The strong and widely-accepted reasons for using gender-neutral language presumptively apply to the gendered word paternalism and its gender-neutral counterpart, parentalism. So this article’s thesis is that legal scholars should begin with a presumption for using the gender-neutral word parentalism, while using paternalism only when emphasizing the important relevance of gender or otherwise trying to convey a gendered meaning. Accordingly, many legal scholars define paternalism in an expressly gendered way — such as “the institutionalization of male dominance,” or an “ideology [that] teaches men to minimize women's agency” — or fittingly use paternalism to describe an attitude especially characteristic of men or directed primarily toward women. All these many uses of the gendered word paternalism are supported by the writers’ apparent intent to emphasize the important relevance of gender to the writers’ points.

On the other hand, and despite the spread of gender-neutral language throughout our society and legal profession, many legal scholars continue to use the gendered word paternalism without indicating any important relevance of gender or otherwise manifesting intent to convey a gendered meaning. These many writers use paternalism rather than parentalism to describe laws or policies aiming to protect people (of all genders) by restricting their choices. For example, these writers cite “paternalism” as a standard justification for restrictions on contractual choice or other private ordering, including the unconscionability doctrine, usury laws, the minimum wage, and countless regulations limiting the range of enforceable promises by consumers, borrowers, employees, investors, and others. 

In each of these contexts, better to use the gender-neutral word parentalism, unless the writer emphasizes the relevance of gender or otherwise manifests an intent to convey a gendered meaning. For example, a writer could justify using the gendered word paternalism by arguing that all our laws are gendered male so gendered language should be used to discuss any law, including using paternalism to describe laws aiming to protect people of all genders by restricting their choices. Or a writer could justify using the gendered word paternalism by arguing (after citing sufficient empirical data) that protect-by-restricting-choice parenting is gendered male, so analogous protect-by-restricting-choice laws and policies are also gendered male. Absent one of those two plausible arguments justifying use of the gendered word paternalism, laws or policies aiming to protect people of all genders by restricting their choices are better described as examples of parentalism. 

In short, a presumption for using the gender-neutral word parentalism to describe laws or policies aiming to protect people of all genders by restricting their choices is well-grounded in the strong and widely-accepted reasons for ordinarily using gender-neutral language. And examining legal scholarship’s many uses of paternalism and parentalism illuminates our understandings of gender in both law and parenting.

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Paternalism or Gender-Neutrality?

The Department of Justice as a gatekeeper in whistleblower-initiated corporate fraud enforcement: Drivers and consequences

Achieving a sustainable socioecological future now requires large‐scale environmental repair across legislative borders. Yet, enabling large‐scale conservation is complicated by policy‐making processes that are disconnected from socioeconomic interests, multiple sources of knowledge, and differing applications of policy. We considered how a multidisciplinary approach to marine habitat restoration generated the scientific evidence base, community support, and funding needed to begin the restoration of a forgotten, functionally extinct shellfish reef ecosystem. The key actors came together as a multidisciplinary community of researchers, conservation practitioners, recreational fisher communities, and government bodies that collaborated across sectors to rediscover Australia's lost shellfish reefs and communicate the value of its restoration. Actions undertaken to build a case for large‐scale marine restoration included synthesizing current knowledge on Australian shellfish reefs and their historical decline, using this history to tell a compelling story to spark public and political interest, integrating restoration into government policy, and rallying local support through community engagement. Clearly articulating the social, economic, and environmental business case for restoration led to state and national funding for reef restoration to meet diverse sustainability goals (e.g., enhanced biodiversity and fisheries productivity) and socioeconomic goals (e.g., job creation and recreational opportunities). A key lesson learned was the importance of aligning project goals with public and industry interests so that projects could address multiple political obligations. This process culminated in Australia's largest marine restoration initiative and shows that solutions for large‐scale ecosystem repair can rapidly occur when socially valued science acts on political opportunities.

https://onlinelibrary.wiley.com/doi/pdfdirect/10.1111/cobi.13958

Turning a lost reef ecosystem into a national restoration program

In 2016, decentralized fraud enforcement under the federal False Claims Act (FCA) recovered $ 2.5 billion spent on healthcare fraud without increasing spending. The FCA induces private citizens to pursue civil fraud claims on behalf of both themselves and the government, or qui tam; incentives to pursue legal action for Medicaid fraud vary at the state level. We hypothesize that fraud enforcement agencies shift strategies as incentives for private citizens to monitor civil offenses rise. We find that state‐level FCAs did not increase the number of filed qui tam suits as incentives rose. Among filed cases, case quality did not change. Instead, agencies pursued fewer civil cases and case length increased. Our findings suggest potential qui tam plaintiffs are constrained by an ability to pursue cases, not incentives. Government‐led civil fraud enforcement may thus overestimate the capacity to decentralize fraud enforcement.

Privatizing Plaintiffs: How Medicaid, the False Claims Act, and Decentralized Fraud Detection Affect Public Fraud Enforcement Efforts

Reference conditions are necessary to assess the conservation status of species, understand their declines, and manage their recovery. Historical documents offer large amounts of records of a wide variety of species, which may be used to generate reference baselines on the historical distribution range of species. We collected information on the Iberian wolf Canis lupus signatus presence or assumed absence for 6734 localities in Spain from the geographical dictionary edited by Pascual Madoz in the mid‐19th century. We used probabilistic distribution models to estimate the wolf historical range with unprecedented detail, allowing the quantification of the historical reduction in occupancy area. Wolf records were widely distributed in mid‐19th century Spain, being present in all its mainland provinces. The probability of occurrence was positively associated with landscape roughness and negatively with human population density and the landscape suitability for agriculture. The area estimated to be occupied by wolves ranged between 212 200 and 317 600 km2, depending on the approach used to set cut‐off values from the predictions. Our estimations represented an average range reduction of 68% between the mid‐19th century and present time, resulting in the current restriction of the species to the country's north‐western quadrant. The putative recent recovery of the wolf in Spain consists mainly of the accumulation of wolf records in areas where the species had persisted and the recolonization of some peripheral areas, but there is no indication of widespread recovery of the historical distribution range. We show that the compilation of historical species records allows producing baseline range scenarios with much higher resolution than usually available to inform species status and set recovery targets, an approach that can be implemented in other areas and taxa.

Where wolves were: setting historical baselines for wolf recovery in Spain

Historical ecology has revolutionized our understanding of fisheries and cultural landscapes, demonstrating the value of historical data for evaluating the past, present, and future of Earth's ecosystems. Despite several important studies, Indigenous fisheries generally receive less attention from scholars and managers than the 17th-20th century capitalist commercial fisheries that decimated many keystone species, including oysters. We investigate Indigenous oyster harvest through time in North America and Australia, placing these data in the context of sea level histories and historical catch records. Indigenous oyster fisheries were pervasive across space and through time, persisting for 5000-10,000 years or more. Oysters were likely managed and sometimes "farmed," and are woven into broader cultural, ritual, and social traditions. Effective stewardship of oyster reefs and other marine fisheries around the world must center Indigenous histories and include Indigenous community members to co-develop more inclusive, just, and successful strategies for restoration, harvest, and management. 

/pdf/indigenous-oyster-fisheries-persisted-for-millennia-and-1haivx36.pdf

Indigenous oyster fisheries persisted for millennia and should inform future management

The Migratory Bird Treaty Act (MBTA) protects 1,027 bird species—the vast majority of native birds in the United States and its territories—by criminalizing the taking, killing, or selling of any migratory bird or bird part. Beginning in the 1960s, the Fish and Wildlife Service (FWS) began prosecuting industrial firms for “incidental take,” the unintentional taking or killing of migratory birds. 
Incidental take is a negative externality of industry: firms kill birds—a natural resource shared by all—and do not compensate for their loss. A split in authority consequently arose on whether the strict liability misdemeanor of the MBTA criminalizes such unintentional killings. In response to concerns of incidental take, the FWS is now in a rulemaking process, by which it hopes to establish an incidental-take permit program, allowing firms to purchase take permits, compensate the FWS for estimated bird take, and evade or at least minimize the risk of prosecution. 
While the incidental-take circuit split has already received scholarly attention elsewhere, this Article tackles a larger conservation question, drawing on scholarship in the fields of emissions trading and conservation banking. This Article proposes two alternative market-based solutions to the menace of incidental take. First, the Bird Tax: a Pigouvian tax that seeks to correct the inefficient market outcome that results in uncompensated industrial and nonindustrial incidental take. Second, the North American Bird Market: a trilateral initiative building upon decades of successful environmental cooperation between Canada, the United States, and Mexico. By incentivizing clean energy, requiring industry to internalize its bird take, and promoting habitat restoration, the Bird Market is an efficient and clean theoretical solution to the menace of incidental take and the looming threat to our continent’s shared birdscape. 
In contrast to a comprehensive, upstream Bird Tax that targets both industrial and nonindustrial incidental take, the Bird Market would entail potentially restrictive financial and logistical costs due to its limited focus on the regulation of industrial take. As such, it is possible that the Bird Market is a mere flight of fancy—a thought experiment whose doom radiates from its very core—and nothing more. Despite these challenges, this Article’s presentation of the Market serves three other purposes. First, the Market serves as a vehicle to expose the sobering truth that the MBTA and incidental-take prosecutions are an expressive, but ultimately fruitless conservation mechanism. Second, the Market is an investigation of how to quantify and trade death with the goal of conserving life. Finally, the exposition of the Market and the critique of the MBTA is an attempt to tightrope walk the seemingly unbridgeable legal-analytical rift between the ritualized law and economics of Ronald Coase, and the touchy-feely-throw-your-hands-up-in-the-air neorealism of Arthur Allan Leff. Ultimately, because incidental industrial take is only a minor anthropogenic stressor, the Market will fail to achieve meaningful conservation goals for the same reasons that incidental-take prosecutions under the MBTA fail to achieve these goals. August 2016 marked the centennial of the first migratory bird treaty with Canada. One hundred years have passed, and this Article calls upon Congress to abandon its ancient conservation precepts and supplement our treaties and the MBTA with a meaningful international habitat-restoration program.

Bird Take—Death Trade

In the last five years, the volume of False Claims Act (FCA) litigation has skyrocketed with over $20 billion in settlements and judgments. The FCA imposes civil liability on government contractors who defraud government programs. Most FCA recoveries are realized with the assistance of whistleblowers (“relators”), who act as so-called private attorneys general by filing qui tam suits on behalf of the United States and bringing key information to the attention of the DOJ. Relators are rewarded handsomely for their efforts. As the real party in interest, the government must decide whether to intervene and take control of the litigation. If the government declines to intervene, the FCA's unique public-private enforcement mechanism permits the relator to continue the litigation on the government's behalf.The heightened pleading standard of Federal Rule of Civil Procedure 9(b) applies to FCA claims: “In alleging fraud...a party must state with particularity the circumstances constituting fraud.” Since the FCA was resurrected as an enhanced antifraud tool in 1986,5 courts have disagreed about what this pleading standard requires from relators who continue their suits without DOJ intervention. A strict interpretation of Rule 9(b) -- requiring a relator's complaint to identify representative samples of the allegedly false claims -- is falling out of fashion across the circuits. Most courts instead opt for a relaxed standard, refusing to dismiss claims that provide particularized details of a fraudulent scheme along with reliable indicia that false claims were actually submitted. Over the last six years, the Supreme Court has refused three times to resolve this question, and the Rule 9(b) pleading standard continues to be applied inconsistently across the circuits. This Comment presents and explores new arguments in favor of the strict pleading standard.This Comment proceeds as follows. Part I presents the FCA's general substantive and procedural framework, as well as Rule 9(b)'s application to FCA litigation. Part II surveys how courts have steadily abandoned the once-popular strict standard, which requires relator complaints to identify the details of specific false claims. Finally, Part III investigates the merits of the strict standard on the basis of the FCA in practice, drawing from recent empirical research on the FCA, theoretical literature on pleading practice, and new data obtained through a 2015 Freedom of Information Act (FOIA) request. This Comment finds that the strict standard best aligns the DOJ's and the relator's incentives, and that it provides the strongest support for systemic efficiency. The new FOIA data are essential to this analysis, as they show that the relaxed standard has had no practical effect on fraud enforcement or recovery. Part III then presents an economic model to demonstrate that the strict standard does not diminish relators' incentives to file high-quality qui tam suits, but rather serves as a much-needed screening mechanism to ensure that the DOJ is not flooded with low-quality tips. This Comment concludes that, counterintuitively, a strict pleading standard deters and punishes fraud more effectively than a relaxed standard.

In Defense of a Strict Pleading Standard for False Claims Act Whistleblowers

This Article examines the unique ethical questions that arise when representing foreign states in sovereign debt disputes Although sovereign representation has become commonplace, no existing scholarship has attempted to study the particular ethical quandaries of foreign sovereign representation When representing a sovereign, basic assumptions about the principal-agent relationship may be inapplicable, the welfare of an entire foreign people depends on the lawyer’s competence, and attorneys may find it necessary to rebalance their ethical duties in light of inconsistencies between a client’s responsibilities under domestic law and its rights under international law While this Article limits its scope to the context of sovereign debt litigation, much of its analysis is more broadly applicable 
The Article begins by examining client identity and the need to serve client autonomy by deferring to a client’s governmental structure It then explores the duty of preserving client confidences, the attorney’s role as a global actor, and how one may represent repugnant regimes while still serving the goals of transnational justice Finally, the Article employs the Argentina debt litigation as a case study to examine the ethics of candid noncompliance It concludes that sovereign litigators must subordinate a duty of compliance to the higher ethical obligations of advocacy and candor

Michael J. Lockman

Papers

Indigenous oyster fisheries persisted for millennia and should inform future management

Bird Take—Death Trade

In Defense of a Strict Pleading Standard for False Claims Act Whistleblowers

An Ethical Representation of Sovereign Clients in Debt Disputes