Legal Commentary

There are some posts over at Volokh Conspiracy regarding some recent litigation regarding underground Texas Hold 'Em games. Judge Cassell links to an amicus brief by the Poker Players Alliance in one of the cases.  The key part of the Kentucky statute, judging solely from the amicus brief, forbids "gambling" as defined as:

[S]taking 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.

So, as per the last sentence, games with an "element of chance" are gambling.  But if the "ultimate winner is determined by skill" -- it's apparently not gambling.  And for games like Hold 'Em that involve both skill and chance, Kentucky uses a "predominance" test -- courts are supposed to discern whether skill or luck predominates.

I find this an interesting question, in part because I've always thought the reason why Hold 'Em works as a game is that it's the optimum blend of skill and luck.  If it were too much a game of skill, the fish wouldn't play.  (Cue Phil Hellmuth, who loves to say that if it wasn't for luck, he'd win everytime.)  If it was too much luck, though, there wouldn't be professional poker players -- they couldn't survive the rake (i.e., the amount the house takes for supporting the game).  The skill/luck ratio of a given Hold 'Em game depends on so many things -- no limit Hold 'Em involves more skill than limit, tournaments involve more skill than cash games, tournaments with a slower structure involve more skill than shootouts, etc. etc.   The games around my Thanksgiving Day table are pretty much luckfests; the ones in casinos less so.  The big thing, I think, is what the relevant timeframe is.  In the short run, luck predominates in poker.  The outcome of any one given hand depends largely on the cards.  But over the the long run, luck evens out -- and skill is clearly what matters.  That's why it's bad poker form to win a big hand and leave.  Social convention demands that your adversaries be given more time to let luck even out and let skill be the deciding factor.

The brief, though, is great.  I never thought I'd see a legal citation to Doyle Brunson's Super System or David Sklansky's The Theory of Poker -- see footnote 35.