University of Miami Business Law Review

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This Comment provides an in-depth analysis of the current status regarding legalization of marijuana in the United States. It begins by tracing a brief history of the legalization movement in this country. The next section addresses the federal-state law conflict issue, coupled with a thorough analysis of two recent and relatively unexamined developments—the Department of Justice’s August 29, 2013 memorandum issued as a guide to federal prosecutors concerning marijuana law enforcement, and the September 10, 2013 judicial committee hearing on the conflict between federal and state marijuana laws. So long as the federal-state law conflict exists, it seems that the current climate, filled with uncertainty and ambiguity, allows for possible arbitrary abuse of power and selective prosecution by the federal government. A particularized focus on the current activities of Colorado and Washington places many of these issues into context, and enables us to study the progression of legalization in action. One section is dedicated to addressing the detrimental effects of current federal drug policy, and serves to highlight federal, state, and local reform efforts around the country. This newly emerging “cannabusiness” also creates some ethical dilemmas for lawyers seeking to aid clients in their business endeavors; thus, part of this Comment seeks to unpack these ethical quandaries and provide some clarity and guidance to attorneys. The role of the Fifth Amendment privilege against self-incrimination and its potential effect on this budding and lucrative industry is also closely examined. The final section discusses what the future of federally legalized marijuana might look like— how marijuana might be dealt with as a controlled and regulated substance in the business sector, how the law would handle such a shift, and what overarching effects this shift might have on the criminal justice system.

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