Vol 45. No. 1 Fall 2020 | School of Law | SIU

Vol 45. No. 1 Fall 2020

ARTICLES

Toward a Rational Policy for Dealing with Marijuana Impairment – Moving Beyond "He looked Buzzed to Me Your Honor"

William J. McNichol, Jr................................................................................................... 1

This paper examines how marijuana impairment is currently proven, especially in states where marijuana has been legalized under state law. Much of the currently used proofs and some legislatively imposed standards are scientifically unsound and their use should be discontinued or severely limited. It is recommended that development of a valid biochemical proxy for marijuana impairment should be a priority funding item in states where marijuana is legalized.

Recreational Marijuana, Tobacco, & the Shifting Prerogatives of Use

Kerry Cork .................................................................................................................. 45

Although marijuana remains illegal under federal law, thirty-three states, the District of Columbia, and four U.S. territories have legalized it for medical use, and eleven states, D.C., and two U.S. territories have legalized it for recreational use by those aged twenty-one and older. As states with legalized recreational marijuana have caused an uptick in public and private marijuana use, several jurisdictions have begun amending tobacco control initiatives, such as smoke-free laws, to accommodate marijuana users. For residents of any state with legalized recreational marijuana – users and nonusers alike – where and when the product can be used continues to be confusing and, at times, controversial. While recreational marijuana may be legal at the state level, many states and local communities – let alone businesses and multi-unit housing authorities – prohibit its use not just indoors but anywhere on an establishment's premises, regardless of whether the use is in a private or public setting. This article explores challenges in regulating recreational marijuana use in a variety of U.S. social and residential settings, including public places, workplaces, and multi-unit housing, and examines analogs in similar use restrictions for commercial tobacco products and electronic smoking devices. The article also highlights several legal and regulatory issues facing jurisdictions, businesses, and housing authorities where recreational marijuana is legal.

Preventing Industry Abuse of Cannabis Equity Programs

Daniel G. Orenstein ..................................................................................................... 69

Enforcement disparities have pervaded the history of U.S. drug control laws, particularly regarding cannabis. These disparities have systemically disadvantaged persons of color and other communities. Responding to these inequities, some state cannabis legalization campaigns have emphasized social justice goals, and states and localities have adopted cannabis social equity programs directed toward
communities disproportionately impacted by the War on Drugs. These programs encourage and assist individuals from target communities in entering the legal cannabis industry by offering access to grants, loans, and technical assistance and providing priority or preference in licensure, a significant advantage in a competitive industry. Equity programs serve laudable goals but must be structured to mitigate the risk of corporate abuses that threaten public health. The history of tobacco control in particular offers cautionary examples of how for-profit industries can infiltrate communities by leveraging targeted marketing, building political relationships, and operating disproportionately in underprivileged areas. Equity programs’ focus on disadvantaged communities may inadvertently allow this damaging history to repeat in the cannabis industry to the detriment of the communities equity programs seek to help. This Article explores pathways that could lead to industry abuse, surveys possible restrictions within a for-profit market, and assesses options for alternative market structures, including government monopoly, mandatory nonprofit status, and mandatory public benefit company status. Among these options, compulsory public benefit status offers the best combination of current legal feasibility and advancement of social equity goals.

ESSAYS

Cannabusiness Ethics

Benjamin Rajotte ..................................................................................................... 109

Cannabusiness ethics is fundamentally about creating an industry culture of social equity by encouraging best practices from within the industry organically. At its heart, it is about corporate responsibility that helps the communities that were harmed most by cannabis prohibition, as well as the bottom line, by asking that business leadership considers their hand in remedying that harm as a factor of determining a business’s ‘success.’

NOTES

Illinois Cannabis: Lost in the Weeds without Access to Insurance and Banking Services

Dylan Boyd ............................................................................................................... 115

As more states have legalized medical and recreational marijuana, a multi-billion dollar industry has emerged that faces particular challenges stemming from its quasi-legal status. After previously introducing a medical marijuana pilot program in 2014, Illinois legalized marijuana for recreational use for adults over the age of twenty-one. As with any business within a growing industry, legal marijuana-related businesses need financing and protection for their operations through banking services and insurance products. However, obtaining these financial services has proven to be difficult in light of the conflict between federal and state laws on the legality of marijuana. This note will address how and why Illinois can and should foster the growth of marijuana businesses with policies and judicial decision-making that favor the industry’s access to insurance and banking services.

Who is in my Grave? A Comparison of State and Local Laws in Illinois and Utah that Guide Resolution of Grave Plot Ownership Claims

Anne K. Hansen ....................................................................................................... 139

Cemetery claims and issues are rarely reported, publicized, or submitted to legal process in the courts. Problems arising from the death or burial of a loved one evoke deep feelings of empathy and sympathy from the general public. Grave plot ownership disputes arise more commonly in situations related to divorcing couples or siblings following the death of a parent. Claims are made for other reasons as well, including fraud resulting in financial gain from reselling the grave plots. However, due to the rarity of legal claims raised in this area, the nuances of the laws specific to cemeteries and burials are generally unfamiliar to most legal practitioners, including those representing the cemetery authorities themselves. This note begins with a background section establishing the growth and popularity of the genealogy industry thus demonstrating the reasonable likelihood of increased future claims. Following the genealogy section, the underlying foundation of common law that directs essential rights related to (1) the final disposition and burial of a deceased person, and (2) rights related to the burial place is explained. The note then examines the statutory schemes implemented by Utah and Illinois and municipalities therein before ultimately analyzing the effectiveness of such laws and proposing alternative approaches.