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Article
Weed Wars: Winning the Fight Against Marijuana Spillover from Neighboring States
Jessica Berch
19 Nevada Law Journal 1 (2018)
 
Open Access  |  Library Access

Abstract:

Today, a “novel social and economic experiment[]”† involving the sale, use, and distribution of marijuana is sweeping the nation. Despite a federal ban on the drug, states have begun to legalize medical and even recreational marijuana use. While these entrepreneurial states push forward with marijuana legalization, other states and the federal government remain opposed to the expansion of marijuana use or its legalization in any form.

Regardless of one’s position on the merits of marijuana legalization, the federalism and conflict-of-laws issues that arise from this multi-state experiment deserve scholarly attention. In particular, non-legalizing states that border more permissive neighbors have begun to see an upsurge in marijuana use within their borders—and an attendant increase in crime and accidents—and these states need ways to protect themselves. In a previous Article, I proposed that nonlegalizing states enact laws modeled on Dram Shop Acts, which create liability against those who sell alcohol to already intoxicated people who then injure third-party victims. These aptly named “Gram Shop Acts” would create liability against out-of-state marijuana dispensaries that sell to Home State buyers who, while high, injure third parties in the Home State or residents of the Home State.

Three challenges to the viability and success of this mode of protection arise. First, will the courts of the non-legalizing state have personal jurisdiction over the out-of-state sellers? Second, as a matter of conflict of laws, will those courts apply their laws, particularly the Gram Shop Act, to the dispute? Finally, would the non-legalizing state’s use of its own laws comport with the requirements of the Full Faith and Credit Clause, the Due Process Clause, and the dormant Commerce Clause? This Article explores these horizontal federalism issues emanating from the legalization quagmire.
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