Legal marijuana is the fastest-growing industry in the United States. It is premised on the assumption that marijuana ownership will be protected by law. But can marijuana be owned? This Article is the first scholarship to explore the issue.
Federal law classifies marijuana as contraband per se in which property rights cannot exist. Yet the Article demonstrates that marijuana can now be owned under the law of most states, even though no state statutes or decisions expressly address the issue. This conflict presents a fundamental question of federalism: Can property rights exist under state law if they are forbidden by federal law? The Article explains why federal law does not preempt state law on marijuana ownership.
This result creates a paradox: state courts and other state authorities will protect property rights in marijuana, but their federal counterparts will not. The Article analyzes the challenges arising from this hybrid approach to marijuana ownership. It also examines the fragmented status of marijuana ownership in the interstate context, where personal relationships or business transactions involve states with conflicting approaches to the issue.
John G. Sprankling,
14 Duke Journal of Constitutional Law & Public Policy
Available at: https://scholarship.law.duke.edu/djclpp/vol14/iss1/1