Video of RI panel

November 21, 2014 § Leave a comment

A video of the November 18, 2014, Rhode Island panel on marijuana legalization is here: ( In the second panel, the lower video, I come in at about the 18’20” mark with comments about how collapsing pre-tax prices might create problems.  Other panelists are Michelle McKenzie, Senator Josh Miller, and Mason Tvert.  Jared Moffatt moderates.



State marijuana monopolies: I take it back

November 20, 2014 § Leave a comment

Oops.  The detailed analysis of the economics of a federal marijuana tax by the Congressional Research Service (Gravelle and Lowry) cites an article of mine for the proposition that “state monopolies for marijuana production or distribution cannot occur while it is still illegal at the federal level because state governments cannot force the employees of such hypothetical operations to engage in the marketing of a drug that is illegal at the federal level. See Pat Oglesby, ‘States May Be Stuck with Second-Best Marijuana Taxes,’ State Tax Notes, June 2, 2014, pp. 539-544.”

I wrote that, but I now see a possible path to state marijuana monopoly. The doctrine of judicial standing means that if you violate federal law, I probably can’t sue you (and I can’t sue the federal government either). So if you are not paying your taxes, or if you are falsely claiming disability benefits, I can’t take you to court. I can turn you in, or tell the press. It’s up to the federal government to enforce the law.

Substitute “a state” for “you” in that thinking and you kind of get the doctrine of standing. A state that violates a federal law is not subject to Citizen’s Arrest. If the federal government lets the violation go, the courts probably will, too.

A difficult path.  More to come.


CRS on Marijuana Tax Economics

November 20, 2014 § Leave a comment

Jane Gravelle, whom I remember from the 1980s as a true tax professional, and a colleague named Sean Lowry have issued a report on marijuana taxation here (,  It’s more economics than law, and I don’t agree with some of it, but I feel like the field of folks looking at the minutiae of marijuana tax design has expanded.  I think that’s good for America.

Religion remains established for lack of standing

November 14, 2014 § Leave a comment

If the government wrote a check to every church’s minister, that would be Establishment of Religion, right?  Then what about tax breaks for every minister?  Code section 107 gives tax breaks for housing to any “minister of the gospel” (expanded in Regs to cover rabbis, imams, etc.).  If that’s not the kind of caught-red-handed establishment of religion the Founders forbade in the 1st Amendment, what is?

But the Seventh Circuit found yesterday that plaintiffs challenging the tax break for “ministers of the gospel” in Code section 107 lacked standing to sue. No particular personal injury « Read the rest of this entry »

Speaking to State Legislators in DC

November 11, 2014 § Leave a comment

I’m to be on a panel on marijuana legalization at the meeting of the National Conference of State Legislatures in Washington, DC, on December 12. « Read the rest of this entry »

Speaking at Brown in RI

November 11, 2014 § Leave a comment

I’m to be on a panel on marijuana legalization at Brown University in Providence on November 18:


Trusting Marijuana Sellers

October 27, 2014 § Leave a comment

This blog is very skeptical of the ability to measure THC accurately enough to tax it.  Here is an argument that testing is accurate enough: “Skeptics say it is too difficult to measure THC, but that’s not very convincing when High Times magazine offers the same kind of product specs you’d find in an issue of Stereophile or Car and Driver Magazine.”

But even claims of horsepower have been found inaccurate. And nobody taxes horsepower. The sampling of bud leaves the door open to manipulation and abuse – by taxpayers or government.

Accuracy for taxation is not the same as accuracy for journalism — or advertising.  And if the incentive shifts to make low THC claims profitable, I would not count on taking those low claims to the bank, either.  That’s where I look to a stated THC tax as an option, as suggested by Beau Kilmer and David Ball, described here at page 541 note 17.  Remember what happened to statements of tar and nicotine content on cigarette packs:  they are not there any more.



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