Category: 89:2

This Article develops a construct of judges as gatekeepers and a set of principles to guide them in policing aggregate and derivative litigation. Part I provides an introduction to this type of litigation and the role of judges as agency cost monitors. Part II contrasts the “solutions” of this type of litigation with its costs, and explores an area not developed in the legal literature—the agency issues on the defendants’ side of the cases. The development of the role of defense counsel and their collusion with plaintiffs’ counsel illuminates the need for judges to perform their gatekeeping role. Part III explores the role of judges in aggregate litigation, including their fiduciary responsibilities as monitors of the agency costs inherent in these cases. The judicial role maps to the role of gatekeepers more generally. The focus of this Article is on gatekeeping for the “exit mechanism,” or settlement stage of these cases. To develop this gatekeeping role, this Article examines a set of cases in which judges engaged in some gatekeeping, as well as incentives for gatekeeping and for shirking. Part IV then presents a set of gatekeeping principles that judges can deploy to decrease agency costs and improve the effectiveness of the litigation overall. Part V concludes.

The idea that “real” men eat meat is firmly embedded in our culture. For those men who are benefited by the stereotype, eating meat serves as a confirmation of their manhood, a kind of marker of their privileged status as masculine men. This is not the case for men who do not eat meat. In our culture, a man who does not eat meat is often seen as insufficiently masculine.

In this Article, I use the relationship between meat and manhood as a springboard to challenge the way in which employment discrimination law—more specifically, Title VII of the Civil Rights Act —conceives of sex discrimination. The Article focuses in particular on what is perhaps the most transformative theory of sex discrimination—the gender-stereotyping theory of sex discrimination. The thrust of the gender-stereotyping theory is that an employer cannot discriminate against an employee for failing to conform to stereotypical gender expectations. The Supreme Court announced the theory in 1989, in the seminal case Price Waterhouse v. Hopkins. In doing so, the Court ushered in a new wave of sex discrimination claims, shifting the focus of Title VII’s sex discrimination project from formal sex segregation to more subtle forms of discrimination concerning how employees look and behave in the workplace.