Marijuana Law Goes Mainstream

Law

Since 2013, marijuana has been popping up in law school curricula, blogs and panel discussions, not in terms of criminal defense, but in terms of business planning. The University of Denver’s Sturm College of Law will offer a course this spring to focus on “regulatory compliance, criminal defense, contract, banking, tax, real estate, and multidisciplinary practice.” At Vanderbilt, the course will look at:

  • What are the elements of a marijuana trafficking offense?
  • May a state legalize a drug the federal government forbids?
  • Who is allowed to use and traffic marijuana under state law?
  • How do states prevent diversion of marijuana into forbidden markets?
  • Are contracts with marijuana dealers enforceable?
  • May employers fire employees who use marijuana for medical purposes?

Similar courses have appeared at Ohio State University’s Moritz College of Law and as collaboration between the South Texas College of Law and Rice University. At Santa Clara University School of Law, it was billed as a “mini think tank” about the issues California will face on legalization. At Case Western Reserve, the focus was on federalism. Harvard Law School’s Tax Policy Seminar hosted a session on “Tax Planning for Marijuana Dealers,” that explored the problems presented by Section 280E of the Internal Revenue Code.

Cynics may understand the flurry of interest as an attempt by law schools to boost enrollment, which is lower than it has been since 1973. Others will see confirmation that there is money to be made with legalized marijuana. For the investment community, there seem to be four major takeaways.

 

Legalization is a Given

Advocates know better than to regard anything as inevitable, but many attorneys have now shifted their attention to the question of how to make legalization work. As Santa Clara Law School Professor David Ball stated, “It doesn’t matter whether you are pro-legalization or anti-legalization … . If it’s going to happen in California, everyone would prefer that the plan not be a disaster.”

 

People to Watch

The names that appear over and over in coverage of this issue, the perennial panelists and authors of textbooks, including Ball, Professor Sam Kamin at the University of Denver, Professor Douglas Berman at OSU’s Mortiz College of Law and Professor Robert Mikos at Vanderbilt University Law School may be among the pool of talent ultimately tapped to draft regulations. These may be people to watch as future policy makers. The same may be true of the students in these classes for the somewhat more distant future.

 

How to Interview a Marijuana Lawyer

Businesses looking for legal representation should carefully interview several marijuana business law firms before hiring anyone. These curricula and agendas can serve as a great template for the issues to be discussed. Entrepreneurs should investigate the attorney’s expertise on issues including Section 280E, banking regulations, state trademark law, local regulation of edibles and zoning and water use restrictions, among other issues of particular interest to the legal marijuana industry.

Attorneys face some unique challenges in representing marijuana business clients, not the least of which is the prohibition against facilitating an enterprise that the lawyer knows or should know is illegal. Nonetheless, a growing number of attorneys are finding ways to square the circle. Potential clients should keep in mind that, in a new field with lots of buzz, not all practitioners are going to be equally expert. These course outlines can help the businessperson distinguish the good from the less so.

 

Investors Ask “Who is your legal team?”

The quality of business legal advice makes a difference. Now that marijuana law is going mainstream, investors should always ask those seeking funding about legal representation. If it is bankable for lawyers, it is bankable for investors, too. The increased interest in marijuana law and regulation within law schools could be a very good thing for the legal industry.

 

Anne Wallace is a New York lawyer who writes extensively on legal and business issues. She also teaches law and business writing at the college and professional level. Anne graduated from Fordham Law School and Wellesley College.

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