Monday, June 20, 2016
The White House doesn't have much interest in medical marijuana legalization, but support is now coming from a surprising Congressional source. Rep. Andy Harris (R-Md.), a physician who strongly opposed D.C.'s legalization last year, is now leading efforts to ease restrictions that prohibit research on marijuana's medicinal benefits. From the Baltimore Sun:
Harris, a Johns Hopkins-trained anesthesiologist who hangs a white lab coat in his waiting room on Capitol Hill, has been working for roughly a year to build a bipartisan coalition of lawmakers who want to ease restrictions on marijuana for the purpose of studying its effect on debilitating diseases.
Harris and other lawmakers intend to introduce legislation this week to create a less cumbersome process for marijuana researchers seeking Department of Justice approval to work with the drug.
Among other changes, the measure would require federal regulators to approve or deny research applications within two months.
. . .
“Part of my frustration in the entire debate around legalizing medical marijuana is that there really isn’t good scientific evidence about what it’s good for and what it’s not good for,” Harris, who still practices medicine, told The Baltimore Sun. “We really don’t have good data supporting widespread use.”
That position is uncontroversial — even some proponents of looser marijuana laws have lamented a lack of peer-reviewed research. The American Medical Association calls for “further adequate and well-controlled studies” in the opening lines of its formal policy on medical marijuana.
There is anecdotal evidence that the drug has helped patients who are suffering from seizures, Parkinson’s and other complex conditions. But Harris and others say states are making decisions about which types of disease can be treated with marijuana without a clear sense of the drug’s efficacy.
In that sense, both supporters of expanding the use of medical marijuana and opponents can find reasons to back the legislation. Both sides agree that one of the reasons there is so little data is because it’s been difficult for researchers to get their hands on the drug.
Friday, June 17, 2016
Two private British public health groups have released a new document calling for decriminalization of marijuana and all other "illegal drugs." nd The Royal Society for Public Health and the Faculty of Public Health, two organizations whose membership works in the public health field, have released Taking a New Line on Drugs, which recommends that the U.K. take law enforcement out of drug policy at the possession level, while keeping it up against those who manufacture and sell the stuff. The paper's executive summary sets out the suggestions:
From a public health perspective, the purpose of a good drugs strategy should be to improve and protect the public’s health and wellbeing by preventing and reducing the harm linked to substance use, whilst also balancing any potential medicinal benefits. RSPH is calling for the UK to consider exploring, trialling and testing such an approach, rather than one reliant on the criminal justice system. This could include:
a. Transferring lead responsibility for UK illegal drugs strategy to the Department of Health, and more closely aligning this with alcohol and tobacco strategies.
b. Preventing drug harm through universal Personal, Social, Health and Economic (PSHE) education in UK schools, with evidence-based drugs education as a mandatory, key component.
c. Creating evidence-based drug harm profiles to supplant the existing classification system in informing drug strategy, enforcement priorities, and public health messaging.
d. Decriminalising personal use and possession of all illegal drugs, and diverting those whose use is problematic into appropriate support and treatment services instead, recognising that criminalising users most often only opens up the risk of further harm to health and wellbeing. Dealers, suppliers and importers of illegal substances would still be actively pursued and prosecuted, while evidence relating to any potential benefits or harm from legal, regulated supply should be kept under review.
e. Tapping into the potential of the wider public health workforce to support individuals to reduce and recover from drug harm.
There's some special pleading here, of course -- turning things over to the health authorities means more money and jobs for health workers. And decriminalizing without maintaining penalties against those who make and sell the stuff isn't going to do much to harm the criminal gangs involved in the trade.
Still, an interesting take on the subject.
Tuesday, January 19, 2016
Ohio voters knocked out a crony capitalist legalization bill last fall. So what's happening these days in the Buckeye State? Over at Marijuana Law, Policy & Reform, Professor Doug Berman offers his thoughts. The whole piece is worth reading, but here's his summary:
I am encouraged (though not especially surprised) not only that (1) Ohio's elected officials now understand that they cannot and should no longer ignore the significant interest in marijuana reform amoung the citizenry, but also that (2) some state leaders are trying to co-opt into the effort persons who previously raised tens of millions of dollars to support reform in 2015. Thoughtout the 2015 reform effort in Ohio, I had an inkling that, even if the ResponsibleOhio's full legalization efforts went very badly (and it did), the conversations engendered and the monies raised through the reform effort would garner significant attention from significant public officials.
The good news seems to be that medical marijuana is moving forward in the Republican-dominated legislature. The bad news is that recreational marijuana might not get off the launching pad this year.
Monday, January 18, 2016
It's from a new study of youth marijuana use released by the Rocky Mountain High Intensity Drug Trafficking Area. I haven't been able to go over the report in enough depth to assess the validity of the data, and it will be good to see some number-crunchers go at it. But assuming it's anything like correct, it gives anti-legalization folks some serious ammunition: youth marijuana use is much higher in states with MMJ programs and (potentially) highest of all in states with recreational weed.
This chart is the one that happened to catch my attention, but the whole thing is full of data. Anybody interested in legalization needs to read it and start thinking about how to respond.
Saturday, January 16, 2016
We naturally tend to focus on pro-legalization stuff here. But it's important to remember that there are still intelligent and well-meaning folks who strongly oppose legalization. One of them is Frank Rapier, a 30-year Treasury Department agent who now runs the Appalachia HIDTA (High Intensity Drug Trafficking Area). He's got a new op-ed in the Lexington (Ky.) Herald-Leader, entitled Don’t fall for the lies from Big Marijuana:
In response to the column, “Stop waste of money, lives in criminalizing pot,” let me say that I agree with Sen. Perry B. Clark on one point: America is being bamboozled.
We are being bamboozled by Big Marijuana.
While it is entirely possible that the marijuana plant does contain elements that would be useful in treating specific disorders, there needs to be research and a process of approval like all potentially helpful medicines. The Food and Drug Administration performs this procedure daily. Let’s give that a shot before we can get serious about marijuana as medicine.Big Marijuana has lied for years in stating that the prisons are filled with people arrested for possession of small amounts of marijuana. Nothing could be further from the truth.
With the current opiate addiction crisis in Kentucky and other states, law enforcement is too busy to bother with casual marijuana users. A survey by the Bureau of Justice Statistics showed that 0.7 percent of all state inmates were behind bars for marijuana possession only (with many pleading down from more serious crimes).
In total, one-tenth of one percent (0.1 percent) of all state prisoners in the U.S. were marijuana-possession offenders with no prior sentences, according to a 1999 report from the Bureau of Justice Statistics.
Colorado’s passage of a responsible adult marijuana-use law has also resulted in other issues.A report by the Rocky Mountain High Intensity Drug Trafficking Area compared studies of the two-year average of marijuana use during full legalization (2013-14) to the two-year average just prior to legalization (2011-12).
The latest results show Colorado youth, aged 12 to 17 years old, ranked No. 1 in the nation for past month marijuana use, up from No. 4. Their usage was 74 percent higher than the national average. College-aged adults, 18 to 25, increased 17 percent. This was 62 percent higher than the national average.
Legalization is about one thing and one thing only: Making a small number of business people very rich. There is indeed some bamboozling going on. Kentuckians shouldn’t fall for legalizing marijuana.
Wednesday, January 6, 2016
Doug Berman asks that question over at Marijuana Law, Policy & Reform. My answer is the same as his. No. Here's his quick take:
But while 2016 could prove historic for marijuana reform on the state level, I am inclined to predict that this year could well be a huge nothingburger on the federal front. Absent some unexpected developments, I would be shocked if an essentially lame-duck President Obama or his Department of Justice will see any reason to significantly alter its present Cole-memo, leave-the-states-mostly-alone prosecutorial policies. And though there are lots of marijuana reform proposals and bills kicking around Capitol Hill, I have no reason to believe or expect any leaders in either the House of the Senate have any real interest in moving any marijuana bills forward (or even having hearings on the topic).
He's hoping he's "missing something" in that assessment, but I don't believe he is. I don't see anybody at the federal level moving to do anything this year.
The Administration? President Obama has had seven years to start the process of rescheduling cannabis, and has shown absolutely no interest in doing it. Given that he's spending his last year doing a victory lap of world capitals and top golf courses (and spending whatever political capital he has left on making it harder for people other than drug lords and gangbangers to get guns), it's hard to see him suddenly get interested. Attorney General Lynch is an old-line drug warrior whose troops are still busy denying that Rohrabacher-Farr amendment limits them from prosecuting medical marijuana growers. Think she'll suddenly see the light?
Congress? It's an election year, which means that despite lots of promises to various constituent groups, virtually nothing will get done.
The presidential candidates? On the Democratic side, Hillary is an old drug warrior who had eight years as First Lady, eight in the Senate, and four as Secretary of State to do something about it, and has never made the slightest attempt to do anything. Sure, for enough money she'd come out in favor of it, but compared to investment banks and Silicon Valley, the marijuana industry is small potatoes. As for Bernie, he'd probably support it as President, but he doesn't seem capable of even talking about any issue that isn't out of Class Warfare 101.
On the GOP side, many of the candidates are conservative drug warriors who are philosophically opposed to legalization. Of the others, I suspect that they took note of the huge boost that coming out for legalization did not give to Rand Paul. The number of Republic primary voters whose choice will depend on the candidate's position on marijuana is probably somewhere between "almost none" and "zero." And in the general election, issues like immigration, the Islamic State, Obamacare, North Korean hydrogen bombs, and Hillary's record will trump (no pun intended) minor stuff like marijuana. Again, enough campaign cash could change that, but it's hard to see how the industry could come up with enough to make it worthwhile.
So I'm even less optimistic than Doug. Of course, if Rand Paul does win the Republican nomination, and a brokered Democratic convention gives us Rocky de la Fuente, things might change.
One of the legacies of the Obama Administration is likely to be the degree to which Congress gets increasingly excluded from national policy making. The marijuana legalization situation is an obvious example, where a statute overwhelmingly passed by Congress has been seriously undercut by Administration policy makers without any serious attempt to get the law amended.
In a forthcoming paper in the Virginia Law Review, Executive Federalism Comes to America, author Jessica Bulman-Pozen (Columbia Law) uses the Administration’s changes in federal marijuana policy as an example of a broader trend that involves a wide range of fields, including health care, environmental law, and education. According to Bulman-Pozen, presidents today find it more difficult to get Congress to enact legislation that they favor, and thus have an irresistible urge to bypass legislation in favor of executive action in cooperation with like-minded states. "[I]ntead of Congress shaping national policy and state-federal relations," she writes, "state and federal executives craft national policy, looking to state sources of authority." In the field of marijuana, for example:
Without an amendment of federal law, then, executive federalism has transformed national drug policy. States have taken the initiative, by adopting new state laws and establishing novel regulatory apparatuses, but negotiations between state and federal officials over the enforcement of state and federal law have ultimately determined the contours of today’s drug law. Such executive federalism has allowed for differences among the states even in the context of the federal Controlled Substances Act: as a matter of federal as well as state law, marijuana today is effectively legal for recreational purposes in four states, legal for medicinal purposes in nineteen additional states, and illegal in the remaining states.
The author finds some merit in this approach, which she notes reflects the current approach used in the European Union, in which policy is set by negotiation among states rather than by an elected assembly. This has, she notes, the advantages of less transparency and more room to horse trade rather than attempt to reach "grand" solutions in Congress.
I suspect that the appeal of this approach will differ depending on how much one likes the current president's agenda -- President Obama's precedents could be a blueprint for later inhabitants of the White House. Trump or Cruz, anyone?
Tuesday, January 5, 2016
by John Montgomery
Last November, five Florida nurseries were selected to cultivate and distribute legal marijuana. This allows the sale of the non-euphoric strains to treat patients with seizure disorders and cancer. Sales of medical marijuana by these nurseries will begin around June of 2016.
The five approved nurseries were selected based on their geographical location in the state: Costa Nursery Farms (Miami), Alpha Foliage (Homestead), Knox Nursery (Winter Garden), Hackney Nursery (Tallahassee), and Chestnut Hill Tree Farm (Alachua).
The favored nurseries were chosen from a pool of 28 applicants by a panel of three state reviewers, based on rules created by a panel that included five growers. It turns out, however, that four of the growers who set the rules — Costa, Hackney, Chestnut Hill, and Knox — managed to get selected as winning applicants.
And that's a problem. Taylor Patrick Biehl, whose consulting firm represented three applicants, stated that the awards to the insider firms raise “serious questions about improper influence and self-dealing.”
He's right. States need to go about regulating the cultivation of marijuana in an open and transparent manner that shows people that the process is fair and not tainted by self-dealing. The situation in Florida is akin to the crony capitalism that Ohio voters rejected with its No vote to legalize marijuana. The people, while supporting legalization, voted against the back room dealing and the greedy special interests who wanted to set up an insider marijuana oligarchy. Florida should have taken note from the outcome in Ohio. Florida's approach in picking winners and losers is pandering to the big corporate nurseries, and disregarding smaller, independent growers.
A better option would be for Florida to open its own marijuana nurseries, and cultivate the plant itself until the free market takes over the task. This way the state, for the time being, can have total control of the medical marijuana production. After the state has had adequate time to figure out and perfect the process of growing marijuana, distributing the product, and formulating policies regulating the growing of medical marijuana, then the free markets should take over. This government-controlled to free market-controlled transition would be less corrupt than having the state pick and choose its economic winners and losers in a smoke filled room.
John Montgomery is a 3L at the Texas A&M School of Law in Fort Worth.
Boulder, Colorado, is implementing a marijuana education plan for teenagers, according to a piece on Colorado Daily.com.
A survey last year by the city showed that a substantial majority of teenagers believed that binge drinking was harmful, but that regular use of marijuana was not. The city of plans to make $250,000 available this year to change the perceptions of young people on marijuana.
Those in charge suggest that the program will focus on comprehensive substance abuse education, not just marijuana. The fear is if that you focus on one and not the other then you are telling the kids that one is less harmful than the other. The program wants to instill that the abuse of any substance can be harmful.
Substance abuse, say supporters, rarely happens in isolation and the program will work on helping kids with their “refusal skills.” Those in charge say that the money fueling the program will go to groups that have already been working on substance abuse programs in Boulder. The basic game plan is to fund these groups for three to five years and use an evidenced based approach -- as as opposed to simple scare tactics -- to change public perceptions. From the article:
Even as the perception of risk is going down, the 2013 Healthy Kids Colorado Survey found that the number of teenagers who had ever tried marijuana declined from 39 percent in 2011 to 37 percent in 2013 and those who had used it in the last 30 days declined from 22 percent in 2011 to 20 percent in 2013. The decrease was not considered statistically significant. The 2015 Healthy Kids survey is being conducted now, with results to be released in 2016.
The city may also give money to efforts to educate parents about preventing accidental ingestion of edibles by young children. Hospital admissions for accidental ingestion have increased threefold since recreational marijuana was legalized, according to the Colorado Department of Public Health and Environment.
Shawn Coleman, a lobbyist who represents marijuana businesses in Boulder, said it's not surprising that the city would put money into education, as that was one of the allowed uses for a special marijuana tax approved by voters in 2013. However, without evidence that teen use is increasing, he would like to see some of that money go for more clerks and inspectors so that it is easier for businesses to renew their licenses and expand their businesses.
In addition to regular sales tax, Boulder has an additional 3.5 percent sales tax on recreational marijuana and a 5 percent excise tax, approved by voters in 2013. The ballot language says that tax revenue should go first for administration and law enforcement resources related to marijuana, then for "treatment, education, responsible use, intervention and monitoring with an emphasis on youth," then for the general fund.
In 2014, those marijuana-specific taxes generated $1.05 million, and the city had collected $1.6 million as of September of this year, the most recent month for which final sales tax numbers are available.
Stetson Cromer is a 3L student at Texas A&M Law School in Fort Worth.
Well, it's not exactly man-bites-dog, I suppose. But an "investigation" by the Daily Caller suggests that tobacco companies -- who already sell paper tubes of dried plant material that provide a drug to users -- are indeed looking to capitalize when cannabis goes legal nationally. The piece does have some interesting background. Some highlights:
Big tobacco, despite its conservative image since the 1970s, has been closely eyeing the marijuana market which venture capitalists regard to be worth $50 billion in annual revenues.
Tobacco companies are now on a buying spree of e-cigarette companies which produce vaporizers, a smoking device marijuana users prefer because it can offer a higher high.
. . .
"We are in the business of relaxing people who are tense and providing a pick up for people who are bored or depressed," [said a 1970 Philip Morris memo]. . . . "The human needs that our product fills will not go away. Thus, the only real threat to our business is that society will find other means of satisfying these needs."
. . .
[Keith Humphreys, a professor of psychiatry and behavioral sciences at Stanford School of Medicine,] said big tobacco has a distinct advantage in marijuana production. "On marijuana, who knows better how to grow a plant that you dry up, wrap up in paper and smoke," he told TheDCNF. "They’re the masters of that worldwide and have wide brand recognition."
Jonathan Caulkins, a professor at Carnegie Mellon University’s Heinz Center and co-director of RAND’s Drug Policy Center, told TheDCNF he believes the tobacco industry is privately looking at the legalization movement.
"If you’re specifically in the tobacco industry, of course you should be paying great attention," Caulkins said. "It would be unfair to your shareholders if you didn’t at least watch with interest and probably should have several analysts working full time trying to think of different scenarios of how this could play out."
Dr. Stanton Glantz of the UCSF School of Medicine and the American Legacy Foundation Distinguished Professor of Tobacco Control told TheDCNF, "They certainly would deny it if you asked them, but the reality is that tobacco firms are very well positioned."
"They know how to make the product very well and very efficiently," Glantz said. "More important, they know how to engineer the product to maximize the addictive potential, which is something that the current marijuana enterprises probably aren’t as good at."
. . .
"Since at least 1970, despite fervent denials, three multinational tobacco companies, Phillip Morris (PM), British American Tobacco (BAT, including its US subsidiary Brown & Williamson [B&W]), and RJ Reynolds (RJR), all have considered manufacturing cigarettes containing cannabis," the UCSF researchers concluded.
Glantz asserted tobacco companies "have the financial resources, product design technology to optimize puff-by-puff delivery of a psychoactive drug (nicotine), marketing muscle, and political clout to transform the marijuana market."
As noted previously, big tobacco is buying up American e-cigarette companies with fervor.
. . .
"For e-cigarettes, there is a huge crossover in e-cigarette use between marijuana and tobacco," Glantz told TheDCNF.
I suspect that a lot of non-tobacco businesses are also interested. Do we think that Frito-Lay and Kraft, for example, haven't at least thought about the potential of cannabis-infused edibles"?
Monday, January 4, 2016
No, the federal government did not legalize medical marijuana in recent omnibus budget bill. The bill reiterated language from last year's omnibus bill, known as the Rohrabacher-Farr Amendment, which prohibits using federal funds to prevent a state from "implementing" its medical marijuana laws. But while various news sites trumpeted this as effectively ending the federal ban on medical marijuana, Reason's Jacob Sullum, in a piece titled The Federal Ban on Medical Marijuana Was Not Lifted, argues that the ambiguous language in the Amendment isn't stopping the Justice Department from prosecutions.
The problem with the Amendment is its language. The Justice Department interprets it to mean that it cannot use federal funds to prosecute state employees who are involved in medical marijuana licensing, taxation, and regulation -- that is, those who are actually implementing the state program. There seems to be a difference between implementing a law (for example, being a state employee who sets or enforces speed limits) and merely obeying a law (a driver who follows the speed limit). If Congress had wanted to ban individual prosecutions, the most natural way to do so would have been to bar DOJ from prosecuting individuals and businesses who are licensed by state medical marijuana offices and who are in compliance with those regulations. While it's true that the authors of the Amendment hoped it would ban individual prosecutions (and while one federal judge has said it does) the DOJ argument is, from a pure statutory construction perspective, perfectly reasonable.
Sullum concludes that even if the Amendment did bar DOJ from individual prosecutions, its effects are still very limited:
The rider has no impact in the 27 states that do not have medical marijuana laws, and it applies only to the Justice Department, so it has no effect on actions by the IRS or the Treasury Department that make it difficult for medical marijuana suppliers to pay their taxes and obtain banking services.
More fundamentally, the amendment, which has to be renewed every fiscal year, does not change the Controlled Substances Act (CSA), which continues to classify marijuana as a Schedule I substance with no legal uses. Because marijuana is still prohibited by federal law, people who grow and sell it, no matter the purpose and regardless of their status under state law, commit multiple felonies every day. If no one is trying to put them in prison right now, that is only thanks to prosecutorial forbearance that may prove temporary.
Anyone who provides services to marijuana businesses is implicated in their lawbreaking. Last week a Colorado credit union that wants to specialize in serving state-licensed marijuana businesses tried to persuade a federal judge that it is legally entitled to participate in the Federal Reserve's payment system, without which it cannot operate. The judge did not seem inclined to agree, saying, "I would be forcing the reserve bank to give a master account to a credit union that serves illegal businesses." The U.S. Postal Service announced last month that periodicals containing marijuana ads are "nonmailable," citing a CSA provision that makes it a felony to place ads promoting the purchase of illegal drugs. An accounting firm and a bonding company hired by a Colorado marijuana merchant recently paid $70,000 to settle a federal racketeering suit filed against them by a hotel whose owners were upset about plans to open a pot shop near their business.
Problems like these cannot be solved without changing marijuana's status under federal law. The Rohrbacher-Farr amendment does not do that, no matter how many hopeful headlines it generates.
. . . is the headline of a story today reprinted in USA Today. Even Texas has medical marijuana in 2016, and there are lots of stories about states moving toward legalization. But here's the short version of the list (in alphabetical order) of states that probably won't be seeing much action on that front this year:
Monday, June 29, 2015
The federal government drug tests potential employees for certain positions. Young people who want those positions, and who use drugs, need to game the system to avoid having the feds find out. That's the take from a piece in the New York Times: State Marijuana Laws Complicate Federal Job Recruitment:
For all the aspiring and current spies, diplomats and F.B.I. agents living in states that have liberalized marijuana laws, the federal government has a stern warning: Put down the bong, throw out the vaporizer and lose the rolling papers.
It may now be legal in Colorado, in Washington State and elsewhere to possess and smoke marijuana, but federal laws outlawing its use — and rules that make it a fireable offense for government workers — have remained rigid. As a result, recruiters for federal agencies are arriving on university campuses in those states with the sobering message that marijuana use will not be tolerated.
So members of a new generation are getting an early lesson in what their predecessors have done for as long as there has been espionage, diplomacy and bureaucracy. They are lying and, when necessary, stalling to avoid failing a drug test.
As any regular marijuana smoker will tell you, it usually takes about two weeks for evidence of marijuana use to disappear from urine, a urine sample being the method by which drug use ordinarily is tested.
“Delaying something is part of what a good diplomat is supposed to know how to do,” said John, a young American diplomat who lives in Washington, D.C., where marijuana use became legal this year. “If you can’t put off a test for two weeks, I mean, come on.” He spoke on the condition that only his first name be used in an effort to avoid losing his job.
I suppose it's bound to come to this. In a culture where we expect the country's leaders to lie to us, we probably can't expect to get honesty from the ordinary folks. Of course the key to successful lying is to make sure you deny it in public:
Based on interviews with a handful of federal workers living here, John’s marijuana-smoking story is not unique. One recent federal hire with a security clearance said he and many of his friends believed that the government was basically asking them to lie when applying for jobs. The hire, a university graduate from a Western state with liberal marijuana laws, was adamant that neither his name nor the agency where he was about to start working appear in print.
Then there's this, which is particularly appalling:
Now, [a State Department] official owns his home here in Washington, [D.C.,]where it is legal to grow up to six plants, though only three can be mature at any given time. If discovered, he said, he would claim that the plants belonged to his wife, who does not work for the government.
This has got to be reassuring to foreign leaders who have to decide whether to believe what an American State Department official says.
Sunday, June 14, 2015
I'm pleased to note that the Texas A&M Journal of Property Law (run this year by many of my students) has issued a call for papers for an academic conference to be held in October. Here's the info:
MARIJUANA AND PROPERTY
Call for Papers — Open until July 1, 2015.
The Journal of Property Law at the Texas A&M University School of Law is hosting a one-day symposium at the Law School in Fort Worth on October 16th, 2015, to consider the effects of marijuana legalization/decriminalization on a broad array of property-related interests, laws, and policies.
Purpose of the Symposium
Nearly half of all U.S. states have enacted -- or have pending -- legislation to legalize, decriminalize, or in some way permit the possession, use, sale, and cultivation of marijuana. As a result, marijuana has become a significant topic of conversation. A variety of legal as well as logistical issues have arisen that ordinarily have been outside the immediate attention of practitioners and policymakers. Specifically, the industry has brought forth new issues pertaining to energy, taxes, intellectual property, land use, banking, and the environment, just to name a few. It is critical that experts now begin to seek out and address the myriad of complications arising from these events.
The goal of the symposium is to create a forum for experts to exchange ideas and advance the collective understanding of these issues. It will also provide an opportunity for scholars and experts to engage directly with one another on those issues at a high level of detail so that they may advance their research and scholarly agendas as well as strengthen their networks.
Scholarly and Policy Papers
The symposium will consist of presentations and panels where participants will present papers and works-in-progress. All presenters will have an opportunity to publish their work in a special symposium issue of the Texas A&M Journal of Property Law.
The symposium will address topics relevant to property and marijuana, including:
• Agricultural Law and Policy
• Business Law and Policy
• Clean Energy Development
• Climate Change Impact, Mitigation, and/or Adaptation
• Ecosystem Management
• Energy Law and Policy
• Environmental Protection and Regulation
• Hazardous Materials/Waste Transportation
• Intellectual Property
• Land Use
• Landlord Tenant Law
• Natural Resource Law and Regulation
• Pesticide Use and Control
• Property Rights
• Recreational Use Management
• Regulatory Law
• Water Conservation
• Water Quality
• Water Rights (including Human Right to Water; Withdrawal – Transfer; Water Access Rights)
The symposium will be organized around the presentation of papers. These may be scholarly or policy oriented, and they may be written for a legal or interdisciplinary audience. Papers do not need to be in final form by the time of the symposium and authors are invited to present advanced drafts that might benefit from the insights and comments of other symposium participants. Final drafts will be due one month after the symposium.
A notice of interest with a proposed paper topic must be submitted by July 1, 2015. The notice of interest should be a brief (250-500 word) statement that includes the author’s research question and thesis and a short outline of what the author hopes to address in his or her paper. More advanced submissions, including detailed abstracts and draft papers are also welcomed, but only a notice of interest is required at this point. Submissions should be accompanied by a brief biography of the author and a curriculum vitae or resume. Submissions should be made to email@example.com. If selected, the author will be notified by July 15, 2015.
A final abstract of the proposed paper will be due by August 14, 2015, and should consist of 750-1000 words. An advanced draft of the paper that would be acceptable to present at the symposium is due no later than October 2, 2015. The facilitators will distribute the selected papers to invited participants in advance of the conference. All final papers will be due November 16, 2015, and will be eligible for publication in the Journal of Property Law subject to the editors’ final review and approval.
Proposals, abstracts, and completed papers must be typed in English. The authors may use whatever citation format is generally accepted in their respective disciplines. Address questions and abstracts to firstname.lastname@example.org. Put "symposium" in the subject line. We look forward to reviewing your submissions.
Notice of Interest Deadline: July 1, 2015
Notification to Authors: July 15, 2015
Abstract (Final) Submission Deadline: August 14, 2015
Advanced Draft Paper Deadline: October 2, 2015
Symposium Date: October 16, 2015
Final Paper Deadline: November 16, 2015
Travel funding may be available to cover reasonable airfare and lodging costs, based on need, for a limited number of individuals presenting at the conference and publishing with the Journal. Please include a request for travel funding support when sending your Notice of Interest.
Texas A&M University School of Law
Journal of Property Law
1515 Commerce Street
Fort Worth, Texas, 76102
Thursday, June 11, 2015
The big Ohio Marijuana Policy Reform Symposium is going on today in Columbus, at the Ohio State College of Law. Doug Berman is the keynote speaker (naturally), and he's got his first post on what's going on here.
With luck, we'll have more in the near future. Good job by Doug and the crew at the National Champion Ohio State University . . . .
Tuesday, June 9, 2015
One of the interesting tings about watching marijuana legalization as a business law prof is that the whole chronology is backwards. Ordinarily, people invent industries, they grow, develop problems, and then government starts regulating them.
In the marijuana business, however, the regulations get drafted before the industry begins -- which makes it very difficult. A rundown in Rolling Stone magazine highlights a number of states where the system isn't working as expected. A couple of states, like Texas, are dinged because the MMJ laws are said to be too narrow. But some of the others demonstrate that problems that come from trying to regulate in advance something that doesn't exist, while simultaneously making sure that everybody who's been generous in their political donations gets a cut of the spoils. Some highlights:
Massachusetts. In 2012, Massachusetts's voters approved via ballot initiative the legalization of medical marijuana and state-regulated dispensaries, but overcomplicated licensing procedures allowed not a single dispensary to open. Two dozen lawsuits followed a two-and-a-half-year wait for the law to be enforced. . . . Things . . . were looking up, with the first dispensary set to open later this month, but then unprecedented requirements on marijuana's lead levels proved to be an impossible standard that even grocery store vegetables couldn't meet. As residents wait for a viable program, confusion about the law has led to the arrest of doctor-certified medical marijuana patients, despite state regulations allowing them to grow and possess their own supply.
Illinois. After legalizing medical marijuana in 2013, Illinois is in its second year of a four-year medical marijuana pilot program, but with no existing dispensaries to assess. Gov. Pat Quinn left office without issuing any licenses for medical marijuana distribution, prompting his replacement, Bruce Rauner, to swiftly condemn Quinn's inaction and issue a slew of licenses for providers in January. Still, dispensaries are not expected to open until the fall.
New Jersey. In January of 2010, the New Jersey legislature approved a medical marijuana program set to go into effect six months after enactment. . . . The first dispensary didn't open until three years later, in 2013, and its role as the sole provider of medical marijuana in the state prompted complaints from registered patients about limited access and long waits. Today, the state's program remains only half operational, with just three of the six dispensaries allowed by the law open for business.
New Hampshire. In 2013, New Hampshire passed legislation allowing just four state-licensed dispensaries to treat patients suffering from only five qualifying medical conditions. The law mandated that the state Department of Health and Human Services approve at least two dispensaries by the end of January 2015. So far it has approved zero. . . . Dispensaries are not expected to open until January of 2016.
Friday, May 8, 2015
. . . is the title of a good piece by Houston's KHOU-TV, reporting on the upsurge in Republican support for marijuana legalization here in the Lone Star State:
Inside an old restaurant a short walk from Allen’s Landing, the birthplace of Houston, the Pachyderm Club holds its luncheons.
The group is staunchly Republican, mostly older and Anglo, but with a few younger Asians and Hispanics in the mix. It could easily be mistaken for a small Rotary Club except for the prevalence of elephant lapel pins.
But the most surprising thing about the crowd is another kind of pin, worn by a few of the Pachyderm Club members. "RAMP" is the message, an acronym for Republicans Against Marijuana Prohibition.
"You’ve not seen one person overdose on marijuana," said Jane Bock, a lifelong Republican who’s president of Memorial West Republican Women. "Alcohol has done a lot worse damage."
When people in a group like this change their minds about marijuana, you know Texas is changing. And if you think it’s just a cause for the younger generation in this club, think again. The pro-marijuana faction is dominated by the gray hairs in the group.
"I think people are more open-minded," Bock said.
Texas is one of the most conservative states in the nation. But in a part of the country where people joke about Willie Nelson’s passion for pot, public attitudes toward legalizing marijuana are dramatically changing. Nowhere was that more evident than in a legislative meeting room in the state capitol, where a House committee this week approved a bill that would legalize marijuana in Texas.
"The community has changed their attitude about it," said Rachel Hooper, a former Harris County prosecutor. "And they want to see violent criminals in jail. And they see marijuana possession as a nonviolent offense."
A poll conducted early last year by the University of Texas and Texas Tribune indicated 49 percent of Texans believe marijuana should be legalized, not just for medical use but for all purposes. Only 23 percent of the surveyed registered voters believed the drug should be outlawed for all uses.
The shift in public opinion is so dramatic, politicians running for office are touting decriminalization as an election issue. One former prosecutor who recently ran for district attorney even spoke before a group of pro-marijuana demonstrators who marched around Houston City Hall over the weekend. Kim Ogg, who ran for Harris County district attorney, has sent out news releases touting her position on decriminalizing marijuana.
"I think Houston’s ready for a reasonable policy on marijuana," said Ogg. "They’re tired of their tax dollars being wasted putting kids in jail with real criminals. And it’s not making any of us safer."
That argument strikes an emotional chord with Ann Lee, who’s become one of the leaders of the Republican movement to legalize marijuana.
"Why are our jails now called the new plantations?" Lee said. "That is awful! In this great, wonderful, beautiful country of mine, we have ruined a whole generation of young minorities, both blacks and Latinos, by saddling them with a felony conviction."
Lee and her late husband started RAMP after her paraplegic son discovered marijuana helped relieve his severe nerve pain. An 85-year-old woman with white hair and an effervescent personality, she’s convinced many of her fellow Republicans to change their long-standing opposition to legalization.
Even supporters of the [total] legalization bill approved by the committee in Austin concede it has little chance of becoming law, at least this year. But the very fact that it passed through a committee of the conservative Texas House of Representatives offers testament to the state’s dramatic change in attitude over the legalization of marijuana.
"The sea change has been people realizing that we do not have to support bad law," Lee said. "And to be a conservative, you do not support prohibition. Prohibition trumps everything that I believe as a Republican."
Thursday, April 23, 2015
Rep. Daha Rohrabacher and ten of his colleagues have reintroduced a bill that would prevent the federal government from prosecuting people who are acting in compliance with state marijuana legalization laws. The bill is a response to the Obama Administration's position that its operatives are not, in fact, bound by language passed in last year's appropriations bill and signed by the President, which prohibits use of federal funds to pursue those who are in compliance with state marijuana regulations. From Matt Ferner at HuffPo:
“The American people, through the 35 states that have liberalized laws banning either medical marijuana, marijuana in general, or cannabinoid oils, have made it clear that federal enforcers should stay out of their personal lives," Rohrabacher said in a statement Wednesday. "It’s time for restraint of the federal government’s over-aggressive weed warriors.”
. . .
And while a federal spending bill signed by President Barack Obama in December prohibits the Department of Justice from using funds to interfere in state-legal medical marijuana programs, the DOJ has said that it doesn't believe the congressional measure prohibits them from prosecuting individuals or businesses in violation of federal law.
The House bill introduced by Rohrabacher would go further than those previous measures by amending the Controlled Substances Act so it would make an exception to federal law for states that have developed their own marijuana policies.
Under the Obama administration, the Drug Enforcement Administration and several U.S. attorneys have raided hundreds of marijuana dispensaries and sent people to prison, even though they complied with state laws. According to a 2013 report from advocacy group Americans for Safe Access, the Obama administration has spent nearly $80 million each year targeting medical marijuana.
The federal government has ignored the congressional action, also introduced by Rohrabacher, in ongoing federal asset forfeiture actions against multiple dispensaries in the San Francisco Bay Area. The congressman sent a letter to Holder slamming the DOJ's interpretation of his amendment, calling the department's interpretation "emphatically wrong."
Co-sponsoring the bill, H.R. 1940, are Reps. Justin Amash (R-Mich.), Earl Blumenauer (D-Ore.), Steve Cohen (D-Tenn.) Duncan Hunter (R-Calif.), Tom McClintock (R-Calif.), Thomas Massie (R-Ky.), Jared Polis (D-Colo.), Jan Schakowsky (D-Ill.), Dina Titus (D-Nev.), Mark Pocan (D. Wisc.), and Don Young (R-Alaska).
The bill has been referred to the Committee on the Judiciary (where Rep. Cohen the ranking minority member of the Subcommittee on the Constitution and Civil Justice), and the Committee on Energy and Commerce (where Ms. Schakowsky is ranking minority member of the Subcommittee on Commerce, Manufacturing and Trade).
What's also interesting is the diversity of the sponsors. Mr. Rohrabacher is a former Reagan speechwriter and a strong free-market proponent, while Mr. Amash is the head of the House Liberty Caucus and is usually regarded as a Tea Party favorite. On the other hand, Ms. Schakowsky, Mr. Cohen, and Mr. Pocan are all active in the Congressional Progressive Caucus and are among the House's most liberal members.
That diversity, and the fact that a majority of Congress supported the restrictions that the Administration is now ignoring, means that the bill might have a much better chance now than it did when last introduced in 2013.
It will be interesting to see if President Obama, in light of his recent remarks, will make any effort to put Administration's support behind the bill.
That title of an article from BloombergPolitics from about sums up the general reaction among legalization advocates about Ms. Leonhart's ouster after fallout from sex-and-corruption scandals in the agency.
Like most in the community, I hope that her replacement will be less of a hard-liner, but I don't see any evidence he or she is likely to be. After all, President Obama knew exactly what she was about when he reappointed her five years ago, and he made no apparent attempts to restrain her even as armed DEA task forces descended like locusts on medical marijuana establishments. Neither he nor Attorney General Eric Holder put a stop to that -- it took (weirdly enough) the Republican-dominated House of Representatives to do that via an appropriations bill.
So while I hope that the new DEA head will be open to doing something the Administration has refused to do for six years -- move toward rescheduling and thus allowing research -- I fear that weed advocates may be in for a letdown. This reaction, for example, is from the article linked above:
[Marijuana Majority founder Tom] Angell said that advocates were disappointed and shocked that Obama reappointed Leonhart—a holdover from the Bush administration—to the job in 2010. Since then she's taken a very firm anti-marijuana stance that has alienated supporters of less strict drug laws. In 2011 she was criticized for saying that increased drug war violence in Mexico, including the deaths of over a 1,000 children, was “a sign of success in the fight against drugs.” During a 2012 House Judiciary subcommittee hearing, Leonhart refused to say whether marijuana is safer than crack.
Days after Obama, in January of 2014, told The New Yorker that marijuana is safer than alcohol, Leonhart reportedly criticized his comments and said that the lowest day of her 33 years in law enforcement was when a hemp flag flew over the nation’s capital. “Obviously we shouldn’t judge her based on her one comment, but it’s a very telling comment,” said [Marijuana Policy Project's Mason] Tvert. Tvert accused Leonhart of being “an anti-marijuana zealot” and said the next DEA chair “must be willing and able to recognize the fact that marijuana is relatively less harmful than alcohol and other illegal drugs.”
I very much respect Messrs. Angell and Tvert, but I'm afraid they may be giving too much credit to what President Obama says in an interview, and too little to what he does in office. If he really believes what he's now saying about marijuana -- rather than just pandering to what he thinks millennials what to hear -- you'd think he would have done something about it at some point in the past six years.
I mean, seriously, after spending two and a half terms killing children in Mexico, throwing vast numbers of minority users into jail, smashing doors and burning property, did he wake up April 19 and suddenly think, "Oh, hey, I didn't know there was all this science stuff out there? Maybe marijuana isn't so bad!"
That doesn't mean, of course, that he won't appoint someone who's less of a hard-liner, merely that he's shown considerable ability to say things in the media that do not reflect what he's actually doing. So I agree with Mr. Angell that what he does now will give us a good idea of what his Administration really thinks about the issue:
Angell noted that Obama now was a chance to prove his commitment to science over ideology. “The president always talks about how science should dictate public policy,” he said. “Well, now he has a chance to actually appoint someone who’s going to carry that through.”
I certainly hope I'm being too pessimistic.
Saturday, April 18, 2015
I think it was Thomas Sowell who noted that politicians are more popular than economists because the former offer solutions, while economists can only offer tradeoffs.
One of the most difficult problems in marijuana reform is the fact that we often run after two very different goals at the same time. On the one hand, we want to get rid of the black market for weed and the corruption and violence that accompanies it. On the other hand, we want to carefully regulate it, avoid encouraging addiction, and raise money in taxes. The problem is that these two goals are fundamentally incompatible.
With any addictive substance -- alcoholic beverages, drugs, even fast food -- 20 percent of consumers ordinarily consume 80 percent of what's sold. Thus, the 20 percent of heaviest drinkers imbibe 80 of the booze, just as the 20 percent of the heaviest McDonald's eaters consume 80 percent of the Big Macs. (Pun not intended.) Because of their heavy consumption, the 20 percent are usually very price-sensitive. It's not hard-core alcoholics who tend to buy the most expensive wines, beer, and spirits -- they tend to look for the stuff that will get them drunk most cheaply.
Translate this to marijuana, and we can assume that the heaviest users will tend to be the most price-sensitive. That means that even relatively small price differences between products of similar potency will have a big effect on demand, and thus that unless legal weed prices are kept at or below the price of the illegal stuff, the black market will thrive. To the extent those prices are propped up by restrictions on growing and selling -- as we now see in several states -- and by various taxes, the black market remains. And so long as the black market remains, law enforcement will be targeting those who illegally grow and possess the stuff. The only difference is that they'll be prosecuting them for evading taxes, not drug possession.
And it works the other way. If there's a thriving black market, it's easy to evade the regulations and to avoid paying the taxes, which means that tax revenues will be lower than expected. That seems to be the case so far in Colorado, where reports are that marijuana consumption is up but taxes are falling well below projections. To drive up tax revenues, the state will have to commit additional resources to combat the black market.
That fact, and some of the thoughts I've mentioned here, are discussed in this nice piece from The Upshot's Josh Barro: Marijuana Taxes Won’t Save State Budgets.