Posted by Paul Cassell:
More on Is Poker a Game of "Chance"?
http://volokh.com/archives/archive_2009_02_01-2009_02_07.shtml#1233853871
A VC reader has forwarded to me [1]this very interesting amicus brief
filed by the Poker Players Alliance in a Kentucky case. The brief is
filed "in support of every person's right to legally play poker, both
on the internet and in person."
The crux of the argument is that the wagers in poker involve a great
deal of skill:
While the initial distribution of cards and replacement cards are
random, the decision on which cards to discard, the methods and
steps in wagering, whether to wager or fold, the analysis of
playing habits of other players, and the management of a player's
chips from hand to hard are all player-based decisions greatly
influenced by the skill levels of the player.
The brief goes on to discuss Kentucky law, under which "gambling"
activities are proscribed. Kentucky Rev. Stat. Ann. section 528.010(1)
defines "gambling" as:
staking or risking something of value upon the outcome of a
contest, game, gaming scheme, or gaming device which is based upon
an element of chance, in accord with an agreement or understanding
that someone will receive something of value in the event of a
certain outcome. A contest or game in which eligibility to
participate is determined by chance and the ultimate winner is
determined by skill shall not be considered to be gambling.
The amicus brief contends that poker does not fit the definition of
gambling because "the outcome is based primarily on the skilled play
of the players." The brief explains that most poker hands "are decided
by all players folding to the winner. In that case the actual
distribution of the cards (the element of chance) has no bearing on
deciding who won. Instead it was the players' analysis as to the
relative value of their cards and their opponetns cards that
determined the outcome, which is based on the myriad of skill
elements" such as assessing risk, players' strategies, etc.
The brief goes on to explain that Kentucky law as followed a
"predominance" test to determine whether a game is one of skill or
chance with regard to the gambling proscription. The Kentucky Attorney
General has determined that table soccer, for example, is a game of
skill -- citing the presence of organized tournaments, regulations,
and classifications of players. The brief goes on to offer various
reasons for believing that skill predominates over luck in poker.
The whole brief is an interesting read. If the test under Kentucky law
is truly a predominance test, I think the brief makes a compelling
case that poker is not gambling. For example, it cites a study
comparing an unskilled player making wagering decisions randomly
against a skilled player in a two-player limit game of Texas Hold 'Em.
The skilled player apparently wins 97% of the hand and an average of
more than one-and-a-half "big" bets. Anthony Cabot and Robert Hannum,
Toward Legalization of Poker: A Game of Skill, presented at the Drake
Gaming Law Symposium, Sept. 12, 2008.
References
1. http://volokh.powerblogs.com/files/pokerplayersalliancebrief.pdf
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