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I.INTRODUCTION
Any investigation into the history of cannabis in the United States reveals a wandering journey, much like Homer's Odyssey.1 The legal and ethical landscape lawyers traverse in representing cannabis2 businesses reflect the troubled waters of the Odyssey.3 For 50 years states, businesses, and individuals have faced danger and uncertainty while seeking a legal route to employ various uses of the cannabis plant.4 Lawyers with clients in the cannabis industry need clear guidance5 but currently there is little to be found. Guidance documents from executive agencies are unclear and, like the song of the Sirens,6 lead many astray.
The legal status of cannabis in the United States is a sea of conflicting laws, changing ethics rules, and administrative exemptions. With the breadth of regulations on cannabis, and the inconsistency of state and federal laws, how can cannabis businesses have legal representation equal to that of other businesses? Lawyers, and the businesses they represent, have come to rely on the state laws and ethics rules supporting the representation of cannabis businesses.7 However, the Department of Justice (DOJ) has been unpredictable in its enforcement of federal cannabis laws.8 Commensurate change in the governing law is required. In this Note, I argue the problem lies in administrative law,9 and the legal community should have this in mind when searching for solutions.
The journey began fifty years ago. On October 27, 1970, Congress passed the Controlled Substances Act (CSA).10 The sheer breadth of the statute, and the authority that it delegated to the Department of Justice (DOJ), gave the executive branch great power to regulate substances in the United States.11 Among the controlled substances was the plant known as Cannabis sativa L., referred to in the CSA as "marihuana."12
After passage of the CSA, states began decriminalizing cannabis and enacting medical cannabis statutes.13 This began a division among the state and federal governments over legality of the substance, culminating in the 1996 Supreme Court case of Gonzales v. Raich. 14 There, the Supreme Court supported the DOJ in its superiority over the states in regulating cannabis.15 Yet, cannabis support among the states has since grown dramatically, and now businesses purveying medicinal and recreational cannabis have become widespread.16
Most of the growth has occurred over the past decade17 due, at...