AIDS, law, and the rhetoric of sexuality

Models of judicial decisionmaking have traditionally relied on legal, political, and contextual variables, emphasizing judges' background, litigants' rights claims, and the relative social status of the parties involved. A recent scholarly expansion has brought cultural variables into the equation, indicating that judicial scholarship might usefully include narrative and rhetoric as measures of legal consciousness. This project examines AIDS-related litigation from the U.S. Circuit Courts of Appeals between 1983 and 1995, emphasizing the social construction of sexuality. It uses content-based coding and stepwise probit analysis to evaluate the importance of controlling for language that depicts AIDS as a "gay disease" and its association with death and plague metaphors. Introduction Words are arguably the fundamental element of law in Western culture. Scholars working from various disciplinary perspectives have opened up rich and productive ways of thinking about how legal language produces, reifies, or challenges social structures, cultural norms, and technologies of power. Building on the insights of Legal Realism, feminism, critical legal scholarship, and critical race theories, analysts have increasingly turned their attention to legal language. Some researchers explore the ways that language transforms disputes into public discourse, others examine concepts such as rights and their place in political life, and still others consider how disputes operate within the specialized language of the law (e.g., Canan et al., 1990; Glendon 1991; Mather & Yngvesson 1980; Merry 1990). Expanding the representational framework has shown how legal language constructs race, gender, and sexuality at multiple sites of social interaction (e.g., Delgado 1989; Eskridge 1997; MacKinnon 1993; Matsuda 1993; Scheppele 1992). The emotive possibilities of personal narrative have gained prominence, drawing attention to the explanatory potential of weaving together legal discourse, storytelling, social theory, or psychoanalysis (e.g., Brooks 1996; Delgado 1989; Ewick & Silbey 1998; Matsuda 1987; Minow 1996; Thomas 1993). Investigators have also begun to explore the intersection of legal and scientific narratives (e.g., Hashimoto 1997; Imwinkelried 2000; Levit 1989; Matoesian 2001; Sanders 2001), inspiring us to consider the ways that facts and artifacts are generated in the courtroom (see Latour & Woolgar 1979). Whether we refer to these approaches, in sanguine or more cautionary terms, as "law and literature," "legal storytelling," or "narrative jurisprudence" (Cover 1986; Dalton 1996:58; Gewirtz 1996:3; Sherwin 1988; Tushnet 1992), words remain the currency in an economy of legal power. Students of judicial behavior have also been busy developing hypotheses and building statistical models that include an array of potentially influential but non-linguistic elements. Legal and extralegal variables, appointment effects, measures of political context, social and legal issues raised by litigants, and fact-- patterns have all been theorized as predictors of case outcomes (see Baum 1997; Dahl 1957; Goldman & Sarat 1979). In another shift of emphasis, Rowland and Carp (1996) propose that judicial scholars should expand their theoretical frame to encompass cognitive factors as well. Their argument, developed under the rubric of social psychology, suggests that a linguistic analysis of judicial opinions might help inform our understanding of a judge's cognitive frame and, subsequently, may improve models of judicial behavior. In a related vein, Schneider and Ingram (1993) observe that policymakers deliberately manipulate the images and cultural symbols associated with particular groups and that, subsequently, policies are enacted consonant with the social construction of targeted populations. Unpopular groups become targets of punitive state policies, while more popular ones are offered inducements, tax breaks, and benefits programs. …