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The 'Legal' Marijuana Industry's Challenge for Business Entity Law

William & Mary Business Law Review, v. 6, p. 511, 2015

Widener Law School Legal Studies Research Paper No. 14-35

47 Pages Posted: 7 Oct 2014 Last revised: 12 Jun 2015

Luke M. Scheuer

Widener University - Delaware Law School

Date Written: October 6, 2014

Abstract

In recent years many states have legalized the use and sale of marijuana for medical or even recreational purposes. This has led to the booming growth of a “legal” marijuana industry. Businesses openly growing and selling marijuana products to the consuming public are faced with some unusual legal hurdles. Significantly, although the sale of marijuana may be legal at the state level, it is still illegal under federal law. This article explores the conflict between state and federal marijuana laws from a business entity law perspective. For example, managers owe a fiduciary duty of good faith to their businesses and equity holders. One of the ways in which managers can violate this duty is by causing their business to intentionally violate the law. This is a problem for the marijuana industry because its managers constantly and intentionally violate federal law and therefore violate their fiduciary duties by growing and selling marijuana. This article concludes that the industry’s ability to attract professional stakeholders is harmed by marijuana business stakeholders’ inability to take advantage of key business law protections, such as limited liability. This article proposes a state law exception that allows for marijuana businesses to operate normally under state business entity law, with normal business entity law protections, despite their continuing violation of federal law.

Keywords: business entities, corporations, coporation law, marijuana, marijuana legalization, business law, marijuana industry

JEL Classification: K22

Suggested Citation

Scheuer, Luke M., The 'Legal' Marijuana Industry's Challenge for Business Entity Law (October 6, 2014). William & Mary Business Law Review, v. 6, p. 511, 2015; Widener Law School Legal Studies Research Paper No. 14-35. Available at SSRN: https://ssrn.com/abstract=2506174

Luke M. Scheuer (Contact Author)

Widener University - Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States

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