Cannabis Law Prof Blog

Surprise! Massachusetts Marijuana Licensing is Fertile Ground for Waste & Incomptence

The state whose massive "Big Dig" project became a national byword for waste, fraud, incompetence, and abuse has apparently managed to bring that level of expertise to its marijuana licensing process.  The Boston Globe has this report:

    A contractor hired by the [Massachusetts] state health department to rank companies hoping to open medical marijuana dispensaries acknowledged in internal e-mails that it simply ran out of time to conduct thorough checks of some applications. Still, the health department extended the company’s contract and more than doubled its pay, records show.

    A different contractor was awarded a lucrative no-bid deal to conduct in-depth background checks yet failed to detect that a couple hired by several applicants to run proposed dispensaries had lost their own marijuana business license in Colorado because of violations.

    These latest revelations open a wider window onto the state’s troubled effort to grant licenses for medical marijuana dispensaries, a process so flawed that regulators spent five months untangling the mess.

    A Globe review shows that the state’s licensing process went off the tracks nearly from the beginning, hobbled by too little time, too many conflicts of interest, and questionable work from highly paid contractors.

    “I have heard of minor complications in other states. But I have not seen anything that raised eyebrows . . . like in Massachusetts,” said Karen O’Keefe, who tracks state policies at the Marijuana Policy Project, a Washington, D.C., group that lobbies to legalize marijuana.

There's a lot more, but it's waaaaay too depressing to go on here.  Marijuana patients may be disappointed that after two years they still don't have a single dispensary open in the Bay State.  But at least they know that lots of well-connected people are making substantial sums off the product before a single ounce is actually delivered to patient.

And this is probably just the beginning, since the regulations will need a lot of tinkering going forward.

Colorado Ski Resorts Ambivalent About Recreational Pot

On the one hand, there's tax money to be had.  And most of it comes from tourists:

    Mountain towns dependent on tourists are reaping the rewards of legal  marijuana. As the towns swell with visitors —  skiers in February and March, summer vacationers in July and August —  so do their sales-tax coffers.

    "Most of our sales seem to be to our visitors," said John Warner, a dentist and the mayor of Breckenridge, which is tracking toward  $8.8 million in marijuana sales in 2014. "Some people might think of it as a sin tax, and a lot of people don't like sin taxes. But it's certainly helpful to our community."

    Like a lodging tax that doesn't burden locals, taxes on marijuana in the high country largely are paid by tourists. A midsummer report by the state Department of Revenue estimated that visitors in highly trafficked mountain communities accounted for 90 percent of marijuana sales.

On the other hand, many towns are worried about the effect that "pot culture" will have on family vacations:

    Business is booming in Colorado's mountain resorts, and the addition of recreational marijuana stores this year has attracted customers curious about legalized pot. But there's mounting anxiety that ski towns have embraced stoner culture a little too much, potentially damaging the state's tourism brand.                                                                                                                                                                                                                                                             

    That worry flared up in two resort towns last week. In Breckenridge, residents voted overwhelmingly to force downtown's lone dispensary off Main Street to a less-visible location. And just up the road in Granby, town officials used a property annex to prevent a dispensary from opening.

    The fear is that some families — a mainstay of the ski tourism industry — will stop vacationing here.

    "It's not a morality issue, or that we think marijuana is bad," said Breckenridge councilman Gary Gallagher, who supported legal marijuana but also voted to force the Breckenridge Cannabis Club out of downtown. "Marijuana, it is not in this country's DNA yet. It's a little bit too early."

This will probably shake out as more adult-oriented resorts play up the marijuana angle while the family-friendly variety do their best to prohibit it.

Nestdrop Marijuana Delivery Illegal Under L.A. County Law, Rules Judge

Time Magazine reports:

    A Los Angeles-based smartphone application aimed at becoming the city’s first mobile medical marijuana logistics service was ordered to stop business by a judge on Tuesday.

    Judge Robert O’Brien, of the Los Angeles County Superior Court, said Nestdrop, a mobile app hoping to connect the city’s medical marijuana patients with dispensaries, was in violation of a voter-approved law called Proposition D that explicitly bans medical marijuana delivery, according to the Associated Press.

    Nestdrop claimed that they were not in violation of the law because they only connect distributors with patients and do not handle the marijuana themselves, according to the Los Angeles Times.

    On Dec. 2, L.A. City Attorney Mike Feuer filed an official complaint about the company’s supposed violation of Proposition D.

    “Nestdrop is the technology platform that connects law abiding medical marijuana patients with local dispensaries to receive the medication that they need in a safe and secure manner,” Nestdrop co-founder Michael Pycher told the Los Angeles Times earlier this month.

    Launched earlier this year, the company said that it will maintain its alcohol logistics service within Los Angeles while evaluating future options to operate there in the medical marijuana industry as well.

Nevada Dispensaries May Open on Time as Judge Denies Injunction

A Nevada state judge has denied an preliminary injunction which sought a "re-do" of the state's marijuana dispensary licensing process in unincorporated Clark County (Las Vegas).  Unsuccessful applicants had claimed the selection process was flawed, but the judge rejected the argument: 

    Judge Kathleen Delaney has ruled the state of Division of Public and Behavioral Health properly followed all rules in ranking, reviewing and ultimately selected 18 applicants for provisional medical marijuana registration certificates in unincorporated Clark County. This decision comes despite the state attorney general's office expressing concern about how the state process was completed.

    The case first came to light when a group of dispensary applicants requested a “do-over” of sorts because they said the state's ranking process wasn't fair or transparent. They wanted to see if the state would give them a second chance at opening up their dispensary doors to medical marijuana customers.

    When Clark County approved 18 dispensaries earlier this year, the state only approved 10 of them. Five of the eight applicants who got county approval, but not state approval, opted to sue the state of Nevada, the Department of Health and Human Services and the Division of Public and Behavioral Health.

    The group said the state's ranking process was flawed and not transparent, but Friday Judge Kathleen Delaney disagreed.

    With this latest ruling all dispensaries in Clark County could open as soon as January 2015.

A New Frontier: Advertising for a (Still) Illegal Industry

Marketplace has a nice profile of Cannabrand, the company whose mission is to do for marijuana what J. Walter Thompson and BBDO did for Dove Soap and Rice Krispies.  Here's the intro:

    The market for marijuana is changing, at least in the states where the drug has been legalized. In Colorado and Washington, where recreational marijuana is legal for adults, cannabis sellers are finding new approaches to the way they sell their products. The new business plan, for many, includes advertising and marketing -- a shifting image.

    That's where Cannabrand comes in. Olivia Mannix, on of the founders of the marketing company, says that Cannabrand focuses on marketing cannabis products in legal markets. That includes working with a variety of companies, not just dispensaries.

    "We take on clients ranging from the tech space to dispensaries, to grow operations," Mannix says. Cannabrand works on branding for these companies, and aims to make the retail experience in the marijuana industry more accessible. 

    That include everything from edible taste testing, to logos, packaging, and advertising. 

    But advertising and selling a product that's largely classified as an illegal drug can be trick.

"Playing Games" With Marijuana Referendum in Ohio?

At least two groups are trying to get a marijuana referendum on the Ohio ballot next year.   One appears to be a corporate effort that is hoping to do for marijuana what was done for casinos in the Buckeye State: create a small number of very highly profitable enterprises that would be protected from competition.  The Cleveland Plain Dealer has an editorial about the effort, the last sentence of which I agree with completely:

    Until voters see the specific wording of a potential ballot issue that would let Ohioans legally use marijuana for medicinal as well as recreational purposes -- likely in January -- bystanders should keep in mind the parable of the blind men and the elephant: Assorted details don't necessarily offer a full picture.

    Still, as the Northeast Ohio Media Group reported Dec. 18, the proposal, if final wording matches advance billing, could -- distastefully -- guarantee ten or so Ohio landholders, and any of their partners or others who might buy into the deal, a monopoly on legal production of marijuana.

    That kind of constitutionally entrenched monopoly (as close to a license to print money as there can be) calls to mind Ohio's 2009 casino amendment.

    But at least the casino amendment, which specifies the precise sites where each of four Ohio casinos may operate and the level of investment required, reflects the fact that casinos aren't an easy-access business. Marijuana growing is. So if the marijuana amendment arrives as advertised, it would be anticompetitive in the extreme (presuming it goes to Ohio voters and voters approve it, two big ifs).

    In theory, the great detail predicted for the marijuana measure's wording could be aimed at keeping tight reins on legal marijuana production and the crop's chemical characteristics. But such details are what the General Assembly – not Ohioans marking ballots in voting booths – are usually expected to determine. Law-writing at the ballot box can be perilous.

    True, the Republican-ruled legislature is unlikely to touch marijuana legalization with a ten-foot pole, especially for recreational use. While Quinnipiac polling early this year suggested Ohioans widely support legalizing medicinal use of marijuana, it also suggested that only a bare majority supports legalizing recreational use.

    Backers of the medicinal-and-recreational issue would have to gather almost 306,000 voters' signatures for it to reach the ballot. It's unclear whether an unrelated marijuana issue, to legalize medicinal use only, is still seeking signatures.

    The critical question for both issues is whether the assumption they share – that most Ohioans want to make significant changes in marijuana law – is valid. But even if it is a valid assumption, creating an anticompetitive constitutional monopoly aimed at enriching a tiny number of landowners seems like the exact wrong way to go about any conceivable legalization. 

With Winter, More Homeless Pot Seekers in Denver

The homeless population in Denver, drawn in part by legal pot, continues to grow.  AP is reporting a significant increase this winter, about a third of which is attributed to availability of medical and recreational marijuana:

    Homeless centers in Denver, Colorado, say the state’s decision to legalize pot has spawned an influx of homelessness that strained the state’s system, according to the Associated Press.

    Officials say legalized marijuana is a magnet, attracting homeless from across the nation in search of legal weed.

    The Denver Salvation Army Crossroads Shelter says that nearly one in three of their 500 out-of-town homeless visitors between July and September said they relocated to Colorado for legal marijuana.

    “The older ones care coming for medical (marijuana), the younger ones are coming just because it’s legal,” said Brett Van Sickle, director of the Denver Salvation Army Crossroads Shelter.

    Denver has also seen a rise in youth homelessness. Urban Peak, which specializes in services for 15 to 25-year-olds, says its numbers have surged from 328 last year to 829 this year. According to director Kim Easton, one out of three newcomers said legal weed was a driving factor in their decision to move to Colorado.

Study: Pot Use Up in Colorado

Not exactly a surprise, of course:

    Colorado emerged as the state with the second-highest percentage of regular marijuana users as it began legalizing the drug, according to a new national study. The Denver Post reports the study by the National Survey on Drug Use and Health found about 1 out of 8 Colorado residents older than 12 had used marijuana in the past month. Only Rhode Island topped Colorado in the percentage of residents who reported using pot as often, according to the study.        

    The study averaged state-specific data over two-year periods. It found that, for the 2011-2012 period, 10.4 percent of Colorado residents 12 and older said they had used pot in the month before being surveyed. That number jumped to 12.7 percent in the 2012-2013 data. That means about 530,000 people in Colorado use marijuana at least once a month, according to the results. Nationally, about 7.4 percent of people 12 and older reported monthly marijuana use. That's an increase of about 4 percent.        

    The survey is among the first to quantify pot use in Colorado since late 2012, when voters approved legal pot use and possession for those over 21. But the survey did not analyze data from 2014, when recreational marijuana shops opened, which means it is not a good indication of the effect of commercial sales on marijuana use.        

    "I don't think this tells us about the long-term impacts of legalization," said University of California, Los Angeles, professor Mark Kleiman, who studies marijuana policy. The number of medical marijuana patients in Colorado rose over the same time period, so the results are not surprising, Kleiman said.        

    He told The Post that researchers will have a better idea about pot use in the first state to legalize recreational sales of the drug once they can focus on data showing how many people use pot daily.

We do need more data to determine how much of an increase legalization will bring.  But we can expect that use will grow.  That's part of the whole tradeoff. 

Tribes tread carefully into marijuana discussions

That's the title of a very good AP piece on the varying reactions among Indian tribes to the idea of growing and selling marijuana.  Here's the intro:

    The Navajo Nation had bitter debates when it was deciding whether to allow casinos on the reservation and if alcohol should be sold in them. The arguments focused on the revenue and jobs casinos and liquor could bring to a reservation where half the workforce is unemployed and most arrests and pervasive social ills are linked to alcohol abuse.

    When the federal government announced this month that it would allow American Indian tribes to grow and sell marijuana, the same divisive discussions resurfaced. The tribal president's office talked of expanding crops to include pot for medicinal but not recreational use, while a tribal lawmaker quickly declared his opposition.

    "Criminal activity is just going to go up more, and drug addiction is going to go up more, and everyone is going to be affected," said Edmund Yazzie, head of the Navajo Nation Council's Law and Order Committee.

    The split reaction among Navajo leaders reflects divisions on reservations around the country. While the Navajo and a number of other tribes ultimately ventured into the casino business, many say they're inclined to avoid marijuana as a potential revenue booster amid deep sensitivity over rampant alcoholism, poverty, crime and joblessness on tribal lands.

Read more here: http://www.newsobserver.com/2014/12/22/4422884/tribes-tread-carefully-into-marijuana.html#storylink=cpy

WA School District Says "No" to Pot Money

The school district in little Prosser, Washington, has refused a $14,000 contribution from a prominent local pot farmer.  The district, which has been trying to battle underage marijuana use, says that taking the money would undercut those efforts.

    Prosser, Washington, a tiny town of 5800 located about 200 miles southeast of Seattle, turned down a monetary gift to its school system when some narcs found out the donor was a pot farmer.

    Let’s get into the weeds of this thing. Randy Williams is the owner of Fireweed Farms, a nearby plot growing more than 30 marijuana varietals. On November 15, the farm hosted the state’s first-ever marijuana auction, selling about 400 pounds of herb for a total of about $600,000. (Williams told the Tri-City Herald that he wanted to “get rid of it all quick” so he could spend more time with his grandson.)

    Prior to the auction, Williams declared that he would donate the proceeds of one low-grade lot to the local schools. Final haul, $134,000, which Williams then rounded up to an even 1400 dime bags’ worth.

    Though the timeline gets a little fuzzy, it seems the district initially accepted the check when Williams swung by to drop it off. But then Prosser School District superintendent Ray Tolcacher got all fired up. Tolcacher, who had been out of town when the initial offer came down, was blunt: “We’re not taking it, end of story,” he told the Yakima Herald.

    So why would Tocacher feel compelled to deny his good little doobies? Well, he felt the gift would counteract school efforts to curb underage marijuana use, which he says has been on the rise since the passage of Initiative 502 back in 2012. (Two years already? Time flies when you’re grumbling about your own state’s more stringent pot laws.) “We’ve been pretty vocal about our concern over this,” Tolcacher told the Herald. Maybe he should have considered the positive impact said usage could be having on his PE classes, but whatever.

    So Williams has moved on to the next joint, offering the money to the Prosser Boys and Girls Club, which is still mulling over the deal. After that, he says, he’ll attempt an exchange with the VFW.

    “I never thought it’d be a problem to give money away,” said Williams.

I may not agree with Superintendent Tolcacher on everything, but I admire the fact that there really are some governments in this country that can't be purchased.  Kudos to people who stand on their principles even when people wave money at them.

Doubtless Mr. Williams will find somebody who's willing to be his friend in exchange for $14,000.

Nevada NAACP Backs Legalizing Recreational Pot

ia Vthe Reno Gazette Journal:

    Jeffery Blanck, the president of the Reno-Sparks chapter of the National Association for the Advancement of Colored People, has jumped into the legislative debate over the legalization of recreational marijuana in Nevada.

    Blanck has sent a letter to all legislators, urging them to legalize recreational use of marijuana during the 2015 Legislature.

    Nevada lawmakers have the first 40 days of the 2015 Legislature to legalize recreational use. If that doesn't happen, the measure will be placed on the 2016 general-election ballot, since the Nevada Cannabis Industry Association has already collected enough signatures on a petition to do that.

    In his letter, Blanck noted that the federal government has wasted millions of dollars on its "war on drugs." And when it comes to marijuana, that war in Nevada has been waged more against black citizens than white citizens.

    "The use of marijuana by blacks and whites is approximately the same," Blanck wrote in his letter to lawmakers. "Yet, if you are black and live in Nevada, you are four-and-a-half times more likely to be arrested for marijuana possession than if you are white.

    "This is the 11th-worst disparity in arrest rates for marijuana possession in the country," Blanck wrote. "This is nothing to be proud of, seeing how we have historically been referred to as the 'Mississippi of the West.' "

    Blanck told lawmakers that prisons populations have sky-rocketed because of drug possession laws and that the current system of punishment for low-level drugs crimes disproportionally hits blacks harder than whites.

    "It is time to end the failed war on marijuana," Blanck wrote. "Nevada needs to legalize its use and our federal government needs to repeal its listing as a dangerous drug. We need to stop wasting our hard-earned tax dollars on a program that provides no benefit and disproportionately impacts our black residents."

    NOT EVERYONE AGREES with Blanck. Washoe County District Attorney Dick Gammick, who is set to retire on Jan. 4, continues to see any form of legal marijuana – medical or recreational – as a bad thing.

    Noting that Nevada just set up its system for medical marijuana less than two years ago, I asked Gammick on the Nevada Newsmakers TV program recently what he thinks of the rush to legalize recreational marijuana in Nevada as well.

    Gammick was asked if it would be better for Nevada to wait on the legalization of recreational marijuana, and see how issues surrounding recreational marijuana are handled in Colorado and Washington.

    Those states have already legalized pot for adult recreational consumption and Nevada could, perhaps, learn of lot from how those states handle various issues -- such as marijuana DUIs and drug testing for employment purposes.

    Gammick replied: "I have in my office a 150-page report out of the Office of Justice on Colorado and all of the issues they are dealing with," Gammick said. "They are having children OD (overdose) on this stuff. They are having children steal it from their grandparents and they're taking it to school and selling it. They are having all kinds of problems, not to include all the robberies and all of the other stuff going on."

    Gammick continues to oppose legal marijuana of any kind.

    "As far as I'm concerned, let's never do it (legalize it) because it is a dangerous drug," he said. "But you can't seem to get that across. Everybody seems to want to toke – not everybody – but there are enough people who want to toke up and sit around and be blown out of their brains…I keep asking folks, do you want that to be your pilot in an airplane?"

Skiing While High: Aspen Doesn't Think This is a Good Idea

One of the nation's leading ski destinations is launching a campaign to educate visitors on how to use pot safely.  I haven't seen the brochure, but I have to assume it suggests that using it on a ski slope may not be the safest thing to do.  Here's the story:

    The state government and the marijuana industry in Colorado are working to educate people about how to use pot safely. But in the high Rockies, one community is taking matters into its own hands.

    The local sheriff in Aspen is leading an education effort that targets skiers and snowboarders flocking to the winter resort. And the sheriff isn't waiting until visitors hit the slopes — their education starts at the airport with pamphlets on marijuana.

    "It's the brochure rack, and it has information on everything from trails on the ski areas to a day at the Aspen Club and now, the local guide to retail marijuana," says Pat Bingham, a spokesperson for the airport.

    She says the brochure on legalized pot isn't all that popular.

    "We haven't had to refill this thing, I don't think, once yet, but our busy season is yet to come," she says.

    The pamphlet is an attempt by the community to educate tourists about marijuana. It lists how much you're allowed to have, where it's legal to consume and how long the high takes to set in.

    "So these are probably the most frequently asked questions, that's what this is," says Joe DiSalvo, the sheriff in Aspen.

    After voters approved legalizing marijuana in 2012, he formed a coalition with the hospital, the local school district and the business community.

    "When that happened we all agreed that, although we may not all agree on the legalization of marijuana, we do agree that we have to roll this out real responsibly with a heavy, heavy, heavy educational campaign," DiSalvo says.

    The result of that campaign is the pamphlets, and 10,000 of them are located throughout town. Warren Klug has a pile of them at the hotel he manages downtown. He's using the pamphlets, not for guests, but to educate his staff.

    "My concern is for our employees who may see the edible marijuana products on kitchen counters and left with other food stuffs, and there may be some confusion because these items look so much like regular candies," Klug says.

    His employees are allowed to take home extra food, and he doesn't want them unknowingly consuming marijuana, which has happened at a nearby hotel.

    Erik Klanderud, director of member services at the Aspen Chamber, has been fielding questions from visitors ever since marijuana stores opened in Aspen.

Recent Posts Worth Checking Out at Marijuana Law, Policy & Reform

Would US health improve (a lot) if many tobacco smokers shifted to marijuana?

Effective review of "The Year in Pot" via NBC News

Lots of commentary on states SCOTUS suit against Colorado marijuana reform

Massachusetts already seeing job impacts from its nascent medical marijuana industry

"Who Shares In Marijuana Taxes? The Surprising Answer"

Merry Christmas!

Govenments Eye Tax Windfall from Marijuana

We've talked before about the tendency of governments to look at new industries as sources of revenue.  At Forbes, tax commentator Robert W. Wood runs down some of the numbers, and why governments might not collect as much as they hope.  Here's the intro:

Taxes on marijuana are big, and it’s easy to see why. A discussion about legalizing marijuana often segues into one about tax revenues. Marijuana for medical use is legal in 23 states and the District of Columbia. Recreational marijuana is legal in DC and in four states, Colorado, Washington, Oregon and Alaska. More states will be coming.

In the meantime, cannabis—even for medical use—remains illegal under federal law. That leads to numerous legal woes for operations that are legal under state law. One sweet spot among legislators is tax revenue. It is a boon for the states. It could be a boon for the feds too.

The proposed Marijuana Tax Equity Act (H.R. 501), if passed, would end the federal prohibition on marijuana and allow it to be taxed. Growers, sellers and users would not to fear violating federal law. But dealing with taxes would be another story.The bill would impose an excise tax of 50% on cannabis sales and an annual occupational tax on workers in the field of legal marijuana.

Even if passed, one wonders if such high taxes could be collected. In the meantime, Colorado has trumpeted its tax revenues, though perhaps prematurely. It turned out that the $33.5 million Colorado projected to collect in the first six months of 2014 was too optimistic. When the smoke cleared, Colorado was missing $21.5 million in pot taxes! Yet the math isn’t difficult.

There’s a 2.9% sales tax and a 10% marijuana sales tax. Plus, there is a 15% excise tax on the average market rate of retail marijuana. If you add them up, it’s 27.9%. But much of the volume goes to black market buys where sales taxes aren’t paid. But that could change.

Pot Reformers Critique Lawsuit by Nebraska, Oklahoma

That's the title of a roundup of opinion on the subject by USNews.  Here's the intro:

    The attorneys general of Nebraska and Oklahoma are asking the U.S. Supreme Court to end marijuana legalization in neighboring Colorado, predictably upsetting drug law reformers and supporters of states' rights.

    “I was just astonished,” says Rep. Steve Cohen, D-Tenn., a longtime advocate of softening federal marijuana policies. "The fact that Nebraska and Oklahoma are contiguous should not make any difference to what the state of Colorado does."

    Oklahoma Attorney General Scott Pruitt and Nebraska Attorney General Jon Bruning, both Republicans, see things differently. They say Colorado is violating the federal Controlled Substances Act of 1970 and international treaties, and is burdening law enforcement in their states.

    "I guess that ought to tell them they should stop arresting people," Cohen says. "I suspect they are arresting a lot of people for 1 ounce or 2 ounces or a couple of candy bars or a couple of brownies, and if they're putting those people in jail they ought to have their heads examined."

South Carolina Solons Prefile Bills on Medical Marijuana, Decriminalization

From Columbia (S.C.)'s WLTX Channel 19, this report:

    One state lawmaker expects marijuana to be a big topic at the State House next year.

    Richland County Representative Todd Rutherford has signed onto two bills tackling the issue in our state, one dealing with medical marijuana and the other its decriminalization.

    "I'm very optimistic with the change that we've seen," said Wayne Borders, President and Acting Executive Director for Columbia NORML, an organization that works for legislative changes regarding marijuana.

    Borders is hopeful that South Carolina will soon see some changes when it comes to laws and marijuana.

    "I just think it's exciting that even as the process has only really reached a halfway point, there are people still who are already so interested," said Borders.

    Rutherford proposed the Put Patients First Act during the last legislative session, knowing time to pass it was limited.

    Now, he believes more people will be on board after hearings with testimony from families with sick loved ones and veterans who could benefit from the drug.

I know it's trite, but I continue to be amazed at the sea change among legislators in their willingness to sponsor marijuana legislation.  Rutherford himself is a former narcotics prosecutor in Columbia.

On the Theory Behind the NE v. CO Lawsuit

Eugene Volokh at the Volokh Conspiracy highlighgts a new paper I hadn't seen yet.  It's an elaboration of the theory that may underlie the petitioners' position in the case.  I haven't had a chance to read it yet and I'm on a plane and otherwise in transit much of Sunday, but I thought I'd link it for those who don't visit the VC site.  Professor Volokh reprints the whole introduction.

The paper, by Chad DeVeaux and Ann Mostad-Jensen (Concordia U. Law School), is Fear and Loathing in Colorado: Invoking the Supreme Court’s State-Controversy Jurisdiction to Challenge the Marijuana-Legalization Experiment.  Here's the abstract:

    In this Article, we assert that States may invoke the Supreme Court’s original jurisdiction to challenge Colorado’s marijuana-legalization experiment; the most appropriate remedy is damages. The Constitution endows the Court with jurisdiction to adjudicate suits between States. Historically, such cases generally fall into three categories: conflicts over boundary lines, water-rights disputes, and cross-border nuisances. Suits challenging the marijuana-legalization experiment would implicate the last category. Such suits once comprised a relatively common part of the Court’s docket. The number of these actions fell dramatically in the late-1970s following Congress’s passage of the Clean Air and Water Acts, rendering the Court’s historic role of establishing and enforcing interstate environmental standards obsolete. Colorado’s introduction of recreational marijuana into the stream of interstate commerce has reawakened this long-dormant body of constitutional law. Like downstream pollution produced by industrial operations, the cross-border externalities resulting from Colorado’s introduction of marijuana into the stream of interstate commerce fall squarely within the ambit of the Court’s original jurisdiction. The exercise of this jurisdiction is most appropriately applied “to questions in which the sovereign and political powers of the respective states [are] in controversy” — and in particular, those involving a quarrel for which a “sovereign State could seek a remedy by negotiation, and, that failing, by force.” The current controversy presents just such a case.

    In such a controversy the Court should award damages to a prevailing state, using the Coase Theorem as its guide. The theorem states that if transaction costs are eliminated, “parties will negotiate the efficient solution to private nuisance problems.” Real-world application of the Coase Theorem is attained through the application of legal rules that best approximate the way disputes would be resolved in the absence of transaction costs. Such an outcome is best effectuated by a rule charging the nuisance with the damages it causes. As Coase observed, “when a damaging business has to pay for all damage caused” market forces will determine which of the competing enterprises should prevail, coercing the partisans to allocate their resources in the most economically efficient manner. If compelling a polluter to internalize the cost of his pollution drives him out of business, then his enterprise was not the most economically efficient use of the property and his interests should yield to that of his neighbors. In contrast, if the polluter assumes responsibility for all the costs of his venture and still realizes a sufficient profit to stay in business, then his use of the land is most efficient, and his neighbors should yield to his interest. If this remedy is applied, the market will determine the success or failure of Colorado’s marijuana legalization experiment and will serve as a guide to other states in deciding whether Colorado’s venture is worth emulating. This remedy respects the sovereignty of all States, leaving it to the market, not the Court, to decide which of the competing policies should prevail.

IU-Bloomington to Conduct NIH Study of Marijuana's Effects on the Brain

Despite the battling claims made by pro- and anti-marijuana campaigners, we really don't know all that much about what its effects are.  Proponents would point out that this is chiefly because the government has made it extremely difficult for researchers because the substance is illegal.

That's beginning to change, fortunately.  See this story from the Louisville Courier-Journal, via USA Today:

    Though marijuana is the most commonly used illegal drug in the country, little is definitively known about its impact on the brain.

    A study taking place at Indiana University in Bloomington is designed to help change that.

    Clinical psychologist Brian O'Donnell and colleague Sharlene Newman are recruiting current and former marijuana users to participate in a study in which their brains will be analyzed for changes in structure and function.

    "From animal studies, there's reason to believe it (marijuana use) will affect parts of the brain and also the connections between them, and some of our preliminary studies suggest that is the case," said O'Donnell, a professor in the Department of Psychological and Brain Sciences.

    The study — funded by a $275,000 grant from the National Institutes of Health — is taking place as marijuana is gaining more acceptance in some parts of the country. For example, marijuana has been legalized for adult use in places such as Colorado, Washington state, Alaska and Oregon, and many states now have medical marijuana programs, according to the National Conference of State Legislatures.

    "It's being decriminalized, but without knowledge of really its long-term effects on brain structure or function," O'Donnell said. People who choose to use marijuana need to know "what aspects of physical or mental function it might affect."

Why I May Very Well Be Wrong About Nebraska v. Colorado

Reader Chris Lindsey responds in the comments to the NE v. CO post I wrote yesterday.  It's worth setting out here in full:

    First of all, I would argue that while pollution clearly creates victims (innocent citizens who have to breathe unhealthy air), the burden placed on law enforcement to enforce possession laws is not remotely similar to poisoning residents. Residents have to breathe. Taxpayers in Nebraska and Oklahoma do not have to pay law enforcement to pull people over, search their vehicles, seize property, charge them with criminal offenses, or arrest and jail them. Pollution and drug laws are both crimes, but one has a victim and the other does not.

    There is another issue, however, and it highlights a fundamental flaw in the logic of the petitioners’ claim. The federal government can set air quality standards, and it can criminalize marijuana possession, cultivation and distribution. But there is a significant difference between these two things. When it comes to marijuana-related activity, the petitioners’ most compelling argument is that CO can’t regulate. In effect, they are saying “we don’t like pollution coming from your state, and you shouldn't be able to regulate pollution-causing activities.”

    In order to avoid this absurdity, NE and OK have to go where few conservatives have gone before: they argue that the federal government should make Colorado criminalize certain types of behavior. I very seriously doubt this argument will carry the day, particularly in light of our federalist system and the fact the CSA specifically says Congress is not occupying the field. And if the AGs from these two states thought about it beyond their views on marijuana, I doubt very much they would support such a claim about federal authority over states. If those states are really concerned with “pollution” making it into their own state, they should lobby the CO legislature to beef up its regulatory system to control cross-border pollution, not argue the state shouldn't be able to regulate it at all.

I don't disagree with most of this.  My pollution example was merely to show that in-state activity can have an impact out of state that surrounding states might want to avoid.  And I wanted to draw the distinction between state X saying, (a) "We're not going to enforce any air quality laws," and (b) "we're going to create a scheme licensing violations of the air quality laws and make money off of it."  That strikes me as a distinction.  It's one thing for state X to say, "We're not going to enforce laws against owning machine guns," and another to say "For a whacking big upfront fee and a big extra tax on your sales, you can open your own Machine Guns R Us Emporium."  At least, that sounds like a distinction to me.  Remember that I'm not an expert in federalism, though.

I believe Chris is right that on the merits NE and OK will have difficulty showing the kind of harm necessary for standing, but right now we're just at the complaint stage.  And I agree that marijuana is a victimless crime.  But there's a whole lot of people who disagree with us about that last point.  They would argue that drugs cause even more harm than smog.  They're not stupid people, although I disagree with them.

I've said before that I hope NE and OK lose the suit, because I'm a believer in federalism.  (Actually, I'd probably support state X in my pollution hypothetical, given that some parts of the CAA are as bizarre as parts of the CSA.)  I just don't think the legal analysis is as simple as some are arguing.