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Court Management of AIDS Disputes: A Sociolegal Analysis

Published online by Cambridge University Press:  27 December 2018

Michael C. Musheno ,
Peter R. Gregware  and
Kriss A. Drass
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Abstract

Historically, disease scares reveal contradictions in the social order. We postulate that courts focus on depoliticizing social tensions revealed by AIDS, legitimating the routines of dominant parties in the AIDS sociolegal network. At the same time, courts deviate from their normal practices try upholding the claims of subordinate parties in this network, particularly people living with AIDS (PWAs) and their allies. Our analysis of 36 AlDS-related court rulings, published during the formative years of AIDS litigation in the United States, supports the notion that courts operate as “double-edged” institutions. To explain the duality of judicial decision making, we concentrate on the powers of social and cultural factors rather than on the doctrinal judgments of the courts. We trace how relational attributes, evident in contestants' characteristics (e.g., plaintiff/defendant, status differentials) and the nature of claims (i.e., restrictive/expansive), combine to account for wins for dominant parties and how other combinations of these attributes define wins for subordinate parties. We also show how judges combine specific interpretational attributes in the text of their rulings (e.g., use of divisive AIDS metaphors, deference to medical authority) to justify wins. We consolidate these findings to discuss how PWAs and their allies might use the courts to their advantage and point out the ways in which the changing epidemiology of AIDS in the United States limits the use of courts.

Type
Articles
Information
Law & Social Inquiry , Volume 16 , Issue 4 , Fall 1991 , pp. 737 - 774
Copyright
Copyright © American Bar Foundation, 1991 

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References

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52 This study is part of an ongoing project which recognizes that formal legal disputes capture only the “tip of the iceberg” of disputing and dispute processing in the United States. Other parts of the project focus on the earliest phases of disputing—“naming, blaming, and claiming”; the roles of third parties and audiences in shaping the early phases of dispute processing, including outreach and caseworkers who work directly with PWAs; and the process of settlement. For a general overview of the early phases of disputing and dispute processing, see Felstiner, William, Abel, Richard, &. Sarat, Austin, “The Emergence and Transformation of Disputes: Naming, Blaming, Claiming,” 15 Law & Soc'y Rev. 631; Mather, & Yngvesson, , 15 Law & Soc'y Rev. at 775 (cited in note 43).Google Scholar

53 Researchers have found that published cases may not be representative of all cases associated with a given legal issue. For this reason, we are collecting a set of unpublished cases as part of the larger project. Regarding the representativeness of published cases generally, see Siegelman, Peter & Donohue, John III, “Studying the Iceberg from Its Tip: A Comparison of Published and Unpublished Employment Discrimination Cases,” 24 Law & Soc'y Rev. 1133 (1990).Google Scholar

54 To assure that our sample was representative of the legal issues before the courts, we were guided by the legal classification system developed by Lawrence Gostin, “The AIDS Litigation Project: A National Review of Court and Human Rights Commission Decisions,” 263 J.A.M.A. 1961 (1990). Specifically, he identifies 15 legal issues with the highest incidence of court activity revolving around the following: criminal law, prisons, blood supply, and discrimination. We sorted the population of cases according to these categories and a general category labeled “other.” Once sorting was completed, we eliminated only those published cases with less than one page of text. Otherwise, we selected cases randomly across the five-part classification scheme. Gostin (id. at 1961) reports that AIDS cases are equally divided between federal and state/municipal systems. For our sample, 17 cases were federal and 19 cases were from state/municipal systems. Currently, we are coding the remaining published cases listed in Appendix A.Google Scholar

55 Coding was completed by three persons with legal training (Gregware and two second-year law students). The codebook, developed initially in conference by a larger research team that included the coders, was adjusted by the coders who often met as a subgroup as they moved iteratively between codebook and test cases. Adjustments in operational definitions of variables were arrived at through consensus, and when no consensus could be reached, final adjustments were made through a deliberative process involving the larger research team. Next, 10 written decisions were initially coded by each coder and their results were compared. If all three coders agreed in 9 of 10 cases, then the operational definition of a variable was considered reliable and the remaining cases were coded by a single coder. The remaining variables were coded by at least two coders, and any discrepancies were resolved by discussion and the employment of a consensus rule among the coders. Any coding decisions unresolved by the coders were taken to the larger research team for final resolution.Google Scholar

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63 We infer the fundamental sociolegal claim of each party or the (counter) demand that prompted the dispute for each player regardless of whether the court's opinion overtly deals with the substance or the social significance of the dispute. To draw this inference, we code the basic facts of the case in textual form; categorize the domain of the dispute (i.e., governmental process, business, torts, criminal process, family process); and categorize and give textual reference to the legal claim asserted by each party (e.g., housing discrimination; gay life partner of deceased person with AIDS should be able to take over apartment lease). Referencing these items, guided initially by operational definitions abstracted from the discussion of claims above and modified by the coders as they moved iteratively between operational definitions and test cases, coders recorded the fundamental sociolegal claim of each party as “maintenance” of established practices and distributional patterns; “redistribution” of resources and status, and/or a break from established decision-making patterns; “regulation” of (potentially) infected populations or imposition of other social control measures by state institutions; “self-regulation” at a time when there is no institutional control or seeking self-control as an alternative to the imposition of institutional control; and “liberty” or seeking to be free from state control when a state institution has acted and the party's challenge to that control is based on some notion of individual rights.Google Scholar

64 Galanter, 9 Law & Soc'y Rev. 95 (cited in note 16).Google Scholar

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66 For example, a federal governmental agency or a major corporation would have superior resources relative to a community school board or a local hospital.Google Scholar

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74 Technically, truth table reduction is accomplished through the use of minimization algorithms originally developed by electrical engineers for the simplification of switching circuits. The general goal of Boolean minimization is to reduce the complexity of a truth table by finding the smallest set of reduced configurations that logically imply all the original rows of a truth table with a particular outcome value. The specific algorithm that we used in this analysis is the classic Quinn-McCluskey algorithm, as implemented in the software developed by Drass & Ragin, QCA (cited in note 9). It is important to emphasize that these algorithms employ an abstract logic of holistic simplification that is completely compatible with a social-scientific interest in how context shapes decisions. Entire rows are compared one to another, and explanatory variables are considered relevant or irrelevant only within the context of specific combinations of other variables.Google Scholar

75 For the plaintiff and the defendant, we coded whether or not the respective party was: a PWA; gay; an IV drug user, a criminally convicted person and/or a prisoner. Advantage was determined relative to the competing parties in each case.Google Scholar

76 If there is an ongoing relationship between the parties in a given case, we coded whether the parties had discretion to vacate the relationship. Parties in a landlord/tenant relationship have substantial discretion to vacate the relationship, while parties in a prison guard/inmate relationship have little discretion to terminate their interactions. Generally, market relationships allow more discretion than relationships involving coercive state powers.Google Scholar

77 For details on the coding of claims see note 63.Google Scholar

78 We drew on the metaphor scheme developed by Ross, “Ethics and Language in AIDS,” at 39 (cited in note 28), using the following metaphors and respective indicators to identify their use in the text of written decisions: death (e.g., AIDS personifies death, AIDS is looking for victims, AIDS is inevitably a killer); punishment (e.g., a violation of God's law, retribution for wrongdoing); crime (e.g., victim of … AIDS is a serial killer, terrorizing victims); war (invaders, enemy, body count, time bomb); otherness (threatens health of the general public, inner-city problem, problem of risk groups, what we must do about them). If a coder determined that one or more of the metaphors was present in a given case, (s)he would record the presence of each metaphor and the text in which the metaphor was embedded. For each metaphor spotted, the coder would record whether the court sought to negate the bias implied by the respective metaphor. Additionally, AIDS metaphors were often used repeatedly and with variation within a metaphor category. For example, in reference to the war metaphor, one judge used phrases like “subject to the onslaught,”“inferno,” and “it begins to attack,” to describe AIDS—see Ray v. School Dist. of Desoto County, 666 F. Supp. 1524 (M.D. Fla. 1987). In another case, multiple examples of the punishment metaphor are used by a judge, including the phrases “no sentence can compare with the pain of AIDS” and “disease processes have … condemned to death”—see People v. Camargo, 516 N.Y.S.2d 1004 (1986). Also, judges sometimes combine metaphors, such as the crime and death metaphors in “lethal infectious killer” when discussing AIDS—see Dist. 27 Community School v. Board of Educ, 502 N.Y.S.2d 325 (1986). To fit our measure to context, we coded AIDS metaphors as absent if the judge tried to dispel the divisiveness that AIDS metaphors engender. For example, in Broadway Books v. Roberts, 642 F. Supp. 486 (E.D. Tenn. 1986), the judge dispelled the war metaphor by saying, “Our skies are not black with smoke from cities burned to prevent the spread of plague.”Google Scholar

79 To systematically analyze whether and how legal presuppositions are embedded in the text of rulings, we began with the paired contradictory premises outlined by Kelman, Guide 258 (cited in note 18), who conceptualizes “deeply embedded, structural premises that clearly enable decision makers to resolve particular controversies in opposite ways.” He distinguishes “core privileged liberal values” (i.e., rule-bounded legality, individualism, value subjectivity, intentionalism, nonpaternalism) from “dissident ones” (i.e., situation-sensitive standards, altruism, value objectivity, determinism, paternalism). Drawing on Kelman's extensive discussion of each set of paired opposites (e.g., intentionalistic vs. determinalistic discourse, at 3, 86), we developed operational definitions for each premise and moved iteratively between definitions and test cases to refine our indicators. The two coders not involved in this process were exposed to the refined operational definitions (along with background readings) and given test cases to code. These stages of preliminary work resulted in the following coding scheme. “Traditional” legal presuppositions include rule-bounded legality (i.e., follow the rule); individualism (i.e., pursue individual ends as long as doing so respects the ends of others); intentionalism (i.e., individuals are responsible for their behavior); supremacy of reason (i.e., feelings or desires are suspect and should not be used to justify actions—rely only on reason or objective, intellectual process). As paired opposites, “nontraditional” legal presuppositions include adjustment to the situation (i.e., context is more important than the rule); altruism (i.e., the other as important as self); determinism (i.e., social and cultural conditions shape individual behavior); and privileging of desires/emotive needs (i.e., emotional bonds and expressions of feelings have standing). For each legal presupposition, the coder recorded its presence or absence in a given case, and provided the textual basis for reaching such a conclusion. Some examples of traditional legal presuppositions are as follows: for rule-bounded legality, “we think it is our duty to adhere to the rule” (Blair v. United States, 525 A.2d 170 (D.C. App. 1987)); for individualism, requiring children living with HIV to be “responsible” for their behavior while at school (Ray v. School Dist. of Desoto County, 666 F. Supp. 1524 (M.D. Fla. 1987)); for intentionalism, in citing that “staff had actual knowledge of high risk sexual activity … and chose to condone it” (City of New York v. New St. Mark's Baths, 497 N.Y.S.2d 979 (1986)); for supremacy of reason, seeing the court relative to the jury as an “unbiased, uninfluenced adjudicator” without “prejudice” (Blair v. United States 525 A.2d).Google Scholar

Some examples of nontraditional legal presuppositions are for adjustment to the situation, where the court asserted that decisions should be reached for each child on a case by case basis and explored “matters not strictly relevant to this one child” (Dist. 27 Comm. School v. Board of Educ, 502 N.Y.S.2d 325 (1986)); for altruism, where the court, rather than following the rule, relied on “compassion” (People v. Camargo, 516 N.Y.S.2d 1004 (1986)); for determinism, where the court found that individuals acquired AIDS “through no fault of their own” Ray, 666 F. Supp.); for privileging desires/needs, where the court gave “weight” to the emotional bond between two individuals (Yorkshire Towers Co. v. Harpster, 510 N.Y.S.2d 976 (1986)).Google Scholar

80 For each case, coders recorded whether medical evidence was cited and whether the court “deferred” to medical authority in reaching a decision. When medical evidence was cited and when it was identified as authoritative, the coder noted the appropriate textual reference(s). For our purposes, deferring to medical authority was operationally defined as follows: the court states explicitly that its decision is based, all or in part, on the evidence provided by medical/scientific experts. Courts deferred to medical authority in 14 cases and when upholding the claims of both dominant and subordinate parties. For example, in Broadway Books v. Roberts, 642 F. Supp. 486 (E.D. Tenn. 1986), the testimony of a public health physician, stating that one could potentially contract HIV from blood and semen on the walls of peep show booths, provided evidence of a “hazard” substantial enough for the court to allow governmental intervention. In Kentucky Central Life Insurance Co. v. Webster, 651 F. Supp. 935 (N.D. Ala. 1986), the court cited medical evidence to conclude that a PWA made a valid application for insurance, and thus was entitled to coverage.Google Scholar

81 For each case, coders recorded “rights” as present when the court makes reference to any federal or state constitutional provision as well as any civil rights specifically created by legislative enactment. A right was recorded as “deferred to” when the court makes explicit reference to a right and states that it is granting a claim based on that explicit reference. The actual constitutional provision and/or legislative statute was recorded when a coder determined that a right is evident in a case, and when the coder determined that a right was used as a basis for a decision.Google Scholar

82 497 N.Y.S. 2d 979 (1986).Google Scholar

83 510 N.Y.S. 2d 976 (1986).Google Scholar

84 740 S.W.2d 718 (Tenn. 1987).Google Scholar

85 523 A.2d 655 (N.J. 1987).Google Scholar

86 642 F. Supp. 486 (E.D. Tenn. 1986).Google Scholar

87 509 N.Y.S.2d 209 (1986).Google Scholar

88 809 F.2d 191 (2d Cir. 1987).Google Scholar

89 509 N.Y.S.2d 209 (1986).Google Scholar

90 This procedure, called “hand factoring,” takes advantage of the distributive property of Boolean algebra to gather together variables that are common to two or more configurations. It helps to focus attention on more abstract themes found in the configurations.Google Scholar

91 497 N.Y.S.2d 979 (1986).Google Scholar

92 645 F. Supp. 84 (D.D.C. 1986).Google Scholar

93 500 So.2d 533 (Fla. 1987).Google Scholar

94 See table 2, rows with a value of “0.”Google Scholar

95 Cases in which plaintiffs were pressing what we conceptualized initially as “expansionary” claims were actually of two types. Often, claims pressed by litigious individuals, particularly inmates, are more precisely reflective of people's use of law to engage in resistance politics. That is, people lacking an effective voice in society have turned to the appellate courts to resist unfair and arbitrary treatment by legislatures and state bureaucracies. See, e.g., Stuart Scheingold, The Politics of Rights: Lawyers, Public Policy and Political Change (New Haven, Conn.: Yale University Press, 1974); Bordt & Musheno, 25 J. Res. Crime & Delinq. (cited in note 43). These claims are different from what Lynn Mather & Barbara Yngvesson, 15 Law & Soc'y Rev. at 778–79 (cited in note 43), describe as an “expansionary” claim. Such a claim “challenges established categories for classifying events and relationships by linking subjects or issues that are typically separated, thus ‘stretching’ or changing accepted frameworks for organizing reality.” In this study, we use the phrase “extreme cases” to denote cases where the courts sustain a claim that stretches or changes accepted frameworks.Google Scholar

96 510 N.Y.S.2d 976 (1986).Google Scholar

97 The most noted AIDS case to date in which the court has expanded the meaning of family to include gay life partners is Braschi v. Stahl Associates 543 N.E.2d 49 (N.Y. Ct. App. 1989). Miguel Braschi nursed his lover Leslie Blanchard through his death from AIDS. They shared a rent-controlled apartment in New York City. Mr. Blanchard was the tenant on the lease. On his death, the landlord moved to evict Mr. Braschi since he had no legal relationship to the tenant of record. Mr. Braschi sued asking the court to expand its view of family. The court found that the term “family” should not be restricted to those who had formal evidence of it, such as a marriage license or an adoption order. Rather, the court suggested that a more appropriate determination of familial status would be to evaluate factors such as financial commitment, the exclusivity of the couple's relationship, and the reliance they placed on each other.Google Scholar

98 639 F. Supp. 654 (S.D. Fla. 1986).Google Scholar

99 666 F. Supp. 1524 (M.D. Fla. 1987).Google Scholar

100 734 S.W.2d 675 (Tex. App. 1987).Google Scholar

101 663 F. Supp. 1048 (D.D.C. 1987).Google Scholar

102 Deference to “reason” occurred in 14 of the 21 cases where one or more traditional legal presuppositions were present. To avoid overidentifying references to “reason” as a traditional presupposition in the text, we excluded from consideration references to a legal “reasonableness” test and checked its contextualization in every case where it was recorded as present.Google Scholar

103 520 A.2d 402 (Md. App. 1987).CrossRefGoogle Scholar

104 513 N.Y.S.2d 966 (1987).Google Scholar

105 516 N.Y.S.2d 1004 (1986).Google Scholar

106 510 N.Y.S.2d 976 (1986).Google Scholar

107 741 S.W.2d 178 (Tex. App. 1987).Google Scholar

108 514 N.Y.S.2d 622 (Sup. 1987).Google Scholar

109 Like Kelman, Guide 258 (cited in note 18), Unger, Critical Legal Studies Movement (cited in note 22), argues that the indeterminism of rights derives from the fact that legal rules derive from structures of thought that are fundamentally contradictory. Taking a somewhat different position, Elizabeth Mensch, “The History of Mainstream Thought,” in Kairys, Politics 31 (cited in note 12), argues that the rights claim that will be utilized by the court fluctuates relative to context and will be status or relationship dependent.Google Scholar

110 507 A.2d 253 (N.J. Super. 1986).Google Scholar

111 502 N.Y.S.2d 325 (1986).Google Scholar

112 For example, see Piven, 28 Soc. Probs. 489 (cited in note 42); Handler, Conditions of Discretion (cited in note 41).Google Scholar

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114 See, e.g., Jane Aiken, “Education as Prevention,” in Dalton et al, AIDS 90 (cited in note 3).Google Scholar

115 510 N.Y.S.2d 976 (1986).Google Scholar

116 Id.Google Scholar