Monthly Archives: January 2015

The Cannabis Canon?

Doug Berman raised an interesting series of questions in this post:  Is there now (or should there be) a “cannabis canon” as more law schools teach marijuana reform?  He presents two possibilities: one where there is divergence in courses to reflect the different situations throughout the country, and one where there is some kind of standardization. When it comes to my class (and my views), I’m on the distinction side.

As an intellectual/doctrinal matter, I think it’s too early for a canon. The facts on the ground are changing rapidly and most of the action takes place at the state level. California can look to Colorado, Washington, Alaska, and Oregon for certain examples, but the fact is that our existing statutes, regulations (vel non), and constitutions are different from one another and present different obstacles and opportunities. Taxation in California, for example, has become extremely complicated as the result of a series of statewide propositions.  Simple majorities are not enough to change tax rates, but taxes can be automatically adjusted if there is a mathematical formula. When it comes to marijuana taxation, I think most people would assume that the tax regime should be adjusted based on the ways in which the market responds, but that would be difficult in California. (One idea might be to have the equivalent of an “all or nothing” recalibration package, the way that some state sentencing commissions operate, or the way the federal base closure commission operated.) Our medical marijuana program is also the result of a statewide proposition, which means it will be much more difficult to change qualifying conditions, for example.

Because I want my students to write for policymakers, I want them to situate their suggestions in California law. We read an excellent overview of the law of California medical marijuana (more on that in my next post), but I wouldn’t expect that to be of national interest (even though it’s essential for work on recreational regulation in the state).

As a law professor, though, I think there’s a bigger issue: what is the purpose of a law school class? I don’t see my role as transmitting information. I see my role as training students in new skills. The law always changes—especially in this field. What stays the same are the analytical skills—and skills in workflow management—that you can use to attack these changes. So I’m planning to do something Doug did last year in his class—have students assign reading and teach the class something. Finding quality sources is a tremendously valuable skill to lawyers. Walking someone through a new field is also very important. I don’t want to do it for them—I want to help them learn to do it. Let’s be clear—there’s nothing arm’s length about my teaching style, and this is actually more work for me than doing it myself. But I’m only getting here because I have a clear view (which not everyone agrees with, naturally) of my role: as someone training someone to do the kind of work I do.

What does this have to do with the canon? I think the question about the canon, in some way, presupposes that without the right information, the educational value of the class will be reduced. I think that’s true if information transmission is the goal. If there are other goals, and the information used is a means of achieving those goals, then I think the issue of the canon isn’t so primary. Last class we read the complaint filed by Nebraska and Oklahoma against Colorado. We had an incredibly valuable class session discussing it, even though, as a whole, I think the quality of the legal arguments presented is poor. Should it be in the canon because it’s important? Should it be in the canon because it’s a good tool? Or is the question not about the reading material but what one does with it?


Dear Readers,

Welcome to the Drug Law and Policy blog. The blog is a product (and project) of a class I’m teaching this semester, the Drug Policy Practicum (what I’ll call the DPP–more on that in a minute.) In many ways, though, my writing this first post is a somewhat misleading start to the blog—this is going to be populated primarily by the writings of my fabulous students. Sometime in the coming weeks they’ll begin posting, first with a roadmap of the particular subject area they’ll be addressing, and later with substantive writing. As our about us section reads:

The Drug Law and Policy Blog provides in-depth legal analysis of drug policy and cannabis reform in the Golden State.  The blog is founded and maintained by students in Professor David Ball‘s Drug Policy Practicum at Silicon Valley’s most innovative law school, Santa Clara University.  Our aim is to provide a wealth of information for lawyers, legislators, business entities, advocates, law enforcement, and any individual invested in California’s political, social and economic leadership.

I’m really excited to be sharing their work and learning from them alongside you. And, by the way, that About Us section was written by my students.

My idea to teach this class was inspired by several experiences, which I’ll talk about in chronological order. In law school I had the good fortune to take classes with Joan Petersilia when she was visiting Stanford (she has since, to my delight, joined the faculty). Joan taught seminars on prisons that combined academics with policy—but policy that was meant to be disseminated to actual practitioners. In other words, we weren’t just writing for her and ourselves—we were writing for the world at large. Even before the DPP, I’ve always asked practitioners and policymakers what they’d like to see more research on. Students frequently write papers on those subjects and I’ve been pleased to disseminate the results.

The DPP has that baked in to its DNA. I’m a member of the Blue Ribbon Commission on Marijuana Law and Policy (BRC), and my students will be writing and researching about subjects of interest to my fellow commissioners. Obviously what they write won’t be the final word, but my goal is to have them contribute to the civic discussion both via dissemination to the BRC and to the world at large—which means you.

As far as the subject matter goes, my primary research and writing interests have been (and probably still remain) sentencing and corrections (another hat tip to Joan P) but this, of course, implicates issues about the drug war—not just when it comes to drug offenses but also the ways in which criminal procedure has been shaped by the drug war. But that’s a huge post. I read Doug Berman’s Sentencing Law and Policy blog every day, and when he started his Marijuana Law, Policy, & Reform blog, I subscribed to that (via RSS) too. I think marijuana policy is a fascinating example of scaling back the penal code, and it’s a rich opportunity to explore how to treat social problems via something besides the criminal justice system. I also think there’s great scope for thinking creatively about this, and, as someone who used to be a writer, actor, and improvisational comedian before law school, I’m always looking for that.

So my goals here are to showcase my fabulous students and to contribute something to the depth and legal analysis of marijuana regulation, with a particular focus on California. After a few more posts, I’ll fade into the background, but thanks for reading!