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May 31, 2013

Starting a summer series on the upper-level law school canon and my marijuana seminar

SantaynaAs revealed by this page on The Ohio State University Moritz College of Law website, I will have the unique honor and distinct pleasure of teaching a (ground-breaking?) law school seminar this coming Fall semester titled "Marijuana Law, Policy & Reform."  As the title of this post reveals, I hope to discuss my ideas and efforts in this arena at great length in this and other on-line spaces in the months ahead.

As I pitched my faculty to approve this new course, I came to realize that I have a focused and strong perspective concerning why I am teaching this seminar, but only a diffuse and weak perspective concerning just how I am teaching this seminar.  Thus, I thought it would be a useful summer project to do a lengthy series of posts here (and as a guest-blogger at PrawfsBlawg) explaining in detail why I am so excited about this new law school course and also revealing just how deeply uncertain I am about what to cover in this new course.

Following this kick-off post, I hope to do at least a few posts each week concerning the specific topic of my in-development marijuana seminar and the broader topic of what upper-level law school classes and seminars should aspire to achieve. I expect that I will do most of my posts in this series at PrawfsBlawg; these topics are likely to be of greater interest to an audience made up mostly of law professors rather than sentencing practitioners and researchers.  But my main goal throughout this series will be to encourage robust commentary and feedback regarding the criminal justice perspectives and teaching plans I hope to be able to set forth throughout this series of posts.  Consequently, I will not be surprised if I end up doing a lot of cross-posting both at PrawfsBlawg and here in this series, especially when I focus on the substance rather than the style of my new class on "Marijuana Law, Policy & Reform."

Speaking of substance, I will kick off this post seeking input on whether, how and how much time I ought to consider devoting in "Marijuana Law, Policy & Reform" to the legal and social history of alcohol Prohibition.  Notably, public health scholars tell me that that use, abuse and addiction surrounding the drug of marijuana has more parallels to alcohol than to tobacco.  My first thought has been that there are lots of important legal and social themes from the Prohibition era that merit significant coverage in my new class before we jump into modern marijuana law and policy.  In fact, my tentative plan has been to devote two or three weeks at the start of my "Marijuana Law, Policy & Reform" seminar (e.g., about 20% of class time) to coverage of the legal and social history of alcohol Prohibition.

But when I conducted a brown-bag discussion with some members of my faculty this past week, I was intrigued by feedback urging me not to "waste" too much class time on this legal history topic.  A few colleagues reasonably suggested that, because I am not a legal historian, it might be worse if students were taught "poor legal history" rather than no legal history.  (My half-joking retort was that if poor legal history is good enough for Justice Scalia, it ought to be good enough for law students.)  Others reasonably suggested that students might be put off if my "hot topic" seminar was going to start with weeks of looking back 100 years.

Though I very much welcome feedback on the specific issue of whether, when, and how much class time I should spend discussing Prohibition, I would also love to hear thoughts more broadly about whether, when, and how much law professors who are not legal historians should focus upper-level class time on legal history.  In some ways, I think this issue spotlights a core concern in broader debates over what law schools should do now in the classroom: teaching legal history does not readily help today's law students become practice-ready; but I doubt George Santayana is the only one who thinks there can be lots of long-term negative consequences from being ignorant of important historical stories and lesson.

Cross-posted at PrawfsBlawg

May 31, 2013 at 10:23 AM | Permalink


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Professor Berman:

As I began reading your post, my first thought was, "He should start with Prohibition." I understand your colleagues' concerns, but I think a historical perspective is not only useful, but vital to a meaningful discussion of later developments. NPR just had a recent interview piece on the historical roots of marijuana use in this country, its migration through the population from immigrant farm workers to jazz musicians and beyond, the first laws passed against its use, and the hemp growing efforts of farmers during WW II.

Do you also plan to cover how marijuana has changed over the years, including breeding for increased potency, etc.? One of the arguments against legalization is "today's pot is not your father's pot." I don't know enough about the science to have an opinion, but the state of the science and what we do and do not know about potency, use rates versus addiction rates, etc., seems relevant to an informed debate about whether legalization is a good, bad, safe or unsafe idea.

Posted by: defendergirl | May 31, 2013 11:17:11 AM

I understand the criticisms of those who would like to leave legal history to legal historians, but I think any discussion of any legal topic requires some legal history. Namely, how did we get to the current law on marijuana and a discussion of how other laws restricting whole categories of goods has worked (not just Prohibition, but other restrictions including war time rationing that have led to a vibrant black market). I don't see how students can intelligently discuss the merits of reform without that type of background in past successes and failures.

Posted by: tmm | May 31, 2013 12:52:04 PM


I agree that an in-depth review of Prohibition (Ken Burns and Lynn Novick (sp) had an excellent 3 part PBS series on the when, how, why and repeal of Prohibition). This would be the introductory fluff. Interestingly, these were all based on political winds. With this background, a legal discussion, followed by the Controlled Substance Act and the scheduling of pot as Schedule 1, a very interesting outline for the course could be developed.

I suggest that in the first class, you have pictures of Clinton, George W and Obama as people who have admittedly tried marijuana, followed by a picture of one Bill O who did not. You know, the old, this is your brain on drugs and this is your brain not on drugs campaign.

Posted by: albeed | May 31, 2013 2:17:33 PM

Selections from the Ken Burns series on Prohibition would be a great place to start.

Posted by: EP | May 31, 2013 3:24:45 PM

Doug -- You should certainly study the history of drug and alcohol use and abuse in the U.S. as part of your class; but you should go back way before Prohibition. The late Dr. David Musto of the Yale Medical School did a fabulous job in his scholarship documenting the American experience with drugs and alcohol back to colonial times. When you read the history, you'll find that we've been through multiple temperance movements in our history -- we are nearing the end of our third; Prohibition was the end of the second -- and we've been through multiple periods of alcohol/drug excess (colonial times; the late 1800s/early 1900s; and the 1960s and 70s). If we learn from our history, we will realize that swinging wildly from extreme to extreme -- despite being an American trait -- is not consistent with sustainable and healthy long term policy. Let's learn from our experience and not throw out the baby with the bath water. Moderation is worth considering as a long term strategy. Thoughts?

Posted by: History Major | May 31, 2013 6:18:55 PM

What are the parameters of a law school teacher's attempt to include history in the topic, the curriculum?
Often if say we are speaking of the Bill of Rights for example, the law prof does not know that the term Bill of Rights was not commonly employed until the 1940s. Many lawyers think that the Framers of the Constitution thought the thing up themselves and are unaware of the developments in 1688. Most lawyers do not think of the passage of the 13th, 14th and 15th Amendments as a Second Revolution. Poll a room full of lawyers at a CLE class on the Fourth Amendment and learn how many think it is applicable to a state proceeding absent the 14th.

If a Con Law Professor is not fully versed in the history of liberty going back to the Roman Empire then his/her ability to teach the notion of life, liberty and property is going to be lame. Many American lawyers and jurists are "Unreconstructed", in that they resist imposing a 14th Amendment federal jurisprudence on an issue in a state court such as following Jackson v. Virginia on a circumstantial evidence case on appeal. Teaching a course in the history of prohibition and the inclusion of pot in the saga would be interesting but scratches the surface. Law schools need to go well beyond Con Law 101 in teaching the full scope of our Constitution and the origins of the natural rights of man articulated therein. A sane man probably has the right to commit suicide by eating an arsenic pill. To prosecute him for a crime for imbibing in some weed to get a buzz on is quite archaic.

Posted by: Liberty1st | May 31, 2013 11:06:36 PM

Prohibition has its place. If you have a close friend or relative who is dying of lung cancer and smoking cigarettes day after day in the final days of their life, all the while wheezing and coughing in your presence, then you can embrace the notion of prohibitions.

Posted by: Liberty1st | May 31, 2013 11:43:30 PM

Doug, though the legal academy is terrified to admit it, many legal historians are terrible historians. Many law and econ people are terrible economists. Many critical legal studies people know little about lit crit (and the other academic subjects they borrow from).

At best, the work of most of these legal academics are derivative of important scholars in the academic field from which they borrow. More commonly, the legal academics borrow from those scholars in ways which dumb-down and bastardize the academics' work.

So I say go for it. You could never be as poor a legal historian as Bruce Ackerman or as poor an economist as Richard Epstein.

Posted by: anonymous | Jun 1, 2013 7:05:54 AM

I agree with your other commenters. The lack of knowledge of history and the need for understanding the impact of context and conditions on specific policy results torments and handicaps almost everything we do in policy and lawmaking in contemporary corrections and sentencing. Treating today as if yesterday never happened isn't something students of what we do need any more encouragement to do.

Posted by: mike connelly | Jun 1, 2013 9:45:50 AM

"If you have a close friend or relative who is dying of lung cancer and smoking cigarettes day after day in the final days of their life, all the while wheezing and coughing in your presence, then you can embrace the notion of prohibitions."

I and others have family members who died of cancer, so no desire to belittle the pain here, but people suffer from consumption of fatty foods and alcohol too. Prohibition in neither case is something we should embrace, though we tried once.

Posted by: Joe | Jun 1, 2013 10:56:55 AM

What is the availability of guest speakers (expertise in history) that may be available for a class or two or perhaps a webinar? The Ken Burns doc is great but always good to have a live expert. As an alternate wouldn't this be an ideal team teaching type of course?

Posted by: athought | Jun 1, 2013 12:22:17 PM

Good opportunity to come clean about the catastrophic consequences of the atavism of the lawyer profession. They have the responsibility of a two year old throwing things around the room when passing laws.

Laws are unauthorized human experimentation unless proven in smaller pilot studies of smaller jurisdictions. An Amendment should have extraordinary scientific validation and public support from the culture as it is at the time. The other way does not work, trying to change the culture through enforced laws. Were there many states with prohibition prior to the Amendment? What was its effect on health, crime, economics, quality of life? Prohibition did not have the support of the public. It lowered alcohol consumption by only 50%. Yet it had under appreciated benefits.

Pro and con points are here:


Compare the damage done by alcohol and cigarettes. Highly addictive. Advertised. Kill 500,000 a year, all going the rough way. Legal. Marijuana. Less addictive. Kept secret. Kills dozens by car crashes. Illegal. All marijuana prohibitionists must account for the legality of tobacco and alcohol. The early deaths from tobacco and alcohol save the Social Security and Medicare funds $trillions, so this mass slaughter is in the interest of the government. If prohibition is to be rational and consistent, draconin measures are need to stop the use of legal substances, for example, cheap, on the spot corporal punishment for users, summary executions of dealers.

The Rent Seeking Theory must be introduced. Once a bureaucracy is established, it is difficult or impossible to remove. When we say, the expensive war on drugs, we are really talking about paying the salaries of a multitude of federal employees. We are also talking about maintaining federal support for inflated prices that give massive profits to adversaries of the nation, including Al Qaeda, and Mexican Drug Cartel. These high profits are then used to kill our warriors. If I were in the Cartel, I would buy legitimate American businesses and make campaign contributions to prohibitionist politicians. These politicians should be investigated for the sources of their contributions.

The current situation is untenable. Either ban alcohol and cigarettes or legalize marijuana.

Posted by: Supremacy Claus | Jun 1, 2013 4:46:03 PM

{music} Legalize mari juanaaaa, who ooh oooh.
Right here in sweet JamaiCa... oooh oooh, oooh.

Well its no more, illegal humiliatiions... ooh ooh ooh
No more Police interrogations, ooh oooh ooh

That is the background music for the first day of class.
I would do a comparison to the US and Britain where for example a prescription drug is called a Scheduled Poison. Put up a photo of some politician who is smoking tobacco who is all for putting pot smokers in jail. Show a photo of his mom on her death bed from cancer smoking her last cigarette before she croaks.

Posted by: Liberty1st | Jun 2, 2013 2:14:18 PM

In addition to the Bob Marley reggie song I would find some film clips of Edward R. Murrow on his nightly news show smoking cigarettes and one of Walter Cronkite when he quips his promotion: Winston Tastes Good Like A Cigarette Should. Millions of kids were sold and many are dead from cancer. A prohibition on cigarette advertising would be good. Equate it with strychnine pills or simply say that Guns Are Quicker.

Posted by: Liberty1st | Jun 3, 2013 12:10:45 AM

I agree with the majority of the posts that you shd keep your plan to include legal history. I have no doubt that you will verse yourself to become as prepared as you feel comfortable and the issue is much better addressed with historical context. It may turn out to be a legal history of prohibition course, some day, it just happens that marijuana is the newest drug to legalize. There are interesting questions relating to criminalization of controlled substances that may or may ot have come up historically. Didn't cocaine begin as a government experiment? Paul Butler's book "Let's ge free" has a page about Rockefeller's publication in newspapers regarding prohibition that I found very educational. I think history can be a very useful tool for any legal practitioner. We are in the practice of using analogies so that listeners can understand us. I don't see how the clss would even work without it. Go for it!

Posted by: publicdefender | Jun 3, 2013 11:39:41 AM

Official of organized medicine chimes in.


Posted by: Supremacy Claus | Jun 4, 2013 12:23:00 AM

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