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?

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