#2008-1 Copyright 2008, all rights
reserved worldwide. Gambling and the
Law® is a registered trademark of Professor I Nelson Rose, www.GamblingAndTheLaw.com
Gambling and the Law®:
A Modest
Proposal
Is
poker a game of skill?
In
states without licensed cardrooms, the answer will almost always determine
whether it is legal to operate the game as a business. In about half the states, it would also
determine whether merely playing in a commercial game is a crime.
States
do have the right to put restrictions on games of skill played for money. They may even be able to outlaw them
completely, although there is case law holding that governments cannot
discriminate by picking on only certain skill games.
But
all states outlaw unauthorized gambling, defined as games with three elements:
1) A prize of value;
2) Consideration, meaning it costs something to
play; and
3) An outcome determined predominantly by chance,
not skill.
There
are cases being fought in the
Courts
and commentators have looked at the issue from many angles. I like to think that we can put all games on
a spectrum, from pure chance, like roulette, to pure skill -- chess.
But
even roulette can involve some skill: knowing what bets not to make. Wizardofodds.com mentions one bet available
at a tribal casino where the house advantage is 23.55%! And Russell T. Barnhart wrote an entire book
in 1992 called "Beating the Wheel," discussing biased wheels and
clocking.
I
think that any factor beyond the players' control, such as having the flu,
should count as "chance." But
even if these should be counted as part of the players' "skill,"
there is still the coin flip to determine who gets white and the right to move
first.
I
am involved as a consultant and expert witness in some of the court cases being
fought over proving poker, especially tournaments, is predominantly skill. So, I have to make it clear that the modest
proposal I am presenting in this column is not necessarily the actual law of
any state or nation.
In
1870, Mark Twain wrote a column entitled "Science vs. Luck." It concerned
a fictional
Like
our modern cases, the courtroom battle came down to a battle of experts. The prosecutors called in deacons and other
clergymen, all testifying that old sledge was a game of chance.
Mark
Twain doesn't go into detail on the experts the defendants called. But we know, today, they would be
mathematicians, professional players and people like me, who can testify about
the law and history of the game.
With
experts on both sides, the judge "said there was no way of coming to a
determination..." The defense
attorney suggested a solution:
"Impanel a jury of six of each, Luck versus Science. Give them candles and a couple of decks of
cards. Send them into the jury-room and
just abide by the result."
After
playing all night, with some clergymen coming out to borrow more money, the
jury reached their unanimous verdict:
"old sledge" was a game of skill.
I
propose the poker world do the same.
Bring out of their forced retirements Sen. Bill Frist and Rep. Jim
Leach, the architects of the UIGEA. They
can be joined by the other leading "anti's" in Congress: Sen. Jon Kyl and Rep. Frank Wolf. Throw in the leading religious opponents,
Rev. Tom Grey and Dr. James Dobson, and you have half the jury. We can give each of them a sheet with the
rankings of the hands.
The
big question: Which six players should
represent the poker world?
END
© Copyright 2008. Professor I Nelson Rose is recognized as one of the world's leading experts on gambling law. His latest books, Internet Gaming Law and Gaming Law: Cases and Materials, are available through his website, www.GamblingAndTheLaw.com.
