Author Archives: Research Library

Amendment 64

The text of the ballot initiative passed by the voters of Colorado, amending that state’s constitution, it provides that “notwithstanding any other provision of law” the acts of possession, use, display, purchase or transportation of “marijuana accessories or one ounce or less of marijuana” shall not be on offense under the law of the state or any locality thereof.  It also provided for the regulation and taxation of marijuana “in a manner similar to alcohol.”

State Legalization of Recreational Marijuana: Selected Legal Issues

This January 2014 paper from the Congressional Research Service says that states that have legalized marijuana appear to have taken a position “logically inconsistent with established federal policy … and … therefore potentially subject to a legal challenge under the constitutional doctrine of preemption.” But section 708 of the Controlled Substances Act does give the states involved some ammunition with which they might resist a preemption challenge. It says Congress does not intend to “occupy the field” exclusively.

The Other Green Movement: How D.C. Can Sensibly Regulated Medical Marijuana

This brief addresses the challenges the District of Columbia faced in legalizing medical marijuana under D.C. City Council’s Legalization of Marijuana for Medical Treatment Inititiative Ammendment Act of 2010. Since DC is in a unique position as the nation’s capital and therefore under more scrutinty, the authors suggest a strong regulatory framework that protects patients, their doctors, and distributors from federal interference without overburdening them.

Marijuana: Medical and Retail — Selected Legal Issues

This report looks at the legalization of recreational marijuana in Washington and Colorado and ways in which these laws may be preempted by federal or international law. It also discusses some of the non-criminal implications for marijuana users as well as some of the legislation introduced in the 113th Congress in regards to the treatment of marijuana under federal law.

Marijuana Education & Dispensary Safety

Legal and medical professionals in Colorado put together this booklet designed to “educate the law enforcement community” and to offer “safety guidelines for the protection of both the patient and the community as dispensaries and cooperatives develop.” The booklet discusses, among much else, the differences between cooperatives on the one hand and dispensaries on the other. They are different business models, and whether one offers “more legitimacy or quality of care to its members over the other still remains to be seen.”

Marijuana Paper

A student, in an independent study paper, makes the case for legal and perhaps constitutional protection of marijuana, largely by reviving arguments made by Ralph Adam Fine more than forty years ago. In one venerable formulation, after all, the right to privacy is any person’s “right to be let alone,” whenever there is no compelling government interest in interference with his or her activities.

The Legalization of Recreational Marijuana: How Likely Is the Worst-Case Scenario?

Mark Kleiman’s “worst case” scenario has three elements: more heavy alcohol use; “carnage on our highways;” and hefty increases in the use/abuse of marijuana by minors. F. Mark Anderson and Daniel I. Rees here look over the evidence and declare such a worst case possible, but unlikely. As to the first of those elements, an increase in heavy alcohol use, Anderson and Rees contend that evidence that alcohol and marijuana are “complementary goods” is itself quite weak.

Deductions on a Higher Plane: Medical Marijuana Business Expenses

Joel Newman, of the Wake Forest School of Law, begins with the observation that under U.S. tax law since 1982 no deduction or credit has been allowed “for any amount paid or incurred during the taxable year” by any business that “consists of trafficking in controlled substances” within schedule I or II. Yet that language does not apply to the effective costs of goods sold, only to the other expenses of such an enterprise. This distinction seemed straightforward back when only the criminal drug trade was involved. It has come to seem more complicated in recent years.

Pot-pourri of Possibilities for Marijuana in Trademark Law

Dash DeJarnatt, of the Seattle University School of Law, contends that trademark considerations “will be incredibly important for [the] long-run vitality” of the new legal marijuana industry. Trademarks will assist consumers in that they will reduce search costs. They will also let investors avoid seeing “their goodwill poached by rivals.” Yet the US Patent and Trademark Office interprets its mandate via an “illegal use” doctrine. Given the continued illegality of the industry at the federal level, this is “bad news for marijuana-based businesses,” DeJarnatt says, though he does offer suggestions for creative lawyering.

Legally Regulated Cannabis Markets in the US: Implications and possibilities

The Global Drug Policy Observatory, a research institute affiliated with Swansea University, makes the case that “the construction of legally regulated cannabis markets” in Washington and Colorado in particular, “must be viewed as part of a long-running process of ‘softening’ the official zero-tolerance approach.” This report also discusses the differences between the regulatory regimes now in place in those two states. For example, Colorado’s Amendment 64 is more permissive than Washington’s Initiative 502 with regard to personal production, that is, at-home possession of growing marijuana plants.

Ending the Drug War: a Dream Deferred

This report by Law Enforcement Against Prohibition (LEAP) looks at the failed war on drugs and the ways that the Obama administration’s policies contradict its public rhetoric. Examples include emphassizing a need for preventative health measures, yet still spending substanatial amounts on punishment measures instead of treatment, and touting states’ rights, yet the number of federal raids on medical marijuana dispenseries has increased since President Bush was in office. Although the report does give credit to the administration for recognizing that the American public is ready for a change in the country’s failed policy, it argues that the administration’s policies need to catch up with its rhetoric sooner rather than later.

Investing in Cannabis: Inconsistent Government Regulation and Constraints on Capital

This paper looks at the future of the increasingly legalized marijuana industry and the role the federal government can play. It addresses the fact that even though voter and legislative trends point toward the continued legalization of marijuana, the federal government continues to spend a tremendous amount of money on the war on drugs. This paper explores the history of federal and state regulation of the drug, discusses the federal government’s current role in regulation, explores current options for investing capital in the industry, and suggests ways the government, both state and local, can help reduce investment risks in the cannabis industry.

A Response to Professor Leffs Tax Planning

This legal paper counters a proposal from a Professor Leff in relation to the Olive v. Commissioner case, where the U.S. Tax Court applied a policy that penalizes those who sell illegal drugs, in turn denying Olive’s business deductions associated with selling medical marijuana. Leff proposed that Olive form a social welfare organization that would be exempt from federal taxes and the policy used in the ruling. The author of this paper, Hackney, argues that Leff’s proposal is “hollow” and “unrealistic.” He believes that just because an organization is exempt from federal tax law does not mean it is exempt from following federal criminal law. He also argues that instead of stretching the federal tax law, proponents of legalizing marijuana should instead focus their efforts on changing federal marijuana policies.

Tax Planning for Marijuana Dealers

This paper proposes alternative tax planning options for marijuana sellers, many of whom see federal tax law as a bigger obstacle to developing a legitimate marijuana industry than federal criminal law. I.R.C 280E is a “largely symbolic” federal policy designed to punish drug dealers, but Leff argues this policy could be driving many marijuana businesses underground. So he proposes a tax strategy what would allow marijuana sellers who are operating legally under local state law to avoid the harmful impacts of 280E by qualifying as a tax exempt organization. Federal doctrine prohibits 501(c)(3) organizations from contradicting federal laws, so Leff proposes forming a 501(c)(4). Under a 501(c)(4), organixations are required to hire and provide job training to residents of neighborhoods with high crime and poverty rates.

College Students Working in the Marijuana Industry

This article summarizes a survey conducted at Humboldt University in the Fall of 2013 in an effort to understand the features of the marijuana production market, learn why student workers from the university participate in the sector, and the determinants and impacts of their participation. Of the students surveyed, 17 percent said they had worked in a marijuana-related job. Those that had worked in such jobs were mostly manual laborers, worked fewer hours, and made less money than students who worked in non-marijuana related industries. This survey also found that jobs in the marijuana industry are harder to land than those in other sectors.

ArcView Market Research: State of the Legal Marijuana Markets 2nd Edition

This executive summary gives a high level overview of the current state of the Legal Marijuana Markets. In it’s 2nd annual edition ArcView, the market leader in investing in the Marijuana industry, provides hundreds of pages of date, graphs and information on market trends and interviews with industry leaders. The full report is available at a 10% discount if you use promo code 10PERCENT.

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