Sumptuary administration: How contested market actors shape the trajectory of policy when regulated under fragmented governance

In contemporary society, sumptuary laws regulate contested markets by delegating enforcement responsibilities to the private sector. This can decouple the intention behind policies from the practices to implement them. When state interests do not align concerning the legality of a market, can policy and practice recouple, and if so, how? This article reports on a case study of commercial cannabis in the United States to answer this question. Interviews with 56 cannabis industry stakeholders in California, Arizona, and Texas reveal that policy and practice recoupled through a patterned process that I call sumptuary administration. In each state, regulators drew on a unique set of schemas, or “framework of accountability,” that prioritized a subset of cannabis market participants during the policy-making process. This resulted in missing or ambiguous sumptuary laws. To address business challenges that were tethered to this regulatory environment, cannabis businesses drew on similar schemas to identify appropriate practices. I show how grounding practices in these frameworks legitimized the preferences of the cannabis industry in the eyes of state authorities and influenced specific program policy revisions. Sumptuary administration represents a novel mechanism for understanding the social construction of legality in markets that are regulated under fragmented governance.     

In Defense of the Standard Picture: Overcoming Death by a Thousand Cuts

In a previous article, I defended the standard picture of law (or SP), so labeled by its foremost critic, Mark Greenberg. In that article, I addressed Greenberg's root-and-branch critique of the SP and, to a much lesser extent, a related critique by Scott Hershovitz. But the Greenberg and Hershovitz frontal attacks on the SP are not its only threats. Some theorists, while not attacking the SP directly, give accounts of law that the SP cannot accommodate. Those theorists will be challenged here, because if they are correct, the SP is not a tenable account of law.