Pv2 Office Politics 1990

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 .
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orderin theadministrative
PART3 Normative state
Roderick A. Macdonald* OFFICE POLITICSt
Introduction
The followingallegoryis designed to canvass the internalnormativity of

administrative agencies,bureaus, and tribunals. While the problem stated
is genuine and thestructureofthepaper reflectsin large measure myown
experiences as dean of a law faculty,I should like to record the standard
literarydisclaimer:thecharactersportrayedare fictitious; anyresemblance
theymay bear to mycolleagues at McGill or elsewhere is purelyfortuitous.
A successfulallegoryneeds no gloss (or even formalintroductionand
conclusion) by itscomposer. In fact,an author does a disserviceboth to
textand to readers bycollapsing a parable's several possible lessons into
one ex post factoofficialreading. The collectionof memos comprising
'OfficePolitics'is intendedtomakejust thispoint.It is also meanttoreveal
the peril for complex institutionsof an excessive reliance on formal
instrumentsand canonical wisdom,and thevalue of constitutivepractice
for reaffirmingthe subtle and informal normative orders that make
associationallifepossible.Of course,theuncharitablereader mayconclude
thatin choosing the epistolaryformI 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 ofpreferringmysticism and dissimulated
power over authenticity and 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 officeallocationwe undertookduring the
summer of 1984 and in relation to earlier draftsof this manuscript.I should like to
acknowledgein particularProfessorsFrank Buckley,Jane Glenn, and Ralph Simmonds
and AssociateDeans Yves-MarieMorissetteand DanielJutras.Initialresearchassistance
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 substantialcontributionto the paper as
it now appears. Both were hired under a grant fromthe Meredith Research Fund of
the Facultyof Law. Finally,I am indebted to my two commentatorsat the Law and
Leviathan Conference, Professor Lorraine Weinrib and Dean John Whyte, whose
probingof the paper as delivered has helped me to tella betterstoryin thispublished
version.
(1990), 40 UNIVERSITY OF TORONTO LAW JOURNAL 419

420 UNIVERSITY OF TORONTO LAW JOURNAL
In confrontingthepuzzle of speakingauthenticallyin thisintroduction

withoutflatteningtheallegory-how to injectMacdonald the authorinto
the text while preservingthe flaws of Macdonald the dean? - I asked
several colleagues whatto do. One said thatI should simplywritea precis
of the storycomprisinga matrixforlocatingthe 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
professorsat McGill. This would permit me to illustratesome of the
possible readingsof thetextproferredbythoseto whom,and of whom,it
speaks. The vice-principal(academic),towhomI had forwardedan earlier
version of the paper, told me that what he missed most was not an
introductionbuta conclusion.Whythisallegory?Should I notexplainwhy
I selectedtheuniversitymilieu(as opposed to a moreinformalsettingsuch
as a club or the family,or a highlystructuredorganization such as a
genuine agencyor governmentbureau), and whyI chose the exercise of
allocating offices (as opposed to establishing the teaching timetable,
managing the process of professorialappointments,or prosecuting a
dismissalcase) to make mypointabout how muchlaw can be found within
public agencies? In the end, I rejected all of these options forthe same
reason: theywould have required me to introducethe textbyindicating
in some veryexplicitmanner what I thinkit mightmean.
If conventionalbeginningsand endingsare notappropriate,whatother
options forintroducingthe paper are open? Obviously,I could carrythe
allegoryone stagefurtherwithyetanothermemo,placed at thebeginning
so as to make the storyunfold as a flashback.Several such denouements
were suggestedbymycolleagues. One proposed thatI commencewiththe
judgment of a courtsittinginjudicial reviewof theGrievanceCommittee
decision. I was initiallyattractedbythisidea, forI could thentellnotonly
the familiarstoriesaboutjudicial reviewin dramaticfashion,but also the
less well knowntale of 'Bureaucratic Rationalityin theJudicial Process'
and in doing so offeran effectivecounterpointto the message implied in
thispanel's title.But adopting thisstrategywould have moved the paper
too far from its ostensible subject-matterand would implicitlyhave
confirmedthe erroneous view that administrativedistributionscan be
transformedwithoutcostintoclaimsof commutativejustice determined
throughadversarial adjudication.
Anothersuggestionwas to begin byresponding to the invitationsetout
in the finalmemo. One of myassociate deans thoughtthatan attemptat
self-justification should markthedean's passage fromsin to redemption.
In a partingconfessionto the vice-principal(academic) he would tender
his resignation,embellishedwithlamentationsforthefaculty,complaints
thathe had been misunderstoodor misrepresented,and a codificationof
rules and procedures forattributingoffices.However, to presentsuch a

NORMATIVE ORDER IN THE ADMINISTRATIVE STATE 421
conclusion as an introductionpresumes both that deans can mature to

omniscienceand thatoccasions of corporate self-reflection mustalways
end in martrydom.
A thirdidea forpresentingthe allegoryI owe to mywife,who thought
that the text should commence withextractsfromthe dean's personal
diary.By revealinghow thisorganizationalconundrum at the university
bears on his otherlives as son, husband, and father,thisapproach would
have had theadvantagesofresituatingtheallegoryin a contextof personal
agency and of suggestinghow public agency is reciprocal to personal
agency. It would also have reinforcedthepointthatitis in therecognition
of intimacyand vulnerabilityand in the reconstitutionof ourselves
through our relationshipswithothers that we understand why merely
formalconceptions of authenticityare inadequate to capture fullythe
meaning of institutionallife.
As myreluctanceto pursue thesedidacticstrategiesin detailshows,each
seemed tobe an unsatisfactory prelude to theallegory.Yet as I workedon
preparing the essay for publication,I continued to believe thatthe text
would be incompletewere it to remain simplya collectionof interoffice
memos. What theparable lacked was a recordof non-discursiveand non-
strategicinteractionsamong colleagues and betweenprofessorsand dean
duringtheallocationexercise.For thereis a tacitdimensionto thefaculty's
normativeorder whichgrounds mostof itsinstitutionalknowledge.How
ironicto have attemptedto make such a claim explicitin an introduction.
In viewoftheproblemswiththeabove approaches, I have decided to use
the exercise of reflectingupon how to compose thisintroductionas part
oftheintroductionitself.The questionsoforganizationaland legal theory
thatthesesuggestionsfromfriendsand colleagues raiseare 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 fornurturingan internalnormativeorder thatare found
in our public institutions.
The allegoryrestson the premise thatthe fundamentalchallenges of
administrativelaw over the next decades do not lie in the perfectionof
theoriesofregulationand instrumentchoice,ofthelegal formsofagency
organization,of mechanismsofjudicial review,and of remedies against
state action. Rather, the challenges are tied to the craftingof decision-
makingstructures,procedures,and modes ofjustification withinagencies
and bureaus. Normativeorder in the administrativestateemerges first
fromthe internalmanagementand operationsof itsvarious institutions.
Only then does it appear in the public regulationsand decisions of any
particularagencyor bureau and in the specificrules and officesthrough
whichadministrative is undertaken.I believethatwe can no longer
activity
affordto analyse administrativelaw on the basis of sharp dichotomies

between state (public) and voluntary(private)associations,between law

and politics,betweenlegal rationalityand politicalarbitrariness,between
explicit(propositional) knowledge and tacit(inchoate) knowledge, and
between externalregulatoryactivityand internalagency management.
'Office Politics'is about the politicsof administrativelaw and about the
scope of legal ordering at all levels (fromfront-lineinspectorsand first-
instance claims adjudicators to appellate tribunalsand ministersof the
Crown) of our public bureaucracies. It engages three main questions of
administrativeorganizationand regulation: (i) what is the relationship
between legal theory,managementtheory,processes of social ordering,
and the substantiveprecepts of distributivejustice? Can the problem of
justificationofadministrativedecisionsbe separated fromtheproblemof
institutionalstructure?(2) How extensiveis traditionalnormativity within
public bureaucracies? What is therelative of
weight legalism and authority
in constitutingthetacitnormativity of theseagencies? (3) Can institutions
acquire knowledgebeyond thatof theirmembers?Does the possibilityof
institutional knowledgemean thatimplicitnormativeordersare necessari-
ly more democratic than explicit normativeorders? 'Office Politics'is
meantto suggestthateach of thesequestionsmaybe 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
differfromcase to case.
If the allegorythatfollowsseems 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 stylistic and rhetoricaldevices are deployed? To whomis thememo
copied? Is the document a letteror a memo?) and too clutteredwith
apparentlyrepetitivememoswhoseauthorsstateonlymarginallydifferent
positions,I can onlysay thatinstitutionsthemselvesare laden withdetail
and marginaldifferences.To borrowa figureof speech, the problemsof
associationallifeflowmore fromthedamage we cause inadvertentlywith
our elbows than fromthatwhichwe cause intentionallywithour fists.
Again, if the allegory contains no overriding prescriptivemodel of
regulationand allocation,itis because I am scepticalthatanysingleethical
theoryof 'eunomic' principle presumptivelyapplies to all of our public
agencies: the divergentmoral theories and models of decision-making
advanced byofficeclaimantsthemselvesconstituteas large a part of the
normative discourse within the Faculty of Law as the constitutional
structure- royalcharter,universitystatutes,facultyregulations- upon
which it rests. I am also sceptical thatthe particulartypeof legal norm-
ativitywe associatewithMax Weber'sformallyrationalmodel ofauthority
should (or even could) be prescribedforall administrativeagencies in all

cases: a true normativeorder is most successfullysustained in public

institutionssuch as agencies,bureaus, and tribunalswhichencourage the
candid inter-subjective communicationamong theirmembersthatmakes
associational life rewarding.
'Office Politics' is meant to generate just this type of participatory
response to the problemsof creating(and recognizing)normativeorder
in the administrativestate.'
MCGILL UNIVERSITY Facultyof Law April 1, 1988
TO: All colleagues FROM:RoderickA. Macdonald

SUBJECT:Officeallocations
It has come to myattentionthatseveralcolleagues 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 potentialdislocationthis
year,and thefactthatthisis thefirstsuchexerciseI have had toundertake
as dean, I thoughtitwisetoconsultwithyou beforereallocatingthesefive
vacantoffices.I particularlywishto have yourviewson whetherI should
attemptto elaborate a set of procedures and guidelines for choosing
between claimants,and, if so, what these should be.
It appears thatthepast practiceofthefaculty,totheextentthatanysuch
practiceis discernible,has been thatthe allocation of officesis strictly
a
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 worksthathave influenced
the creationof 'Office Politics':Owen Barfield SavingtheAppearances:A Studyin Idolatry
2d ed. (Middletown,Conn.: Wesleyan UniversityPress 1988); Meir Dan-Cohen Rights,
Personsand Organizations: A Legal Theory
forBureaucraticSociety(Berkeley: Universityof
California Press 1986); Mary Douglas How Institutions Think(Syracuse, NY: Syracuse
UniversityPress 1986); Jon ElsterSourGrapes:Studiesin theSubversion ofRationality(New
York: Cambridge UniversityPress 1983); FranCois Ewald L'itat providence(Paris: B.
Grasset 1986); Martin Foss The Idea of Perfectionin the WesternWorld(Princeton:
PrincetonUniversityPress 1946); NorthropFryeTheEducatedImagination (Toronto: CBC
Enterprises1983); K.I. Winston(ed.) ThePrinciplesofSocial Order:SelectedEssaysofLon
L. Fuller (Durham, Nc: Duke UniversityPress 1981); Alexandre Kojeve Esquisse d'une
phinomenologie dudroit(Paris: Gallimard 1981); Suzanne Langer Mind:AnEssayonHuman
Feeling(Baltimore:Johns Hopkins UniversityPress 1988); Henry MintzbergStructure in
Fives:DesigningEffective (Englewood Cliffs,NJ:Prentice-Hall1983); Michael
Organizations
Polanyi The TacitDimension(Gloucester, Mass.: Peter Smith 1983); Brayton Polka The
and Existence(Basingstoke: Macmillan 1986);
Dialectic of Biblical Critique:Interpretation
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).

discretionto assign officeson the basis of what I consider to be the best

overallinterestofthefaculty.Nevertheless,giventheoral representations
I have already received on thisquestion, I have concluded thatthereare
at least two widelyaccepted 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,
wherelengthofservicetothefacultyis approximatelythesame as between
competingclaimants,prioritywillbe givento thefacultymemberwiththe
moreseniorrank.In othersituationsdecisionswillbe influencedprimarily
by considerationsof long service. You can appreciate, however, that I
would be reluctantto favouran associateprofessorofconsiderablelength
of serviceoveran incomingfullprofessorof notablestatuswithinthelegal
or academic community.Nor would I be inclined to apply standardized
criteriablindlyin cases where I perceive thatthiswould be disruptiveto
the dynamicof the faculty.
Finally,and simplytogivesome indicationofthecomplexityofthisissue,
I should liketo mentionsome variablesthatbear the actual applicationof
the above-mentionedcriteria.(1) Should lengthof timein one's present
officebe relevant?(2) When a colleague returns,afterhavingresignedor
havingtakenan extended leave, should yearsof servicebe cumulated?(3)
Should serviceon 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 yourthoughtsifthismatteris ofconcerntoyou,even
ifyou do not now wishto be considered forone of the fiveofficescoming
vacant. I expect to make a decision byMay 15,and I inviteyourcomments
before May i.
RAM /lc
TO: Dean Macdonald FROM: Prof. B. Paul

SUBJECT:My new office
I have tosay I was surprisedtoreceiveyourmemoabout officeallocations.
I've knownfora long timethatProfessorEaton was leaving and thather
officewould become available. I had assumed thatI would be gettingthat
particularspace. If you remember,Max promised me a proper office
when I signed on here at the faculty.I had severalotheroffersbut I chose
McGill on the basis of the whole package.

I realize thatotherpeople willbe puttingpressure on you forProfessor

Eaton's office.They willall come up withtheirown reasons and criteria.
People who insiston factorssuch as research,publications,etc., have to
rememberthatto do anydecent workyou need a good office.I would like
to see any of them tryto publish frommylittlehole in the wall.
Regardless of this,I don't thinktheirclaimscan stand up against mine.
Accordingto mycontract,I am entitledto a bona fide office.I don't see
anyjustificationforyour disregardingthiscontractualobligationjust 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
intangibleconsiderationscan overridea valid and bindingpromisemade
by your predecessor.
/mb
UNIVERSITE MCGILL Faculte de droit 3 avril 1988
A: M. le doyen Macdonald DE: Prof. FranCoiseDugas

OBJET:Attributiondes bureaux
C'est avec grand intreatquej'ai prisconnaissance de votrenote de service
et des crit res que vous y suggerez.Jesuis 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 comitead hoc se penche sur ce problkme.Je suis con-
scientede la paperasse qu'un telcomitenecessiteet engendre,maisje crois
que c'estla seule favonde preserverla paix. Un telcomitepourra regarder
tousles aspectsdu problemeet fairejusticeaux cas particuliers,mieuxque
vous ne le pourriez, etant donne vos nombreuses taches. Ce comite
redigeraitune procedure et des principes directeursqu'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 resultatobjectifque nul ne pourra
contester.
Vous trouverez,ci-joint,copie de la politique suivie ' l'universite j'ai
otJ
passe mon annee sabbatique. Cette politique n'est pas suffisamment
precise, mais ce serait au moins un point de depart. Je crois que vous

devrez adopter une telle approche si vous voulez un r6sultatobjectifqui

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 estgrand,bien 6claireet a l'avantage d'etresitupsurle memeetage
que la seule toilettepour femmesdu pavillon 'Chancellor Day Hall.'
ay /
POLICY ON FACULTY OFFICE ALLOCATIONS

ADOPTED:October1979
i For the purposes of this policy,'full-timetenured facultymember'
means a person who (a) holds a teachingappointmentcarryingtenure
at theUniversity,and (b) holds hisor her principalappointmentin the
Facultyof Law.
2 No full-timetenured faculty member and no full-timefaculty
members in the tenure streamwill be required to give up an office
under thispolicy,unless theallocationis being made forthepruposes
of distributionof space otherthan among membersof the Facultyof
Law.
3 A full-timetenuredfacultymemberwho has givenup an officetohold
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 facultymemberson sabbaticalor otherleave fora
period not exceeding one year shall be entitled to reoccupy their
officesupon returnfromleave. During the period of theirabsence,
theseofficesmaybe temporarilyreassignedbythedean. In thecase of
leaves takenformorethanone year,thedean willretainthediscretion
to permitreoccupationof theofficespace bythereturningprofessor,
or to assign thatprofessoranother office.
5 The dean, on the expiryof his or her term,shall be placed at the top
of the listof precedence forthe purposes of officeallocation.
6 Subject to article5, therighttooccupy a vacantofficeon a permanent
basis shall be given to full-timetenured facultymembersin order of
seniority.Seniorityshall be determinedbythedate ofgrantoftenure.
7 Where two or more full-timetenured facultymembers have equal
seniorityon thelistof precedence forofficeallocation,priorityshallbe
determinedby lot.

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 pointsraised
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 theshadow of thelibraryon thewestside of
Chancellor Day Hall. Over theyearsthesebecome progressivelymore
depressing fortheiroccupants.
2 I thinkserviceas 'full-timereduced-load' statusshould count equally
withordinaryfull-timestatusif(as in thecase of Frangoise)theperson
is presentin the facultyeach day formostof theday. Alternatively, as
in myformercase (when I was presentonlyin the mornings)I agree
thatsome allowance or discountshould be made (of,say, to to 20 per
cent).
3 I thinkthattenureor tenure-trackdoes weighin 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 professorresignsand then
returns,I thinkyears of serviceboth 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 collectedour viewsnow. Make yourdecision and then
tell us the reasons.
/adb
TO: R. MacD. FROM:Randall Dawson

SUBJECT:Officeswitches

In allocating rooms, I should draw a sharp distinctionbetween (1)

allocating individual rooms that for one reason or another become
available, and (2) redistributingrooms thathave already been allocated
and are currentlyoccupied. In thelattercase, whichI appreciateis notthat
whichnow confrontsthe faculty,I believe we should adopt theconserva-
tive posture in boundary matterstaken by the Organization of African
States.We should agree thatan extraordinaryevent,such as thearrivalof
a world-classsenior professor or the rehabilitationof a formerdean,
should be necessaryin order to effecta change requiringtheexpulsion of
an incumbent.
As to point i, you don't need me to tell you thatthe more factorsyou
take into account, the more impressionisticit all becomes. While I am
inclinedto favourcriteriathathighlightstatusover thosebased on length
of service to the faculty,for personal reasons, which I know I need not
state,I should notlike too much emphasis tobe 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 interestsintrudewhen I saythatlengthof serviceconfinedto the
yearsspent at McGill is too narrow,especially,in the case of interrupted
service,iflimitedtotheyearsfollowinga prodigal'sreturn.Let me remind
you thatsince we are talkingabout an initialallocation, there is no real
question of vestedrights'being disturbedifpre-prodigalyearsand years
spent in an equivalent institutionare taken into consideration.
As to thenice blockof fourofficespreviouslyoccupied byour emigrants
to the Centre, I believe (let me stressyetagain a personal interest)that
thosewho signup wellin advance so as to assistin thecreationofa 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 tryingtocreatea satellitecommuni-
ty,notmerelyshufflingmore 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

Veuillez m'excuserde vous envoyerune lettremanuscrite:c'estqueje 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 cependantconvaincuque vous devez absolumentm'attribuerun
meilleurlocal. Il ya dejalongtempsqueje vous ai faitpartde 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 ignorermes 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 faitde ne pas recevoirun bureau
correspondanta mon anciennete porteraitatteinteau 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 votrediscretionest 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 prisela
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.
TO: Rod FROM: Prof.C. Billington

SUBJECT: Office allocations and other perks
In myopinion yourtwocriteriado nothingto promoteexcellence within
thisfaculty.You are simplyrewardingprofessorsfornot having had the
talentto move up to a betterschool. Rank and lengthof servicehave no
necessary correlation to academic meritand contribution.Your main
object should be to reward quality and achievement. The best offices
should go to the faculty'sbestpeople. On the basis of objectivecriteriaof
past performanceyou and I both know who theyare.

If you publiclyreward professorsfortheirreal, tangiblecontributions

you willbe doing twothings.You willattractand keep some of thebetter
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. Anysuch perksshould be used as incentivesto promote
the typeofbehaviouryou wantwithinthefaculty,and to preventtenured
professorsfromshirkingon theirduties. If we wanttobe competitivewith
otherinstitutionswe have to startbeing morecompetitivewithinour own
faculty.A systemofincentiveswillregulatethebehaviour of theteaching
staffmoreefficiently thananyattemptstobe 'fair'in theabstract.Afterall,
you have to ask to whom you're being fair.The communitywe serve has
a rightto thebestlaw facultypossible. Don't missthisopportunitytosend
a fewsignals.
/he
cc: Prof. Sam Reisman Prof.Ted Campeau
TO: Dean Macdonald FROM: ProfessorPearson

ProfessorTremblay
SUBJECT: Newoffices
We're glad to hear thatthere'snew 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 timeto startdividing up the faculty
accordingto specialty.For example, you could put all thecivilianson one
floorand all thecommonlawyerson another.Offices(and officelocation)
are notjusta privateright.They are a public good whichyou mustdeploy
to maximumadvantage.
If you remember,we spoke to you last semesterabout the possibilityof
our being located in contiguousoffices,or at least on thesame floor.This
could be a firststep towardsestablishinga researchinstitute.We are both
workingon similarprojectson the law of obligations,and would find it
veryusefultobe able to share ideas and resourceseasily.We hope you will
make thisone ofyourmainconsiderationsin assigningofficespace. There
is a precedent forthis. Others, such as Profs.Lindsay, Savard, Dupont,
and Allan, have benefited fromspecial arrangementswhich permitted
themto workin close proximitywithlike-mindedcolleagues. That they
have now been able to establishthe Centre forAdministrativeLaw and

Practiceis proofthatthewhole facultygains in thelong run fromthistype

of specializationand grouping.
/adb
TO: Dean M. FROM:Ted Campeau

SUBJECT: Offices
I thinkI've gottheperfectsolutionto thisofficeallocationquestion. 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'sjust perfect the criteriafor meritwe've
already got.
I thinkwe should decide on an ethicaltheorythatcan be deployed totell
us what we value. Then we should create a point systemin order to
accuratelyand fairlycompare the workthatprofessorsaccomplish. Isn't
thiswhatyou do now in an ad hoc wayforour annual discretionarysalary
increases?Whileitmighttakesome timeat thebeginningtoagree on basic
allocational principles,to set up all thecategories,and to assign pointsto
them,once in place the systemwould provide a quick and easy reference
foryou and your successors.
Justto illustratewhat I mean, publishing a book mightbe worth loo
points,an articlein a majorjournal mightbe worth75, a note or comment
50 (or forlesserjournals 50oand 25), supervisinga mootingteam mightbe
worth40, and so on. The key would be foryou to get all the thingswe
value down on paper and to work out a theorythat establishes their
relativeimportance. Then you could totallyeliminateboth politicsand
arbitrarinessfromthe officeallocation process.
/sg
cc: Sam Reisman Craig Billington
TO: ProfessorMacdonald FROM: Professor

Ratcliffe
SUBJECT: Sexualequalityand tradition

It is because I knowhow much latitudeyou have in allocatingofficesthat

I feel obliged to commenton the criteriayou set out in your memo.
I realize that you are attemptingto avoid having to make subjective
evaluationsbylistingcriteriasuch as rankand lengthof service.Afterall,
these standards are often used to establish a pecking order withinan
academic environment.However,byadheringto suchconsiderationsyou
are not avoiding subjectivemoral choice. Worse, you are perpetuating
some of the system'straditionaland hidden biases.
The teachingoflaw has long been a male-dominatedfield.Recentlythis
trend has been changing,and you have been verysupportiveof female
facultymembers.But ifyou decide officeallocationschieflybyreference
to rank and long service,I can't help but feel thatyou willbe reinforcing
the discriminationthathas prevented women fromattainingthe senior
academic ranksor fromestablishinganygreatlengthof servicewithinthe
university.
Your criteriabelong to an old boys'systemwhichis outdated. You were
appointed dean in parttobreaktheoligarchywhichhad been runningthis
place foryears.Here's a chance to use yourdecanal authoritytoact (as you
put it) in the 'best overall interestof 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 clearlywhyyou did. If you are afraid to go thisfar,thenat the
veryleast you ought to announce criteriathatdo not have a conservative
bias and thataffirmthe 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

Dear Dean Macdonald,

Re:AuthorityofDean toAssignOffices
I am writingpursuant to your request for an informallegal opinion
relatingtoyourauthoritytoallocateprofessorialofficeswithinthefaculty.
Accordingtoarticle12.1 oftheStatutesof McGillUniversity, '[t]he Dean
shall, under the directionof the Principal,administerthe affairsof his
Faculty,academic and executive.'This is theonlyprovisionin thestatutes
grantinga power to perform general administrativefunctionsin the
faculty.As you can see, itconfersa verybroad discretion.Moreover,this
power is not limitedin any wayin 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 practicewithinboth 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
regulationsofthefaculty,and notin theformofadministrativeguidelines
emanatingfromthe universitysenate.
Finally,as you know,theprofessorsat thisuniversityare notunionized.
According to articles 1665a-1668 CCLC,a contractof employmentis a
contractforthe lease and hire of work.Unless you have made additional
promisestoindividualprofessorsyouronlylegal obligationsare tofurnish
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 thismatterunder the assumptionthatyour
discretionis unfetteredbytheuniversitystatutes,the generalregulations
of the faculty,and the provisionsof the Civil Code.
Trustingthe above, is satisfactory,I am,
Yours verytruly,
B. George Meehan
BGM /mS
Aren't you glad you have loyal alumni teachingas sessional lecturers
PS-
whom you can count on forfree legal opinions?

TO: ProfessorEdna Placitt FROM: John Wisdom,

Gale ProfessorofRoman Law
SUBJECT: Gettingseen and gettingahead
I hope you are reconsideringyourdecision not to apply fora new office.
As I mentionedearlier,thereis more involvedin thisprocess thansimply
a desire for new and betterspace. Even though you say you are quite
happy withyouroffice,you have to realize thatyourcontentmentwillbe
seen as lack of ambition.When you make a demand fora betteroffice(or
a computer,or a researchassistant)you are indicatingto the administra-
tionthatyou feelyou have made a significant contributionand are entitled
to recognition.Withinour ratherinsularlittlecircle,thedemands forand
awarding of such seeminglyinsignificantamenitiesdo not go unnoticed.
Believe me, I have had thirty-five years of experience at playingfaculty
politics.
It mayseem pettyto act like this,but it'sall partof forginga career. If I
mayadd, withoutsounding sexist,thereis oftena perceptionthatwomen
are less competitiveand aggressivein the professionalworkplace. If you
fosterthisview,you willbe passed over formanyotherbenefits,some of
whichmightbe of greatvalue toyou. Consequently,althoughitmayseem
unimportantnow,the competitionforthisofficemighthave a greatdeal
ofimpacton howyou are dealt withmuch fartherdown theroad. It might
also adverselyaffectother female colleagues in the future.I urge you to
reconsiderand put your name in the runningfora new office.
John
TO: Dean R.A. Macdonald FROM: Sam Reisman

SUBJECT: Officeallocations
The followingis myresponse toyoursolicitationofopinionson thesubject
of officeallocations. I'm sorryto be so late gettingback to you but I only
saw thememoyesterdaywhen I gotback froma LibertyFund conference.
Anyway,I'm sure you won'tbe surprisedbywhatI have to say.Like Craig

BillingtonI see thisallocationexerciseas beingessentiallyone ofvaluation

whichyou, as dean, should undertake. I think,however,thatBillington
missestwokeypoints. First,he has a thinconceptionof whatitis thatwe
are valuingin thathe focusesonlyon past performance.Second, thereare
significantvaluationuncertaintiesin anyexerciselikethis.You could well
be wrongin your allocation because you have imperfectinformationon
tastesand preferences.
Let me startbyremindingyou thatwhatyou are reallyaskingforin your
memo is a theoryof regulation.This takes us directlyto agency costand
interestgroup theories. In a world of zero transactioncosts and full
agreementabout facultygoals, all partieswould subscribeto a complete
contingentcontract,which specified facultypolicies for each possible
futurestateof the world. Since thatwould be too costly,the partieswill
delegate discretionto thedean as an agent of all thosewho,as principals,
have an intellectualstakein thefaculty:professors,students,even alumni.
Regulation mightthen be a response to the possibilityof decanal misbe-
haviour,as wherea dean seeks to advance his own interestsand notthose
of the faculty.In some cases this might be desirable, but even then
decisionsabout compensation(and officesarejust one typeofcompensa-
tion)are one of thelastplaces 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 setof regulationsthatwas not attuned to overall faculty
goals.
Turning now to the substance of the question, I thinkpublic choice
theoryis where we should look for an answer. I've heard a number of
discussionssince myreturnand I'm struckbytheconsistencywithwhich
mycolleagues failto take into account an importantfactor;namely,the
marginal utilityof any given office space varies with the individual
professor.There maybe some professors,forinstance,who prefertowork
at home, and who would gladlyexchange a large officefora smallerone
iftheywere able to schedule theirclasses so thattheyneed notcome into
thefacultytwodays a week. Again, certainprofessorsrequire more space
because theydo a lotofworkwithgraduatestudentsor 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,tasteschange.
It is inefficientto deal witheach of these issues separately:allocationof
officespace, course assignments,timetables,support services,graduate
student supervision, etc., should all be treated together as tradeable
commoditiesand balanced against one another in establishinga work
environmentforeach professorthatwillpermithimtoachieve maximum
efficiency.Of course, the basic point is to provide professorswith the

correctincentivesto do good work(too bad we can'tabolish tenure,bythe

way). Still,since non-salarybenefitshave idiosyncraticvalue, you can't
possiblyhave all theinformationyou need to see how each memberof the
facultyvalues them.Professorswho kvetchabout yourallocation,however
you make it,should simplybargainwiththeircolleagues to getbetteroffice
space. Prettywell any object thatcan be legallyexchanged is legitimate
bartermaterial.Given how manyofthesethereare in a law faculty,unless
you are incredibly biased (or are a life-tenuredean), the marginal
advantageswilleven out. Here's an example. We all knowthatSheila is the
best secretaryin the faculty.If the person to whom she is assigned wants
a particularofficebadly enough, he mightwishto trade her forsomeone
less dextrousin exchange fortheoffice.More generally,thereisno reason
why professors couldn't engage in outrightcash buyouts of offices,
researchassistants,administrativepositions,or otherbenefits.I certainly
don't see a justificationfor 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 fora
sabbaticalthistimearound ifyou make sure I getyouroffice,'etc.). Since
it is obvious that thistype of activityinevitablywill continue under the
table,we should recognize itsbenefitsand legitimizeitbybringingit out
in theopen. I'm temptedtosend everyonea copyof Coase's seminalarticle
just so people see what the possibilitiesare.
As to the correctspecificationof incentives,I would argue that you
should be carefulnotto place too muchweighton 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-salarygoodies; and it doesn't allow anyone in this
facultyto reston the publicationof an articleor twoon the law of willsin
the 196os fortheirstatusin the faculty.Everyonewillhave to workhard
in ordertoaccumulatetradeablecommodities.These policieswill,I think,
help us to achieve our goal of making this the best law school in the
country.
/mb

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 withgreatinterestbothyourmemo on officeallocationand a copy
of ProfessorDugas's replywhich she forwardedto me forcomment.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 theactualallocations.This second committeewould notbe an ad hoc
committeelike the first,but should be a standingjudicial committee'of
the faculty.
I stronglybelieve thatthisprocessshould be entirelyindependent from
thedean's office.A university is a centreforthecreationof knowledge,for
exposure to new ideas. Its verylifeblood is the academic freedom of its
professors. In thislight, question how to allocate officespace is notas
the
trivialas itseems at firstglance. Officespace, along withsupportservices,
research assistance,traveland book allowances, and timetablingare the
smallthingsthatcomprisetheenvironmenteach professormustworkin.
If the power to controlall of these is concentratedin the hands of one
individual,thatindividual can make lifeat the universityintolerablefor
any professorwithwhom he happens to disagree. It is not necessarythat
therebe anyactual abuse; itis enough thatthereis a potentialforabuse to
chill academic freedom.
Mysuggestion,therefore,is thatmembersofthefacultyelectrepresenta-
tivesto an ad hoc committee(a sort of legislature),which will establish
criteriaforassigningofficespace. These criteriawillbe, in turn,applied
byanotherindependent body (thejudiciary) appointed bythe dean (the
executive).I knowthissounds a lotlikeMontesquieu and Dicey,but,after
all,aren'twe a law faculty?Let's seta good example fortheotherfaculties.
/ay
April 2o, 1988

Dear Boss,
Too bad. It'snotgoingtobe easyto reallocateofficespace. For once you're
out in the open and can't mask the facultyhierarchybehind pre-existing

bureaucraticrules. I'm not going to letyou tryto camouflageyourpower

withthispseudo-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 yourcriteriayou
are essentially co-opting us into accepting your final authorityand
discretion.You are tryingto make us feelthatwe actuallyhave had some
sayin a decision thataffectsus all, but thatin realityis made solelybyyou.
Everyprofessorwho passes on suggestionsor commentswillfeelthatshe
has participated.In effect,all she willhave done willbe tohave 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 competinginterestsby creatingan aura of
participationis yetanotherexample oftheliberallie thatbureaucracyand
democracyare compatiblein action.Those among us who feelwe have an
interestin or an entitlementto a new officeshould be allowed tomake the
allocationamong ourselvesthroughdebate and discussion.This maynot
be as expedient as yourmethod,butitwould no doubt be, to use yourown
words,less 'disruptiveto the dynamicof the faculty.'
Of course, you have the power as dean to do whatyou choose, and I'm
sure you will. I merelywanted to point out thatyour attemptto involve
professorsin facultydecision-makingis disingenuous.Unless we have the
fullpower todecide among ourselveswhatthe'bestoverallinterestofthe
faculty'is, we have, in effect,no power at all.
Assumingyou insiston makingthedecision yourself,in myopinion the
onlylegitimatewayto 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)
TO: Prof.Cathy Ratcliffe FROM: Sam Reisman

SUBJECT:Sharon's office

The grapevinetellsme thatyou are one of thosepeople activelypursuing

Sharon's office.Let's face it,by any possible criterionor criteriathatthe
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 impressivelistof publicationsin meaninglessjournals. Plus,
you haven't exactlybeen Dale Carnegie when it comes to influencing
people and winningfriendswithyourpoliticalagenda 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 particularlyrelishthe
thoughtof having to tolerateour old intellectualpropertyexpert on a
neighbourlybasis. So I'd like to stayput, despite the factthatmyofficeis
not the greatest. You clearly have the best secretaryin the faculty,
althoughmostothershaven'trealized ityet.She has gotexperience on the
same word-processingsystemI have at home and in myoffice,and on
which I plan to writemynext book. I am willingto put myname in the
runningforthisoffice.You would withdrawyours,and insteadapply for
mypresentofficewhich no one else will do. When the allocation comes
through,we'll switchofficesand secretaries.The dean won't interfere
since thissortof thinghas been quietlydone in the past; moreover,he
would fear the possibilityof your crying the feministwolf. This is
somethinghe willavoid at all costs.
You can't possiblyexert the typeof influence in the facultythatyour
ideology requires if you continue to be isolated in the attics of these
buildings. So let's make a deal.
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 officeallocation

procedure. I also findyourclaim to an unfettereddiscretionunsettling.
The procedure used lastyearwas based onlyon yearsofserviceand had
nothingto do withrank. I can see no reason to change this.In fact,there
are good reasons to followthisprecedent. For one thing,it is certain. It
worked withoutany major difficultieslast year. In addition, it allows
professorsto plan theirfuturemoves. 'Seniority'is an objectivestandard
thateliminatesarbitrary and capriciousexercisesofpower.Your approach

willonlyadd to the competitive,back-bitingelementwithinthe faculty.I

see no meritin this.
Per: ROSE, DESJARDINS
/tv
TO: Prof.Sam Reisman FROM: Prof.Cathy Ratcliffe

SUBJECT: Let'smakea deal
Your behind-the-scenesofferto trade mysecretaryforfloorspace is an
interestingone. In fact,I found it so interestingthatI decided to share it
withthe restof the faculty(and secretarialstaff),and have circulateda
copy of the memo withthisresponse. I know you won'tmind. If you are
reallycommittedto the kind of 'market'dealing you described,thenyou
should be quite happy to make the marketan open one.
By the way,thanksforthe photocopyof Coase's seminalarticle.While I
too have a certainnostalgiaforthe 1950s,perhaps you mightwantto trade
itin fora more contemporarymodel - I suggestMartha Minow's ovarian
masterpiece,'PartialJustice.'
/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. Je trouve dommage qu'ils ne savent s'en
remettre' votrebon jugement. Soyez assure de mon support dans votre
decisionquelle qu'elle soit.J'aiun immenserespectpour votreperspicacite,
votre sens logique et vos capacites d'administrer. Dans cette faculte,
personned'autreque vous ne pourraiten arriverAune d cisionaussi sage.
J'espereque vous n'agoniserez pas troplongtempset 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-

fianceenversvotreleadership ne futen riendiminu e par votredecision

de ne m'accorderqu'une tresminimeprime du meritel'an dernier. Bon
courage.
AlbertArsenault
McGill Law StudentsAssociation

Associationdes etudianteset etudiantsde droitde McGill
Chancellor Day Hall, Room 4
April 25, 1988

It has come to our attentionthat,in addition to the four officesin the
annex, ProfessorSharon Eaton's officewillbecome available forreassign-
mentupon herdeparture.As you know,our associationdesperatelyneeds
more space. At presentour premisesin the basementof Chancellor Day
Hall are farfromadequate. A new officein the main partof thebuilding
would provide a focalpointforstudentactivities,and byextensionwould
improvethequalityof lifeforstudentsbyfreeingspace fora video-game
and pin-ballroomin thebasement.Moreover,thisinitiativewould be very
well perceived by those students who are always complaining about
professors'being isolated in theiroffices.An added bonus is thata games
roomwould generateenough profitforus to put in a computerthatcould
be used to produce the QuidNovimore cheaply, and therebyreduce the
subsidyyou have to give it.
These considerations should be examined and weighed against the
supposed benefitsof merely reallocating the vacant office to another
professor.While we don't claim thatin officeassignmentsthe claims of
professorsshould alwaysbe subordinateto ours (although,as you know,
in Francealmostno professorshave officespace at theirfaculty),we do not
thinkthatthepurposes forwhichprofessorshave offices-to do research,
to meet withstudents,to have private space for reflectionand study-
require the assignmentof any particularoffice.An officepeckingorder
is extraneous to the basic purposes of office-holding,and is rather a
surrogatefora meritclaim,or a prize.
Our viewis thatonce seen in thislight,and assumingthatall professors
actuallyhave an office,theallocationofofficesmustreflecta balancingof
all interestsin thefaculty-professors,students,administrators,secretar-
ies, librarians,and even cleaners. We are confident that in any such
balancing,thelaw facultyas a communitywould be bestservedat thistime
by allowing the association to take over Eaton's old office.

Sincerely,
Louise Blanda
LSA President
PS- I knowthatyou have alreadysenta memo to theprofessorsintimating

thatyou willbe allocatingthisofficeto a facultymember.But you didn't
actuallymakeanypromises,and thereforeyou should notletthispreclude
you fromgivingitto us. Besides, movingthe LSAin letsyou avoid having
to choose among professors.
A: BarryPaul DE: Richard T6trault

OBJET:Votre nouveau bureau
La discussion de table de la semaine derniere au FacultyClub m'a fait
beaucoup r6fl6chir.Je sais que le processus d'allocation des locaux vous
enrage.Jecroiscependant que pr6tendreavoirun 'droitcontractuel'a un
bureau particulier,ne vous manera nul part. Votre bureau actuel fait
tellementpitie,que tout nouveau bureau seraitune amdlioration.Je ne
serais pas surpris que le doyen vous offre le bureau du collkgue qui
obtiendrale bureau du professeurEaton. Vous pouvez certesreclamerun
bureau de qualit6,maisje ne croispas que vous ayez droita 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 administrercette
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
expliquantde quelles r gles nous avons besoin etde quelle fagonil fautles
cr6eret les appliquer.
Quel estle butde cetexercicesinonde continuerle raffinement d'un tic-
tac-toe rationalisteou de justifier notre besoin de regles encore plus
nombreuses?Nous savonsque le doyencontr6lela situation.II allouera les
locaux selon ses sentimentsdu moment. Si, ce jour-lI, il est en rogne
enversles francophones,les civilistes,la vielle garde ou les f6ministes,le
r6sultatsera diff6rent.Plus sp6cifiquement,s'il esten rogne avec vous ou
tout autre pr6tendantce jour-la, le resultatsera diff6rent.Meme si ces
facteurs6taientneutres,il demeure qu'il devra donner son interpretation
personnelle des crit!resque nous lui imposons.
Ne vous souciez donc pas des raglesAcr6er.Voyez plut6ta d6couvrirle

momentohle doyend6cidera ettentezd'etrealorsen bons termesavec lui.

Allez le voir et soummettez-luivotredernier articleet plaignez-vous de
votresalaire. Il ne peut probablementpas vous offrirun meilleursalaire,
mais il risque de vous donner un meilleurbureau pour compenser.
Fiez-voussur moi: les regles (et surtoutla notiond'obligationcontract-
uelle) vous feronsperdre votretemps.Travaillez a influencerla 'psycho-
logie' du doyen.
/Im
TO: Rod FROM: Ray Marcil, Fern G.

Kennedy Professorof
General Jurisprudence
It seems to me, as a labour law professor,legal theorist,and, like you, an
Eden expatriate,thatthereare twowrongwaysoflookingat thisproblem.
The firstis to see yourdecision throughthelens oflabour 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 straightformynew seminar
nextyearon employmentlaw, I hope you'llindulge me withthisprelimi-
narycourse outline which I'm tryingto sneak by you as a memo.
To begin,letme make a general pointabout manyofour colleagues. My
bet is that(1) you're gettinglotsof memos,and (2) mostof themare rule-
of-lawvariants.This is to be expected. We're universityprofessorsso we
cherish the writtenword and pride ourselves on our linguisticability.
Other organizations (say an organized medical clinic) would, I'm sure,
generateless paper and moreconversationon an issue likethis.As forthe
rule-of-lawfocus, the answer is equally obvious. If all you have is a
hammer,everyproblem looks like a nail; and we both know how much
contemporarylegal education has hammered home legalismas a political
ideology. In other facultiesat McGill (for example, Social Work), the
dominant themes would be reconciliation and accommodation, not
confrontation,adversarialness,and claimsof right.Let me pursue these
complementaryaspectsofparadigmlaw-professorbehaviourbydevelop-
ing the two points I made in myfirstparagraph.
I suggestthatitis inappropriateautomaticallytoanalyseyourmanageri-
al problem in termsof labour law theory,forthenthe assumptionis that
we should look to'law' (rules,procedures,institutions) fortheappropriate

characterizationoftheissue, and to 'adjudication' forthemechanicsofits

resolution.Much of labour law was developed in reactionto the demon-
strated inabilityof management and workers to compromise and co-
operate.As a result,theattribution of 'rights'under a collectiveagreement
and theirenforcementthroughthe ukase of an arbitrator'sor judge's
decision became our dominant model. But here in the universitythe
settingis, 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 ultimatelyreturnto our
ranks,you are in factthemostappropriate person to manage theprocess
bywhichwe actuallydecide how to allocate officespace. In otherwords,
don't tryto make over thisfacultyintoeithera free-standingpoliticalstate
or a public bureaucracy.
If I could sketcha rough model of the way to thinkabout thisproblem
I would propose a four-squarematrixderived 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 organizationon the other. To me, any firmdividing lines between
public and privateor betweenperson and polityare mistaken.The term
'individual'is a conventionalshorthandforthecongeriesofcomplementa-
rybut partialselves thatwe constantlyredefineourselves 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 thesemultipleselvesinto
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 itmore as a problemof familylaw. In fact,I would argue that
intra-organizational problemsare alwaysproblemsofaffectionmorethan
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 inarticulatesentimentsof hope, vulnerability,autonomy,and trust
whichwe all livedailyintoa parable ofmoralgrowth?In otherwords,how
do you use this exercise - which rule-of-lawtypeswould see as utterly
inefficientand destabilizingto professors- intoan opportunityforus to
reflectpubliclyupon thosethingswe value? At thesame time,how do you
preventany such exercise of self-reflection fromstickingthe institution
witha set of fixed rules and procedures which lock us into the political
agenda of the momentaryfacultymajorityin May 1988? To suggest an
answer to these questions,let me rehearse a problem I use in my'Saving
the Appearances' seminar.
Imagine two siblingssquabbling over the sharing of a chocolate bar.

They invoke the authorityof their parents to get a decision. But the
parentsrefuseto cut thecandy,and instead reply,'Oldest cuts,youngest
gets firstchoice.' Here, the parents have 'solved' the problem not by
imposing a solution, but by suggestinga structurewithinwhich their
childrencould solve itthemselves.Of course,a facultyis morecomplex in
that there are more than two claimants to satisfyand there are many
prizes.So, we mightask,whathappens, as in theofficeallocationsituation,
when there are several parties to a conflict(thatis, if there are three or
more siblings?)One plausible answer would be to buy a box of Smarties.
That is,reshape theproblemintoa formthatlends itselfto a solutionthat
is withinthe moral and intellectualgrasp of the affectedparties.
Your role is not to make yourselfthe centre of the controversyby
deciding eithercriteriaor entitlement.Your officeis to thinkcreatively
about how we can conceive of the problem as a metaphor fordiscerning
whenfaithin explicitrulesand adjudicativedue processbecomesidolatry.
For I deeply believe thatthe wayin whichwe understand and liveout the
public and externalnormativeuniversewe share withour studentsflows
directlyfromhow we understand and live out the private and internal
normativeuniversewe share witheach otheras colleagues and withour
various selves.
/sg
MCGILL UNIVERSITY Facultyof Management April 26, 1988
TO: My other dean FROM: Prof.Yablonsky

SUBJECT: Officeallocationin theLaw Faculty
I thinkthatmyunique position--holding a cross-appointmentbetween
thisfacultyand the Facultyof Management-allows me to giveyou a fresh
perspectiveon yourlatestproblem.Afterall,whatyou have here is simply
a classical management dilemma. I could give you a shortreading list-
Downs, Self, Wilson, Olson - but you've got betterthingsto do. So I'll
summarizethe latestthinkingin the field.
My colleague on the otherside, 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 withtheircolleagues. Mintzbergargues thatthe profes-

sional bureaucracyreliesforco-ordinationon thestandardizationofskills

and itsassociateddesign parameter,training,and indoctrination.In other
words,law professorshave receiveda bodyoftrainingwhich,withinbroad
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 ofcontributingto theadvancementoflearningis
the functionthatthe essentiallybureaucraticstructureof these organiz-
ations is meant to serve. Certain standardsexistto predeterminehow the
structureisco-ordinated.The standardsin professionalbureaucraciesare
determinedmorebythepowerofexpertise,professionalexperience,and
other forms of self-regulation,as compared with other models with
obvious centralized and hierarchical structureswherein experts make
decisionsand underlingsenforcethem.Thus, theprofessionalbureaucra-
cy is highly decentralized. It is the most democratic of Mintzberg's
structures.This is not to say hierarchiesdon't exist.They do. In profes-
sional bureaucracies,however,peckingordersare based on expertiseand
experience. And notwithstanding thesehierarchies,muchpowerremains
concentratedat the bottom,witheach professional.
Administrationof thistypeof structurehas its difficulties.Given this
decentralizedtendencytowardsdemocracy,theprofessionalswillseek 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 tocollegial attemptsat control.First,theadminis-
tratorwillspend much timehandling disturbancesin the structure.This
certainlyisn'tnew to you! But seldom willyou 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 negotiatesolutionsfor
antagonisticprofessors.This increases your power.
The second consequence is a resultof the factthatyou are functioning
at the boundary of the organization,between your colleagues and the
universityadministration,the students,the government,and the public.
You have to bufferyourcolleagues fromcertainaspects of societywhich
theywould rathernotdeal with,thusallowingthemto 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'stimecan be spent on research,writing,and teaching,instead
of solicitinggrantsherselfor supplementingher incomethroughoutside
commissions.

Mintzbergconcludes that'power in these structuresdoes flowto those

professionalswho care to devote effortto doing administrativeinsteadof
professionalwork,especiallyto thosewho do itwell. But that,itshould be
stressed,is notlaissez-fairepower: theprofessionaladministrator keeps his
as
power only 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 poweras 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 simpleone. The amount of'decanal discretion'you
have in each individualcase 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
withrespectto the principalplayersinvolved,the answer to thequestion
of the best means forallocatingoffices- at thistimeand in these circum-
stances- will follow.
/mlm
TO: Dean R.A. Macdonald FROM: Prof.Andrea MacIntosh

SUBJECT: Distributive
justice
I don't wantyou to thinkthatthisisjust another pitchfora new office.I
have a feelingthatyou have been receivingeven more answers to your
memo than those you mentioned last Tuesday at lunch. No doubt
everyonehas reasons forbelievinghe or she has thebestclaim to Eaton's
officeor to one of those at 3647 Peel.
I've been thinkingabout yourproblemofdeciding thisin a 'fair'way.To
mostpeople, 'fair'willinevitablymean 'in theirinterest.'This is bound to
happen no matterhow you frame the decision. Most of our colleagues
adhere implicitlyto a viewofsocietyin whichthepublicgood is simplythe
aggregateof privateright.For thisreason you can draftthreevolumes of
rules,but in the end willbe accused of exercisingyourdiscretionin one's
or another'sfavour.More, even the decision to let a committeedraftthe
rules (no matterhow the committeeis chosen, no matterwhatthese turn
out to be, and no matterhow theyare broughtinto force)willbe seen by
some as partisan.

I hope you willconsider the points I made at lunch about constitutive

communities.While I'm not as theologicalas Ray Marcilon thisquestion,
I neverthelessbelieve that whatever process you decide upon must be
enfranchising:you have to help each of us not onlyto see the big picture
which you live daily (call itthe overall interestof the facultyifyou want)
but also to recognizethatneeds and circumstancesof each individual at a
farmorefocusedlevelthananyfixedsetof decision-making criteriawould
allow. I made all these points on Tuesday, but I have thoughtof a few
nuances I would like to share withyou now.
Some colleagues willsuggestthatallocationsshould be made on thebasis
of 'contribution.'This maybe perfectlywell and good, but how does one
definecontribution? Ata purelyformallevel,consideringthateach person
is a professorhired to teach, research, and publish, these would be the
gauges of contribution.But contributionsare made in other respects.
Professorswho representa minorityviewpointmake a certaincontribu-
tion. So do those who play a verypublic role in the community,and who
may not have timeforsome of the more traditionalteachingactivities.If
you wanttoextend theargumentfurther,thoseprofessorsamong us who
are raisingsmallchildrenare makinga contributionto thecommunityat
large, which,although you are not obliged to reward,you should at least
notattemptto penalize. So thenotionof 'contribution'is a verybroad one.
Everyone of us is makinghis or her own contribution.
Patrickseems to thinkthatthewayto recognizeand value these diverse
contributionsis to refuseto weigh them.Treat us all as equals and tossa
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 richlyparticipatoryprocess. In fact,itdisplaces one of the
very questions we seek to address to the realm of the arbitrary:Who
counts?We stillhave toworkthroughdifficultquestionsofethicsin order
to determinewho should be entitledto draw a straw.The question, for
example, whethervisitingprofessors,researchfellows,students,secretar-
ies,and administratorsshould participaterequiresus toweighthecriteria
we value and seek to rewardas much as theallocational 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 relationshipswitheach
other,in whatwe do and whatwe expect of ourselves,we are generating
a normativeorder. Your job is notsimplyto recognizethis;itis to assistus
in recognizingit. Argumentsof efficiencyand expertise are only valid
when legitimated.We relyon you to keep open our choice whetherto
accept them.Conversely,we also relyon you to ensure thatour freedom
from'the tyrannyof technique' which these argumentsimplydoes not
expose us to a 'tyrannyof rhetoric.' For historyteaches that radical

democratsoftenare demagogues who substituteoratoryforeconomicsin

thecompetitionforlegitimation.A dictatorshipoftheproletariatisalways
at riskfromthose who generate itsdicta.
You will have to assess all of these considerationsin deciding how we
oughttodecide. You willalso have toevaluate whetherotherbenefitshave
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 ofchoosing
and weighing. This is reallywhat your discretionto 'decide in the best
overallinterestof thefaculty'involves.Yourjob is nottodecide forus,but
to help us develop our own grammarof democracy.No one willcome up
withthesame listofconsiderationsas youwill,butthenno one else is dean.
To continue the metaphor,as long as you are willingto have us rejector
modifyyoursubjunctives,gerunds,or pluperfectswe are willingtoletyou
propose the initialEsperanto. That's whywe selected you.
Let me close witha concretesuggestion.Patrickhas alreadycirculatedhis
memo, and othersare floatingaround the faculty.Whydon't you send a
follow-up memo settingout your revised views, invitingcolleagues to
distributetheirmemospublicly,and callinga facultymeetingtodiscussthe
question? We tellour studentsto reviewtheirexam scriptswithus as part
of the learning process. If you're serious about using thissituationas a
vehicleforcollectivereflection,let'sgetthevariousproposals on thetable
and deliberate about them.
/ay
TO: R.A. Macdonald FROM:WilliamThompson

SUBJECT:Democratizingthe faculty
I believe in directdemocracy.I'm also a straightshooterso (unlike some
of themorejunior professorshere) I'll tellyou whatI reallythink.Fifteen
years in practice and ten in politics makes me particularlyresistantto
academic bull like Patrick's'open letter.'
You should send anothermemo askingall of thosewho wantany of the
vacantofficesto indicatewhichone or ones theywantin order of priority.
Then printup a ballot foreach officeand let the whole facultyvote on
which prof wins. Neat, clean, and out in the open. No special pleading
behind thescenes. No secretdeals. No garbage about 'institutionalvalues'
or 'communityof scholars.' No self-interest parading as philosophy.Let
the chips fallwhere theymay. That's democracy.
/hh

TO: Rod Macdonald FROM: Sandra Greenwood

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 'NormativeOrder in theAdministrativeState'
fora conferencenextfalland yourproblemis a perfectillustrationofwhat
I've been tryingto get at. I now also see why I can't seem to write a
standard discursiveand heavilyfootnotedpaper to make mypoints.The
law facultyisjust like an administrativetribunal- itsnormativeorder is
partlylegalisticand authoritarianand partlyorganicand authoritative.Its
normativeorder is also partlygivenand partlyconstructed(le donneet le
construit).
The typeofdecision you now confrontis institutionalin all senses of the
word. So the firstquestion we should ask is 'What can institutionsknow?'
NoticethatI am notasking'What can individualsknow?'If administrative
lawyershave come to understand anythingthese past fewyears,it is that
much individualknowledgeis institutionally determined.Externalsocial
order is partlyachieved bysanctions(legal penalties,social shame, guilt),
but also requiresan internalsocial order arisingfromthegenerationand
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 institution is notmerelyan instrumentofindividualsor ofcommuni-
ties. What Sandel and Durkheim say about communitiesis applicable to
institutions:'community'describesnot simplya relationshipthatpeople
choose, but an attachmenttheydiscover; 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 forus by our institutions.
In thecontextofyourpresentdilemmathismeans thatour assumptions
about whatconstitutesa universityor a faculty,about whywe createthese
structureswhichare intended to celebrateindividualitybycompellingus
to thinkcollegially,and about how the conditionsnecessaryforaltruism
develop are notfreelychosen. Neitheryou nor anyone of us comes to the
problem of officeallocation unconstrained.We are trainedas lawyersso
thatwe understandadministrationas lawyerswould; we are employed as
professorsso thatwe understandadministrationas professorswould. You

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 institutionally
generated;
institutionsare not the product of theirown normativeorder.
/mb
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-piecequi font
la louange de votre discretionet des diverses formes de hierarchies
administratives.Mais pendant que l'administrations'auto-justifieet
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 refttre aux etudes de Leon
Duguit,Jacques Chevalier, et Maurice Hariou, administrativistesfrangais
exceptionnelsqui sont negligesici en amerique du Nord. Dommage que
nos collikguessontseduitspar les debatsinfantilesaux Etats-Uniset qu'ils
ignorentles apergus europeens.
Vous n'yetiezpas lorsqu'ha la findes annees soixantenous avons renvoye
deux doyens parce qu'ils croyaientque leur vision de McGill etait plus
importanteque les droitsdes professeurs.Jen'aijamais entendu l'expres-
sion 'le bien de l'institution'repet~esisouventque 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 imposeraux
professeursles plus recentesplateformesde 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 procedurejuridique appropride dans le respect des
droitsacquis. En tantqu'avocats nous defendons la primautedu droit.Il
nous fautmettreen pratique ce que nous prechons.
/hh

May 4
Rod,
I imaginethiswholebusinessofofficeallocationshas been occupyinga lot
of yourtimelately.I knowthatwhen I was dean itwas probablythesingle
most contentiousissue that I had to deal with. Since you are no doubt
beingbombardedwitheverything fromclaimsofrightstocallsforanarchy
(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 theotherfourofficesacross theroad. But frankly,I thinkyou're
betteroffmakingthedecision foryourself-committeesjust taketoo long
to arriveat solutionswhichultimatelyare no betterthan whatyou would
have decided in the firstplace. On the otherhand, howeverthe decision
is made, you have to keep one thingin mind: it's not whetherjustice is
done, butwhetheritappears to be done. If thingslook fair,you should be
OK.
As forPatrick'smemo,you can't lose. Treat himtheway I did. You play
the oppositionist. Propose a totallyoff-the-wallsolution that requires
Patrick to act like he is the 'dictatorship' he ostensiblydespises. For
example, ask himtotakechargeoftheprocessand leteveryone(especially
students and secretaries) know that you've informed the vp of your
delegation of authority.Or put the onus of actingnon-hierarchicallyon
him:publiclyacknowledgehismemo,and thenask forvolunteerstoswitch
officeswiththe Law StudentsAssociation.
As forthe othersuggestionsyou get,manage themaccordingto 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 lettingthecommitteemake the decision,letthemdraw up the
criteria.Criteria,afterall,can be manipulatedone wayor anothertojustify
whateverdecision you ultimatelymake. Or, ifyou decide on the criteria
yourself,make itlook likeyou based themon the responses you've gotten
fromcolleagues.
If you have to givesomeone an officethatyou thinkhe or she willbe less
than pleased with,intimatethatthe criteriastrictlyapplied would have
resultedin an even poorer allocation.Or you can givethe person a choice
between thatofficeand a couple of even poorer ones - thatwould make
the person feel thatyou dealt withhim or her fairly.
Take a long timeto decide. Ask everyoneforopinionseverychance you
get. Send a couple of follow-upmemos. This willgivetheimpressionthat
the decisionwasn'tarbitraryor takenprecipitately.If youmake itlook like

you'velosta fewhairsover theallocation,people willaccept thedecision.

youractualdecisionis less importantthan
That is thekey,Rod. Ultimately,
the way in whichpeople perceive itwas 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 staffappointmentsprocess requires a much higherdegree
of candour and openness. But officeassignmentsare hardlyof the same
order of importance.You don't expect everycase to reach the Supreme
Court, and you don't expect customsinspectorsat Mirabel Airportto be
of the same calibre as membersof the ImmigrationAppeal Board. Good
administrationmeans knowingwhichissues 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-

tiveAssistantand Area
Personnel Officer
SUBJECT: Offices
Dear Dean Macdonald:
I've been thinkingabout your memo solicitingrequests fromprofessors
forthe new officespace. I hope it wasjust an oversightthatyou did not
extend thesame invitationto membersofthefaculty'sadministrativeand
secretarialstaff.
I'm sure thatyou are aware thatmyjob as youradministrativeassistant
makes certaindemands in termsof space. I have a computer,a smallsafe,
filing cabinets, and shelves of documents and record-books. To run
businessefficiently I need space forall of thisequipment. In short,I hope
you will seriouslyconsider allocatingme a larger office.I would thenbe
able to functionmore efficientlythan in the renovated closet off your
officein which I now find myself.
I don't wantto sound too aggressivein mynextremarks,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 administrativestaffare female. Most of us are productsof a
more stereotypedsociety.We're not'upper management,'althoughsome
of us are certainlytalentedand efficientenough to meritit. Still,we play

an importantrole in therunningof thefaculty.Yet, giventhatthefaculty

is housed in an old house, we are byand large relegatedto back roomsand
re-done cupboards. You talk about sexual hierarchiesin 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
commitmenttoitsgoals is no less sincere.I thinkwe deserve to participate
in any discussions about how the faculty'sphysicalresources should be
distributed.I thinkwe should have standing (?) (is this the rightlegal
word?) to make our case forreceivingthe vacant office.
Personally,itwould be a tremendoushelp tohave moreand betterspace.
But it would also be a morale booster and a public recognitionof our
contribution.If you feelyou can't give ProfessorEaton's old officeto me,
thengiveittoJenniferLevyas a means ofupgradingtheStudentsServices
department.I knowyourprofessorsare veryimportantto thisfaculty,but
theyallhave betterofficesthanwe do. It wouldn'thurttoletthemstayput
foranother year or two.
Marie
TO: Dean Roderick Macdonald FROM:StanleyVeltman

SUBJECT:Barry Paul
I've just finisheda long conversationwithBarry 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 mindmyofferingyou my
thoughts on the situation. Essentially,this is not just a political (or
distributional)problem; depending on yourarrangementwithBarry,it
mayalso be a problemofadjudication. I acknowledgethat,in theabstract,
allocation and adjudication are incommensurable. But Max may have
alreadytakenthenecessarypoliticaldecisionand adopted privatecontract
as an allocational principle.Wouldn't thatbe the upshot of his promising
ProfessorPaul the officelast year? In other words, if he has allocated
rightsbycontract,I suggestthatyou can't now trumpthemwithpolitical
argument.While 'new property'maybe contingentin the sense of being
socially created, 'old property'is not. It is derivable directlyfrom the
concept of human agency.

Yet I see your difficulty.Even ifby rightsBarrymay be entitledto the

office,thisprocessshowshow rightsdecisionsare distributional.Treating
Barry'sclaimsas priortotallyignoresthedistributional or allocativeaspects
of the decision you will eventuallyhave to make. That a judge restricts
herselftojudging betweencompetingclaimsof rightsis appropriate in a
breach of contractor tortaction onlybecause of other prior constitutive
practice conferringupon courts responsibilityfor distributingpublic
benefitsin such cases exclusivelyby recognizingrightsand correcting
wrongfullycaused disequilibria.
But wherepriorconstitutivepracticeis ambiguous, and whereeven the
scope of thepurportedcontractualcommitmentis uncertain,you are put
in a positionof yourselfhaving to make the decision to adopt (and justify
tous) 'rightsrhetoric'as an allocativeprinciple.Since Fuller,we have been
conscious that'pure' adjudication is not suitable forallocatingeconomic
resources. These 'polycentric'sortsof problems require a considerable
degree oftransformation, oftenbycontract,beforetheybecome amenable
to adjudication. Only you and Barry know whether Max concluded a
contractwithhim. If he did, don't tryand save the situationby making
'propertyrights'contingent.We on the facultywillbe more tolerantofan
initialmistakein allocatingby'privatecontract'thanwe willofanyattempt
to correctthatmistakebyunderminingthe idea of acquired rights.The
integrityof the process and the mutual trustthatcomes fromrespecting
promisesmustoutweighthefactthatthesubstantiveresultin thisone case
could be less than optimal.
TO: Dean Macdonald FROM:Prof. Paul Willard

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 theoryof legal normativity,which I am also
circulatingto all colleagues. It was published in French so I hope you'll
forgivemycrude attemptsat translation.I knowthepointofthepiece will
be clear to you. Please bear withme as to itslength:
Currenttheoreticalviewsoflegalnormativity emphasizetheimportance
typically
of thequestion:whatconstitutes the sourcesof law?Moreover,contemporary
jurisprudencetreatisesreflect,at least superficially,a reasonablycatholic
conception ofthesesourcesinwhichlegislation, and customall
judicialdecisions,

achieve recognition. At the same time, however, these treatisestend not to

enumerateor differentiate theparticularnormativepropertiesof each source. All
are describedas havinga common logicalstructure,namelythe explicit,proposi-
tionalformassociated withlegislativeenactments.In otherwords,mostmodern
legal theoristssee theessence of law as discretelegal rules authoritatively
statedby
an officialsource.
Not surprisingly,the quest for a common logical form leads to some rather
interestingreconceptualizationsof traditionalsources. For decisional norms, it
requires that each judgment be understood as propounding a single legal
proposition- theratiodecidendi- at least theoretically capable of expressionas an
immutableprecept. For customarynorms,thisdemands the transformationof
action into language throughsuch strategiesas the requirementthatcustomsbe
judicially or legislativelyrecognized in order to be binding. Even though non-
statutoryformsof legal normativity likecases and custominitiallyare identifiedby
theoristsas constitutingsources of law in theirown right,theirrole in the legal
systemultimatelyis reduced to thatof antecedentsto norms.
Nevertheless,thedistinctive logicalpropertiesof differentsourcesof law maybe
derived by reversingthe strategieswhich theoristsadopt in order to assert their
uniformity. Imagine a typologyof legal normsbuiltupon twoaxes. On a firstaxis,
reflecting their mode of elaboration,norms may be distinguishedaccording to
whethertheyare explicitor implicit.On a second axis, reflectingthe nature of
theirnormativemeaning,normsmaybe distinguishedaccordingto whetherthey
are formulaic(canonical, propositional)or inferential(approximate,metaphori-
cal). The resultingtypologycould be representedas follows:
Natureofnormative
meaning
Legal norms Transparent Mediate
Mode of Institutional Explicitand and

Explicit
elaboration formulaic inferential
Interactional Implicitand and
Implicit
formulaic inferential
For presentpurposes, a norm maybe said to be explicitwhen itemergesfroman

institution,such as a legislatureor a court,recognizedas havingauthorityto state
the norm. It followsthatexplicitnorms willalwayshave propertiesof conscious
elaboration: defined procedures for their creation or recognition;a symbolic,
typicallylinguistic,vehiclefortheirexpression;and a distinctivemethodologylike

thecanons ofstatutory constructionas announced injudicial proceedingsfortheir

interpretation and application.The distinctionbetweenformulaicand inferential
normsis harder to state.Where a normclaimsto be self-evidentand transparent,
namely,whereitis expressed ritualisticallyor as a proposition,itcan be considered
to be formulaic.By contrast,where a norm cannot be reduced to an invariant
canon or rite,itmaybe said to be inferential.
Of course,in renderingwhatare essentiallytwocontinuaas intersectinglines of
demarcation,a certainarbitrarinessis inevitable.Nevertheless,if one focuses on
theideal typessuggestedbythesecategoriesratherthanupon the preciselocation
of the frontierbetween them,salientpropertiesof each come into relief.These
properties emerge even more clearly when legislation,cases, and custom are
locatedin thistypology.The followingpresumptivecorrelationsmaybe advanced:
formulaic/explicit - statute;formulaic/implicit - customsand trade usages; and
inferential/explicit-judicial decisions.The fourthcategory,inferential/implicit,
suggestsan additionaldistincttypeof legal normwhichis notoftenrecognizedby
theoristsas a source of law. This category would include such general and
overarchingnorms as the concept of public policy,the principlesof equity,the
presumptionsofthecommonlaw,and, mostsignificantly, thetacitpresuppositions
of communitiesof interpreters.
While thisfour-squaretypologyobviouslydoes not exhaust the possibilitiesfor
characterizationof legal norms,in offeringan alternativeto the formaltypology
presentedin sources-of-lawtheoryitdoes suggestthe importantfunctionof 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 normativity under which the process of legal justificationneed not
depend on the availabilityof a pre-existingclosed set of valid norms,identifiedin
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
claimsand representations:
1 I'm older (or I have a more senior rank,or I've been a memberof 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 businessadministrationtextbooks,
I deserve the office.
7 To maintainconsistencywiththeallocativeprinciplesadopted lastyear,myclaim
would have to be judged to be meritorious.
8 I get betterteachingevaluations and publish more articles,so I should be re-
warded withthe firstchoice.

9 Offices must be allocated so that professors who work well together are
contiguousto each other.
In thesenine statementsone can see an appeal to nine differenttypesof 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 prioriclaim; and to the integrityof institutionalarrangements.In
fact,the onlymajor argumentnot raised is the appeal to some authoritative,pre-
existing,legislativerule.
This paradox suggeststwofurtherquestionsabout legal normativity. First,must
all the differenttypesof normativestatementsadvanced by litigantsand acted
upon byagencies be understoodonlyas argumentsto be deployed in interpreting
statutes?Second, do some specially packaged types of argument conclusively
controllegal decision in thattheyexclude appeals to othertypesof norms?
Consider the firstquestion. In the officeallocationproblem,it is apparent that
mostofthepotentialtypesoflegal argumentcanvassed are grounded in normative
claimswhichare neitherformulaicnor explicit.These claims are, moreover,not
mere argumentsin interpretationof formulaicand explicitnorms,but theyare
substantiveand independent norms derivable from institutionalpracticesand
structures.Of course,formulaicand explicitlegal normshave a presumptiveclaim
to attention,especiallywhere decision-makingitselfis institutionalized.But this
presumptiveclaim flowsonly fromthe factthattheyare mosteasilyidentifiedas
operative norms by institutionsand officials.In other words, simplybecause
statutesand regulationsare themostvisibleadministrative law norms,theydo not
command thatall othernormativediscourse be parasiticupon them.
This lastpointsuggestswhyimplicitand inferentialnormspersisteven in highly
institutionalized normativesystems.Formalizinga norm and renderingitexplicit
through the legislativeformdoes not fundamentallyalteritsfunctionas a vehicle
of argumentand justificationin individualcases. Implicitnormswillcontinueto
arise eitherdirectlyfrominteractionbetweena bureaucracyand itsclienteleand
the demands of administeringa statute,or indirectlythroughthe interpretation
of norms already made explicit. The persistence of all types of normativity
notwithstanding the existenceof a statuteis oftenoverlooked because properly
craftedformulaicand explicitnormswillbe instrumentally apt over thevastrange
of cases. Easy cases occur when all non-statutorynorms cause no conflictor
conscienceforofficialsor courts.By contrast,hard cases are thosein whichnorms
conflict.Withina bureaucracy,conflictarisesbecause interactionalimplicitnorms,
as wellas inferentialand explicitnormsin certainof theirpotentialformulations,
point to conclusionsat odds withpreviouslyaccepted agency understandingsof
formulaicand explicitnorms. Preciselybecause of the inferentialand implicit
nature of these norms,a source-basedcriterionof validitycan neitherdetermine
(as an a priorimatter)the bearingof these othernorms,nor can itlexicallyorder
theirpersuasivenessin any giveninstance.

The second majorquestionabout legal normativity, whetherinstitutionalization

typifieslaw, can also be explored throughanalysis of the office-allocation
example.
Imagine a disagreementabout officesboth before and afterthe draftingof a set
of guidelines. Before the guidelines, substantivearguments about equality,or
about opportunitiesto create effectiveworkingrelationships,or about how many
rewards should be given the meritoriouswould predominate in discussions
betweenprofessors.Much less thoughtwould be giveneitherto formalarguments
(thatis, the self-consciousattemptto discoverand statea previous practice)or to
decision-makingprocedures (voting,tossinga coin, and adjudication).
Afterthe rules, formalargumentemerges. The process of draftingnaturally
leads to more specificattentionto abstractprincipleand to definableclaims. But
rules also serve a surrogate function.They permit personal argument to find
expression in impersonal language, thereby displacing potential individual
conflict;theyalso providea pointof access to predigestedargument.In thissense,
the negotiationof a systemof rules oftenrevealsthe underlyingcommon interest
of partiesand various inferentialand implicitnorms not previouslyrecognized.
Conversely,the process of derivingformulaicnorms may reveal an absence of
common interest.Some facultiesapparentlyneed formulaicnormsto realize they
are not reallya faculty.
Even though the exercise of generatingformulaicnorms focuses attentionon
minimumstandardsofbehaviour,itdoes not,in itselftransformnormativity. Such
a transformation can occur onlyifitis also assumed (in myview,incorrectly)that
sources of law are a priorilexicallyordered, normativevehicles. Moreover,this
exercisedoes not necessarilylead to institutionalization of normsor to normative
explicitness. No doubt a instrument
legislative mayprovide fora decision-making
forumor procedure,as maya contract.Further,any givennormativesystemmay
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 legalitymistakesexplicitnessforlaw. People
acceptinga systemof rules presumablyattornto its formulaictermsas 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 covenantwithMoses and to the rules of athleticclubs for
the assignmentof lockers. Typically,they would not then assert that it is the
institutionalcharacterof the latternormativestructurewhich renders it legally
persuasive.
Although modern theories of legal positivismembrace subtle (and complex)
versionsof whatare 'primarylaw applyingorgans,' theyall presume thata legal
systemmusthave normsestablishingsuch organsand thatsuch organsmustapply
norms of the legal system.Yet, if one accepts the plausibilityof the suggested
typologyof norms,thereis no reason forconceivinginstitutionsdifferently from
norms.Some institutions are explicit;some are not. A courtmaywellbe an explicit
primary institution,formulaicallyconceived. By contrast, the judgments of

propositionallybutcustomarily definedparentsoreldersmaywellbe deferredto,

are
butthey notexplicit institutions.
Again,consensualmediation and arbitration
maywell reflecta recourseto an explicitinstitution; yetthe mediationitself
remainsan inferential process.Finally,in consideringthe opinionof one's
community or peersone is returning to a conceptof inferential and implicit
institutionalization.
The primafacie implausibility of the claim thatelders,mediators,and a
community can be institutions
clearlyrevealsthe pervasiveness of formulaic
explicitnessin all of
aspects legal thinking. Yet it is preciselywhen conflicts
in
institutionalcompetenceemergethatthe roleof thesecompeting'institutions'
becomesmostapparent.In otherwords,a law-applying institutionis best
understood notas a decision-making body.Rather, itis a for
metaphor interpreta-
tion.Implicitand inferential institutions
persistbecausetheyreflect implicitand
inferential
norms.It followsthatno explicitand formulaic institutionsuchas a
courtcanclaima monopoly overtherighttorecognize legalnormativity.
The pointis,whatsourcesof'law' and whatdecision-making'institutions'
in thisfacultyare yougoing to recognize as valid or legitimate?Are only
explicit,formulaicnormsset down in rules and regulationsdraftedby a
committeegoing to be valid, or will past customsand practicesthatare
implicitand inferentialbut certainlynot as black and whitegoing to play
a role here? Are you going to hide behind formallyconstitutedauthority
and proclaim,likeRichardNixon, 'afterall, I am thePresident,'or are you
going to submitto thejudgment of otherinformalfacultyinstitutions?
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
nurturedinformalinstitutions byarrogatingfinalauthoritytoyourself.I,
forone, do notwantto buyintoa systemwhere Cathywillbe perceived to
be boundbyyournormativeassumptionswhen she eventuallysitsbehind
the grand oak desk in Room 18. This willhappen ifyou act as ifyou are
the sole arbiterof normativity in the faculty.
The toneof mymemo and theselastobservationsmake myown position
clear. We don't need to sacrifice over a hundred years of historyby
gradually codifyingeverysingle rule in thisplace. You know this more
than anyone else in the faculty.I say 'more than anyone' because you are
thedean, and because, priortoyourassumingoffice,you wrotethearticle
I've just translated.
/ay
cc: All colleagues

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 withthe
office.But sinceyou'vepassed all thesememoson 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 ProfessorMacIntosh suggests. I
agree withher that we are engaged in political discourse, but we need
more preprogrammedright-wingharangues 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 marksmeetingsanyway.
Second, I thinkThompson's idea of votingis as off-the-wall as Patrick's
proposal that we have a draw. What are we votingon? This is a highly
complexdecisionprocesswithseveralvariables.Itdoes no good to say'let's
vote' unless we decide on the electoralrules: do we wantmultipleballots?
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 fourswithMacIntosh here.
As you wellknow,therehas alwaysbeen a hierarchyin thisfacultywhich
has been accepted and respected.The allocationofofficesis an ostensible
measure of where one stands in the institutionalpeckingorder. Clearly,
you have the best office.Then comes my officeand that of the other
associate dean. The fivelarge officesaround ours have generallybeen
reserved for those professors who by most indicators will take our
positions.The eightofficeswhichare beautifulbut less proximatehave
alwaysgone to past deans and visitingscholarsof repute. The dozen or so
intermediateoffices,fairlynice and proximate(ofwhichEaton's was one)
were to go to the up-and-comersregardlessof anythingelse. We need to
continuetoencourage people totakeon administrativeresponsibilitiesin
thisplace, and to reward them withnon-salaryperks. 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 givingthe officeto a
junior professorwho is clearlya futuredecanal candidate -someone like
Alistairor Cathy.Froman institutional perspectivethereis nothingwrong

withreinforcingthearrowsto thetop. It encourages role-playingand that

healthy degree of professorial self-deceptionnecessary for scholarly
efficiency.Withthiscurrentallocation exercise chance has smiled upon
you. Act now to get the message across unequivocally.
/ar
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,theage of our facilitiesand our locationin twoold houses
makes everyofficeunique. If we occupied a new concrete bunker like
some faculties,where all officesare more or less the same, we mightnot
have to facedilemmaslikethese(or at leasttheparametersof thedilemma
would be significantlyreduced).
As you have all acknowledged, mydecision is not an easy one, and will
necessarilybe the product of myconsideringa varietyof factors.Let me
begin,however,byexcludinga few.This typeof decision cannotbe made
solely on the basis of purported contractualclaims since it affectsthe
facultyas a whole. Any dean willattemptto respectthe promises of her
predecessors,butnotall promisesconstitutebindingcontracts.Again,this
exercisecannotbe seen as an opportunityto redresspastwrongsor refight
old battles.Bluntly,thedecanal businessofdeterminingofficeentitlement
cannot be allowed to become the professorialbusiness of provingmoral
superiority.
Most of the memos I have received reflectan understandingthatrank,
lengthof service,and academic meritare expected to play a role in the
ultimatedecision. Of course, definitionsof 'merit'differfrompartyto
party.These criteriawill be difficultto apply because of the range of
relevant considerations and the number of interested candidates.

Therefore,the finaldecision should in no waybe considered a definitive

statementof worthor relativemeritin the faculty.
I should also like to respond to the proposal thatcolleagues should be
automaticallygrouped according to specialty.While thismightbe a good
idea in principle(especiallyiftheyare membersofa 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/publiclaw? Conservative/liberal?And whatdoes one do with
a colleague who teaches in more than one field? There are so many
permutationsthatthisis an impossiblecriterionto use honestly.
Of course, the same maybe 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, effectively permitsme to do what I
want.Yet I hope you willgive me as much creditforintegrityhere as you
do in recruitmentmatters.
One lastpoint.The process of allocatingeven one new officewillcreate
a domino effect,freeingotherofficesas professorsare reshuffled.With
fivevacancies thisyearthereare bound tobe othergood officesavailable.
Please be assured that I willtake into considerationyour commentsand
preferencesin reallocatingany space thatbecomes available as a conse-
quence 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: Attribution
des bureaux
STRICTEMENT CONFIDENTIEL
J'ai prepare une note de service sur l'allocation des bureaux qui sera
distribu&ei tousles colleguesqui desirentobtenirle bureau du professeur
Eaton,maisj'ai cruqu'il seraitsage queje reponde personnellementavotre
notedu 5 avrildernier.Jen'ai encore prisaucune d cisionsur l'attribution
du bureau du prof.Eaton etj'hesiteentrevos representationset celles de
vos coll gues.Je me permetscependant de commenterles pointsque vous
avez soulev s etd'attirervotreattentionsur le nombreuxfacteursqu'il me
fautconsid6rer.
Je m'inscrisen faux contre votrecommentairea l'effetque le rang ne
devraitpas etrepris en consid6ration.Il seraitinjuste,par exemple, que

mon predecesseur,qui futdoyen pendant io ans, passe apres un profes-

seur 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 croispas, 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&ed'occupation de votre
bureau actuelsoitun facteurd6terminantdans votrecas. Sije me souviens,
on vous avait offertle bureau du professeurChouinard mais vous avez
pref6r6gardervotrebureau actuel. On ne peut tenircompte de la durie
d'occupation sans tenircompte des offresde bureaux refus es.
J'ai discretementcontact6plusieurs collagues qui d6sirentchanger de
bureau et aucun n'est interessepar le v6tre.Bien suir,je ne leur ai riendit
de votreint retpour le bureau du prof. Eaton. Vous voyezl'ampleur du
.
probl=me quej'ai r6soudre.Je feraide mon mieux et tenteraide tenir
comptede toutesles representationsquej'ai reques.Jemesureraiaussi les
cons6quences pour la facultea plus long terme.
RAM/lc
TO: Prof. B. Paul FROM: Dean R.A. Macdonald

SUBJECT: Offices
PERSONAL AND CONFIDENTIAL
As promised, I am writingto follow up on our conversationyesterday

concerningmymemo to you and othercolleagues wishingto move into
Sharon Eaton's office.I knowyou feelthatyou have an entitlementto this
space because yourpresentofficeisinadequate, butthereare otherpeople
withbetterclaims. 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 officelastsummer
since I didn't know then thatshe was leaving. Moreover, any one of the
officescurrentlyoccupied byProfessorsPlacitt,Ratcliffe,Dugas, Pearson,
and Tremblay is preferableto where you are now.
I am disturbedbyyoursuggestionthatyou are being treatedunfairlyby
McGill, since myrecords indicate thatyour salaryis significantly higher
than those of your contemporaries,that you have received money for
traveland researchassistancegreatlyin excess of thefacultyaverage, and

thatyou have been assigned onlythosecourses you wishto teach (a highly

unusual arrangementforfirst-and second-yearprofessors).
I willdo mybest to upgrade your officethistimearound, but I am not
in a position to assign Eaton's office to you. Please let me know your
rankingoftheofficesoftheotherprofessorslistedin mymemo of 11 May.
I shall attemptto arrange thingsso thatyou get one of your preferred
officesfromthislist,once I have finallydeterminedwho willbe offered
ProfessorEaton's presentoffice.
RAM/lc
TO: Dean Macdonald FROM: Prof. B. Paul

SUBJECT: Offices
PERSONAL AND CONFIDENTIAL
I appreciate the various considerationswhichyou musttake intoaccount

by virtueof your position,but I can't accept thatthese factorstrumpmy
claimto Eaton's office.A promise,even a promisebyyourpredecessor,is
afterall a promise.
Eitheryou have disregardedyouracknowledgementofthepromiseMax
made in his letterofferingme a positionat McGill,or you nevermeantto
keep itin thefirstplace. I have no intentionofacquiescingin yourdecision
to break promisesmade byrankingthe officesyou mentionor otherwise
indicatinga second choice.
I thinkyourdecision cannotrationallybejustified,and thereforeifyou
do not change it I intend to filea grievance.
/mb
TO: Dean Roderick A. Macdonald FROM: Richard Mason, Retired

Justice-in-Residence
SUBJECT: Officeallocationsin theLaw Faculty


I knowhowbadlyyou mustbe feelingabout thisofficeallocationproblem.
Aftertwentyyearson theCourt ofAppeal I've had myfillof playingzero-
sum games. Would ithelp mattersifI 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 youin particular,have
been verykindto me since I leftthebench lastDecember. 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
ProfessorBarryPaul
Facultyof Law
Dear ProfessorPaul,
Re: YourGrievanceDatedMay 14, 1988
I have received your grievance and am presentlylooking into the file.
Please forwardto myofficewithintwenty(20o)daysall 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

of
Faculty Law DATE: May 15, 1988
RE: Grievance of ProfessorBarryPaul
Dear Rod:
I have nowreceivedProfessorPaul's noticeofgrievance.Betweenhisletter

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 overlyconcerned, especially since Paul has asked
ProfessorRose to act as his adviser. As long as you have documented all
thestepsyou have taken,and as long as these make thedecision appear as
thoughtfuland fairas I know itwas, itwillbe difficultforthe Grievance
Committeetofindyourdecision tohave been arbitrary, or
discriminatory,
unreasonable. My experience is that grievance committeesveryrarely
substitutetheiropinion fora dean's, unless there has been some blatant
injustice.Technical argumentsofprocedureare muchlesspersuasivethan
evidence of substantiveunfairness.Call me any timeifsomethingcomes
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.
TO: Dr Oscar Steinman FROM: Roderick A. Macdonald

Vice-Principal(Academic)
SUBJECT: Grievanceof ProfessorBarryPaul
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
scribblednotessummarizingconversationsand meetingswithcolleagues,
etc.,whichI've retainedas 'notes to file.'But themajordifficulty
is thatthe
bulkofthefacultydiscussionofthisissue has been informal,and has taken
place mostoftenout 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 reconstructthesedimensionsof facultydecision-makingfor
the GrievanceCommittee.I guess all I can do is getsome of themintothe
public domain via a facultymeeting.At any rate,here is a summaryof my
'notes to file'record.

April4Discussed Paul's memoofApril3 withhimfor20 minutes;he seems

generallydisaffectedand talked a lot about Eaton.
April9Saw George Meehan today; explained situationand asked foran
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 gettingtiredof 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
despondentabout histeachingevaluations.He needs an ego-boost;maybe
the officewould do it.
May12Was in Common Room today;lotsoftalkabout offices.Paul walked
in and conversationswitched;later Willard said thatPaul 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 getthemtogetherin
myofficeso theycan 'confess' what'sreallyat stake privately.
May 16Had a long talkwithRay Marcil; he thinksthisprocess has been
veryhealthyforthe faculty.He suggested puttingthison agenda forthe
marks meetingon May 27 and circulatinga memo of my own first;he
thinksthatpeople willdrop legalismand talktrustand mutual supportif
I stage it right.
This is all I have noted. Hope it'suseful.
RAM/lc
TO: All colleagues FROM: RoderickA. Macdonald

All administrativeheads
SUBJECT:Officeallocation
I am writingto advise you that I have booked the Council Room at the
FacultyClub priorto the marksmeetingat 4:oo nextFridayin order that
we may discuss the officeallocation question. Contraryto rumoursyou
mayhave heard, I have notyetassigned Eaton's officeto anyone. To assist
us in our deliberations,ProfessorsDugas, Fleming,Billington,Pearson,
Reisman, Sangster, Marcil, MacIntosh, Thompson, Greenwood, and
Chouinard have agreed to let me circulate their memos to me. Those

memos are attached. I believe everyonehas already received documents

fromPatrickPettigrewand Paul Willard as well as copies of an exchange
of correspondence between ProfessorsReisman and Ratcliffe.
When I senttheoriginalmemo at thebeginningofApril I assumed that
myauthorityto assignofficesas I thoughtbestwas 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 notcontroversial;thatis,I did not fora momentthinkthat
myjudgmentabout the'bestoverallinterests'and 'dynamic'ofthefaculty
needed either explicitjustificationor general explanation. Yet most
memos seem to suggestthatthisis notthe case. I hope, therefore,thatall
professorswilltaketheopportunityon Fridaytomake theirviewsknown.
What seems to emerge frommostof the responses I received is what I
would call an instrumentalview of facultydecision-making.Neither the
substantivedistributionalcriteria(rank,lengthof service)nor theprocess
(decanal discretion,third-party adjudication) are seen as primary;rather,
itis the values we seek to promote- values I attemptedto capture in the
expressions'best interests'and 'overall dynamic'-which come first.The
formalargumentruns 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
servingonlyone end. The multipleends theyserve are not independent
of each other.An institutionis notsimplya machine thatcan be designed
fromthe ground up fora particularpurpose. Lon Fuller once addressed
thisidea byasking whetheritwould be realisticto design a new sportor
game byfirstaskingwhat'pleasures' we wishtoderivefromplayingitand
then deducing its scoring rules and principles of play fromthat listof
pleasures. The instrumentalviewthattreatsonlyends as being subjectto
political debate and means as merely technical (and, consequentially,
capable of evaluation onlyon an efficiencycriterionand 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 institutionwhetherit
contributestoenrichingour lives. I believe thatwe cannot,as a completely
a priorimatter,rank our institutionalgoals. We need to see whatimpact
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

same time, I do not think that there is a dichotomy between value

preferencesand procedural design whichtracksthatof ends and means.
We come to understandour ends notjustas abstractedpreferencesbutas
structuresthat influence the choice and design of our institutionsand
processes.We thenexperimentwiththeseinstitutionsand processesover
timein a continuingeffortto achieve our initialstatementsof ends and
goals,recognizingthatat thesame timetheyare reshapingour perception
and choice of possible ends.
A second idea thatseems to emerge fromsome memosis deeply legal. A
numberof colleagues insiston the importanceof maintaininga realm of
facultyinteractionwhichis fundamentallylegalistic.That is,theybelieve
thatfacultynormativity is public normativity
and thatpublic normativity
can be legitimateonlyifitrestson legalism. In myview,the eventsof the
past twomonthssuggestexactlythe contrary.In thisallocationexercise I
have come to see the value of compelling each of us (professorsand
administrativeheads) to participateactivelyin choicesthatshape 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 forexplicitruleson themarginshere,but
I am scepticalabout whethertherules we enact (ratherthanthosewe live)
can be used to erect a meaningful boundary between our private and
public lives. Our several privateidentitieswhich togethercomprise our
public selves - identitiesas members of a familyin our own homes, as
membersof a professoratedebatingour relationshipswitheach other,and
as teachersand scholars performingbeforeour classes -can perhaps be
distinguished,buttheycannotbe separated. Especiallyin thisintermediate
field of essentiallycollegial interactionwhichlies between the predomi-
nantly tacit normativityof the familyand the predominantlyexplicit
normativitygoverningour relationshipswithour students,we have the
opportunityand theprivilegetocreateand tore-createa richand complex
normativeorder which permitsus to know betterthe law we purportto
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 relatingto office
allocation on Friday.
RAM/lc
Encl.
DECISION OF THE MCGILL UNIVERSITY GRIEVANCE

COMMITTEE

Decision No. 88-36: June16, 1988

The Grievance Committee(thecommittee)was asked to sitin connection
witha grievancerelatingto the allocationof professorialofficesmade by
Dean RoderickMacdonald of theFacultyof Law. A grievancewas filedby
ProfessorBarry Paul of that Facultyon May 14, 1988 claiming thatthe
decision not to assign him the officepreviouslyoccupied by Professor
Sharon Eaton (Room 22 of Old Chancellor Day Hall) is void for being
arbitrary, discriminatory,and unreasonable. All documentswerefiledby
1June, and a hearing was scheduled forJune 11, 1988.
The committeegains itsjurisdictionto hear thismatterbyvirtueof the
sections11.5 and 11.6 of theuniversityregulations.The relevantsections
are as follows:
11.5 If a memberof theacademicstaffbelieves:(i) thathe has beenunfairly

treatedbytheUniversity in regardtotheinterpretation or application
of
Universitypolicyin so faras it relatesto hisacademiccareerand to his
workingconditions, or (ii) thathe has been subjectedto arbitrary,dis-
orunreasonable
criminatory, actionstakenagainsthimbytheUniversity,
eitherbyactor omission, he maymakea formalcomplaint, eitherorally
or inwriting,
tohisimmediate superior.
11.6 Ifanycomplaint madeunderarticle11.5isnotsettled tothecomplainant's
satisfaction
withintwenty (2o) daysofitsfiling,thecomplainantmaybring
thematter beforetheUniversity GrievanceCommittee.
The proceduresetout in section11.6 has been dulyfollowedbyProfessor
Paul. The committeeheard thegrievanceonJune 12, 1988,ratherthanon
11June owingtoa priorcommitmentforanotherclientat Superior Court
by ProfessorPaul's adviser, Professor Rose. Dean Macdonald was not
accompanied by an adviser.
In assessinganycomplaint,thecommitteemaylook atall documentation
relevantto the case. For these purposes the committeehas assembled as
evidence a seriesofmemosand lettersexchanged withinthefacultyon 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 contentionthatthelettersand memosdemonstrate
thatthe dean was unfairlyswayed in his decision by extraneous factors,
and that some type of 'attitudinalbias' kept him fromhonouring the
faculty'scontractualobligations.The dean, forhis part,assertsthatthe
documentsserveto underlinea general understandingwithinthefaculty
thatthematterofofficeallocationis essentiallyone ofadministration,
and
ultimatelylies withinhis discretion. He claims that he routinelyseeks

advice fromprofessorson mattersof decanal prerogative(allocation of

secretaries,committeeassignments,timetabling,etc.),butthattheprocess
is consultative.He also suggeststhatthememosshowthelackofconsensus
as to systemsofdecision-making,and thatwithina communitysuch as the
Facultyof Law, grantingthedean a broad discretionin such mattersis the
onlywayadequately 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 forthecommitteeto decide, simplyput,is whetherthedean'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-makingbyall publicofficials.This idea is based on thenotionthat
individualswithina communityhave rightsto participateand tohave their
views considered and weighed in any process of decision-making.
Guidelines are often drafted to set out strictprocedural requirements
guaranteeingthisparticipation, even when,substantively,a widediscretion
is exercised. We find that even though it is not required by faculty
regulation,an opportunitytoparticipatein decision-makingabout office
allocations is required by the notion of procedural fairness.
Was such an opportunitygivento ProfessorPaul? In thecase beforeus,
the discretionof the dean to administerthe facultyis establishedby the
verybroad termsoftheUniversityStatutes.The greateran administrator's
discretionto choose a decision-makingmodel, the greaterthe obligation
to put intoplace an adequate procedural scheme. Substantivediscretion
and procedural licence are inverselycorrelated. Here we have a dean
claimingbroad authority(whethersuch authorityin factexistswe examine
below), but solicitinginput both as to decision-makingprocedure and
criteriato apply. The assortmentof memos and opinions receivedbythe
dean goes to illustratethateffortswere made toconsider as manyaspects
of the matteras possible. The dean's attemptto recast the problem and
seek follow-upmemosalso indicatesa concernforensuringparticipation.
The factthathe called a facultymeetingon thisissue afterthe grievance
was filedand had notyetfinallyallocatedtheofficeat thattimealso creates
a presumptionof procedural fairness.
The second matterraisedbyProfessorPaul is one ofsubstantivefairness.
Considerationofthispointwould lead us toa reviewofthedecisionon the
merits.This typeofinquiryshould be morelimitedthanone on procedur-
al grounds since itis possible to come to severaldifferentdecisionson the
meritswithoutanyone of thembeing 'unfair.'Essentially,ProfessorPaul

is notreallyattackingthedean's substantivejudgment; he is attackingthe

dean's characterizationof the issue. For ProfessorPaul theissue is one of
contractualentitlement.For the dean the issue is one of officeallocation.
On theevidence submitted,we see no basis forupholding ProfessorPaul's
claimtobe entitledto ProfessorEaton's office.His letterofoffer,whichhe
submitted,statesonly,'May I conclude bysayinghow delightedI am tobe
able to make thisoffer.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 withattractivesurroundingsto pursue yourcareer withus.'
We do not findthisto be a promise to assign ProfessorPaul to Professor
Eaton's office.
If this letteris taken simply as a commitmentby Dean Macdonald's
predecessortoprovidea 'good' officeforProfessorPaul, does thisrequire
the decision ProfessorPaul seeks? The possibilitiesforallocatinga good
officeare several.Moreover,thereare severalfairoutcomestoanyprocess
involvingProfessorEaton's office.This point is well illustratedby the
memosand lettersfiledwithus, manyofwhichsuggestdifferentdecision-
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 reflectshisown consideredviewson thewayin whichthe
facultyshould be ordered. If we choose to change his decision,we would
be merelyreplacing one fairmethod of orderingwithanother.
Since thecommitteedoes notfindDean Macdonald's assumptionsabout
his relationshipwithhisprofessorsand about thedecision-makingprocess
such a relationshipimpliesto be eitherarbitraryor unreasonable, we see
no reason tooverturnhisdecisionon themerits.Moreover,discrimination
or personal bias against ProfessorPaul was not formallyalleged, and we
see no evidence of it.Finally,thefollow-upmemosconvinceus thatDean
Macdonald had heard and reviewedall of the materialsubmittedto him
before makinghis decision. We find no unfairnessin the procedure by
which he then allocated ProfessorEaton's office.
There is a furtherpoint. Whatever decision thiscommitteetakes will
necessarilybe grounded in an incomplete understandingof what Dean
Macdonald calls the 'dynamicof the faculty.'If we simplysubstituteour
view forthatof 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 refusedProfessorPaul's claim,or unless thedecision is clearly
contraryto explicitfacultyrules and regulationsand the dean refusesto

tojustifyhisdecision,
showus otherimplicitfeaturesoffacultynormativity
we do not thinkit is appropriate to interfere.
As a result,thecommitteedismissesthegrievanceof ProfessorPaul and
upholds the decision of Dean Macdonald not to allocate Room 22 to
ProfessorPaul.
Signed: Dr Jean Rivest,Chairman,

Departmentof Sociology
Dr MargaretTapp, Professor,
Department of ElectricalEngi-
neering
Dr George Antakis,Professor,
Facultyof Dentistry
Dr O. Steinman,Vice-Principal
(Academic)
cc: ProfessorB. Paul, Facultyof Law
Dean R.A. Macdonald, Facultyof Law
July14, 1988
Dear Boss,
Now thattherelevantplayersare all snuglyensconced in theirnew offices,
withvisionsofmeritpay,publications,and judicial appointmentsdancing
in theirheads, I thoughtI mightoffera fewpost-gamecomments.
We cannot separate how decisions are made in this facultyor in any
functioningadministrativeorganization from the fundamental and
unconsciouspolitical,sociological,and economicassumptionsupon 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
nothingmorethanx numberofwaystoexpress,politicallyreinforce,and
tacitlyacquiesce in your power. For the most part, the opinions are
destinedtobe variationson thesame theme.It'slikedifferentstrategiesin
a chess game: open, attack,and defend as you wishwithinthe framework
of the game, whichis accepted withoutquestion. Whyshould the kingbe
worthmore than the queen? Answerthe latter,and rule-makingin your
Law FacultyEmpire takes on a differentperspective.
Let me stressthat I did not fora momentdoubt your simple-minded
sincerityin makingthe request of us. In yourmind,you werejust asking
forhelp in makinga decision. I'm sure thatyou,as well as mostof the rest
ofthefaculty,have neverdoubted thatthedecisionwas reallyyours,which
is understandable. You, like all the membersof thisfaculty,were trained
at a law school, whichwas boot camp forlegitimationof raw power. You

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 invokefearin the professors
by trottingout bad teaching evaluations (oh, how stupid we were as
students,thinkingthesewould be liberating).The professorcould invoke
fear in the studentsby asking questions to whichwe were certainnot to
knowtheanswers,or byassigningamounts of workwe could not possibly
finish.Those fewstudentswho receivedtop grades wereadmittedintothe
upper echelons of thelaw school life-the journal and themootingteams
- where theycould then do twiceas much workto staythere. One's rank
withinthe systemas assessed by these criteriawas hierarchical,and was
accepted and legitimatedbyall of us. We found our niches (and happily,
I mightadd).
Years later,we applied forteachingpositions,and we quicklylearned it
was necessaryto satisfytheconventionalnormsofacademia in order toget
hired at the best faculties(whichwe, of course, assessed hierarchically!).
Incumbentprofessorswould do anythingto maintaintherankingoftheir
schools,and theylooked at new applicants withonlyacademic 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,itcomes as no surprisethatwe were all so quick to replywhen
unconsciouslyasked tolegitimateand affirmyourpower todecide where
we would spend the large partof our wakinghours thatis devoted to this
enslavement.We all knowwherewe fitin thislittleadministrativeempire
of yours. Your officeassignmentsonly confirmeda set of expectations
whichwe all accept,butwhichfewofus are evercapable ofidentifying, let
alone questioning.Moreover,itis not surprisingthat,notjust in thiscase
but in anyadministrativeor normativeorder wherelawyersgetinvolved,
thathierarchiesare inventedand then 'sold' as naturallyoccurringand
politicallyjustified. From existence to necessity; from necessity to
desirability.The false-consciousnesscontinued ad nauseam.
Law firms,governmentagencies,and large privatecorporationsconfirm
the hierarchiesof law school. All thebuzzwordswe traditionallyassociate
withthistypeof 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.

Show some real leadership foronce. Resign.

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


Pv2 Office Politics 1990

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Pv2 Office Politics 1990

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Office Politics

Author(s): Roderick A. MacDonald

This content downloaded from 132.216.86.161 on Mon, 23 Dec 2013 03:35:54 AM

Roderick A. Macdonald* OFFICE POLITICSt

The followingallegoryis designed to canvass the internalnormativity of

(1990), 40 UNIVERSITY OF TORONTO LAW JOURNAL 419

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In confrontingthepuzzle of speakingauthenticallyin thisintroduction

This content downloaded from 132.216.86.161 on Mon, 23 Dec 2013 03:35:54 AM

conclusion as an introductionpresumes both that deans can mature to

This content downloaded from 132.216.86.161 on Mon, 23 Dec 2013 03:35:54 AM

between state (public) and voluntary(private)associations,between law

This content downloaded from 132.216.86.161 on Mon, 23 Dec 2013 03:35:54 AM

cases: a true normativeorder is most successfullysustained in public

MCGILL UNIVERSITY Facultyof Law April 1, 1988

TO: All colleagues FROM:RoderickA. Macdonald

This content downloaded from 132.216.86.161 on Mon, 23 Dec 2013 03:35:54 AM

discretionto assign officeson the basis of what I consider to be the best

MCGILL UNIVERSITY Facultyof Law April 3, 1988

TO: Dean Macdonald FROM: Prof. B. Paul

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I realize thatotherpeople willbe puttingpressure on you forProfessor

UNIVERSITE MCGILL Faculte de droit 3 avril 1988

A: M. le doyen Macdonald DE: Prof. FranCoiseDugas

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devrez adopter une telle approche si vous voulez un r6sultatobjectifqui

POLICY ON FACULTY OFFICE ALLOCATIONS

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MCGILL UNIVERSITY Facultyof Law April 4, 1988

TO: Dean Macdonald FROM: Sarah Fleming

MCGILL UNIVERSITY Facultyof Law April 4, 1988

TO: R. MacD. FROM:Randall Dawson

This content downloaded from 132.216.86.161 on Mon, 23 Dec 2013 03:35:54 AM

In allocating rooms, I should draw a sharp distinctionbetween (1)

UNIVERSITEt MCGILL Faculte de droit 5 avril 1988

A: M. le doyen Roderick A. DE: M. le professeurSerge

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Veuillez m'excuserde vous envoyerune lettremanuscrite:c'estqueje ne

MCGILL UNIVERSITY Facultyof Law April 6, 1988

TO: Rod FROM: Prof.C. Billington

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If you publiclyreward professorsfortheirreal, tangiblecontributions

cc: Prof. Sam Reisman Prof.Ted Campeau

MCGILL UNIVERSITY Facultyof Law April 6, 1988

TO: Dean Macdonald FROM: ProfessorPearson

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Practiceis proofthatthewhole facultygains in thelong run fromthistype

MCGILL UNIVERSITY Facultyof Law April 7, 1988

TO: Dean M. FROM:Ted Campeau

cc: Sam Reisman Craig Billington

MCGILL UNIVERSITY Facultyof Law April 8, 1988

TO: ProfessorMacdonald FROM: Professor

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It is because I knowhow much latitudeyou have in allocatingofficesthat

Me. B. George Meehan

April 15, 1988

Dean Roderick A. Macdonald

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Dear Dean Macdonald,

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MCGILL UNIVERSITY Facultyof Law April 16, 1988

TO: ProfessorEdna Placitt FROM: John Wisdom,

MCGILL UNIVERSITY Facultyof Law April 17, 1988

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