Why Teach and Write About Marijuana Law?
On the thought it might be of some interest to readers, I’ve posted below an interview I recently did with my publisher on why I teach and write about marijuana law (and related questions). I’ve discussed these issues before in the media, in blog posts, and in lectures, but this is probably the most complete account I’ve given. The Attorney General’s recent decision to rescind marijuana enforcement guidance has only bolstered my interest in the field.
Interviewer: Why is marijuana law so appealing to you?
Mikos: Marijuana law appeals to me on both an intellectual and a practical level. The field raises some of the most fascinating and important legal questions of our day: Can a state legalize something the federal government forbids? May the President refuse to enforce a law enacted by Congress? Are contracts with state-licensed marijuana suppliers enforceable in a court of law? Can a company bar its employees from using marijuana outside of the workplace when the state permits such use? Does a lawyer who helps her client answer such questions violate the rules of professional conduct? This is just a sampling of the intriguing questions the field is confronting.
Just as importantly, answering these questions is no mere academic exercise. Nearly half of all adults in the country have tried marijuana at some point, and 20 million now use the drug regularly. Thousands of companies have been licensed by their states to produce and distribute marijuana to consumers. Even more companies that never “touch the plant” (e.g., lawyers, physicians, and bankers) have been pulled into the orbit of this field because they do business with marijuana users and suppliers. And don’t forget about the sundry federal, state, and local government officials who have been tasked with regulating these parties. All of these people need informed legal advice to help them navigate this very complicated field.
Interviewer: How did you first become interested in this field?
Mikos: It all began with Gonzales v. Raich, 545 U.S. 1 (2005). I’d been interested in federalism since I was in law school, and Raich was an important federalism decision that just happened to involve marijuana law. When the Raich Court upheld Congress’s power to ban the intra-state cultivation of marijuana, many commentators suggested that California’s medical marijuana program (not to mention the Court’s recent federalism revival) was over. But California’s program survived; indeed, it continued to spread to other states even after Raich was decided. So I sought to explain why the impact of Raich on state marijuana reforms (and federalism more generally) was so limited. By examining those state marijuana reforms more closely, I discovered some previously overlooked and under-appreciated constraints on the power of the federal government.
That first project attracted a lot of attention, and I soon realized that state marijuana reforms were at the forefront of a host of other cutting-edge legal issues. Indeed, much of the research I’ve completed since that first project has been inspired and informed by the struggle between the federal and state governments for control over this important policy domain.
Interviewer: You’ve written a lot about marijuana law reforms. When did you first start teaching about the subject?
Mikos: I taught my first dedicated Marijuana Law and Policy class back in 2014. By then, I realized that there was a real need and demand for a dedicated course, and more than enough material for an entire semester (or two)! Even before then, however, I had already been discussing some of the issues stemming from marijuana law reforms in my other classes, including Antitrust, Constitutional Law, and Federal Criminal Law.
Interviewer: What do you cover in your marijuana law class?
Mikos: I usually teach the class as a survey course, because marijuana law is such a great vehicle for teaching about a broad range of subjects, including administrative law, constitutional law, contracts, corporations, criminal law, licensing, tax, and trademarks. But there are many other ways to teach a class on marijuana law. For example, you can focus on a particular theme, such as the business, criminal justice, or health law issues surrounding marijuana law. (To give you some ideas, this excerpt from the teacher’s manual to my book has syllabi for four different marijuana law courses.)
Interviewer: Is there anything you particularly like about teaching the subject?
Mikos: I’ve taught more than ten different law courses over my career, but marijuana law has been my favorite. Not only are the issues fascinating, but also the students are very enthusiastic about the subject (go figure!). Their enthusiasm translates into lively and engaging classroom discussions, even on topics (like tax) that some students otherwise avoid.
Interviewer: Why did you decide to write a textbook on the subject?
Mikos: From my research, I knew there was a need for more classes dedicated to marijuana law – other traditional law school courses just don’t prepare lawyers for the issues they’ll confront in this field (or in related fields, for that matter). I also knew many people were interested in teaching a class on marijuana law. But it takes a lot of work to prepare a new course, especially one in a new (and complicated) field like this. Among other things, you have to figure out what subjects to cover, how those subjects fit together, and what materials are best suited to address them. A good textbook helps prospective instructors with each of those tasks and makes teaching a class on marijuana law (or any other subject) a lot easier. To help other prospective teachers offer a course in marijuana law, I decided to write the first (and still only) textbook on the subject.
Interviewer: What was the biggest challenge in writing the book?
Mikos: I’m happy I did it, but writing the book was a monumental task! Finding the best materials for each topic was one of the biggest challenges. Because there are so many sources out there, finding the one that is the most authoritative, credible, relevant, clear, etc. on a given topic can be extremely difficult and time-consuming. I spent many late-nights searching for and evaluating dozens (sometimes hundreds) of sources to find just the right one to cover each topic in the book.
Interviewer: What are the key features of the book?
Mikos: You can download the introductory first chapter of the book (here) for more information about its features and contents, but let me highlight two of those features.
One is the book’s multi-state approach. The book surveys developments in marijuana law and policy happening throughout the nation (and sometimes beyond), not just in one state. For each topic (say, commercial licensing), the book identifies the main approaches the states (and the federal government) have taken, while also noting any major deviations from those approaches.
This is the same approach law courses typically follow for other subjects like tort, contracts, and criminal law. This broad perspective enables readers to learn from the collective experience of the nation. For example, if one state has extensive litigation experience with a particular regulation, other states that have adopted the same regulation can learn from that experience – for example, how the regulation is likely to be interpreted and applied and whether it can even be enforced.
The Problems are a second key feature of the book. Often based on real-life cases, there are more than 100 of them included throughout the book. The Problems set up key issues in a clear, concise, and interesting way. I use them for classroom discussions, as practice exam questions, and as homework assignments.
Interviewer: Do you have a favorite case you cover in the book?
Mikos: It’s hard to choose – there are so many good cases! Oregon v. Fries is one favorite. In the case, the defendant was convicted of possession of marijuana for helping a friend – who was a registered medical marijuana patient – move a few marijuana plants to the friend’s new apartment. The defendant picked up the plants, put them in the back of his jeep, and then drove them (with his friend in the passenger seat) to the friend’s apartment. The case illustrates the breadth of long-standing prohibitions on marijuana possession. It also highlights the struggle courts face in deciding whether to apply marijuana regulations literally or non-literally (to avoid seemingly harsh or peculiar results). Both are themes that recur throughout the book.
What advice do you have for people who are curious about marijuana law?
Take (or teach) a class! This is an important and evolving area of law. There is a growing need for academic research and informed advice on the legal issues raised by the field. Even if you have no desire to write about or practice in this area, you’ll still benefit from studying it: the lessons learned in this field can be applied to other fields as well.