Weed and Water Law: Regulating Legal Marijuana

Ryan B. Stoa

Volume 67, Issue 3, 565-622

Marijuana is nearing the end of its prohibition in the United States. Arguably the country’s largest cash crop, marijuana is already legal for recreational use in Colorado, Washington, Oregon, Alaska, and Washington, D.C. Between now and election day 2016, an additional fourteen states might place marijuana legalization initiatives on their ballots. In addition, twenty-three states and Washington, D.C. have legalized medical marijuana, with up to seven more states pending legislation. The era of marijuana prohibition is rapidly coming to a close.

At the same time, traditional doctrines of water law are struggling to cope with the modern realities of water scarcity. Administrative agencies lack capacities to monitor and enforce water rights in real time amid rapidly changing conditions. As marijuana cultivation leaves the black market and enters state regulatory frameworks, legal doctrines and administrative agencies will need to adapt in order to balance existing water rights with the demands of marijuana production. Failure to do so will encourage farmers to remain clandestine while perpetuating existing conflicts between legal and illegal water users. At present there is a gap in understanding the relationship between water rights and marijuana legalization, despite their rapid convergence.

This Article is the first to systematically address that gap. Parts I and II begin by describing status quo marijuana cultivation taking place outside the context of state water law doctrines, and the unsustainable conditions that often result. Parts III and IV envision a legal marijuana market governed by the predominant doctrines of U.S. water law: prior appropriation and riparianism. In Part V the theoretical becomes reality, as California’s complex water laws are put to the test by the largest marijuana cultivation community in the United States. Part VI concludes with recommendations for states in the process of legalization. Broadly speaking, this Article finds that both common law and regulatory approaches to water allocation are capable of accommodating legal marijuana cultivation, but to minimize disruptions to existing water rights and the marijuana industry, state agencies will need to proactively adapt to the new realities of the legal marijuana economy.

Full Article

Collective Liberty

Josh Blackman

Volume 67, Issue 3, 623-86

The story of our Constitution is a tale of two liberties: individual freedom and collective freedom. The inherent tension between these two is well known. Judicial protection of individual liberty inhibits the collective from freely arranging society through the democratic process. In contrast, judicial protection of this collective freedom to structure society may infringe on individual liberty, especially for those out of the mainstream. Like a pendulum, over the last century, the rights of free speech and exercise have swung between the individual and the collective, between right and left. This Article traces these arcs from individual liberty to collective liberty, and back.

Historically, progressives tended to favor broad conceptions of individual rights with respect to protecting unpopular speech and minority religious groups. Conservatives, in contrast, often disfavored such rights to the extent they impeded the preservation of traditional social norms and structuring society. In recent years there has been a reversal, as the right has asserted the mantle of individual liberty against claims of governmental intrusion into time-honored institutions. But for the left, a robust freedom of speech and religion—no longer serving progressive causes of social justice and equality—can now more easily be subordinated to what Justice Breyer referred to as “collective” liberty.

By looking at two controversial cases in this arena—McCutcheon v. FEC and Burwell v. Hobby Lobby Stores—this Article chronicles the juxtaposition of positions on the right and left, between collective and individual views of rights. This Article concludes by explaining what this means for the development of the First Amendment on the Roberts Court, as freedom from government clashes with freedom by government.

Full Article

Internal Jus ad Bellum

Eliav Lieblich

Volume 67, Issue 3, 687-748

In 1945, the United Nations Charter famously set out “to save succeeding generations from the scourge of war.” Having in mind traditional interstate wars, the Charter’s Article 2(4) outlawed, for the first time, interstate uses of force. However, nowadays, international wars are relatively rare, while civil wars are both more numerous and increasingly destructive. Still, international law has yet to develop a regime regulating the resort to war (jus ad bellum) within a state, either by governments or opposition groups. Contemporary jus ad bellum, thus, fails to address one of the most atrocious forms of war in the modern international system.

This Article puts forward a novel theory of internal jus ad bellum, equally applicable to governments as well as opposition groups. It demonstrates that the current blind spot in international law concerning this issue is incoherent and unwarranted. By applying the revisionist approach to just war theory, this Article argues that internal resort to armed force can only be morally acceptable if undertaken in self (or other) defense against grave threats.

Applying this notion to the international legal sphere, this Article claims that collectivist doctrines such as self-determination, sovereignty, or democratic entitlement are not appropriate venues for an acceptable standard of internal jus ad bellum. It proceeds to locate such a possible standard in international human rights law (“IHRL”), which enshrines everyone’s right to life. However, as the Article demonstrates, IHRL, as currently understood, fails to serve as an effective framework for internal jus ad bellum, since it collapses, during armed conflict, into international humanitarian law. The Article concludes by suggesting an understanding of IHRL that can overcome these limitations and thus serve as a working doctrine of internal jus ad bellum.

Full Article

Hedgehogs and Foxes: The Case for the Common Law Judge

Evelyn Keyes

Volume 67, Issue 3, 749-806

With the epigram, “The fox knows many things, but the hedgehog knows one great thing,” Ronald Dworkin, America’s foremost contemporary legal philosopher, summarized his lifelong quest for the objectively true laws necessary to a just democratic society and for perfectionist judges of single-minded integrity—hedgehogs—to recognize and implement them through the moral reading of the Constitution. I make the contrary case for the common law judge—the fox who sees many things. I argue that common law judges—foxes—are essential to preserve, protect, and defend the dynamic empirical American ideal—that of a just, self-governing constitutional society of laws made by the people to further their own safety and happiness, or the common good.

I review different contemporary views of the role of judges, but particularly perfectionist and common law judges, and I find the latter to be generally disregarded as mere “conventionalists.” I then trace the history of common law judging. I argue that, as historically carried forward, common law judging employs practical moral reason to preserve and protect the moral vision of a self-governing people as embodied in the laws they make and approve as best to further their own common good. Common law judging is thus the tie that binds the social compact to a shared conception of the just society. And it is directly contrary to the objectivist rational idealism of perfectionist judges, hedgehogs, who see judges as empowered to discern and implement as constitutional law, through their decisions in “hard cases,” the “best” construction of the objectively true moral law. I illustrate perfectionist and common law judging in practice by reference to the landmark substantive due process cases—Lochner, Roe, Windsor, and Obergefell. And I call on us to preserve justice for foxes.

Full Article

Smoke and Mirrors: How Current Firearm Relinquishment Laws Fail to Protect Domestic Violence Victims

Laura Lee Gildengorin

Volume 67, Issue 3, 807-48

In 2011, two-thirds of murdered women died at the hands of a current or former intimate partner who used a firearm. Thus, it is imperative to remove guns from the control of domestic violence offenders. With increased media coverage, domestic violence is at the forefront of the minds of many, but this growing awareness is not a new phenomenon. The federal government recognized the terrors of domestic offenders and firearms in two amendments to the Gun Control Act in 1994 and 1996, respectively.

In this Note, I examine the federal and state approaches of gun relinquishment laws pertaining to domestic violence offenders. The federal laws, although worthy of recognition, have done very little to actually compel offenders to give up their weapons. Instead, state and local laws are necessary to achieve this end since the triggering events (for example, a misdemeanor domestic violence conviction or a domestic violence restraining order) are widely dealt with on a state level. Currently, however, the states provide us with a broad range of statutory approaches, from nonexistent to quite impressive.

My conclusion provides for a set of possible reforms to bolster the success of the federal and state laws. One must not forget that the goal of these provisions is to protect domestic violence victims from perpetrators who are often manipulative and vengeful. Thus, swift and deliberate action must be taken to seize offenders’ firearms. The potential consequences of not doing so—the deaths of innocent victims—are unacceptable.

Full Article

Talent for Sale: The Need for Enhanced Scrutiny in Judicial Evaluation of Acqui-Hires

Samantha Nolan

Volume 67, Issue 3, 849-80

Large technology corporations are purchasing smaller companies at an increasing rate with one goal in mind—engineers. This practice has recently been given its own name—acqui-hiring. The buying corporation purchases the target, poaches its employees, jettisons its projects, and generally kills the company. Who is injured in this process? Those who were legally supposed to be afforded the highest degree of protection at the target companies—the shareholder investors.

This Note examines the practice of acqui-hiring and suggests that courts should analyze these transactions under heightened scrutiny. When addressing a target board’s decision to enter into an acqui-hire, courts can find guidance in Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., an acquisition case that arose during a climate of similar corporate concerns.

Full Article

Subverting Workers’ Rights: Class Action Waivers and the Arbitral Threat to the NLRA

Nicole Wredberg

Volume 67, Issue 3, 881-912

The National Labor Relations Act (“NRLA”) was born out of the industrial strife of the Great Depression and provides for employee collective rights in order to prevent the potentially devastating economic consequences of an unstable working environment. The rights provided by the NLRA generally encompass the right to employee collective activity, including collective legal activity and unionizing, which seeks to better working conditions. These substantive rights cannot be waived through any employment agreement, but the Supreme Court has never decided the precise issue of whether pursuing a class action is a substantive right under the NLRA as a protected employee collective activity. The enforceability of class action waivers in employment arbitration agreements has become a hot topic over the past few years since the National Labor Relations Board (“Board”), which administers the NLRA, and the courts have largely split on whether the right to pursue a class action is a substantive right under the NLRA, as opposed to a mere procedural right that can be waived through agreement. This is an especially important issue to low-wage workers because if class action waivers are upheld in arbitration agreements, many low-wage workers, if not all, will be foreclosed from bringing claims regarding employer violations. This preclusion is primarily due to the fact that litigation costs often do not justify workers bringing these relatively low value claims on an individual basis. This Note examines how class actions comport with the substantive purpose of the NLRA and discusses the recent decisions of the Board and the courts regarding class action waivers in employment arbitration agreements. This Note will also offer a few potential resolutions.

Full Article