Category: General Law


Acquittal in California Medical Marijuana Case

Yesterday saw a major development in California medical marijuana law, with the acquittal of Jovan Jackson, the operator of a medical marijuana collective (more here and here.)  The case was the first big test of the San Diego County District Attorney’s narrow reading of what constitutes a collective or cooperative under California state law and may have major implications for deliberations on the regulation of medical marijuana dispensaries in Los Angeles and San Diego.  (As a disclosure, I am currently serving as Chair of the City of San Diego’s Medical Marijuana Task Force.)

The issue is a somewhat complicated one (and one that may hold some lessons for the do’s and dont’s legislative drafting.)  I may blog in more detail about the law before my guest-blogging stint here is done.  But, in a nutshell, the California legislature passed a law in 2003 in an effort to clarify the scope and application of the State’s landmark 1996 medical marijuana  ballot initiative.  The law provides, among other things, that medical marijuana patients who “collectively or cooperatively . . . cultivate marijuana for medical purposes shall not solely on the basis of that fact be subject to” a variety of state criminal laws pertaining to marijuana (including possession for sale, maintaining a place for purposes of sale, etc.).

Since the law’s passage, most folks across the state (including prosecutors) have interpreted it to mean that medical marijuana collectives and cooperatives that operate as a store-front (much like a, say, a food co-op might) are legal.  Accordingly, over three dozen cities and counties across the state have enacted land use ordinances to regulate these entities and many cities and counties actively support their existence (for some background, see here, here, and here.)  Within the past year or so, however, a handful of prosecutors and other local government officials (mainly in San Diego and Los Angeles) have begun to push a much more narrow view of the law, arguing that collectives cannot sell marijuana to their members.  These officials have argued that collectives and cooperatives are only legal if they operate, in essence, like a commune with each member contributing labor to cultivating medical marijuana.  There are a number of problems for this view, including Guidelines from the State Attorney General (which state that storefront collectives and cooperatives are lawful if they comply with other legal requirements.)  In addition, local officials who have taken this view have steadfastly refused to provide a detailed account of what they think the law does allow other than to say that storefronts are illegal and that some sort of labor on the part of members must be involved.  Beyond that, however, they say that the line is “rather blurred” as to what the law allows.

While most observers view the narrow “commune” interpretation of the law as quite a stretch, California courts have not addressed the issue and so it technically remains an open question.  As a result, a great deal of confusion has developed over the past year or so in Los Angeles and San Diego counties about just what is necessary for a collective or cooperative to be legal under state law.  The Jackson case was the first (to my knowledge) to really put this new narrow interpretation of the law to the test.  It involved the prosecution of a medical marijuana patient who managed a collective with over 1,500 members.  In essence, the case boiled down to whether or not a collective that operates as a store front like a food co-op constitutes a local medical marijuana collective under state law.  Not only did the jury acquit Mr. Jackson, but the foreperson directly questioned the prosecution’s view of the law during a press conference after the verdict, saying that “the prosecution gave his narrow definition during the closing arguments but there was nothing in the law that backed that up.” (the quoted comment is at about 1:30 into the video.)

While one jury verdict certainly does not provide an authoritative resolution of the underlying question of law here, it may nevertheless make local officials think twice about continuing to push unusually narrow interpretations of the law.  After all, why pursue expensive investigations and prosecutions that are already politically unpopular if they are only going to result in an acquittal?  Given the overwhelming consensus that state law does permit these entities, hopefully the hold-outs will come around to that view as well.  I also hope that the hold-outs will decide to join in the process of regulating collectives and cooperates to ensure that they operate in safe and sensible manner.


14 Penn Plaza v. Pyett and the Fairness in Arbitration Act

Thanks to Dan, Sarah and all for inviting me to continue as a guest for awhile. They did not even require me to promise not to say any more about Ricci!

I finished my Labor Law class with 14 Penn Plaza v. Pyett. My position is that the case represented dysfunctional litigation in a number of ways. First, and foremost, Justice Thomas’ opinion appears to fail to understand anything about how collective bargaining arbitration works. The provision pouring statutory discrimination claims into arbitration is the basis for his conclusion that this “requires union members to submit all claims of employment discrimination claims to binding arbitration.”  Collective bargaining agreements, including arbitration provisions, have only two parties to them – the union and the employer. The employees covered by the collective bargaining agreement are decidedly not parties to the agreement and nothing in the provision Justice Thomas quotes does anything to make them parties to the collective bargaining agreement, the arbitration agreement, or the particular grievance of any individual employee. One wonders if any Justice or any clerk of any Justice has actually taken labor law. A problem was that the union was not a party to the case and did not weigh in until it filed an amicus brief at the Supreme Court.

 Second, the fig leaf of “consent” or voluntary agreement to arbitrate employment claims in individual employment contracts that are contracts of adhesion has been ripped away in 14 Penn Plaza. There is simply no basis for finding that the employees whose discrimination claims now can only go to arbitration ever agreed to that. So, arbitration has been deprived of any claims to being voluntary as to the employees whose claims are being determined. Finding that a union can waive the statutory right of employees simply does not make the resultant arbitration voluntary as to the employee.

 Third, once the union withdrew the grievance from arbitration because it claimed that it had agreed to the change that disadvantaged the employees, the employees should have filed a discrimination claim against the union in addition to the claim it had filed against the employer. With the two parties to the arbitration agreement now both respondents to discrimination claims, it seems hard to conclude that the arbitration process, controlled by these two parties, could be found to be fair. The conflict between the employees on one side and the employer and union on the other should have allowed the employees to seek a neutral forum in the courts.

Fourth, the opinion references the union’s duty of fair representation but the standards of proof for that are so high that a straight discrimination claim might work better for the employees. The employees should, however, have filed duty of fair representation charges with the NLRB on the chance that it would have pursued their claims on their behalf. In sum, it is my position that 14 Penn Plaza is another, in a long line of cases that is transforming voluntary arbitration into a private justice system that is inconsistent with the idea that we follow a rule of law.

The students raised some interesting points that did not necessarily agree with my position. Read More


A Rough Commute

For the record, I’m not a natural Huckabeen or Huckabeest or whatever supporters of Mike Huckabee like to go by. I generally find the man amusing—it’s hard not to crack a smile at someone whose resume reads “author, ordained minister, bassist, former-governor, talk show host”—but we just don’t see eye-to-eye on a lot of important issues.

All that said, in the wake of the alleged murder of four police officers Sunday in Washington by Maurice Clemmons, an Arkansas man, whose sentence Huckabee commuted in 2000, I was (relatively) impressed to learn of his commutation and pardon record.

During his 10-years as governor, Huckabee issued more than 1,000 commutations and pardons. To provide some context, even if you added up together all of the commutations and pardons of the three governors who preceded him, Huckabee would still win.

I was even more impressed to see him, this week, defending his decision in the Clemmons case. Speaking on “The Joe Scarborough Show,” Huckabee explained the unfairness that he confronted as governor: “a 16-year-old kid [who] commit[ted] crimes of which normally, there would have been a few years. And if he’d been white and middle-class with a good lawyer he’d have gotten probation, a fine and some counseling. But because he was a young black kid, he got 108 years!”

Acknowledging that race can result in inequitable judicial outcomes? Taking into account the youth of the convict at the time the crimes were committed? Suggesting that situation and not disposition might matter? It all sounds rather like, dare I say it, what a “bleeding-heart liberal” would say . . .

And sure enough, conservative interests have been lashing out at Huckabee just as they did during his 2008 campaign for president when it was revealed that, while governor, he had elected to release Wayne DuMond, who was later convicted of rape and murder.

I guess what really shocks me is that any governor with broader political dreams ever commutes or pardons a criminal. There are such minimal incentives and such immense potential costs. (If you have any doubt about that, consider that yesterday Jason Tolbert, the Arkansas coordinator for Huckabee’s PAC resigned, in part, because of the commutation mess.) In the eyes of the public, if you fail to stop an execution, you make an omission; if you commute someone’s sentence, you take an action. Despite the fact that, in both cases, the governor is making a decision that results in a terrible death, when an innocent man is put to death, the governor is usually way down on the list of blameworthy actors, and when a pardoned man kills, the governor is one of the first to be called out.

Perhaps if the media did not get so whipped up about matters like this or reported stories about the subsequent positive contributions to society of people whose sentences were commuted, it wouldn’t be such a politically-foolish thing to do, but given the current climate, we should expect many more governors like George Bush and way fewer like Mike Huckabee.

All of this pushes me towards supporting moves to place the power of the pardon in a panel of appointed judicial officials who are not politically accountable. Yes, that has its own set of problems, but I just don’t see how the current approach in Arkansas and elsewhere is going to result in equitable outcomes.


The Perils of Courts’ Defining the News for Journalists

In researching and writing a new piece, I had the great fortune of re-reading a superb article written by Amy Gajda entitled Judging Journalism: The Turn Toward Privacy and Judicial Regulation of the Press,  97 Cal. L. Rev. 1039 (2009).  In it, Gajda explores courts’ growing willingness to recognize privacy claims against the media for unwanted publicity.  As Gajda explains, this has been accomplished in part due to courts’ increasing lack of deference to journalists’ news judgment and willingness to assert their own determinations of the legitimate scope of news coverage.  The Article addresses the nascent resurgence of the publication of private fact torts in the courts and the perils involved in shifting the power to define the news from working journalists and the consuming public to judges and juries.  It is a truly terrific read.


Alternative Approaches to Exam Feedback

With the end of the semester upon us, exams are once again a topic of conversation in the blawgosphere.  I’d like to jump into the exam conversation by looking ahead a few weeks to a time when we’ve graded all of our exams and are thinking about how best to provide feedback to students about the exam.  I’ve seen some discussion about exam feedback, and I am sure there has been a lot of additional discussion that I have missed, but the subject seems to have been somewhat under-explored relative to other exam-related subjects.  My sense is that most folks provide a model answer, model issue analysis, sample student answer, or some combination of the three.  I’ve used each of these approaches myself.  Lately, however, I’ve been finding myself thinking about alternative methods.

Specifically, inspired in large part by this fantastic post by Orin Kerr from a couple of years back, I’ve been considering whether to try a tiered approach to my model answers by providing three example answers: one “bad” answer, one “good” answer, and one “excellent” answer.  Why three example answers?  I’ve found a model answer alone to be of relatively limited value to a student who has not done well on an exam and wants to figure out how to improve.  While a model answer may give students a good idea of my ideal exam answer, it doesn’t really let students know what it is that distinguishes the model answer from lesser answers.  I’ve been struck by this when I’ve met with students to review their exam.  I always have them review the model answer prior to our meeting.  And, quite often, it seems like they draw the wrong (or, at least, not the most important) lessons from the model answer.  They see, for example, that the model answer references some of the cases we read while their answer didn’t mention a single case and they think “if only I’d referenced the cases, I probably would have done great.”  Or, they see that the model answer discussed facts that they failed to and think “if only I had simply referenced those facts I would have had an “A” answer.”  In short, many students seem to mistakenly believe that each exam has a simple formula where if they spot the issue, state the correct rule, merely mention facts A, B, and C, and make some sort of reference to case Y, they will get all the points and a high grade.  As we all know, of course, this is not the case.  Indeed, one of the most common exam errors I see is that the student approaches the problem as a sort of a checklist–they mention many of the relevant facts and state the law accurately, but fail to really apply the law to the facts.  Meanwhile, students toward the bottom of the class often look at the model answer, see that their answer falls far far short of the model, and wonder “where do I even begin if I want to improve.”

All of this has led me to think about how I might be able to give students a clearer picture of what distinguishes the model answer from a good answer and a good answer from a bad answer.  Orin Kerr’s post, which gave brief examples and explanations of bad, good, and terrific answers using a short and fictional legal set-up, seems to provide a pretty effective structure for achieving this goal.  Giving students examples of a “bad” and “good” answer, in addition to the traditional model answer, would provide them with a clearer picture for how they can improve.  A poorly performing student, for example, would be able to see a detailed explanation of why a “bad” exam answer is “bad” and get a concrete idea for how she might be able to raise her performance to the next level.

Of course, there are some downsides and limitations to this idea.  Perhaps the biggest downside is that it would take a lot more time to write up three example answers along with explanations than to write up a single model answer (and even more time that simply distributing the top 2 or 3 student answers as models).  As for limitations, there are a wide variety of reasons that an exam answer might be sub-par, so it would be impossible to include them all in any example of a “bad” and “good” answer.  Still, on balance, I think that the additional effort needed to write three example answers would likely be worthwhile, especially for dedicated students who truly want to make the time and effort to improve their performance but are honestly unsure of how to do it.

I’d love to hear any and all comments about this approach (especially if others have adopted it themselves) or any other thoughts or suggestions folks might have about alternatives to the standard methods of exam feedback.


The Bachelor?

Thanks to Dan, Jaya, and everyone else at Concurring Opinions for inviting me to join its distinguished guest-blogging ranks. I’m hoping to blog about a number of procedure-related topics this month, but I have to begin with an issue that hits even closer to home…

News out of Texas suggests my marriage is no longer valid. My wife and I were married there seven years ago, but language in a 2005 amendment to the Texas Constitution (designed to forbid gay marriage) may have brought a premature end to our state-sanctioned union — and to the entire institution of marriage in the State of Texas.

The argument that marriage is now illegal in Texas has been put forward by Barbara Ann Radnofsky, a Houston lawyer and Democratic candidate for attorney general. (See here, here, here, and here.) The 2005 amendment defined marriage to “consist only of the union of one man and one woman.” But subsection B of the amendment provided:

“This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.”

As I understand the argument, here’s the problem: Marriage itself is a “legal status identical or similar to marriage.” Ergo, marriage is something the State of Texas “may not create or recognize.”

Radnofsky calls the language in subsection B a “massive mistake” and accuses her opponent, Texas A-G Greg Abbott, of being “asleep at the switch” when the amendment was drafted. She writes:

“In our justice system, when language is clear, the courts are not permitted to go behind the clear language to consider intent. It doesn’t take an expensive law degree to understand what this clause means. … The clear language in B creates turmoil and breeds litigation. The solution lies in either a new constitutional amendment (our Constitution has hundreds of them) or massive judicial activism to take clear language and reword it.”

I for one will be watching with interest. It may mean that my (ex-?) wife and I will have to re-marry in a state where the institution is still legal (but it won’t be the same if we can’t have barbecue from Joe Cotten’s at the reception).


The Wizard of Oz and Populism

Since91px-The_Wonderful_Wizard_of_Oz,_006 I have a book coming out about William Jennings Bryan, I’m sometimes asked whether it’s true that L. Frank Baum’s 1900 book “The Wonderful Wizard of Oz” is an allegory about the 1896 election.  The answer is no, but that interpretation is clever.

Consider the following points.  The book is set in Kansas — the heartland of Populism in the 1890s.  The magic shoes that Dorothy takes from the Wicked Witch of the East (in the book) are silver, which represents the free silver ideology of Populism.  The yellow brick road, of course, is the gold standard.  Dorothy’s comrades-in-arms are farmers (the Scarecrow), factory workers (the Tinman), and William Jennings Bryan (the Cowardly Lion — all bark and no bite).  Where are they going?  The Emerald City, where everything is or looks green (Washington DC, which is tainted by corruption.)  And then there’s the Wizard, who is a total fraud (William McKinley).  I’m not sure who the Wicked Witch of the West, Toto, or the Winged Monkeys are supposed to represent.

Read More


WWJP (Where Would Jesus Park)?

No Parking SignWith all of the talk over the last few months about “death panels,” nationalizing banks, and the dangers of trying al Qaeda terrorists on U.S. soil, it is easy to believe that attacks on our freedoms are easy to spot, but often they are not.

They can hide on quiet Sunday streets. They can lurk in the shadows of a perfect fall day.

A couple of Sundays ago, I was walking in downtown Philadelphia at around 3PM when I came upon a traffic attendant writing a ticket for a car parked on the north side of Spruce Street just south of Rittenhouse Square. As I often saw vehicles parked up and down the street on Sundays despite the clear “No Stopping Any Time” signs, I decided to ask what the rule was.

I was told by the attendant that the City tickets cars “after church let’s out.” WhenI pressed the attendant on whether that was the official policy, she told me it was.

Doing a little more research (plucky young academic that I am), I found some interesting details at the website of the Tenth Presbyterian Church. According to the site, “The City of Philadelphia generously permits parking by the congregation in designated areas near the church for Sunday services and for certain types of congregational special events.” To enjoy these “[s]pecial relaxed street parking privileges,” a member of the congregation must pick up a church-issued parking placard from one of the church lobbies and display it in the front windshield. The church goes on to offer to “help resolve” any tickets that are received despite displaying the placard.

Yes, perhaps, I’m just frustrated to not be among the chosen—I do covet a good parking spot—but this doesn’t seem, well, “kosher.”

If the city of Philadelphia does not believe that there are enough parking places in Center City on Sundays, there is any easy answer: remove the parking prohibition on Sundays for all Philadelphians—Christians, Muslims, Jews, agnostics, and atheists alike. There is no reason that a tax-paying secular humanist who wants to take her children to the park ought to get a ticket and a tax-paying Christian who wants to attend services ought not.

As this has piqued my interest, I have vague (and unlikely-to-be-realized) plans to fill out a request for information from the City, but before I do that I think it is best to make outrageous claims and reach unfounded conclusions based solely on the above details. What do you think? Is this totally harmless or . . . an affront to the history of Pennsylvania, a violation of the United States Constitution, and a sure sign that the Rapture is already upon us?


Facebook: Taking Out the Free in Free Expression

As so many warn (and warn to no avail), self-expression on social network sites can be costly.  CBC News recently reported that an employer’s insurance company cut a Quebec employee’s long-term sick leave benefits after seeing photographs on the employee’s Facebook page.  The employee had been on leave from her job at IBM for a year and a half after being diag1211887_on_the_beach_2nosed with major depression.  The employee posted pictures of herself having a good time at a bar on her birthday and enjoying the beach while on vacation.  The insurance company investigated the woman’s Facebook page after she told her insurer about her trip.  The employee explained that her doctor advised her to have fun to combat the depression.  But that apparently did little to convince the insurer that the employee still struggled with depression.  This case demonstrates the problem of de-contextualization in our digital lives.  A strong argument exists that the insurer took pictures out of context when terminating the woman’s benefits.  This is just the kind of privacy problem that Dan Solove so astutely tackles in Understanding Privacy and urges a contextual, pragmatic approach to address it.

Not only do insurers (and employers) hold our Facebook musings against us, but government employers can as well.  As Helen Norton‘s superb article Constraining Public Employee Speech: Government’s Control of its Workers’ Speech to Protect its Own Expression (59 Duke L.J. 1 (2009)) explores, government employees can be fired for off-duty online speech on the grounds that the public would associate the employee’s off-duty expression with the government entity that employed him.  For instance, the Ninth Circuit rejected a First Amendment challenge by a police officer who had been fired for maintaining a sexually explicit website featuring his wife even though the website never referred to law enforcement generally or the plaintiff’s employment specifically.  The court explained: “it can be seriously asked whether a police officer can ever disassociate himself from his powerful public position sufficiently to make his speech (and other activities) entirely unrelated to that position in the eyes of the public and his superiors. . .  . the sleazy activities [of plaintiff and his wife] could not help but undermine [the public’s] respect” for the police department.  Given the current state of First Amendment doctrine, it seems possible that government employers could fire employees for participating in Facebook groups with unpopular viewpoints on the grounds that such support would undermines the public’s respect for the particular government employer (the Facebook groups supporting Nazi ideology and Holocaust denial come to mind).  Norton elegantly addresses the value of government speech and that of its employees and, like Solove, prefers a contextual approach that honors First Amendment values and employees’ expressive autonomy.

Hat tip: Raymond Cha


Virginia Law Review 95:7 (November 2009)

VOLUME 95      NOVEMBER 2009     ISSUE 7

Virginia Law Review 95:7 (November 2009)


Interrogation Stories by Anne M. Coughlin

Constitutional Enforcement by Proxy by John F. Preis

Counterinsurgency, The War on Terror, and The Laws of War by Ganesh Sitaraman


The Free Exercise Rights of Religious Institutions: Church Property and the Constitutionality of Virginia Code § 57-9 by Fiona McCarthy