIVERSITY Facultyof Law April 7, 1988

TO: Dean M. FROM: Ted Campeau SUBJECT: Offices

I thinkI've gotthe perfectsolution to thisoffice allocation question. Craig Billingtonand I have discussed his memo and I agree withhim thatwe should allocate according to merit.But meritis too loose a standard and needs to be specified. If we're going to make progresson thisissue, let's not reinvent the wheel - let's just perfect the criteria for merit we've already got. I thinkwe should decide on an ethicaltheory that can be deployed to tell us what we value. Then we should create a point systemin order to accuratelyand fairlycompare the workthat professors accomplish. Isn't thiswhat you do now in an ad hoc wayfor our annual discretionarysalary increases?While itmight take some timeat thebeginning to agree on basic allocational principles,to set up all the categories,and to assign pointsto them,once in place the systemwould provide a quick and easy reference foryou and your successors. Just to illustratewhat I mean, publishing a book mightbe worth loo points,an articlein a majorjournal mightbe worth75, a note or comment 50 (or forlesser journals 50oand 25), supervisinga mootingteam mightbe worth40, and so on. The key would be for you to get all the thingswe value down on paper and to work out a theory that establishes their relativeimportance. Then you could totallyeliminate both politicsand arbitrarinessfrom the officeallocation process.

/sg cc: Sam Reisman Craig Billington

MCGILL UNIVERSITY Facultyof Law April 8, 1988

TO: ProfessorMacdonald FROM: ProfessorRatcliffe SUBJECT: Sexual equalityand tradition

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It is because I know how much latitudeyou have in allocatingoffices that I feel obliged to commenton the criteriayou set out in your memo. I realize that you are attemptingto avoid having to make subjective evaluations bylisting criteria such as rankand lengthof service.After all, these standards are often used to establish a pecking order withinan academic environment.However, by adhering to such considerationsyou are not avoiding subjective moral choice. Worse, you are perpetuating some of the system'straditional and hidden biases. The teachingof law has long been a male-dominatedfield. Recently this trend has been changing,and you have been verysupportive of female facultymembers. But ifyou decide officeallocations chiefly by reference to rank and long service,I can't help but feel thatyou willbe reinforcing the discriminationthat has prevented women fromattaining the senior academic ranksor fromestablishing any greatlength of servicewithin the university. Your criteriabelong to an old boys'system which is outdated. You were appointed dean in partto break the oligarchy which had been runningthis place foryears. Here's a chance to use yourdecanal authorityto act (as you put it) in the 'best overall interest of the faculty'so as to bring the distributionof choice officesmore intoline withour presentreality. Give the officeto our mostjunior female colleague, Lucie, and send a memo explaining clearlywhy you did. If you are afraid to go thisfar, then at the veryleast you ought to announce criteriathat do not have a conservative bias and thataffirm the kind of facultywe are tryingto become. /sg

Me. B. George Meehan Advocate 3872 Peel Street Montreal, Quebec H3A 1Y2

April 15, 1988

Dean Roderick A. Macdonald Facultyof Law McGill University 3644 Peel Street Montreal, Quebec H3A 1 W9

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Dear Dean Macdonald, Re:Authority ofDean toAssign Offices I am writingpursuant to your request for an informal legal opinion relatingto your authority to allocate professorialoffices within the faculty. Accordingto article12.1 of theStatutes of McGillUniversity, '[t]he Dean shall, under the directionof the Principal,administer the affairsof his Faculty,academic and executive.'This is the onlyprovision in thestatutes grantinga power to perform general administrativefunctions in the faculty.As you can see, itconfers a verybroad discretion.Moreover, this power is not limitedin any way in any subsequent articlesof the statutes. However, a similarlybroad grant of power is also made to Faculty Council in the General Regulations and Policies of the Facultyof Law. Article7 of thatdocument accords FacultyCouncil the 'authorityto deal withall matterswhich, under the UniversityStatutes, may be properly dealt withby the Facultyof Law.' Thus, there may be an argumentthat your administrativeand executive decisions are subject to review or approval by the FacultyCouncil. None the less, given past practice withinboth your facultyand others similar to it at the university,the dean appears to have an unfettered discretionin purely administrativematters. In fact,you will note, this power accorded to Faculty Council is set out only in the academic regulationsof thefaculty, and notin the formof administrativeguidelines emanating fromthe universitysenate. Finally,as you know,the professorsat thisuniversity are not unionized. According to articles 1665a-1668 CCLC,a contractof employmentis a contractfor the lease and hire of work. Unless you have made additional promisesto individualprofessors your only legal obligationsare to furnish work and pay wages. Thus, you also have absolute authorityto decide officeallocation questions any way you want withoutfear of a judicial challenge based on the provisionsof the Civil Code. My advice is to proceed in thismatter under the assumption thatyour discretionis unfetteredby the universitystatutes, the general regulations of the faculty,and the provisionsof the Civil Code. Trusting the above, is satisfactory,I am, Yours verytruly, B. George Meehan

BGM /mS

PS- Aren't you glad you have loyal alumni teachingas sessional lecturers whom you can count on forfree legal opinions?

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MCGILL UNIVERSITY Facultyof Law April 16, 1988

TO: ProfessorEdna Placitt FROM: John Wisdom, Gale Professorof Roman Law SUBJECT: Gettingseen and gettingahead I hope you are reconsideringyour decision not to apply fora new office. As I mentionedearlier, there is more involvedin thisprocess than simply a desire for new and betterspace. Even though you say you are quite happy withyour office, you have to realize thatyour contentment will be seen as lack of ambition.When you make a demand fora betteroffice (or a computer,or a research assistant)you are indicatingto the administra- tionthat you feelyou have made a significantcontribution and are entitled to recognition.Within our ratherinsular little circle, the demands forand awarding of such seeminglyinsignificant amenities do not go unnoticed. Believe me, I have had thirty-fiveyears of experience at playing faculty politics. It may seem pettyto act like this,but it'sall part of forginga career. If I mayadd, withoutsounding sexist,there is oftena perceptionthat women are less competitiveand aggressivein the professionalworkplace. If you fosterthis view, you willbe passed over formany other benefits, some of whichmight be of greatvalue to you. Consequently,although it may seem unimportantnow, the competitionfor this office might have a greatdeal of impacton how you are dealt withmuch fartherdown the road. It might also adverselyaffect other female colleagues in the future.I urge you to reconsider and put your name in the runningfor a new office. John

MCGILL UNIVERSITY Facultyof Law April 17, 1988

TO: Dean R.A. Macdonald FROM: Sam Reisman SUBJECT: Officeallocations

The followingis myresponse to yoursolicitation of opinions on thesubject of officeallocations. I'm sorryto be so late gettingback to you but I only saw the memo yesterdaywhen I gotback froma LibertyFund conference. Anyway,I'm sure you won'tbe surprisedby what I have to say. Like Craig

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BillingtonI see thisallocation exercise as being essentiallyone ofvaluation whichyou, as dean, should undertake. I think,however, that Billington missestwo keypoints. First,he has a thinconception of what it is thatwe are valuingin thathe focusesonly on past performance.Second, thereare significantvaluation uncertainties in any exerciselike this. You could well be wrong in your allocation because you have imperfectinformation on tastesand preferences. Let me startby reminding you thatwhat you are reallyasking for in your memo is a theoryof regulation.This takes us directlyto agency cost and interestgroup theories. In a world of zero transactioncosts and full agreementabout facultygoals, all parties would subscribeto a complete contingentcontract, which specified facultypolicies for each possible futurestate of the world. Since that would be too costly,the parties will delegate discretionto the dean as an agent of all those who, as principals, have an intellectualstake in thefaculty: professors, students, even alumni. Regulation mightthen be a response to the possibilityof decanal misbe- haviour,as where a dean seeks to advance his own interestsand not those of the faculty. In some cases this might be desirable, but even then decisions about compensation(and officesare just one typeof compensation) are one of the last places where decanal authorityshould be limited. If facultymembers are given the power to set binding compensation guidelines, one would predict pure rent-seekingby professors,and the resultwould be a set of regulationsthat was not attuned to overall faculty goals. Turning now to the substance of the question, I think public choice theoryis where we should look for an answer. I've heard a number of discussionssince myreturn and I'm struckby the consistencywith which mycolleagues fail to take into account an importantfactor; namely, the marginal utilityof any given office space varies with the individual professor.There maybe some professors,for instance, who preferto work at home, and who would gladlyexchange a large officefor a smallerone ifthey were able to schedule theirclasses so thatthey need not come into the facultytwo days a week. Again, certainprofessors require more space because theydo a lotof workwith graduate studentsor researchassistants. Some would be willing to forgo a better office if they could have a particular secretaryor their own computer, or if they could teach a particularcourse. In addition to all this,tastes change. It is inefficientto deal witheach of these issues separately:allocation of officespace, course assignments,timetables, support services,graduate student supervision, etc., should all be treated together as tradeable commodities and balanced against one another in establishinga work environmentfor each professorthat will permit him to achieve maximum efficiency.Of course, the basic point is to provide professorswith the

This content downloaded from 132.216.86.161 on Mon, 23 Dec 2013 03:35:54 AM All use subject to JSTOR Terms and Conditions 436 UNIVERSITY OF TORONTO LAW JOURNAL correctincentives to do good work(too bad we can't abolish tenure,by the way). Still,since non-salarybenefits have idiosyncraticvalue, you can't possiblyhave all the informationyou need to see how each memberof the facultyvalues them.Professors who kvetchabout yourallocation, however you make it,should simplybargain with their colleagues to getbetter office space. Prettywell any object that can be legally exchanged is legitimate bartermaterial. Given how manyof thesethere are in a law faculty,unless you are incredibly biased (or are a life-tenuredean), the marginal advantageswill even out. Here's an example. We all knowthat Sheila is the best secretaryin the faculty.If the person to whom she is assigned wants a particularoffice badly enough, he mightwish to trade her forsomeone less dextrousin exchange forthe office. More generally,there is no reason why professors couldn't engage in outright cash buyouts of offices, researchassistants, administrative positions, or otherbenefits. I certainly don't see a justification for paternalisticbarriers to alienabilityhere. Moreover, we all know that this type of thing has gone on in the past withinthe faculty.I distinctlyrecall informaldeals ('I won't apply for a sabbaticalthis time around ifyou make sure I getyour office,' etc.). Since it is obvious that this type of activityinevitably will continue under the table,we should recognize itsbenefits and legitimizeit by bringingit out in theopen. I'm temptedto send everyonea copyof Coase's seminalarticle just so people see what the possibilitiesare. As to the correct specificationof incentives,I would argue that you should be carefulnot to place too much weighton past performance.The basic question should be, What have you done for the facultylately? I agree, however, that your valuation calculus mightwell, as Billington suggests,have a significantex post 'settlingup' component. The advantages of the systemI'm advocating are prettyobvious: it provides the rightset of incentivesand allows us to bargain to a better distributionof non-salary goodies; and it doesn't allow anyone in this facultyto reston the publicationof an articleor twoon the law of willsin the 196os fortheir status in the faculty.Everyone will have to workhard in order to accumulatetradeable commodities. These policieswill, I think, help us to achieve our goal of making this the best law school in the country.

/mb

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MCGILL UNIVERSITY Facultyof Law April 0o,1988

TO: Dean Macdonald FROM: David Sangster,F.R. Scott Professorof Public and ConstitutionalLaw SUBJECT: Office allocation and academic freedom I read withgreat interest both your memo on officeallocation and a copy of ProfessorDugas's replywhich she forwardedto me for comment. In general, I endorse her position,but I would take it one step further:a committeeshould be established not only to draw up criteriabut also to make theactual allocations.This second committeewould notbe an ad hoc committeelike the first,but should be a standing judicial committee'of the faculty. I stronglybelieve thatthis process should be entirelyindependent from thedean's office.A universityis a centrefor the creation of knowledge,for exposure to new ideas. Its verylifeblood is the academic freedom of its professors.In thislight, the question how to allocate officespace is not as trivialas itseems at firstglance. Officespace, along withsupport services, research assistance,travel and book allowances, and timetablingare the small thingsthat comprise the environmenteach professormust work in. If the power to control all of these is concentratedin the hands of one individual, thatindividual can make lifeat the universityintolerable for any professorwith whom he happens to disagree. It is not necessarythat therebe any actual abuse; itis enough thatthere is a potentialfor abuse to chill academic freedom. Mysuggestion, therefore, is thatmembers of thefaculty elect representa- tives to an ad hoc committee(a sort of legislature),which will establish criteriafor assigning office space. These criteriawill be, in turn,applied by another independent body (thejudiciary) appointed by the dean (the executive). I knowthis sounds a lotlike Montesquieu and Dicey,but, after all, aren'twe a law faculty?Let's seta good example forthe other faculties.

/ay

April 2o, 1988 Dear Boss, Too bad. It's not goingto be easy to reallocateoffice space. For once you're out in the open and can't mask the facultyhierarchy behind pre-existing

This content downloaded from 132.216.86.161 on Mon, 23 Dec 2013 03:35:54 AM All use subject to JSTOR Terms and Conditions 438 UNIVERSITY OF TORONTO LAW JOURNAL bureaucraticrules. I'm not going to let you tryto camouflage yourpower withthis pseudo-exercise. Anyway,I bet we're not the real audience for the memo anyway.This is how you show the vice-principalwhat a good administratoryou are, right? By askingus to giveyou our feedbackor suggestionson yourcriteria you are essentially co-opting us into accepting your final authorityand discretion.You are tryingto make us feel thatwe actuallyhave had some say in a decision thataffects us all, but thatin realityis made solelyby you. Everyprofessor who passes on suggestionsor commentswill feel thatshe has participated.In effect,all she willhave done willbe to have passed over to you her power to have a real input in the allocation. Nowhere has anyone questioned your authorityto take the initialdecision to send the memo invitingsuggestions. This attemptto pacifythe competing interestsby creatingan aura of participationis yetanother example of theliberal lie thatbureaucracy and democracyare compatiblein action. Those among us who feelwe have an interestin or an entitlementto a new officeshould be allowed to make the allocationamong ourselves throughdebate and discussion.This maynot be as expedient as yourmethod, but itwould no doubt be, to use yourown words, less 'disruptiveto the dynamicof the faculty.' Of course, you have the power as dean to do what you choose, and I'm sure you will. I merelywanted to point out thatyour attemptto involve professorsin facultydecision-making is disingenuous. Unless we have the fullpower to decide among ourselveswhat the 'best overall interestof the faculty'is, we have, in effect,no power at all. Assumingyou insiston makingthe decision yourself,in myopinion the onlylegitimate way to proceed would be to put everyone'sname intoa hat and have a draw. Games of chance are at least blind to entrenched interests. Force our Dicey maniacs like Sangster, Dugas, Rose, and Chouinard to play withdice thataren't already loaded. Patrick /adb cc: All workers Dr Oscar Steinman,Vice-Principal (Academic)

MCGILL UNIVERSITY Facultyof Law April 21, 1988

TO: Prof. Cathy Ratcliffe FROM: Sam Reisman SUBJECT:Sharon's office

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The grapevinetells me thatyou are one of those people activelypursuing Sharon's office.Let's face it,by any possible criterionor criteriathat the dean or a committeecould come up withyou are going to lose: you're relativelynew here; you're not tenure-track;you haven't had time to assemble an impressivelist of publicationsin meaninglessjournals. Plus, you haven't exactly been Dale Carnegie when it comes to influencing people and winningfriends with your political agenda and abrasivestyle. So I have a deal foryou. I'm in the opposite position. I could easily get the officeif I tried. Quite frankly,though, I don't particularlyrelish the thoughtof having to tolerate our old intellectualproperty expert on a neighbourlybasis. So I'd like to stayput, despite the factthat my office is not the greatest. You clearly have the best secretaryin the faculty, althoughmost others haven't realized ityet. She has gotexperience on the same word-processingsystem I have at home and in my office,and on which I plan to writemy next book. I am willingto put my name in the runningfor this office. You would withdrawyours, and instead apply for my present officewhich no one else will do. When the allocation comes through,we'll switchoffices and secretaries.The dean won't interfere since this sort of thing has been quietly done in the past; moreover,he would fear the possibilityof your crying the feministwolf. This is somethinghe will avoid at all costs. You can't possiblyexert the type of influence in the facultythat your ideology requires if you continue to be isolated in the attics of these buildings. So let's make a deal.

MCGILL UNIVERSITY Facultyof Law April 23, 1988

TO: Dean R.A. Macdonald FROM: ProfessorG. Rose SUBJECT: Office allocation procedure: Our file 88-23-136 I find it puzzling that you are solicitingopinions on office allocation procedure. I also findyour claim to an unfettereddiscretion unsettling. The procedure used lastyear was based onlyon yearsof serviceand had nothingto do withrank. I can see no reason to change this.In fact,there are good reasons to followthis precedent. For one thing,it is certain. It worked withoutany major difficultieslast year. In addition, it allows professorsto plan theirfuture moves. 'Seniority'is an objectivestandard thateliminates arbitrary and capriciousexercises of power.Your approach

This content downloaded from 132.216.86.161 on Mon, 23 Dec 2013 03:35:54 AM All use subject to JSTOR Terms and Conditions 440 UNIVERSITY OF TORONTO LAW JOURNAL willonly add to the competitive,back-biting element within the faculty.I see no meritin this.

Per: ROSE, DESJARDINS

/tv

MCGILL UNIVERSITY Facultyof Law April 23, 1988

TO: Prof. Sam Reisman FROM: Prof. Cathy Ratcliffe SUBJECT: Let'smake a deal

Your behind-the-scenesoffer to trade mysecretary for floor space is an interestingone. In fact,I found it so interestingthat I decided to share it with the restof the faculty(and secretarialstaff), and have circulated a copy of the memo withthis response. I know you won't mind. If you are reallycommitted to the kind of 'market'dealing you described,then you should be quite happy to make the marketan open one. By the way,thanks for the photocopyof Coase's seminalarticle. While I too have a certainnostalgia for the 1950s,perhaps you mightwant to trade it in fora more contemporarymodel - I suggest Martha Minow's ovarian masterpiece,'Partial Justice.'

/sg cc: All professorsand secretaries

M. le doyen Macdonald Le 24 avril 1988 Faculte de droit

Mon cher doyen, Je suis disold d'apprendre que certains collegues vous harcdlentpour obtenir de nouveaux locaux. trouve ne savent s'en ' Je dommage qu'ils remettre votrebon jugement. Soyez assure de mon support dans votre decisionquelle qu'elle soit.J'aiun immenserespect pour votreperspicacite, votre sens logique et vos capacites d'administrer. Dans cette faculte, personne d'autre que vous ne pourraiten arriverA une d cisionaussi sage. J'espereque vous n'agoniserez pas troplongtemps et que votredecision sera rapide. De toute fagon,la majorit6des professeursacceptera votre d cision quelle qu'elle soit. Si je peux me donner en exemple, ma con-

This content downloaded from 132.216.86.161 on Mon, 23 Dec 2013 03:35:54 AM All use subject to JSTOR Terms and Conditions NORMATIVE ORDER IN THE ADMINISTRATIVE STATE 441 fianceenvers votre leadership ne futen rien diminu e par votredecision de ne m'accorder qu'une tresminime prime du meritel'an dernier. Bon courage. Albert Arsenault

McGill Law StudentsAssociation Association des etudiantes et etudiantsde droit de McGill Chancellor Day Hall, Room 4

April 25, 1988 Dear Dean Macdonald, It has come to our attentionthat, in addition to the four officesin the annex, ProfessorSharon Eaton's officewill become available forreassign- mentupon her departure.As you know,our associationdesperately needs more space. At presentour premises in the basement of Chancellor Day Hall are farfrom adequate. A new officein the main part of the building would provide a focalpoint for student activities, and byextension would improvethe qualityof lifefor students by freeingspace fora video-game and pin-ballroom in thebasement. Moreover, this initiative would be very well perceived by those students who are always complaining about professors'being isolated in theiroffices. An added bonus is thata games room would generateenough profitfor us to put in a computerthat could be used to produce the QuidNovi more cheaply, and therebyreduce the subsidyyou have to give it. These considerations should be examined and weighed against the supposed benefits of merely reallocating the vacant office to another professor.While we don't claim thatin officeassignments the claims of professorsshould alwaysbe subordinateto ours (although,as you know, in France almostno professorshave officespace at theirfaculty), we do not thinkthat the purposes forwhich professors have offices-to do research, to meet with students,to have private space for reflectionand study- require the assignmentof any particularoffice. An officepecking order is extraneous to the basic purposes of office-holding,and is rather a surrogatefor a meritclaim, or a prize. Our view is thatonce seen in thislight, and assuming thatall professors actuallyhave an office,the allocationof officesmust reflect a balancingof all interestsin the faculty-professors, students, administrators, secretaries, librarians, and even cleaners. We are confident that in any such balancing,the law facultyas a communitywould be bestserved at thistime by allowing the association to take over Eaton's old office.

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Sincerely, Louise Blanda LSA President

PS- I knowthat you have already senta memo to theprofessors intimating thatyou willbe allocatingthis office to a facultymember. But you didn't actuallymake anypromises, and thereforeyou should notlet this preclude you fromgiving it to us. Besides, movingthe LSAin lets you avoid having to choose among professors.

UNIVERSITE MCGILL Faculte de droit 25 avril 1988

A: Barry Paul DE: Richard T6trault OBJET:Votre nouveau bureau La discussion de table de la semaine derniere au Faculty Club m'a fait beaucoup r6fl6chir.Je sais que le processus d'allocation des locaux vous enrage.Jecrois cependant que pr6tendreavoir un 'droitcontractuel' a un bureau particulier,ne vous manera nul part. Votre bureau actuel fait tellementpitie, que tout nouveau bureau serait une amdlioration.Je ne serais pas surpris que le doyen vous offre le bureau du collkgue qui obtiendrale bureau du professeurEaton. Vous pouvez certesreclamer un bureau de qualit6, maisje ne crois pas que vous ayez droit a un bureau en particulier. De toute fagon, Barry, les gens s'en font trop avec les structures d6cisionnelles de la facult&.Ils croient que les regles d'allocation des bureaux, qu'elles soient du doyen ou d'un comit6,sont des structures n6cessaires, voire historiquementin vitables, pour administrer cette institution.Mais selon moi, ces regles n'existent que parce que nous croyons en avoir besoin. Je suis stir que le doyen regoit des lettres expliquant de quelles r gles nous avons besoin et de quelle fagonil fautles cr6er et les appliquer. Quel estle but de cetexercice sinon de continuerle raffinementd'un tic- tac-toe rationalisteou de justifier notre besoin de regles encore plus nombreuses?Nous savonsque le doyencontr6le la situation.II allouera les locaux selon ses sentimentsdu moment. Si, ce jour-lI, il est en rogne envers les francophones,les civilistes,la vielle garde ou les f6ministes,le r6sultatsera diff6rent.Plus sp6cifiquement,s'il est en rogne avec vous ou tout autre pr6tendantce jour-la, le resultatsera diff6rent.Meme si ces facteurs6taient neutres, il demeure qu'il devra donner son interpretation personnelle des crit!res que nous lui imposons. Ne vous souciez donc pas des ragles Acr6er. Voyez plut6ta d6couvrirle

This content downloaded from 132.216.86.161 on Mon, 23 Dec 2013 03:35:54 AM All use subject to JSTOR Terms and Conditions NORMATIVE ORDER IN THE ADMINISTRATIVE STATE 443 momentoh le doyen d6cidera et tentezd'etre alors en bons termesavec lui. Allez le voir et soummettez-luivotre dernier articleet plaignez-vous de votresalaire. Il ne peut probablementpas vous offrirun meilleursalaire, mais il risque de vous donner un meilleurbureau pour compenser. Fiez-vous sur moi: les regles (et surtoutla notion d'obligation contract- uelle) vous feronsperdre votretemps. Travaillez a influencerla 'psycho- logie' du doyen.

/Im

MCGILL UNIVERSITY Facultyof Law April 26, 1988

TO: Rod FROM: Ray Marcil, Fern G. Kennedy Professorof General Jurisprudence SUBJECT: Office allocations It seems to me, as a labour law professor,legal theorist,and, like you, an Eden expatriate,that there are twowrong ways of looking at thisproblem. The firstis to see yourdecision throughthe lens of labour law; the second is to let our colleagues tell you what the issue is or what the interestsin conflictare. Since I'm tryingto getsome ideas straightfor my new seminar nextyear on employmentlaw, I hope you'll indulge me withthis prelimi- narycourse outline which I'm tryingto sneak by you as a memo. To begin,let me make a general pointabout manyof our colleagues. My bet is that(1) you're gettinglots of memos,and (2) mostof themare rule- of-lawvariants. This is to be expected. We're universityprofessors so we cherish the writtenword and pride ourselves on our linguisticability. Other organizations (say an organized medical clinic) would, I'm sure, generateless paper and more conversationon an issue likethis. As forthe rule-of-lawfocus, the answer is equally obvious. If all you have is a hammer,every problem looks like a nail; and we both know how much contemporarylegal education has hammered home legalismas a political ideology. In other faculties at McGill (for example, Social Work), the dominant themes would be reconciliation and accommodation, not confrontation,adversarialness, and claims of right.Let me pursue these complementaryaspects of paradigm law-professorbehaviour by develop- ing the two points I made in my firstparagraph. I suggestthat it is inappropriateautomatically to analyse yourmanageri- al problem in termsof labour law theory,for then the assumption is that we should look to 'law' (rules,procedures, institutions) for the appropriate

This content downloaded from 132.216.86.161 on Mon, 23 Dec 2013 03:35:54 AM All use subject to JSTOR Terms and Conditions 444 UNIVERSITY OF TORONTO LAW JOURNAL characterizationof the issue, and to 'adjudication' forthe mechanicsof its resolution.Much of labour law was developed in reactionto the demon- strated inabilityof management and workers to compromise and co- operate. As a result,the attribution of 'rights'under a collectiveagreement and their enforcementthrough the ukase of an arbitrator'sor judge's decision became our dominant model. But here in the universitythe setting is, presumptively,one of collegialityand co-operation in our attemptsto achieve a common goal of academic excellence. Because you are not our employer, and because you must ultimatelyreturn to our ranks,you are in factthe mostappropriate person to manage the process by whichwe actuallydecide how to allocate officespace. In otherwords, don't tryto make over thisfaculty into either a free-standingpolitical state or a public bureaucracy. If I could sketcha rough model of the way to thinkabout thisproblem I would propose a four-square matrixderived fromMeir Dan-Cohen's workon the legal theoryof organizations.In thismatrix, the diagonally opposite pairs would be individual and stateon one axis, and community and organization on the other. To me, any firmdividing lines between public and privateor between person and polityare mistaken.The term 'individual'is a conventionalshorthand for the congeries of complementa- rybut partial selves thatwe constantlyredefine ourselves to be. Justas a polityis composed of several individuals, an individual is composed of several persons. You are at once son, husband, father,lawyer, friend, professor,dean, and muchmore. To subsumeall thesemultiple selves into institutionalrole-fetishism is to be unfaithfulto all the other persons the Principal assumed he was going to get when he appointed you. Rather than see the officeallocation exercise as a problem of labour law, you should see it more as a problemof familylaw. In fact,I would argue that intra-organizationalproblems are alwaysproblems of affectionmore than problems of alienation. This bringsme to mysecond point. If thisis indeed a problemof family law, how do you transformthe claims of love, envy,sorrow, and joy and the inarticulatesentiments of hope, vulnerability,autonomy, and trust whichwe all livedaily into a parable of moral growth?In otherwords, how do you use this exercise - which rule-of-lawtypes would see as utterly inefficientand destabilizingto professors- into an opportunityfor us to reflectpublicly upon those thingswe value? At the same time,how do you preventany such exercise of self-reflectionfrom sticking the institution witha set of fixed rules and procedures which lock us into the political agenda of the momentaryfaculty majority in May 1988? To suggest an answer to these questions,let me rehearse a problem I use in my'Saving the Appearances' seminar. Imagine two siblings squabbling over the sharing of a chocolate bar.

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They invoke the authorityof their parents to get a decision. But the parentsrefuse to cut the candy,and instead reply,'Oldest cuts,youngest gets firstchoice.' Here, the parents have 'solved' the problem not by imposing a solution, but by suggesting a structurewithin which their childrencould solve itthemselves. Of course, a facultyis more complex in that there are more than two claimants to satisfyand there are many prizes.So, we mightask, what happens, as in theoffice allocation situation, when there are several parties to a conflict(that is, if there are three or more siblings?)One plausible answer would be to buy a box of Smarties. That is,reshape the probleminto a formthat lends itselfto a solutionthat is withinthe moral and intellectualgrasp of the affectedparties. Your role is not to make yourself the centre of the controversyby deciding eithercriteria or entitlement.Your officeis to thinkcreatively about how we can conceive of the problem as a metaphor fordiscerning when faithin explicitrules and adjudicativedue processbecomes idolatry. For I deeply believe thatthe way in whichwe understand and live out the public and externalnormative universe we share withour studentsflows directlyfrom how we understand and live out the private and internal normativeuniverse we share witheach other as colleagues and withour various selves.

/sg

MCGILL UNIVERSITY Facultyof Management April 26, 1988

TO: My other dean FROM: Prof. Yablonsky SUBJECT: Officeallocation in theLaw Faculty I thinkthat myunique position --holding a cross-appointmentbetween thisfaculty and the Facultyof Management -allows me to giveyou a fresh perspectiveon yourlatest problem. After all, whatyou have here is simply a classical management dilemma. I could give you a shortreading list- Downs, Self, Wilson, Olson - but you've got betterthings to do. So I'll summarize the latestthinking in the field. My colleague on the other side, Henry Mintzberg,has just published a book called Structurein Fives: DesigningEffective Organizations. Mintzberg would categorizethe law facultyas a 'professionalbureaucracy.' Its chief characteristicsare an operating core of professionals,duly trained and indoctrinatedbut withconsiderable independence over theirown work, both in the classroom and in scholarly enterprises. In general, they maintain closer contacts with their clients (their students and legal audiences) than withtheir colleagues. Mintzbergargues thatthe profes-

This content downloaded from 132.216.86.161 on Mon, 23 Dec 2013 03:35:54 AM All use subject to JSTOR Terms and Conditions 446 UNIVERSITY OF TORONTO LAW JOURNAL sional bureaucracyrelies for co-ordination on thestandardization of skills and itsassociated design parameter,training, and indoctrination.In other words,law professorshave receiveda bodyof training which, within broad guidelines, teaches them how to proceed in the classroom and in their research. But withineach of these areas, since there is a wide scope for judgment, there is much independence. The professionalgoal of contributingto the advancementof learningis the functionthat the essentiallybureaucratic structure of these organizations is meant to serve. Certain standards existto predeterminehow the structureis co-ordinated.The standardsin professionalbureaucracies are determinedmore by the power of expertise,professional experience, and other forms of self-regulation,as compared with other models with obvious centralized and hierarchical structureswherein experts make decisionsand underlingsenforce them. Thus, theprofessional bureaucracy is highly decentralized. It is the most democratic of Mintzberg's structures.This is not to say hierarchiesdon't exist. They do. In professional bureaucracies,however, pecking orders are based on expertiseand experience. And notwithstandingthese hierarchies, much power remains concentratedat the bottom,with each professional. Administrationof this type of structurehas its difficulties.Given this decentralizedtendency towards democracy, the professionals will seek not only individual control over their work but also collective control of administrativedecisions that affect them - through committees,for example. Thus, active professorswill exert more influence. However, thereare consequences to collegial attemptsat control.First, the adminis- tratorwill spend much timehandling disturbancesin the structure.This certainlyisn't new to you! But seldom will you be able to merelyimpose unilateral solutions. Direct attempts at control by you or any other administratormay result in your demise. You will have to use indirect methods of control and mediation that in the final analysis are very powerful. For example, you are going to have to negotiate solutions for antagonisticprofessors. This increases your power. The second consequence is a resultof the factthat you are functioning at the boundary of the organization,between your colleagues and the universityadministration, the students,the government,and the public. You have to bufferyour colleagues fromcertain aspects of societywhich theywould rathernot deal with,thus allowing them to functioneffectively and independently. This makes them dependent on you if you are an effectiveadministrator. For example, if you are a good fund-raiser- gettingresearch grants,chair endowments,and research facilities- the professor'stime can be spent on research,writing, and teaching,instead of solicitinggrants herself or supplementingher income throughoutside commissions.

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Mintzbergconcludes that'power in these structuresdoes flowto those professionalswho care to devote effortto doing administrativeinstead of professionalwork, especially to thosewho do itwell. But that,it should be stressed,is notlaissez-faire power: theprofessional administrator keeps his power only as long as the professionalsperceive him to be servingtheir interestseffectively.' As a result, strategyis a functionof the relation between individual professorsand the administrator.No one strategyis correctunder all circumstances.Your power as dean depends on how well you've allowed the rest of your colleagues to function as so-called academics. It does not depend on how 'ethical' you've been, how 'com- passionate' you've been, or even how 'consultative'you've been. My point,then, is a simple one. The amount of'decanal discretion'you have in each individual case depends on a bottom-linejudgment byyour colleagues on how good a dean you have been. This can be empirically tested.If you seek some confidentialopinions on thisquestion, especially withrespect to the principal playersinvolved, the answer to the question of the best means forallocating offices - at thistime and in these circumstances - will follow.

/mlm

MCGILL UNIVERSITY Facultyof Law April 27, 1988

TO: Dean R.A. Macdonald FROM: Prof. Andrea MacIntosh SUBJECT: Distributivejustice I don't want you to thinkthat this is just another pitchfor a new office.I have a feelingthat you have been receivingeven more answers to your memo than those you mentioned last Tuesday at lunch. No doubt everyonehas reasons forbelieving he or she has the best claim to Eaton's officeor to one of those at 3647 Peel. I've been thinkingabout yourproblem of deciding thisin a 'fair'way. To mostpeople, 'fair'will inevitably mean 'in theirinterest.' This is bound to happen no matterhow you frame the decision. Most of our colleagues adhere implicitlyto a viewof societyin whichthe public good is simplythe aggregateof privateright. For thisreason you can draftthree volumes of rules,but in the end willbe accused of exercisingyour discretion in one's or another's favour. More, even the decision to let a committeedraft the rules (no matterhow the committeeis chosen, no matterwhat these turn out to be, and no matterhow theyare broughtinto force)will be seen by some as partisan.

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I hope you will consider the points I made at lunch about constitutive communities.While I'm not as theologicalas Ray Marcil on thisquestion, I neverthelessbelieve that whatever process you decide upon must be enfranchising:you have to help each of us not only to see the big picture which you live daily (call it the overall interestof the facultyif you want) but also to recognize thatneeds and circumstancesof each individual at a farmore focused level thanany fixedset of decision-makingcriteria would allow. I made all these points on Tuesday, but I have thoughtof a few nuances I would like to share withyou now. Some colleagues willsuggest that allocations should be made on thebasis of 'contribution.'This maybe perfectlywell and good, but how does one definecontribution? At a purelyformal level, considering that each person is a professorhired to teach, research, and publish, these would be the gauges of contribution.But contributionsare made in other respects. Professorswho representa minorityviewpoint make a certaincontribu- tion. So do those who play a verypublic role in the community,and who may not have time forsome of the more traditionalteaching activities. If you wantto extend the argumentfurther, those professors among us who are raisingsmall childrenare makinga contributionto the communityat large, which,although you are not obliged to reward,you should at least not attemptto penalize. So thenotion of 'contribution'is a verybroad one. Everyone of us is making his or her own contribution. Patrickseems to thinkthat the way to recognizeand value these diverse contributionsis to refuse to weigh them. Treat us all as equals and toss a coin. I actually agree with him that there are times when deliberately invokingchance can be liberating.This is not one of them,however, for chance is not a richlyparticipatory process. In fact,it displaces one of the very questions we seek to address to the realm of the arbitrary:Who counts?We stillhave to workthrough difficult questions of ethicsin order to determinewho should be entitledto draw a straw.The question, for example, whethervisiting professors, research fellows, students, secretaries, and administratorsshould participaterequires us to weighthe criteria we value and seek to reward as much as the allocational decision itself.So tossinga coin will not solve our conundrum. Moreover, if you take upon yourselfthe task of making these assess- mentsyou are disenfranchisingus. Alreadyin our relationshipswith each other,in what we do and what we expect of ourselves,we are generating a normativeorder. Your job is not simplyto recognize this;it is to assistus in recognizingit. Argumentsof efficiencyand expertise are only valid when legitimated.We rely on you to keep open our choice whether to accept them. Conversely,we also relyon you to ensure thatour freedom from 'the tyrannyof technique' which these argumentsimply does not expose us to a 'tyrannyof rhetoric.' For historyteaches that radical

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democratsoften are demagogues who substituteoratory for economics in thecompetition for legitimation. A dictatorshipof the proletariatis always at riskfrom those who generate itsdicta. You will have to assess all of these considerationsin deciding how we oughtto decide. You willalso have to evaluate whetherother benefits have up until now been distributed fairly.You could then use this office allocation exercise as a way of helping us consider past inequities. In structuringour deliberations,you willhave to do a greatdeal of choosing and weighing. This is really what your discretionto 'decide in the best overallinterest of the faculty'involves. Yourjob is not to decide forus, but to help us develop our own grammarof democracy.No one willcome up withthe same listof considerations as you will,but thenno one else is dean. To continue the metaphor,as long as you are willingto have us rejector modifyyour subjunctives, gerunds, or pluperfectswe are willingto letyou propose the initialEsperanto. That's whywe selected you. Let me close witha concretesuggestion. Patrick has alreadycirculated his memo, and othersare floatingaround the faculty.Why don't you send a follow-up memo settingout your revised views, invitingcolleagues to distributetheir memos publicly, and callinga facultymeeting to discussthe question? We tellour studentsto reviewtheir exam scriptswith us as part of the learning process. If you're serious about using this situationas a vehiclefor collective reflection, let's get the various proposals on the table and deliberate about them.

/ay

MCGILL UNIVERSITY Facultyof Law April 28, 1988

TO: R.A. Macdonald FROM: William Thompson SUBJECT:Democratizing the faculty I believe in directdemocracy. I'm also a straightshooter so (unlike some of the morejunior professorshere) I'll tellyou what I reallythink. Fifteen years in practice and ten in politics makes me particularlyresistant to academic bull like Patrick's'open letter.' You should send another memo asking all of those who wantany of the vacantoffices to indicatewhich one or ones theywant in order of priority. Then printup a ballot for each officeand let the whole facultyvote on which prof wins. Neat, clean, and out in the open. No special pleading behind the scenes. No secretdeals. No garbage about 'institutionalvalues' or 'communityof scholars.' No self-interestparading as philosophy. Let the chips fall where theymay. That's democracy. /hh

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MCGILL UNIVERSITY Facultyof Law April 29, 1988

TO: Rod Macdonald FROM: Sandra Greenwood SUBJECT: Office allocations As you know,I'm not usually a memo-writeron matterslike this.Memos are just too shortand too episodic to say anythingworthwhile. But I'm workingon a paper called 'Normative Order in the AdministrativeState' fora conferencenext fall and yourproblem is a perfectillustration of what I've been tryingto get at. I now also see why I can't seem to write a standard discursiveand heavilyfootnoted paper to make mypoints. The law facultyis just like an administrativetribunal - itsnormative order is partlylegalistic and authoritarianand partlyorganic and authoritative.Its normativeorder is also partlygiven and partlyconstructed (le donneet le construit). The typeof decision you now confrontis institutionalin all senses of the word. So the firstquestion we should ask is 'What can institutionsknow?' Notice thatI am notasking 'What can individualsknow?' If administrative lawyershave come to understand anythingthese past fewyears, it is that much individual knowledgeis institutionallydetermined. External social order is partlyachieved bysanctions (legal penalties,social shame, guilt), but also requires an internalsocial order arisingfrom the generationand performance of institutionalroles whose fulfilmentconsists in the apprehension and application of institutionalknowledge. So when we disagree about principles of justice, or the distributionof offices,we frequentlyare echoing conflictsin institutionalknowledge. An institutionis notmerely an instrumentof individualsor of communities. What Sandel and Durkheim say about communitiesis applicable to institutions:'community' describes not simplya relationshipthat people choose, but an attachmentthey discover; not merelyan attribute,but a constituentof their identity.Like Mary Douglas, I would argue that individual moral choice is possible only because the big moral decisions have already been made for us by our institutions. In thecontext of yourpresent dilemma thismeans thatour assumptions about whatconstitutes a universityor a faculty,about whywe create these structureswhich are intended to celebrateindividuality by compelling us to thinkcollegially, and about how the conditionsnecessary for altruism develop are not freelychosen. Neitheryou nor any one of us comes to the problem of officeallocation unconstrained.We are trained as lawyersso thatwe understand administrationas lawyerswould; we are employed as professorsso thatwe understandadministration as professorswould. You

This content downloaded from 132.216.86.161 on Mon, 23 Dec 2013 03:35:54 AM All use subject to JSTOR Terms and Conditions NORMATIVE ORDER IN THE ADMINISTRATIVE STATE 451 can't fundamentallychange this,nor should you try.I hope thisis what you mean when you say that you won't do anything'disruptive to the dynamic of the faculty.'A normativeorder is institutionallygenerated; institutionsare not the product of theirown normativeorder.

/mb

UNIVERSITE MCGILL Faculte de droit 30 avril 1988

A: Rod DE: Prof. Pierre-Georges Chouinard OBJET: Attributiondes bureaux Nous aurons tout entendu dans cette discussion sur l'attributiondes locaux. Ce qui m'inqui~tece sontces declarationsal'emporte-piece qui font la louange de votre discretion et des diverses formes de hierarchies administratives.Mais pendant que l'administrations'auto-justifie et s'accorde moultesindulgences pleniitres,on oublie les individusque sont les professeurs. Nous avons des droits qui sont superieurs a toute consideration dite institutionnelle.Je vous refttreaux etudes de Leon Duguit,Jacques Chevalier,et Maurice Hariou, administrativistesfrangais exceptionnels qui sont negligesici en amerique du Nord. Dommage que nos collikguessont seduits par les debats infantilesaux Etats-Uniset qu'ils ignorentles apergus europeens. Vous n'yetiez pas lorsqu'hala findes annees soixante nous avons renvoye deux doyens parce qu'ils croyaientque leur vision de McGill etait plus importanteque les droitsdes professeurs.Jen'aijamais entendu l'expression 'le bien de l'institution'repet~esi souventque depuis quelque temps, sinon peut-etre lorsque nous avons commis l'erreur d'admettre des 6tudiantsau sein du Conseil de la faculte.'Le bien de l'institution,''l'intrift superieurde la facultY,'ce ne sontla" que des motspolis pour imposer aux professeursles plus recentesplateformes de la gauche. Votre rdle est de preserverle statuquo des incursionsdu 'bien commun.' Je m'attendsa ce que toute decision 'a propos des locaux soit prise en conformiteavec la procedure juridique appropride dans le respect des droitsacquis. En tantqu'avocats nous defendons la primautedu droit. Il nous faut mettreen pratique ce que nous prechons.

/hh

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May 4

Rod, I imaginethis whole businessof office allocations has been occupyinga lot of yourtime lately. I knowthat when I was dean itwas probablythe single most contentiousissue that I had to deal with. Since you are no doubt beingbombarded with everything from claims of rightsto calls foranarchy (and I could guess who is sayingwhat!), I thoughtI mightgive you some unsolicited- I don't want the office- advice. I'm not sure how you're going to decide who gets either Sharon's old officeor the otherfour offices across the road. But frankly,I thinkyou're betteroff making the decision foryourself -committees just taketoo long to arriveat solutionswhich ultimately are no betterthan what you would have decided in the firstplace. On the other hand, howeverthe decision is made, you have to keep one thingin mind: it's not whetherjustice is done, but whetherit appears to be done. If thingslook fair,you should be OK. As forPatrick's memo, you can't lose. Treat him theway I did. You play the oppositionist. Propose a totallyoff-the-wall solution that requires Patrick to act like he is the 'dictatorship' he ostensiblydespises. For example, ask himto takecharge of theprocess and leteveryone (especially students and secretaries) know that you've informed the vp of your delegation of authority.Or put the onus of actingnon-hierarchically on him: publiclyacknowledge his memo,and thenask forvolunteers to switch officeswith the Law StudentsAssociation. As forthe other suggestionsyou get,manage themaccording to where they come from. I expect that someone like Frangoise will call for a committee.If you feel you have to give in on this,keep it under control. Instead of lettingthe committeemake the decision, let them draw up the criteria.Criteria, after all, can be manipulatedone wayor anothertojustify whateverdecision you ultimatelymake. Or, if you decide on the criteria yourself,make itlook like you based themon the responses you've gotten fromcolleagues. If you have to give someone an officethat you thinkhe or she willbe less than pleased with,intimate that the criteriastrictly applied would have resulted in an even poorer allocation. Or you can give the person a choice between thatoffice and a couple of even poorer ones - thatwould make the person feel thatyou dealt withhim or her fairly. Take a long timeto decide. Ask everyonefor opinions everychance you get. Send a couple of follow-upmemos. This willgive the impressionthat the decisionwasn't arbitrary or takenprecipitately. If you make itlook like

This content downloaded from 132.216.86.161 on Mon, 23 Dec 2013 03:35:54 AM All use subject to JSTOR Terms and Conditions NORMATIVE ORDER IN THE ADMINISTRATIVE STATE 453 you've losta fewhairs over the allocation,people willaccept the decision. That is thekey, Rod. Ultimately,your actual decisionis less importantthan the way in which people perceive it was made. Max

PS -As I reread thisnote itseems to me thatI'm sounding a bittoo cynical. I don't suggest that you should always manipulate the faculty. For example, the staffappointments process requires a much higherdegree of candour and openness. But officeassignments are hardlyof the same order of importance.You don't expect everycase to reach the Supreme Court, and you don't expect customsinspectors at Mirabel Airportto be of the same calibre as membersof the ImmigrationAppeal Board. Good administrationmeans knowingwhich issues are importantand whichare not. Don't waste your time (or ours) on trivialities.

MCGILL UNIVERSITY Facultyof Law May 4, 1988

TO: Dean Macdonald FROM: Marie Houle, Administra- tiveAssistant and Area Personnel Officer SUBJECT: Offices Dear Dean Macdonald: I've been thinkingabout your memo solicitingrequests fromprofessors forthe new officespace. I hope it was just an oversightthat you did not extend the same invitationto membersof the faculty'sadministrative and secretarialstaff. I'm sure thatyou are aware thatmy job as youradministrative assistant makes certaindemands in termsof space. I have a computer,a small safe, filing cabinets, and shelves of documents and record-books. To run business efficientlyI need space forall of thisequipment. In short,I hope you will seriouslyconsider allocating me a larger office.I would then be able to functionmore efficientlythan in the renovated closet off your officein which I now find myself. I don't want to sound too aggressivein mynext remarks,but I feel very stronglyabout thisissue. Knowing the kind of person you are, I am sure you will understand my concerns. It is a fact that the majorityof the support and administrativestaff are female. Most of us are productsof a more stereotypedsociety. We're not'upper management,'although some of us are certainlytalented and efficientenough to meritit. Still,we play

This content downloaded from 132.216.86.161 on Mon, 23 Dec 2013 03:35:54 AM All use subject to JSTOR Terms and Conditions 454 UNIVERSITY OF TORONTO LAW JOURNAL an importantrole in the runningof the faculty.Yet, giventhat the faculty is housed in an old house, we are byand large relegatedto back roomsand re-done cupboards. You talk about sexual hierarchies in your courses. Well, our situationis a prettygood example. It's obvious thatwe are not the same as professorsand thatour claims can't weigh the same. But we are a part of this institutionand our commitmentto itsgoals is no less sincere. I thinkwe deserve to participate in any discussions about how the faculty'sphysical resources should be distributed.I thinkwe should have standing (?) (is this the rightlegal word?) to make our case for receivingthe vacant office. Personally,it would be a tremendoushelp to have moreand betterspace. But it would also be a morale booster and a public recognitionof our contribution.If you feel you can't give ProfessorEaton's old officeto me, thengive it toJennifer Levy as a means of upgradingthe Students Services department.I knowyour professors are veryimportant to thisfaculty, but theyallhave betteroffices than we do. It wouldn'thurt to let themstay put for another year or two. Marie

MCGILL UNIVERSITY Facultyof Law May 4, 1988

TO: Dean Roderick Macdonald FROM: StanleyVeltman SUBJECT:Barry Paul

I've just finisheda long conversationwith Barry Paul pertainingto his officespace. Since we're veryclose and have been since he was one of my studentshere in thelate 197os, I hope you don't mindmy offering you my thoughts on the situation. Essentially, this is not just a political (or distributional)problem; depending on your arrangementwith Barry, it mayalso be a problemof adjudication. I acknowledgethat, in the abstract, allocation and adjudication are incommensurable. But Max may have alreadytaken the necessary political decision and adopted privatecontract as an allocational principle.Wouldn't thatbe the upshot of his promising Professor Paul the officelast year? In other words, if he has allocated rightsby contract, I suggestthat you can't now trumpthem with political argument.While 'new property'may be contingentin the sense of being socially created, 'old property'is not. It is derivable directlyfrom the concept of human agency.

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Yet I see your difficulty.Even ifby rightsBarry may be entitledto the office,this process shows how rightsdecisions are distributional.Treating Barry'sclaims as priortotally ignores the distributional or allocativeaspects of the decision you will eventuallyhave to make. That a judge restricts herselfto judging betweencompeting claims of rightsis appropriate in a breach of contractor tortaction only because of other prior constitutive practice conferringupon courts responsibilityfor distributingpublic benefitsin such cases exclusivelyby recognizing rightsand correcting wrongfullycaused disequilibria. But where priorconstitutive practice is ambiguous, and where even the scope of the purportedcontractual commitment is uncertain,you are put in a positionof yourselfhaving to make the decision to adopt (and justify to us) 'rightsrhetoric' as an allocativeprinciple. Since Fuller,we have been conscious that'pure' adjudication is not suitable forallocating economic resources. These 'polycentric'sorts of problems require a considerable degree of transformation,often by contract, before they become amenable to adjudication. Only you and Barry know whether Max concluded a contractwith him. If he did, don't tryand save the situationby making 'propertyrights' contingent. We on the facultywill be more tolerantof an initialmistake in allocatingby 'private contract' than we willof any attempt to correctthat mistake by underminingthe idea of acquired rights.The integrityof the process and the mutual trustthat comes fromrespecting promisesmust outweigh the factthat the substantive result in thisone case could be less than optimal.

MCGILL UNIVERSITY Facultyof Law May 6, 1988

TO: Dean Macdonald FROM: Prof. Paul Willard SUBJECT: Office allocations

With respect to the recent uproar over the distributionof professorial space in the faculty,I thoughtyou mightlike to read parts of a recently published article on the theory of legal normativity,which I am also circulatingto all colleagues. It was published in French so I hope you'll forgivemy crude attemptsat translation.I knowthe pointof the piece will be clear to you. Please bear withme as to its length: Currenttheoretical views of legal normativity typically emphasize the importance of thequestion: what constitutes the sourcesof law? Moreover,contemporary jurisprudencetreatises reflect, at least superficially,a reasonablycatholic conceptionof these sources in which legislation, judicial decisions, and customall

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achieve recognition. At the same time, however, these treatises tend not to enumerateor differentiatethe particular normative properties of each source. All are described as havinga common logical structure,namely the explicit,propositional formassociated withlegislative enactments. In other words, most modern legal theoristssee theessence of law as discretelegal rules authoritativelystated by an officialsource. Not surprisingly,the quest for a common logical form leads to some rather interestingreconceptualizations of traditionalsources. For decisional norms, it requires that each judgment be understood as propounding a single legal proposition- the ratiodecidendi - at least theoreticallycapable of expressionas an immutableprecept. For customarynorms, this demands the transformationof action into language throughsuch strategiesas the requirementthat customs be judicially or legislativelyrecognized in order to be binding. Even though non- statutoryforms of legal normativitylike cases and custominitially are identifiedby theoristsas constitutingsources of law in theirown right,their role in the legal systemultimately is reduced to thatof antecedentsto norms. Nevertheless,the distinctive logical properties of differentsources of law maybe derived by reversingthe strategieswhich theoristsadopt in order to assert their uniformity.Imagine a typologyof legal normsbuilt upon twoaxes. On a firstaxis, reflectingtheir mode of elaboration,norms may be distinguishedaccording to whetherthey are explicitor implicit.On a second axis, reflectingthe nature of theirnormative meaning, norms may be distinguishedaccording to whetherthey are formulaic(canonical, propositional)or inferential(approximate, metaphori- cal). The resultingtypology could be representedas follows:

Natureof normative meaning

Legal norms Transparent Mediate

Mode of Institutional Explicitand Explicitand elaboration formulaic inferential Interactional Implicitand Implicitand formulaic inferential

For presentpurposes, a norm maybe said to be explicitwhen it emerges froman institution,such as a legislatureor a court,recognized as havingauthority to state the norm. It followsthat explicit norms willalways have propertiesof conscious elaboration: defined procedures for their creation or recognition;a symbolic, typicallylinguistic, vehicle for their expression; and a distinctivemethodology like

This content downloaded from 132.216.86.161 on Mon, 23 Dec 2013 03:35:54 AM All use subject to JSTOR Terms and Conditions NORMATIVE ORDER IN THE ADMINISTRATIVE STATE 457 thecanons of statutoryconstruction as announced injudicial proceedingsfor their interpretationand application.The distinctionbetween formulaic and inferential normsis harder to state.Where a norm claims to be self-evidentand transparent, namely,where it is expressed ritualisticallyor as a proposition,it can be considered to be formulaic.By contrast,where a norm cannot be reduced to an invariant canon or rite,it may be said to be inferential. Of course, in renderingwhat are essentiallytwo continua as intersectinglines of demarcation,a certainarbitrariness is inevitable.Nevertheless, if one focuses on the ideal typessuggested by these categories rather than upon the preciselocation of the frontierbetween them,salient propertiesof each come into relief.These properties emerge even more clearly when legislation,cases, and custom are located in thistypology. The followingpresumptive correlations may be advanced: formulaic/explicit- statute;formulaic/implicit - customsand trade usages; and inferential/explicit-judicial decisions.The fourthcategory, inferential/implicit, suggestsan additionaldistinct type of legal norm whichis not oftenrecognized by theoristsas a source of law. This category would include such general and overarchingnorms as the concept of public policy,the principlesof equity,the presumptionsof thecommon law, and, mostsignificantly, the tacit presuppositions of communitiesof interpreters. While thisfour-square typology obviously does not exhaust the possibilitiesfor characterizationof legal norms,in offeringan alternativeto the formaltypology presentedin sources-of-lawtheory it does suggestthe importantfunction of non- statutorynorms. That is, it does not lend itselfto the easy reconceptualizationof all legal normsas explicitand formulaic.Moreover, the typologyis grounded in a view of legal normativityunder which the process of legal justificationneed not depend on the availabilityof a pre-existingclosed set of valid norms,identified in advance by an authoritativeinstitution. To illustratethis point, consider the situationof a dean confrontingtwo professors,each of whom covets the same vacant office.Presumably, these professorswould make the followingkinds of claims and representations: 1 I'm older (or I have a more senior rank, or I've been a member of the faculty longer). 2 Last year I was promised thatI would have firstclaim on any new office. 3 Others have had firstchoice of secretarialhelp so I should have firstchoice of officespace. 4 Accordingto the systemat the Universityof x, I should get firstchoice. 5 I'll look foolishin the eyes of mycolleagues if I don't get firstchoice of office. 6 Accordingto the principlesset out in all the business administrationtextbooks, I deserve the office. 7 To maintainconsistency with the allocative principles adopted lastyear, my claim would have to be judged to be meritorious. 8 I get betterteaching evaluations and publish more articles,so I should be re- warded withthe firstchoice.

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9 Offices must be allocated so that professors who work well together are contiguousto each other. In these nine statementsone can see an appeal to nine differenttypes of argument and justification:to statusor seniority;to prior agreement; to fairnessor equity; to practiceelsewhere; to social contextgrounded in consequentialistreasoning; to expert opinion; to precedent or past practice; to some general social usage or substantivea priori claim; and to the integrityof institutionalarrangements. In fact,the only major argumentnot raised is the appeal to some authoritative,pre- existing,legislative rule. This paradox suggeststwo further questions about legal normativity.First, must all the differenttypes of normativestatements advanced by litigantsand acted upon byagencies be understood onlyas argumentsto be deployed in interpreting statutes?Second, do some specially packaged types of argument conclusively controllegal decision in thatthey exclude appeals to other typesof norms? Consider the firstquestion. In the officeallocation problem, it is apparent that mostof thepotential types of legal argumentcanvassed are grounded in normative claims which are neitherformulaic nor explicit.These claims are, moreover,not mere argumentsin interpretationof formulaicand explicitnorms, but theyare substantiveand independent norms derivable from institutionalpractices and structures.Of course,formulaic and explicitlegal normshave a presumptiveclaim to attention,especially where decision-makingitself is institutionalized.But this presumptiveclaim flowsonly fromthe factthat they are mosteasily identified as operative norms by institutionsand officials.In other words, simply because statutesand regulationsare the mostvisible administrative law norms,they do not command thatall othernormative discourse be parasiticupon them. This lastpoint suggests why implicit and inferentialnorms persist even in highly institutionalizednormative systems. Formalizing a norm and renderingit explicit throughthe legislativeform does not fundamentallyalter its function as a vehicle of argumentand justificationin individual cases. Implicitnorms willcontinue to arise eitherdirectly from interaction between a bureaucracyand itsclientele and the demands of administeringa statute,or indirectlythrough the interpretation of norms already made explicit. The persistence of all types of normativity notwithstandingthe existence of a statuteis often overlooked because properly craftedformulaic and explicitnorms will be instrumentallyapt over thevast range of cases. Easy cases occur when all non-statutorynorms cause no conflictor consciencefor officials or courts.By contrast,hard cases are thosein whichnorms conflict.Within a bureaucracy,conflict arises because interactionalimplicit norms, as well as inferentialand explicitnorms in certainof theirpotential formulations, point to conclusions at odds withpreviously accepted agency understandingsof formulaicand explicit norms. Preciselybecause of the inferentialand implicit nature of these norms,a source-based criterionof validitycan neitherdetermine (as an a priorimatter) the bearing of these othernorms, nor can itlexically order theirpersuasiveness in any giveninstance.

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The second major question about legal normativity,whether institutionalization typifieslaw, can also be explored throughanalysis of theoffice-allocation example. Imagine a disagreementabout officesboth before and afterthe draftingof a set of guidelines. Before the guidelines, substantivearguments about equality, or about opportunitiesto create effectiveworking relationships, or about how many rewards should be given the meritorious would predominate in discussions betweenprofessors. Much less thoughtwould be giveneither to formalarguments (thatis, the self-consciousattempt to discoverand statea previous practice)or to decision-makingprocedures (voting,tossing a coin, and adjudication). Afterthe rules, formalargument emerges. The process of draftingnaturally leads to more specificattention to abstractprinciple and to definable claims. But rules also serve a surrogate function.They permit personal argument to find expression in impersonal language, thereby displacing potential individual conflict;they also provide a pointof access to predigestedargument. In thissense, the negotiationof a systemof rules oftenreveals the underlyingcommon interest of parties and various inferentialand implicitnorms not previouslyrecognized. Conversely,the process of derivingformulaic norms may reveal an absence of common interest.Some facultiesapparently need formulaicnorms to realize they are not reallya faculty. Even though the exercise of generatingformulaic norms focuses attentionon minimumstandards of behaviour, it does not,in itselftransform normativity. Such a transformationcan occur onlyif it is also assumed (in myview, incorrectly) that sources of law are a priori lexicallyordered, normativevehicles. Moreover, this exercise does not necessarilylead to institutionalizationof normsor to normative explicitness.No doubt a legislativeinstrument may provide fora decision-making forumor procedure, as maya contract.Further, any givennormative system may presuppose an agency such as a court, to which, in the absence of some other direction,such a decision-makingtask is assigned. But to assume that such a specialized body is a prerequisiteto legalitymistakes explicitness for law. People acceptinga systemof rules presumablyattorn to its formulaicterms as well as to inferentialnorms. They may also look to explicit norms arising in analogous contexts. Thus, disputing professors may look for guidance both to their understandingof God's covenantwith Moses and to the rules of athleticclubs for the assignmentof lockers. Typically,they would not then assert that it is the institutionalcharacter of the latternormative structure which renders it legally persuasive. Although modern theories of legal positivismembrace subtle (and complex) versionsof what are 'primarylaw applying organs,' theyall presume thata legal systemmust have normsestablishing such organs and thatsuch organs mustapply norms of the legal system.Yet, if one accepts the plausibilityof the suggested typologyof norms,there is no reason forconceiving institutions differently from norms.Some institutionsare explicit;some are not. A courtmay well be an explicit primary institution,formulaically conceived. By contrast, the judgments of

This content downloaded from 132.216.86.161 on Mon, 23 Dec 2013 03:35:54 AM All use subject to JSTOR Terms and Conditions 460 UNIVERSITY OF TORONTO LAW JOURNAL propositionallybut customarily defined parents or elders may well be deferredto, butthey are notexplicit institutions. Again, consensual mediation and arbitration may well reflecta recourseto an explicitinstitution; yet the mediationitself remainsan inferentialprocess. Finally, in consideringthe opinion of one's communityor peers one is returningto a conceptof inferentialand implicit institutionalization. The prima facie implausibilityof the claim thatelders, mediators, and a communitycan be institutionsclearly reveals the pervasivenessof formulaic explicitnessin all aspectsof legal thinking.Yet it is preciselywhen conflicts in institutionalcompetence emerge that the role of thesecompeting 'institutions' becomes most apparent. In other words,a law-applyinginstitution is best understoodnot as a decision-makingbody. Rather, it is a metaphorfor interpretation.Implicit and inferentialinstitutions persist because they reflect implicit and inferentialnorms. It followsthat no explicitand formulaicinstitution such as a courtcan claima monopolyover the right to recognizelegal normativity. The pointis, what sources of 'law' and whatdecision-making 'institutions' in thisfaculty are you going to recognize as valid or legitimate?Are only explicit,formulaic norms set down in rules and regulationsdrafted by a committeegoing to be valid, or will past customs and practicesthat are implicitand inferentialbut certainlynot as black and whitegoing to play a role here? Are you going to hide behind formallyconstituted authority and proclaim,like RichardNixon, 'afterall, I am the President,'or are you going to submitto thejudgment of other informalfaculty institutions? You should also thinkabout the consequences of your decision, for I can't believe that you want this process to be understood only as a precedent. I can't believe that you prefer to delegitimizeour carefully nurturedinformal institutions by arrogating final authority to yourself. I, forone, do not wantto buy intoa systemwhere Cathywill be perceived to be boundbyyour normativeassumptions when she eventuallysits behind the grand oak desk in Room 18. This will happen if you act as if you are the sole arbiterof normativityin the faculty. The tone of mymemo and theselast observations make myown position clear. We don't need to sacrifice over a hundred years of historyby gradually codifyingevery single rule in this place. You know this more than anyone else in the faculty.I say 'more than anyone' because you are the dean, and because, priorto yourassuming office, you wrotethe article I've just translated.

/ay cc: All colleagues

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MCGILL UNIVERSITY Facultyof Law May io, 1988

TO: The dean FROM: Associate Dean Campbell SUBJECT: Officepolitics

When you asked me to serve as associate dean I never thought that listeningto the self-interestedbleating of my colleagues came with the office.But since you've passed all these memos on to me and asked formy opinion, let me tell you how I'd do it. First, I would not circulate the memos and hold a facultymeeting as Professor MacIntosh suggests. I agree with her that we are engaged in political discourse, but we need more preprogrammedright-wing harangues fromBillington, left-wing diatribes from Patrick, irrelevancies from Thompson, and agonized soliloquies fromLapierre like we need a hole in the head. Besides, we get them twicea year at our marksmeetings anyway. Second, I thinkThompson's idea of votingis as off-the-wallas Patrick's proposal that we have a draw. What are we votingon? This is a highly complex decisionprocess with several variables. It does no good to say'let's vote' unless we decide on the electoralrules: do we want multipleballots? single transferableballots? majorityrule? a pluralitysystem?' Instead of using argumentsabout votingprocedures as surrogatesfor arguments about what values we wish to sustain, we should directlyaddress these ethical questions. I'm on all fourswith MacIntosh here. As you well know,there has alwaysbeen a hierarchyin thisfaculty which has been accepted and respected.The allocationof officesis an ostensible measure of where one stands in the institutionalpecking order. Clearly, you have the best office. Then comes my officeand that of the other associate dean. The five large officesaround ours have generallybeen reserved for those professors who by most indicators will take our positions.The eight officeswhich are beautifulbut less proximatehave alwaysgone to past deans and visitingscholars of repute. The dozen or so intermediateoffices, fairly nice and proximate(of whichEaton's was one) were to go to the up-and-comersregardless of anythingelse. We need to continueto encourage people to take on administrativeresponsibilities in thisplace, and to reward them withnon-salary perks. The other offices you can allocate any way you please. That Eaton got the officein the firstplace was a slip by Max. She was going nowhere. You must redress this mistakeby giving the officeto a junior professorwho is clearlya futuredecanal candidate -someone like Alistairor Cathy.From an institutionalperspective there is nothingwrong

This content downloaded from 132.216.86.161 on Mon, 23 Dec 2013 03:35:54 AM All use subject to JSTOR Terms and Conditions 462 UNIVERSITY OF TORONTO LAW JOURNAL withreinforcing the arrowsto the top. It encourages role-playingand that healthy degree of professorial self-deception necessary for scholarly efficiency.With thiscurrent allocation exercise chance has smiled upon you. Act now to get the message across unequivocally.

/ar

MCGILL UNIVERSITY Facultyof Law May 11, 1988

TO: ProfessorDugas FROM: Roderick A. Macdonald ProfessorPaul ProfessorPearson ProfessorPlacitt' ProfessorRatcliffe ProfessorTremblay SUBJECT: Officeallocation

I have determined fromyour responses thatyou are among the faculty members most interested in moving into Professor Eaton's office. Unfortunately,the age of our facilitiesand our locationin twoold houses makes every officeunique. If we occupied a new concrete bunker like some faculties,where all officesare more or less the same, we mightnot have to face dilemmaslike these (or at least the parametersof the dilemma would be significantlyreduced). As you have all acknowledged, mydecision is not an easy one, and will necessarilybe the product of myconsidering a varietyof factors.Let me begin,however, by excluding a few.This typeof decision cannot be made solely on the basis of purported contractual claims since it affectsthe facultyas a whole. Any dean will attemptto respectthe promises of her predecessors,but notall promisesconstitute binding contracts. Again, this exercisecannot be seen as an opportunityto redresspast wrongs or refight old battles.Bluntly, the decanal businessof determiningoffice entitlement cannot be allowed to become the professorialbusiness of provingmoral superiority. Most of the memos I have received reflectan understandingthat rank, length of service,and academic meritare expected to play a role in the ultimatedecision. Of course, definitionsof 'merit' differfrom partyto party. These criteriawill be difficultto apply because of the range of relevant considerations and the number of interested candidates.

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Therefore, the finaldecision should in no waybe considered a definitive statementof worthor relativemerit in the faculty. I should also like to respond to the proposal thatcolleagues should be automaticallygrouped according to specialty.While thismight be a good idea in principle(especially if they are membersof a centreor an institute), in practice it is fraught with difficulty.For example, how does one determine specialty?Civil law/common law? Theory/black-letterlaw? Privatelaw/public law? Conservative/liberal?And whatdoes one do with a colleague who teaches in more than one field? There are so many permutationsthat this is an impossible criterionto use honestly. Of course, the same may be true of myclaim to have authorityto act in what I consider to be the best interestsof the faculty.The number of factorsto be weighed, itcould be said, effectivelypermits me to do what I want. Yet I hope you willgive me as much creditfor integrity here as you do in recruitmentmatters. One last point. The process of allocatingeven one new officewill create a domino effect,freeing other officesas professorsare reshuffled.With fivevacancies thisyear thereare bound to be othergood officesavailable. Please be assured that I will take into considerationyour commentsand preferencesin reallocatingany space thatbecomes available as a consequence of reassigningthese fivevacant offices.

RAM/lc

UNIVERSITE MCGILL Faculte de droit 11 mai 1988

A: M. le prof. Serge Lapierre DE: Roderick A. Macdonald OBJET: Attributiondes bureaux

STRICTEMENT CONFIDENTIEL

J'ai prepare une note de service sur l'allocation des bureaux qui sera distribu&ei tous les colleguesqui desirentobtenir le bureau du professeur Eaton, maisj'ai cru qu'il seraitsage queje reponde personnellementavotre note du 5 avrildernier.Je n'ai encore prisaucune d cisionsur l'attribution du bureau du prof. Eaton etj'hesite entrevos representationset celles de vos coll gues.Je me permetscependant de commenterles pointsque vous avez soulev s et d'attirervotre attention sur le nombreuxfacteurs qu'il me faut consid6rer. Je m'inscrisen faux contre votrecommentaire a l'effetque le rang ne devraitpas etre pris en consid6ration.Il seraitinjuste, par exemple, que

This content downloaded from 132.216.86.161 on Mon, 23 Dec 2013 03:35:54 AM All use subject to JSTOR Terms and Conditions 464 UNIVERSITY OF TORONTO LAW JOURNAL mon predecesseur,qui futdoyen pendant io ans, passe apres un professeur qui n'auraitqu'une ann6e d'anciennetede plus que lui et qui n'aurait jamais 6te doyen. Si nous engagions un professeur de renom tel que l'ancien premierministre, je ne crois pas, non plus, qu'il seraitacceptable de lui donner, par exemple, le bureau du prof.Paul pour r6serveraBarry un meilleurbureau sous pretextequ'il a plus d'anciennete. Je ne suis pas convaincu non plus, que la dur&e d'occupation de votre bureau actuelsoit un facteurd6terminant dans votrecas. Sije me souviens, on vous avait offertle bureau du professeur Chouinard mais vous avez pref6r6gardervotre bureau actuel. On ne peut tenircompte de la durie d'occupation sans tenircompte des offresde bureaux refus es. J'ai discretementcontact6 plusieurs collagues qui d6sirentchanger de bureau et aucun n'est interessepar le v6tre.Bien suir,je ne leur ai rien dit de votreint le bureau du Eaton. Vous du ret. pour prof. voyez l'ampleur probl=me quej'ai r6soudre. Je ferai de mon mieux et tenteraide tenir comptede toutesles representationsquej'ai reques.Jemesurerai aussi les cons6quences pour la facultea plus long terme.

RAM /lc

MCGILL UNIVERSITY Facultyof Law May 12, 1988

TO: Prof. B. Paul FROM: Dean R.A. Macdonald SUBJECT: Offices

PERSONAL AND CONFIDENTIAL

As promised, I am writingto follow up on our conversationyesterday concerning my memo to you and other colleagues wishingto move into Sharon Eaton's office.I knowyou feelthat you have an entitlementto this space because yourpresent office is inadequate, butthere are otherpeople withbetter claims. While I did acknowledges Max's commitmentto you and did undertake to assign you nicer premises as soon as I could, I did notpromise (and could nothave promised)you Eaton's officelast summer since I didn't know then thatshe was leaving. Moreover, any one of the officescurrently occupied byProfessors Placitt, Ratcliffe, Dugas, Pearson, and Tremblay is preferable to where you are now. I am disturbedby your suggestion that you are being treatedunfairly by McGill, since myrecords indicate thatyour salary is significantlyhigher than those of your contemporaries,that you have received money for traveland researchassistance greatly in excess of the facultyaverage, and

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thatyou have been assigned onlythose courses you wishto teach (a highly unusual arrangementfor first-and second-yearprofessors). I willdo mybest to upgrade your officethis time around, but I am not in a position to assign Eaton's office to you. Please let me know your rankingof theoffices of theother professors listed in mymemo of 11 May. I shall attemptto arrange thingsso that you get one of your preferred officesfrom this list, once I have finallydetermined who will be offered ProfessorEaton's present office.

RAM /lc

MCGILL UNIVERSITY Facultyof Law May 13, 1988

TO: Dean Macdonald FROM: Prof. B. Paul SUBJECT: Offices

PERSONAL AND CONFIDENTIAL

I appreciate the various considerationswhich you musttake intoaccount by virtueof your position,but I can't accept thatthese factorstrump my claim to Eaton's office.A promise,even a promise byyour predecessor, is afterall a promise. Eitheryou have disregardedyour acknowledgement of thepromise Max made in his letteroffering me a positionat McGill,or you never meant to keep itin thefirst place. I have no intentionof acquiescingin yourdecision to break promisesmade by rankingthe officesyou mentionor otherwise indicatinga second choice. I thinkyour decision cannot rationallybejustified, and thereforeif you do not change it I intend to file a grievance.

/mb

MCGILL UNIVERSITY Facultyof Law May 14, 1988

TO: Dean Roderick A. Macdonald FROM: Richard Mason, Retired Justice-in-Residence SUBJECT: Officeallocations in theLaw Faculty

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Dear Dean Macdonald, I knowhow badlyyou mustbe feelingabout thisoffice allocation problem. Aftertwenty years on the Court of Appeal I've had myfill of playingzero- sum games. Would ithelp mattersif I gave up myoffice? I don't need such a big place anymore,and as long as I have sufficientroom to store my books and files,I would be happy. The faculty,and you in particular,have been verykind to me since I leftthe bench last December. Please feelquite at ease in taking me up on this offerso that I may begin to repay that kindness. Richard

May 15, 1988 PRIVATE AND CONFIDENTIAL

ProfessorBarry Paul Facultyof Law Dear ProfessorPaul, Re: YourGrievance Dated May 14, 1988 I have received your grievance and am presentlylooking into the file. Please forwardto myoffice within twenty (20o) days all documentsyou wish to have considered as well as the name of yournominee to the arbitration panel constitutedunder section 11 of the Regulations Respecting the Employmentof Academic Staff. Yours sincerely, Oscar Steinman Vice-Principal (Academic) os/ssc

STRICTLY PRIVATE AND CONFIDENTIAL

TO: Dean R.A. Macdonald FROM: Oscar Steinman Facultyof Law DATE: May 15, 1988 RE: Grievance of ProfessorBarry Paul Dear Rod: I have now receivedProfessor Paul's noticeof grievance.Between his letter

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and our phone conversations,I have a fair idea of what happened. I suppose thatwe should expect thiskind of outcome froma law faculty.I advise you not to be overly concerned, especially since Paul has asked ProfessorRose to act as his adviser. As long as you have documented all the stepsyou have taken,and as long as these make thedecision appear as thoughtfuland fairas I know it was, it willbe difficultfor the Grievance Committeeto findyour decision to have been arbitrary,discriminatory, or unreasonable. My experience is that grievance committeesvery rarely substitutetheir opinion fora dean's, unless there has been some blatant injustice.Technical argumentsof procedureare much less persuasivethan evidence of substantiveunfairness. Call me any timeif something comes up. Oscar os/ssc

PS - Have you kept a diary of this matteror any 'notes to file?' If so, I wouldn't mind seeing a summary.

MCGILL UNIVERSITY Facultyof Law May 17, 1988

TO: Dr Oscar Steinman FROM: Roderick A. Macdonald Vice-Principal(Academic) SUBJECT: Grievanceof ProfessorBarry Paul

STRICTLY CONFIDENTIAL Thank you for your memo of May 15. Unfortunately,I haven't got a formal diary relating to this issue. I do, however, have half a dozen scribblednotes summarizing conversations and meetingswith colleagues, etc.,which I've retainedas 'notes to file.'But the major difficultyis thatthe bulkof thefaculty discussion of thisissue has been informal,and has taken place mostoften out of mypresence. For example, I'm sure it'smooted in the Common Room, at our table in the Faculty Club, in the privacyof individual offices, and in ordinary corridor small-talk. It would be impossibleto reconstructthese dimensionsof facultydecision-making for the Grievance Committee.I guess all I can do is get some of theminto the public domain via a facultymeeting. At any rate,here is a summaryof my 'notes to file' record.

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April4Discussed Paul's memo of April3 withhim for 20 minutes;he seems generallydisaffected and talked a lot about Eaton. April9Saw George Meehan today; explained situationand asked for an opinion. He said that this is now the main topic of Common Room conversationand thatPaul is lobbyinghard; said Paul seems to have a lot of support. April22Had lunch withMacintosh, who says Patrick'smemo has had no impact.She also said people are gettingtired of Paul's constantharangu- ing about 'his' office;she thinksPaul had a crush on Eaton. May 6 Lapierre came in for a long talk; he's really burned out and despondent about his teachingevaluations. He needs an ego-boost;maybe the officewould do it. May12Was in Common Room today;lots of talkabout offices.Paul walked in and conversationswitched; later Willard said that Paul is becoming a pest. May 15 Greenwood stayed after end-of-exam student party; she's concerned about Paul and thinksthe real problem is thatthere are two fragileegos here - Lapierre and Paul; says I should get themtogether in myoffice so theycan 'confess' what's reallyat stake privately. May 16Had a long talk withRay Marcil; he thinksthis process has been veryhealthy for the faculty.He suggested puttingthis on agenda forthe marks meeting on May 27 and circulatinga memo of my own first;he thinksthat people willdrop legalismand talktrust and mutual supportif I stage it right. This is all I have noted. Hope it's useful.

RAM/lc

MCGILL UNIVERSITY Facultyof Law May 24, 1988

TO: All colleagues FROM: RoderickA. Macdonald All administrativeheads SUBJECT:Office allocation

I am writingto advise you that I have booked the Council Room at the FacultyClub priorto the marksmeeting at 4:oo next Fridayin order that we may discuss the officeallocation question. Contraryto rumours you mayhave heard, I have notyet assigned Eaton's officeto anyone. To assist us in our deliberations,Professors Dugas, Fleming,Billington, Pearson, Reisman, Sangster, Marcil, MacIntosh, Thompson, Greenwood, and Chouinard have agreed to let me circulate their memos to me. Those

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memos are attached. I believe everyonehas already received documents fromPatrick Pettigrew and Paul Willard as well as copies of an exchange of correspondence between ProfessorsReisman and Ratcliffe. When I sentthe original memo at thebeginning of April I assumed that myauthority to assignoffices as I thoughtbest was unquestioned,and that all I needed to do was canvass opinion as to who was interestedin moving into the vacant offices. In seeking feedback about the appropriate standards to apply I was also assuming that the process of decanal allocationwas not controversial;that is, I did not fora momentthink that myjudgmentabout the 'bestoverall interests'and 'dynamic'of the faculty needed either explicitjustification or general explanation. Yet most memos seem to suggestthat this is not the case. I hope, therefore,that all professorswill take theopportunity on Fridayto make theirviews known. What seems to emerge frommost of the responses I received is what I would call an instrumentalview of facultydecision-making. Neither the substantivedistributional criteria (rank, length of service)nor the process (decanal discretion,third-party adjudication) are seen as primary;rather, it is the values we seek to promote- values I attemptedto capture in the expressions 'best interests'and 'overall dynamic'-which come first.The formalargument runs roughlyas follows:We should begin byclarifying values; then we can develop substantive norms, and finally design appropriate decision-makingprocedures. Let me tryto show whyI think the problem is more complex than this linear view of ends and means suggests. In myview, we cannot treatour institutionsand social arrangementsas servingonly one end. The multipleends theyserve are not independent of each other.An institutionis not simplya machine thatcan be designed fromthe ground up fora particularpurpose. Lon Fuller once addressed thisidea by asking whetherit would be realisticto design a new sportor game byfirst asking what 'pleasures' we wishto derive fromplaying it and then deducing its scoring rules and principles of play fromthat list of pleasures. The instrumentalview that treats only ends as being subjectto political debate and means as merely technical (and, consequentially, capable of evaluation only on an efficiencycriterion and not on a moral criterion)is wrong. An institutionis not a mere instrumentabout which we can ask, as severable questions, 'Is its purpose good?' and 'Does it achieve that purpose well?' The best we can do is to ask of an institutionwhether it contributesto enrichingour lives. I believe thatwe cannot,as a completely a priorimatter, rank our institutionalgoals. We need to see what impact the adoption of one set of goals may have on the financial and other resources we will have to expend in order to achieve it, and on the orderingprocesses we have available to us (and wish to preserve). At the

This content downloaded from 132.216.86.161 on Mon, 23 Dec 2013 03:35:54 AM All use subject to JSTOR Terms and Conditions 470 UNIVERSITY OF TORONTO LAW JOURNAL same time, I do not think that there is a dichotomy between value preferencesand procedural design whichtracks that of ends and means. We come to understand our ends notjustas abstractedpreferences but as structuresthat influence the choice and design of our institutionsand processes. We thenexperiment with these institutionsand processes over time in a continuingeffort to achieve our initialstatements of ends and goals, recognizingthat at the same timethey are reshapingour perception and choice of possible ends. A second idea thatseems to emerge fromsome memos is deeply legal. A number of colleagues insiston the importanceof maintaininga realm of facultyinteraction which is fundamentallylegalistic. That is, theybelieve thatfaculty normativity is public normativityand thatpublic normativity can be legitimateonly ifit restson legalism. In myview, the eventsof the past twomonths suggest exactly the contrary.In thisallocation exercise I have come to see the value of compelling each of us (professors and administrativeheads) to participateactively in choices thatshape our self- perception.We cannot relyon a structureof a priorirules to relieveus of our responsibilityfor treatingeach other withcompassion and under- standing.There maybe a place forexplicit rules on the marginshere, but I am scepticalabout whetherthe rules we enact (ratherthan thosewe live) can be used to erect a meaningful boundary between our private and public lives. Our several private identitieswhich togethercomprise our public selves - identitiesas members of a familyin our own homes, as membersof a professoratedebating our relationshipswith each other,and as teachers and scholars performingbefore our classes -can perhaps be distinguished,but they cannot be separated. Especiallyin thisintermediate field of essentiallycollegial interactionwhich lies between the predomi- nantly tacit normativityof the familyand the predominantlyexplicit normativitygoverning our relationshipswith our students,we have the opportunityand theprivilege to createand to re-createa richand complex normativeorder which permitsus to know betterthe law we purport to teach. The appeal to legalism cannot do justice to the problem of office allocation any more than the appeal to the mysteriesof decanal fiat. I look forwardto discussing these and other issues relating to office allocation on Friday.

RAM/lc

Encl.

DECISION OF THE MCGILL UNIVERSITY GRIEVANCE COMMITTEE

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Decision No. 88-36: June16, 1988 The Grievance Committee(the committee)was asked to sitin connection witha grievancerelating to the allocation of professorialoffices made by Dean RoderickMacdonald of the Facultyof Law. A grievancewas filedby ProfessorBarry Paul of that Facultyon May 14, 1988 claiming thatthe decision not to assign him the office previouslyoccupied by Professor Sharon Eaton (Room 22 of Old Chancellor Day Hall) is void for being arbitrary,discriminatory, and unreasonable. All documentswere filedby 1June, and a hearing was scheduled forJune 11, 1988. The committeegains itsjurisdiction to hear thismatter by virtueof the sections11.5 and 11.6 of theuniversity regulations. The relevantsections are as follows:

11.5 If a memberof theacademic staff believes: (i) thathe has been unfairly treatedby the University in regardto the interpretation or application of Universitypolicy in so faras it relatesto his academiccareer and to his workingconditions, or (ii) thathe has been subjectedto arbitrary,discriminatory,or unreasonable actions taken against him by the University, eitherby act or omission,he maymake a formalcomplaint, either orally or in writing,to his immediate superior. 11.6 Ifany complaint made under article 11.5 is notsettled to the complainant's satisfactionwithin twenty (2o) daysof its filing, the complainant may bring thematter before the University Grievance Committee. The procedure setout in section11.6 has been dulyfollowed by Professor Paul. The committeeheard the grievanceonJune 12, 1988,rather than on 11June owingto a priorcommitment for another client at Superior Court by Professor Paul's adviser, Professor Rose. Dean Macdonald was not accompanied by an adviser. In assessingany complaint, the committee may look at all documentation relevantto the case. For these purposes the committeehas assembled as evidence a seriesof memosand lettersexchanged withinthe facultyon the subject of office allocation. Although not all memos were entered in evidence (some being confidential), both Professor Paul and Dean Macdonald agreed that those submittedgive a fair picture of faculty opinion. It is ProfessorPaul's contentionthat the letters and memos demonstrate thatthe dean was unfairlyswayed in his decision by extraneous factors, and that some type of 'attitudinal bias' kept him from honouring the faculty'scontractual obligations. The dean, for his part, asserts thatthe documentsserve to underline a general understandingwithin the faculty thatthe matter of officeallocation is essentiallyone of administration,and ultimatelylies withinhis discretion. He claims that he routinelyseeks

This content downloaded from 132.216.86.161 on Mon, 23 Dec 2013 03:35:54 AM All use subject to JSTOR Terms and Conditions 472 UNIVERSITY OF TORONTO LAW JOURNAL advice fromprofessors on mattersof decanal prerogative(allocation of secretaries,committee assignments, timetabling, etc.), but thatthe process is consultative.He also suggeststhat the memos show thelack ofconsensus as to systemsof decision-making,and thatwithin a communitysuch as the Facultyof Law, grantingthe dean a broad discretionin such mattersis the onlyway adequately to address the needs and concernsof the facultyas a functioningunit. Finally, he denies that he or his predecessor ever explicitlypromised to assign ProfessorEaton's officeto ProfessorPaul. The issue forthe committee to decide, simplyput, is whetherthe dean's decision was a fairone. The analysisof thisquestion can be brokendown into issues of procedure and of substance. The committee was favourably impressed with Professor Rose's arguments about procedural fairness, and much of the following paragraph is adapted fromhis memo. Procedural fairnessis something which has been widely accepted in our society as a requirement for decision-makingby all publicofficials. This idea is based on thenotion that individualswithin a communityhave rightsto participateand to have their views considered and weighed in any process of decision-making. Guidelines are often drafted to set out strictprocedural requirements guaranteeingthis participation, even when,substantively, a wide discretion is exercised. We find that even though it is not required by faculty regulation,an opportunityto participatein decision-makingabout office allocations is required by the notion of procedural fairness. Was such an opportunitygiven to ProfessorPaul? In the case beforeus, the discretionof the dean to administerthe facultyis established by the verybroad termsof theUniversity Statutes. The greateran administrator's discretionto choose a decision-makingmodel, the greaterthe obligation to put into place an adequate procedural scheme. Substantivediscretion and procedural licence are inverselycorrelated. Here we have a dean claimingbroad authority(whether such authorityin factexists we examine below), but solicitinginput both as to decision-makingprocedure and criteriato apply. The assortmentof memos and opinions received by the dean goes to illustratethat efforts were made to consider as manyaspects of the matteras possible. The dean's attemptto recast the problem and seek follow-upmemos also indicatesa concernfor ensuring participation. The factthat he called a facultymeeting on thisissue afterthe grievance was filedand had notyet finally allocated theoffice at thattime also creates a presumptionof procedural fairness. The second matterraised byProfessor Paul is one of substantivefairness. Considerationof thispoint would lead us to a reviewof the decisionon the merits.This typeof inquiry should be more limitedthan one on procedural grounds since itis possible to come to several differentdecisions on the meritswithout any one of thembeing 'unfair.' Essentially,Professor Paul

This content downloaded from 132.216.86.161 on Mon, 23 Dec 2013 03:35:54 AM All use subject to JSTOR Terms and Conditions NORMATIVE ORDER IN THE ADMINISTRATIVE STATE 473 is not reallyattacking the dean's substantivejudgment; he is attackingthe dean's characterizationof the issue. For ProfessorPaul the issue is one of contractualentitlement. For the dean the issue is one of officeallocation. On theevidence submitted,we see no basis forupholding ProfessorPaul's claim to be entitledto ProfessorEaton's office.His letterof offer,which he submitted,states only, 'May I conclude bysaying how delighted I am to be able to make this offer.I know you have much to contributeto the law teaching communityand you may be assured that I will do all I can to provide you withattractive surroundings to pursue yourcareer withus.' We do not find thisto be a promise to assign ProfessorPaul to Professor Eaton's office. If this letter is taken simply as a commitmentby Dean Macdonald's predecessor to provide a 'good' officefor Professor Paul, does thisrequire the decision ProfessorPaul seeks? The possibilitiesfor allocating a good officeare several.Moreover, there are severalfair outcomes to any process involving Professor Eaton's office. This point is well illustratedby the memos and lettersfiled with us, manyof whichsuggest different decision- making systems.Each systemcan yield differentresults. The system chosen by any one person will depend upon background assumptions about the relationshipof the individual professorto the facultyand the role of the dean in mediating that relationship. The decision taken by Dean Macdonald reflectshis own consideredviews on theway in whichthe facultyshould be ordered. If we choose to change his decision, we would be merelyreplacing one fairmethod of ordering withanother. Since thecommittee does notfind Dean Macdonald's assumptionsabout his relationshipwith his professorsand about thedecision-making process such a relationshipimplies to be eitherarbitrary or unreasonable, we see no reason to overturnhis decisionon themerits. Moreover, discrimination or personal bias against ProfessorPaul was not formallyalleged, and we see no evidence of it. Finally,the follow-upmemos convince us thatDean Macdonald had heard and reviewed all of the materialsubmitted to him before making his decision. We find no unfairnessin the procedure by which he then allocated ProfessorEaton's office. There is a furtherpoint. Whatever decision thiscommittee takes will necessarilybe grounded in an incomplete understandingof what Dean Macdonald calls the 'dynamic of the faculty.'If we simplysubstitute our view for thatof the dean (assuming thatwe disagree withhim) we are in fact saying that only those substantivenorms which can be explicitly formulated and brought before us belong in the decision-making processes of the Law Faculty. It would be presumptuous of us to make such a claim. Unless thereis no reasonable wayin whichDean Macdonald could have refusedProfessor Paul's claim,or unless thedecision is clearly contraryto explicitfaculty rules and regulationsand the dean refusesto

This content downloaded from 132.216.86.161 on Mon, 23 Dec 2013 03:35:54 AM All use subject to JSTOR Terms and Conditions 474 UNIVERSITY OF TORONTO LAW JOURNAL showus otherimplicit features of facultynormativity tojustify his decision, we do not thinkit is appropriate to interfere. As a result,the committee dismisses the grievanceof ProfessorPaul and upholds the decision of Dean Macdonald not to allocate Room 22 to ProfessorPaul.

Signed: Dr Jean Rivest,Chairman, Department of Sociology Dr Margaret Tapp, Professor, Department of Electrical Engi- neering Dr George Antakis,Professor, Facultyof Dentistry Dr O. Steinman,Vice-Principal (Academic) cc: ProfessorB. Paul, Facultyof Law Dean R.A. Macdonald, Facultyof Law

July 14, 1988 Dear Boss, Now thatthe relevant players are all snuglyensconced in theirnew offices, withvisions of meritpay, publications, and judicial appointmentsdancing in theirheads, I thoughtI mightoffer a few post-gamecomments. We cannot separate how decisions are made in this facultyor in any functioning administrativeorganization from the fundamental and unconsciouspolitical, sociological, and economicassumptions upon which the organization is erected. Once this is acknowledged, the interesting question becomes how these the basic assumptions are manifestedand 'legitimated.' Looked at in this light, those opinions you solicited are nothingmore thanx numberof ways to express,politically reinforce, and tacitlyacquiesce in your power. For the most part, the opinions are destinedto be variationson thesame theme.It's likedifferent strategies in a chess game: open, attack,and defend as you wishwithin the framework of the game, whichis accepted withoutquestion. Whyshould the kingbe worthmore than the queen? Answer the latter,and rule-makingin your Law FacultyEmpire takes on a differentperspective. Let me stressthat I did not for a moment doubt your simple-minded sincerityin makingthe request of us. In your mind, you werejust asking forhelp in makinga decision. I'm sure thatyou, as well as mostof the rest ofthe faculty, have neverdoubted thatthe decision was reallyyours, which is understandable. You, like all the membersof thisfaculty, were trained at a law school, whichwas boot camp forlegitimation of raw power. You

This content downloaded from 132.216.86.161 on Mon, 23 Dec 2013 03:35:54 AM All use subject to JSTOR Terms and Conditions NORMATIVE ORDER IN THE ADMINISTRATIVE STATE 475 were the product of the process, the conditioningwhich you could not escape. As law students,we were immediatelymade aware of the hierarchical orderingof the law school. The dean could invoke fear in the professors by trottingout bad teaching evaluations (oh, how stupid we were as students,thinking these would be liberating).The professorcould invoke fear in the studentsby asking questions to which we were certain not to knowthe answers,or byassigning amounts of workwe could not possibly finish.Those fewstudents who receivedtop grades were admittedinto the upper echelons of the law school life-the journal and the mootingteams - where theycould then do twiceas much workto staythere. One's rank withinthe systemas assessed by these criteriawas hierarchical,and was accepted and legitimatedby all of us. We found our niches (and happily, I mightadd). Years later,we applied forteaching positions, and we quicklylearned it was necessaryto satisfythe conventional norms of academia in order to get hired at the best faculties(which we, of course, assessed hierarchically!). Incumbentprofessors would do anythingto maintainthe ranking of their schools, and theylooked at new applicants withonly academic standing, lawjournal experience,and publicationsin mind. We thenbecame locked in a fierce struggle for tenure, dependent on vague criteria, which essentiallyadded up to pleasing 'colleagues' at all costs, and especially pleasing the dean. As a result,it comes as no surprisethat we were all so quick to replywhen unconsciouslyasked to legitimateand affirmyour power to decide where we would spend the large part of our wakinghours thatis devoted to this enslavement.We all knowwhere we fitin thislittle administrative empire of yours. Your officeassignments only confirmeda set of expectations whichwe all accept,but whichfew of us are ever capable of identifying,let alone questioning. Moreover,it is not surprisingthat, not just in thiscase but in any administrativeor normativeorder where lawyersget involved, thathierarchies are invented and then 'sold' as naturallyoccurring and politicallyjustified. From existence to necessity; from necessity to desirability.The false-consciousnesscontinued ad nauseam. Law firms,government agencies, and large privatecorporations confirm the hierarchiesof law school. All the buzzwordswe traditionallyassociate with this type of normativeordering - the Rule of Law, Rules, Regula- tions,Decanal Discretion,Due Process, and the like - are wrapped up to varyingdegrees in thislarger white,male, upper-middle-class,market- driven law school ideology which we accept as the tune to which we all must dance. Even people as intelligentand articulateas law professors (and especially poor old Barry Paul, who thoughtthat more law would overcome the arbitrarinessof law) have been unable to resistthe music.

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Show some real leadership foronce. Resign. Patrick

All workers cc: Dr Oscar Steinman,Vice-Principal (Academic) ProfessorCharles Paton, Secretary,Canadian Conference of Lawyers for Social Democracy

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