Boston University News Release


1st December, 2004

Boston University Law Professor Presents Case before U.S. Supreme Court

(Boston) — Boston University School of Law Professor Randy Barnett, an expert in constitutional law, argued before the U.S. Supreme Court on Monday on behalf of two California residents whose use and possession of marijuana for medical purposes, which is legal under limited circumstances by California state law, put them at odds with federal authorities enforcing the federal Controlled Substances Act. The closely watched case drew extensive national news coverage.

“Arguing before the Supreme Court was something I never expected to do, but it was one of the most thrilling and demanding experiences of my professional life,” Barnett says. “One lesson I learned is the degree to which the kind of theoretical constitutional scholarship one does as a professor is of enormous relevance to this type of litigation.

“What I learned from developing the theories of our case will inform my scholarship on the Constitution for years to come. I don’t think I’ve ever worked harder,” he added. He credited moot court appearances at Georgetown, Oklahoma City, and Harvard universities in the three weeks leading up to his appearance before the Supreme Court as helping him develop and improve his explanation of his theories and his ability to respond to the rapid-fire questions from the Supreme Court justices.

The case made its way to the U.S. Supreme Court after a federal appeals court issued a preliminary injunction last December prohibiting federal agents from confiscating and destroying the plaintiffs’ marijuana. The two women suffer chronic debilitating illnesses. The administration, in Ashcroft v. Raich, No. 03-1454, appealed the ruling of the U.S. Court of Appeals for the Ninth Circuit.

Many of the justices’ questions addressed how this case differed from legal precedents on Congress’ power over interstate commerce. In what New York Times reporter Linda Greenhouse characterized as “a lively argument,” the government said that federal law should prevail because Congress regulates interstate commerce and controlled substances, therefore it is not an issue of states’ rights. Barnett responded by citing the “noneconomic activity” of personally growing and using marijuana, arguing that Congress lacks the authority to regulate it as it applies to this case.

Barnett joined the faculty of the School of Law in 1993 and became the Austin B. Fletcher Professor in 1995. A graduate of Northwestern University and Harvard Law School, he teaches cyberlaw, contracts, and constitutional law. He is a senior fellow of the Cato Institute and has visited at Northwestern University School of Law, the Universidad Francisco Marroquin in Guatemala, and Harvard Law School. Before coming to Boston University, he taught at the Illinois Institute of Technology’s Chicago-Kent College of Law, and before that served as an assistant state’s attorney for Cook County, Illinois. He lectures internationally and appears frequently on radio and television news programs.

Established in 1872, Boston University School of Law is a community of top legal scholars, teachers, students, and alumni, committed to excellence in legal education. Boston University is the fourth largest independent university in the United States, with an enrollment of more than 29,000 students in its 17 schools and colleges. The university offers an exceptional grounding in the liberal arts, a broad range of programs in the arts, sciences, engineering, and professional areas, and state-of-the-art facilities for research and teaching.





BU School of Law Professor Randy Barnett addresses the media on the steps of the U.S. Supreme Court, Monday, November 29, 2004, after arguing a case before the court. Photo courtesy of Lawrence Solum
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