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Why Have‐Nots Win in the HIV Litigation Arena: Socio‐Legal Dynamics of Extreme Cases *
Author(s) -
AIKEN JANE HARRIS,
MUSHENO MICHAEL
Publication year - 1994
Publication title -
law and policy
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.534
H-Index - 45
eISSN - 1467-9930
pISSN - 0265-8240
DOI - 10.1111/j.1467-9930.1994.tb00126.x
Subject(s) - plaintiff , government (linguistics) , political science , identity (music) , law , sociology , public relations , law and economics , philosophy , linguistics , physics , acoustics
This study focuses on “extreme” cases, those in which “have‐nots,” usually people with HIV (PWAs), win HIV‐related disputes in direct contests with “haves.” Using extensive data gathered in the United States, we searched for a socio‐legal explanation of how PWAs have managed to win claims against insurance companies, government agencies, and other institutional plaintiffs. We also looked at judicial preoccupation with PWAs as carriers of contagion. We have observed that PWAs win against haves when: their needs‐based claims attract third parties with strategic interests and independent resources; and when litigators cause decision makers to identify with PWAs and employ proven scientific arguments to defeat fear of their clients' contagion. For example, gay activist lawyers devised such an effective strategy by defining PWAs as persons with disabilities and by extending to them the antidiscrimination protections won earlier by disability rights' lawyers. While this approach brought relief in court for some and secured a less onerous identity for PWAs, its importance is diminishing with the shifting epidemiology of HIV in the United States.