Browsing by Author "Drobac, Jennifer Ann"

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    The Neurobiology of Decision-Making in High Risk Youth & the Law of Consent to Sex
    (2014-01) Drobac, Jennifer Ann; Hulvershorn, Leslie A.; Robert H. McKinney School of Law
    Under certain circumstances, the law treats juvenile consent the same as it treats adult decisions, even though a growing body of scientific research demonstrates that children make decisions using less developed cognitive processes. This Article highlights the gaps and deficiencies of legal treatment of juvenile decisions in the context of sex with an adult, as well as integrates new scientific information regarding the decision-making of minors in risky situations. Part I examines recent pediatric brain imaging findings during a risky decision-making task. Specifically, a new study demonstrates that brain scan results differed between juveniles at high risk for potentially harmful or criminal conduct and healthy children. These differences within juvenile populations support the notion that particular biological and environmental traits in children may further distinguish juvenile decision-making from adult decision-making. Part II explores the potential impact of these novel neurobiological findings on the legal treatment of juvenile “consent” to sexual activity. A discussion and summary of the juvenile sex crime statutes of all fifty states demonstrates how the law attributes legal capacity and ability to make legally binding decisions to even very young teenagers. Part II also highlights where state civil and criminal law treat juvenile “consent” inconsistently. Criminal and civil laws’ treatment of juvenile capacity, in the context of sexual activity with an adult, is not congruent with recent neurobiological discoveries regarding juvenile risk-taking and decision-making. Therefore, society should reconsider designations regarding legal capacity in light of novel neurobiological findings regarding decision-making in juveniles.
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    Religion and Employment Antidiscrimination Law: Past, Present, and Post Hosanna-Tabor
    (2014) Drobac, Jennifer Ann; Wesley, Jill L.; Robert H. McKinney School of Law
    This Article summarizes the history of and recent trends for two aspects of the law regarding the intersection of religion and U.S. employment. Part I surveys laws and case precedent that protect working religious adherents who claim discrimination, harassment, or a failure to accommodate. Adherents now bring most of their claims under Title VII of the Civil Rights Act of 1964 or equivalent state fair employment practice statutes. However, isolated legislation, some arguably politically as well as religiously motivated, offers additional protections. Recently passed “refusal clauses,” also known as “conscience clauses,” relate to the sale of contraceptives or the provision of pregnancy termination services. They highlight the importance of targeted and specific statutes. Burwell v. Hobby Lobby Stores, Inc. addresses whether for-profit, private corporations enjoy the same protections afforded by the Religious Freedom Restoration Act of 1993 (RFRA) that religious persons may claim against governmental interference. Part II covers the protections for religious institutions that also operate as employers. The Supreme Court’s 2012 decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC indicates that the legal debate concerning the separation of church and state remains lively — at least where religious employers operate. The future direction of court interpretation of that precedent remains obscure. Some analysts suggest that the Court limited Hosanna-Tabor’s reach, while others contend that its influence may be quite extensive. Finally, this Article concludes by making several observations about the evolution of religion and employment law.
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    Unmasking Sexual Harassment: The Empirical Evidence for a New Approach
    (2021) Drobac, Jennifer Ann; Russell, Mark
    If moral outrage were enough, 50 years of antidiscrimination law and two full years of #MeToo should have led to the rapid remediation and elimination of sexual harassment by corporate decisionmakers. However, moral condemnation apparently is not enough, so this Article urges a multifaceted approach that combines (to start) research, financial analysis, disclosure, preventative cultural change, and remediation (if still needed). Through disclosure, it suggests a tactic that combines the goals of social entrepreneurship and profit maximization. Estimates suggest that sexual harassment costs U.S. business millions, if not billions, annually. However, most stock exchange-listed companies avoid financial disclosure or other reporting of sexual harassment claims. The onus for the invocation of Title VII and other antidiscrimination protections falls upon the victims and targets of abuse. Our research and empirical evidence demonstrate that corporations need to make changes to improve the proverbial bottom line. The disclosures that companies do make lack useful information for users of financial reports. Further, a high number of perpetrators of corporate sexual harassment are those with power--key executives and Chief Executive Officers (CEOs). Further, a number of non-disclosures of sexual harassment indicate poor management and culture at companies. Our results are consistent with companies that use arbitration and non-disclosure agreements (NDAs) to conceal sexual harassment. Our research supports a new SEC reporting requirement for all publicly traded companies (and a best practices approach for all organizations). Arguably, corporations would save much more by getting ahead of sexual harassment cases, disclosing problems, and avoiding expensive Title VII and shareholder derivative lawsuits. The evidence and common sense call for additional prophylactic action.
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    Wake Up and Smell the Starbucks Coffee: How Doe v. Starbucks Confirms the End of "The Age of Consent" in California and Perhaps Beyond
    (2013) Drobac, Jennifer Ann; Robert H. McKinley School of Law
    Since 2005, California civil courts have effectively abandoned the "age of consent" set by former California statutory rape law and, arguably, encoded in current penal code sex crime provisions. In declaring that California civil law may credit a child's consent to sex with an adult, courts conflate or confuse legal consent, capacity, and acquiescence. Given that California federal antidiscrimination cases have begun to treat minors like fully mature adults, other states may adopt these dangerous precedents. This Article analyzes both California and United States Supreme Court cases to conclude that a strict liability civil law approach to juvenile acquiescence to sex with an adult would better serve developing teenagers. Brief exploration of adolescent assent, a new mechanism based in traditional contract law for dealing with the decisions of maturing teenagers, also justifies review of the current approaches in California and across the nation.