Cannabis Law and Policy: What I’ve Learned From Teaching

For the past three years, I have taught a class called “Cannabis Law & Policy” at Lewis & Clark Law School here in Portland, Oregon. It’s a seminar that meets for two hours a week for upper level students. Per the syllabus, learning objectives for that class are: 1) students should be able to understand and explain the legal and policy framework of cannabis regulation federally and in Oregon, and its related effects; 2) students should develop practical proposals and strategies for dealing with degrees of cannabis prohibition; and 3) students should gain an appreciable understanding of the manner in which attorneys work with cannabis industry businesses. All in all, we cover a lot of ground each semester and I enjoy teaching the class.

One of the things I like best about teaching a graduate level course is the challenge of articulating difficult concepts to smart people. Good students will not let you off the hook on hard problems, and there are plenty of vexing issues when it comes to cannabis. It’s fascinating in an almost bottomless sense, and the further you go with it, the more you appreciate the breadth and scope of the problem. Below are a few observations on things that have been especially interesting, and which I did not expect.

The old laws are worse than you are thinking.

Most people who have followed the story of cannabis in the United States understand the racially disparate impact cannabis laws have had, by design, and particularly on black and Latino populations. They will cite to the corrupt motivations behind President Nixon’s support of the federal Controlled Substances Act, and maybe to the disturbing crusades of Henry Anslinger before that. But people are often oblivious to actions and policies endorsed by states for the past 50 years, including profoundly harmful legislation like the Rockefeller Drug Laws instated in New York in 1973. Those laws were the toughest drug laws in the nation at that time and served as a model for many other states on issues like mandatory minimum sentencing, elimination of plea bargaining, elimination of suspended sentences, elimination of parole possibilities, etc. Today and historically, most arrests and imprisonment for cannabis crimes happen under state laws. The federal laws may set a trend, but state actions have been more impactful and more damaging overall.

The new laws are pretty lousy too.

States continue to adopt cannabis licensing regimes that preclude individuals convicted of crimes from participating in cannabis business ownership. Generally speaking, there are no exemptions for prior felonies related to cannabis, and none of the early recreational cannabis programs contained restorative justice or social equity dimensions. The federal laws aren’t any better. In the 2018 Farm Bill, for example (and with limited exceptions) expressly bars “any person convicted of a felony relating to a controlled substance under State or Federal law” from growing hemp under a USDA certified program. There is no reasonable justification for this type of exclusion and it is disappointing that our legislators continue to leave people behind.

Cannabis law is vexing; policy is harder.

You can tie yourself into knots with legal arguments as to why state cannabis programs may be defensible under the 10^th Amendment, or why state-legal marijuana does not cause the United States to violate its international treaty obligations on controlled substances. That stuff is pretty fun. But as a sheer intellectual exercise, policy stuff is harder.

Every semester, we do about two hours on the optimal way to tax cannabis production, distribution and sale. We could do 20 more. Every semester, we spend an hour or two talking about how to build a social equity program to benefit disenfranchised people and populations. No one has come close to figuring that one out, either. The list goes on and on.

This area is highly dynamic.

I realize this fact every year when I resurrect the syllabus and half (or more) of the readings need to be replaced. Students realize it over the course of the semester, when syllabus items become obsolete—sometimes from week to week. By way of example, here is what happened in each of the past three Januaries, as we kicked off the semester.

• In January 2017, President Trump took office and appointed Jeff Sessions as Attorney General. Many of the states that voted to legalize in November 2016 (including California) began to recalibrate their efforts and proposals.
• In January 2018, the Cole Memo, Wilkinson Memo and other federal guidance were abruptly revoked. Industry as well as state attorneys general like Bob Ferguson were gearing up for litigation and raids.
• In January 2019, the Farm Bill passed, legalizing industrial hemp. At the international level, the World Health Organization recommended total descheduling of hemp/CBD and a reschedule of marijuana.

Developments like these can be incredibly disruptive to a fixed curriculum! Like the lawyering in the cannabis space, or simply running a cannabis business, everyone has to roll with it.

People love this stuff.

We end up with a long waitlist every year, and every year I get emails from students the first few weeks trying to wriggle in. The legal and policy mechanics of peeling back layer after layer of prohibition is compelling, especially to students who are accustomed to studying comparatively settled bodies of law. I’ve been fortunate to see a few of the students go on to get jobs as cannabis business lawyers in Portland and elsewhere, which may be the best part of all.

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