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Gambling and the Law: Proving Poker is a Game of Skill

31 March 2009

By I. Nelson Rose

How can we make poker legal?

The cleanest way is to get a statute passed through the state legislature.

In my book, GAMBLING AND THE LAW, I show how California became the draw poker capital of the world because the state enacted laws in the 19th century that outlawed specific games, like 21 and faro, but left draw poker off the list.

Of course, there still can be problems. When Florida lawmakers authorized commercial cardrooms, they initially put a ridiculous limit of $10 on the size of pots. And questions arose over what games qualify. I testified as an expert witness that one innovation, essentially a game where players get two cards and try to get closer to 21 without going over, was not poker.

Politically it has proven nearly impossible to get a poker bill through both houses of a state legislature and be signed by the governor. At the very least, the pro-poker faction would have to spend enormous amounts of time and money lobbying local lawmakers.

An easier route is litigation. If the highest court of a state declares that playing poker for money is legal, then it is. Even the U.S. Supreme Court can't overrule that decision, although the state legislature could put on restrictions.

There are presently a couple of cases working their way through court systems in the United States, and a few more than that in Europe. These aren't necessarily the perfect test cases, because lawyers often have to take the case their client has, rather than the one they would wish for.

But the stakes are so great that somebody is going to put together the right case. Here's what they should do:

1) Put together a team of lawyers and experts in advance, so that a test case will have the right combination of laws and facts.
2) Choose a state with the right laws. The goal is to have a trial showing that poker is a game of skill and therefore legal. The statute should clearly state that gambling is limited to games that are predominantly chance. And there should be prior published case decisions that can be used. The California Supreme Court, for example, declared that the card game of bridge is predominantly skill. So it would only be necessary to prove that poker has as much skill as bridge.
3) Use poker tournaments as the test case. Courts that have ruled that poker is predominantly chance have focused on the possibility that an amateur could be dealt a hand better than a professional. So eliminate the possibility of winning on a single hand.
4) File an action for a declaratory judgment – do not get arrested. The best you can get once a case is in criminal court is a "not guilty."
5) Get expert poker players to testify that most hands are not called, to show that it is not just who is dealt the best hand.
6) Have experts run tests that have worked in other cases. For example, games of skill always have a learning curve, and professionals beat amateurs in the long run.
7) Be creative and prepared. Courts have looked at how many books have been written on bridge (concluding it's a game of skill), and others have emphasized that the general public thinks lotteries are predominantly chance. So lists should be made showing there are now more books for poker players than for bridge players. And public opinion polls should be taken that prove the general public feels poker is a game of skill.

I. Nelson Rose
Professor I. Nelson Rose is an internationally known scholar, public speaker and writer and is recognized as one of the world's leading authorities on gambling law. A 1979 graduate of Harvard Law School, he is a tenured full Professor at Whittier Law School in Costa Mesa, California, where he teaches one of the first law school classes on gaming law.

Professor Rose is the author of more than 300 books, articles, book chapters columns. He is best known for his internationally syndicated column, "Gambling and the Law ®," and his landmark 1986 book by the same name. His most recent book is a collection of columns and analysis, co-authored with Bob Loeb, on Blackjack and the Law.

A consultant to governments and industry, Professor Rose has testified as an expert witness in administrative, civil and criminal cases in the U.S., Australia and New Zealand, and has acted as a consultant to major law firms, international corporations, licensed casinos, players, Indian tribes, and local, state and national governments, including Arizona, California, Florida, Illinois, Michigan, New Jersey, Texas and the federal governments of Canada and the United States.

With the rising interest in gambling throughout the world, Professor Rose has spoken before such diverse groups as the F.B.I., National Conference of State Legislatures, Congress of State Lotteries of Europe, United States Conference of Mayors, and the National Academy of Sciences. He has presented scholarly papers on gambling in Nevada, New Jersey, Puerto Rico, England, Australia, Antigua, Portugal, Italy, Argentina and the Czech Republic.

He is the author of Internet Gaming Law (1st & 2nd editions), Blackjack and the Law and Gaming Law: Cases and Materials.

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Books by I. Nelson Rose:

Gambling and the Law

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