Much has recently been discussed about the potential value to the cannabis industry of last Monday’s decision by the U.S. Supreme Court concerning states authorizing sports betting. Murphy v. NCAA, No. 16-476 (U.S., May 14, 2018).  For example, see “The Implications of Murphy v. NCAA for State Marijuana Reforms,” authored by Vanderbilt University Law School Professor Robert Mikos.

While some of the arguments are interesting, caution should be exercised here. The law at issue in the Murphy case, the Professional and Amateur Sports Protection Act, did “not make sports gambling a federal crime … Instead, [it] allow[ed] the Attorney General … to bring civil actions to enjoin violations.” (Slip Op., at 5.)  In contrast, federal law makes it a crime to possess, sell or manufacture marijuana, or to aid or abet others in doing so (12 U.S.C. § 841(a)(1) and 18 U.S.C. § 2). Judge Alito, in the majority opinion, supported the so-called “anticommandeering” doctrine as part of the Constitutional mandate “to withhold from Congress the power to issue orders directly to the States.”  However, he also reiterated that “when federal and state law conflict, federal law prevails and state law is preempted” (Slip Op., at 14-15).

While Murphy is an important decision, time will tell as to what — if any — effect it may have concerning the state laws permitting medical, and especially recreational, marijuana use.

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Photo of Barry A. Abbott Barry A. Abbott

Barry Abbott represents established corporations and startups in all aspects of their corporate, financial services, internet, payments and e-commerce businesses. He is nationally recognized for his work advising clients on developing ground-breaking consumer financial services products.

Barry Abbott is a pioneer in e-commerce lending matters. National and international financial institutions look to him for counsel on major transactions. He also advises startups (including crowdfunding, peer-to-peer and gaming companies) on corporate and regulatory matters. Notably, Barry was:

  • Involved in developing the legal documents for the first equity line product (for Crocker Bank in the late 1970s)
  • Principally responsible for developing all legal documents for the first major reverse mortgage program (for Transamerica HomeFirst in the late 1980s)
  • Original legal counsel responsible for organizing the National Council of Real Estate Investment Fiduciaries (NCREIF)
  • General Counsel to the REX Group, which developed the first true home owner-occupied option investment product and marketplace