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

• Published date: 01 October 2023
• Author: Alexander B. Kinney
• Date: 01 October 2023
• DOI: http://doi.org/10.1111/lapo.12216

ORIGINAL ARTICLE

Sumptuary administration: How contested market

actors shape the trajectory of policy when regulated

under fragmented governance

Alexander B. Kinney

Sam Houston State University, Huntsville,

Texas, USA

Correspondence

Alexander B. Kinney, Sam Houston State

University, 816 17th St, Huntsville,

TX 77340, USA.

Email: abk017@shsu.edu

Funding information

National Science Foundation, Grant/Award

Number: 1903986; Social and Behavioral

Sciences Institute at the University of Arizona

Abstract

In contemporary society, sumptuary laws regulate con-

tested markets by delegating enforcement responsibili-

ties to the private sector. This can decouple the

intention behind policies from the practices to imple-

ment them. When state interests do not align con-

cerning 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, Ari-

zona, and Texas reveal that policy and practice rec-

oupled 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 pro-

gram policy revisions. Sumptuary administration repre-

sents a novel mechanism for understanding the social

construction of legality in markets that are regulated

under fragmented governance.

DOI: 10.1111/lapo.12216

©2023 University of Denver and Wiley Periodicals LLC.

Law & Policy. 2023;45:507–529. wileyonlinelibrary.com/journal/lapo 507

1|INTRODUCTION

In contemporary society, sumptuary laws are the primary vehicle for regulating contested

markets. In the United States, sumptuary laws are legally defined as “any law whose purpose

is to regulate conduct thought to be immoral, such as prostitution, gambling, or drug abuse”

(Garner, 2019, p. 1574). These laws are typically enforced through the private sector labor

process (Sallaz & Wang, 2016). When a bartender checks patron I.D.’s to ensure that they are

old enough to drink (Buvik & Tutenges, 2018), or an exotic dancer polices the physical con-

duct of clientele (Price-Glynn, 2010), the state has essentially deputized a nongovernment

actor to ensure that the spirit of a sumptuary law is carried out. This partnership is also the

bedrock for a unique form of decoupling, one that pits the intention of policies to restrain

problematic consumption against the motivation to maximize revenues.

More succinctly, sumptuary laws elicit a variation on the classic disjuncture between

“law in the books and law in action”(Pound, 1910). Sociolegal scholars have outlined sev-

eral mechanisms that ensure the maintenance of social order under these contexts

(Burstein, 1991;Dickson,1968; Dobbin & Dowd, 2000; Edelman & Suchman, 1997;

Hunt, 1999; Sallaz & Wang, 2016;Talesh,2009). However, there is considerable evidence

that the efficacy of these mechanisms depends on coherent government interests

(Fligstein, 1996,2001; Fligstein & McAdam, 2012). When sumptuary laws emerge through

fragmented governance, can policy and practice recouple? If so, how? This paper answers

these questions through a case study of commercial cannabis in the United States.

Most U.S. states now regulate the production and consumption of cannabis. Yet, in

addition to running afoul of federal statutes, these state-level programs have inconsistent

policies. Certain states permit the production and sale of nonpsychoactive cannabis to con-

sumers with qualifying medical conditions, while other states permit the production and

sale of psychoactive cannabis to consumers with qualifying medical conditions. Further-

more, an ever-increasing number of states now have programs that permit the production

and sale of cannabis to any adult 21 years of age or older. Thus, commercial cannabis rep-

resents an ideal case to explore how fragmented governance impacts various contested

market actors.

In this article, I analyze in-depth interviews with cannabis industry stakeholders in Texas,

Arizona, and California to trace how attitudes and beliefs about the law, or “legal

consciousness,”relates to the practices that are adopted to address challenges introduced by

incoherent market regulations (Ewick & Silbey, 1998; Silbey, 2005). As I will demonstrate, reg-

ulators in each state drew on a unique framework of accountability when developing cannabis

program policies. These frameworks prioritized certain market stakeholders, leading to ambigu-

ous or, at times, completely missing mandates. In response to business challenges that were teth-

ered to these institutional voids (Mair & Marti, 2009; Mair et al., 2012; Marti & Mair, 2009), I

find that the cannabis industry converged on the framework of accountability favored by their

regulators to identify pertinent practices. While these practices were instrumentally beneficial

for achieving specific business goals, by virtue of being filtered through these frameworks, they

became infused with meaning and legitimized the preferences of the cannabis industry. While

the contexts of how this occurred in each state were unique, the findings in this paper outline a

patterned process for how policy and practice recouple under fragmented governance. This pro-

cess, which I refer to as sumptuary administration, established a form of bottom-up pressure on

the regulatory process that pushed state authorities to adjust the intentions of cannabis program

policies to more closely align with industry preferences. I conclude by arguing that sumptuary

administration should be treated as a mechanism that facilitates the co-construction of legality

in contested markets.

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