Robert A. Mikos

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Case Western Reserve Law Review

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marijuana, federalism, prohibition, home rule


Food and Drug Law | Health Law and Policy | Law


The states have wrested control of marijuana policy from the federal government, but they risk losing some of their newfound power to another player: local governments. Hundreds of local communities are now seeking to establish their own marijuana policies, from legalization to prohibition and a variety of idiosyncratic regulatory schemes in between. These local efforts raise one of the most important and unresolved questions surrounding marijuana law and policy: What authority, if any, should states give local governments to regulate marijuana? This Article provides some guidance on this question. It starts by identifying two competing considerations that help determine whether local control is normatively desirable: (1) the extent to which local communities prefer different policies; and (2) the extent to which residents of one community care about policies adopted elsewhere. The Article then examines the strength of these considerations in the context of marijuana policy. It suggests that local communities do indeed prefer different marijuana policies. At the same time, however, it warns that residents care strongly about how other communities regulate the drug. Because marijuana and the people who use it are mobile, policies adopted by one community can have a large impact on the well-being of other communities across the state. Indeed, the Article suggests that the nation’s sobering experience with local alcohol control should curb enthusiasm for marijuana localism. The Article reviews how states have addressed the marijuana localism issue to date. It then makes some tentative recommendations concerning the extent to which states should devolve control of marijuana policy onto local governments.



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