Why Have-Nots Win in the HIV Litigation Arena: Socio-Legal Dynamics of Extreme Cases*

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.     

THE PARLIAMENTARY OMBUDSMAN AFTER TWENTY-FIVE YEARS

Twenty-five years after it was established in 1967 the Parliamentary Commissioner scheme is now criticized not so much on the grounds that it lacks teeth; the problem rather is that the system could be used with advantage a good deal more extensively than it is. The parliamentary Ombudsman has been under-used largely because it has generated only bounded enthusiasm among MPS, the 'gatekeepers' and potential 'magnets' for the office. Survey evidence suggests that MPS' attitudes are related mainly to their dissatisfaction with the limitations on the ombudsman's 'spatial' jurisdiction and the length of time taken by the office to investigate complaints. MPs' disapproval of these aspects of the scheme, however, may be symptomatic of a divergence between members' desire for 'quick-fix' solutions to constituents' problems and the emphasis placed on the 'audit role' of the office by successive commisioners. Greater awareness of the functions of the office by both the general public and among MPS; an extension of the Commissioner's jurisdictional remit; a faster average 'throughput' time for investigations; and possibly the introduction of a two track procedure for inquiries are all arguably required if the full potential of the Parliamentary Commissioner scheme is to be realized.