Foucault
05-04-2007, 05:00 PM
As you may know, Bloch is both a professional poker player and a graduate of Harvard Law School. I found his analysis pretty helpful and interesting:
(from www.andybloch.com (http://www.andybloch.com))
"On May 1, a North Carolina Court of Appeals upheld a trail court's ruling against a poker promoter seeking an opinion that poker is a game of skill. I really hate it when people write about a case without linking the actual decision, so here are links to the case:
http://www.aoc.state.nc.us/www/public/coa/opinions/2007/060123-1.htm
http://www.aoc.state.nc.us/www/public/coa/opinions/2007/pdf/060123-1.pdf
The opinion makes it sound as though the court is simply following the settled law in North Carolina, but in reality the court is stating a new legal test. The old test between a game of skill and a game of chance was whether skill predominates over chance, whereas this opinion says that just about any inherent element of chance defeats the skill argument. The plaintiffs made a mistake thinking that the phrase "skill predominates over chance" means what a professional gambler thinks it means. In this opinion, the phrase is merely lipservice to 150 years of legal precedents.
In the court's analysis of the legal questions, the court first cites the "predominate-factor" test as the legal rule in NC, and then pretends it's following that rule. Of course, the "predominate-factor" test is vague when applied to poker, so the court has to make up its own principles to come to the decision they want. This quote from the opinion is particularly telling: "From the evidence, Judge Hudson was unable to determine whether skill or chance predominated in poker, but concluded that poker is a game of chance." In other words, the court couldn't figure out how to apply the old rule, so it made up some new rules to justify the result the state wanted it to reach.
To back up its decision that poker is a game of chance, the Court of Appeals makes up two new tests (without citation and without acknowledging that it is creating new rules). First is what I will call the "equal challenge" test. In games like golf or chess, both players are on an equal footing and there is no element of chance that will give one player the advantage over another. If there is such an element of chance, then, according to this court, the game is a game of chance, not skill. Second, is the "inherent chance" test, which says that the critical question is whether chance is inherent in the description of the game. If there is no mention of a random instrumentality in the normal description of the game and a player with (enough) superior skill can overcome any non-inherent chance, then the game is a game of skill. In other words, chance isn't "chance" if it's due to nature or the limits of human abilities.
Reading the opinion as a whole, I'd say that the court followed the "inherent chance" test, while pretending to follow the "predominate factor" test.
The plaintiffs made a predictable mistake, trying to argue that in poker, skill predominates, without understanding how judges in North Carolina (like most other states) actually decide the skill versus chance question. In North Carolina, like many states, the predominate test is always cited but never really followed (except for the obvious cases where there is no way for skill to give the player an edge). You can argue all you want that in the long run (or even short run) that skill will prevail, but once the other side testifies that, because of the turn of a card, a hand with a 91% chance to win loses to a hand with 9% chance to win, you'll lose your case 91% of the time. (Yes, that was actual testimony mentioned in the opinion!)
The predominate test means different things in different states and it is often much different than a poker player or statistician would think. (In the terminology of Texas Hold'em, when your hand is "dominated" you still have about a 25% chance of winning the pot. No poker player would normally consider it gambling to call a bet when you have your opponent dominated. In game theory, "dominated" means something much different.) If we are going to take our fight to the courts, we have to first argue about what the legal rules actually mean when applied to a game like poker, and why. If we can't convince the court that a game with an inherent element of chance can be a game of skill, then we have no chance no matter how much skill is involved.
One question that this opinion brings to mind is whether a duplicate poker game would be legal in NC. I think it could go either way. (Duplicate poker is like duplicate bridge, where the same cards are dealt at multiple tables, and the players's scores are only compared against the players' counterparts at the other tables. I've actually played duplicate poker for fun via email. I've never heard of anyone acutally playing it for real money, but there is at least one internet site that is working on the idea.)"
(from www.andybloch.com (http://www.andybloch.com))
"On May 1, a North Carolina Court of Appeals upheld a trail court's ruling against a poker promoter seeking an opinion that poker is a game of skill. I really hate it when people write about a case without linking the actual decision, so here are links to the case:
http://www.aoc.state.nc.us/www/public/coa/opinions/2007/060123-1.htm
http://www.aoc.state.nc.us/www/public/coa/opinions/2007/pdf/060123-1.pdf
The opinion makes it sound as though the court is simply following the settled law in North Carolina, but in reality the court is stating a new legal test. The old test between a game of skill and a game of chance was whether skill predominates over chance, whereas this opinion says that just about any inherent element of chance defeats the skill argument. The plaintiffs made a mistake thinking that the phrase "skill predominates over chance" means what a professional gambler thinks it means. In this opinion, the phrase is merely lipservice to 150 years of legal precedents.
In the court's analysis of the legal questions, the court first cites the "predominate-factor" test as the legal rule in NC, and then pretends it's following that rule. Of course, the "predominate-factor" test is vague when applied to poker, so the court has to make up its own principles to come to the decision they want. This quote from the opinion is particularly telling: "From the evidence, Judge Hudson was unable to determine whether skill or chance predominated in poker, but concluded that poker is a game of chance." In other words, the court couldn't figure out how to apply the old rule, so it made up some new rules to justify the result the state wanted it to reach.
To back up its decision that poker is a game of chance, the Court of Appeals makes up two new tests (without citation and without acknowledging that it is creating new rules). First is what I will call the "equal challenge" test. In games like golf or chess, both players are on an equal footing and there is no element of chance that will give one player the advantage over another. If there is such an element of chance, then, according to this court, the game is a game of chance, not skill. Second, is the "inherent chance" test, which says that the critical question is whether chance is inherent in the description of the game. If there is no mention of a random instrumentality in the normal description of the game and a player with (enough) superior skill can overcome any non-inherent chance, then the game is a game of skill. In other words, chance isn't "chance" if it's due to nature or the limits of human abilities.
Reading the opinion as a whole, I'd say that the court followed the "inherent chance" test, while pretending to follow the "predominate factor" test.
The plaintiffs made a predictable mistake, trying to argue that in poker, skill predominates, without understanding how judges in North Carolina (like most other states) actually decide the skill versus chance question. In North Carolina, like many states, the predominate test is always cited but never really followed (except for the obvious cases where there is no way for skill to give the player an edge). You can argue all you want that in the long run (or even short run) that skill will prevail, but once the other side testifies that, because of the turn of a card, a hand with a 91% chance to win loses to a hand with 9% chance to win, you'll lose your case 91% of the time. (Yes, that was actual testimony mentioned in the opinion!)
The predominate test means different things in different states and it is often much different than a poker player or statistician would think. (In the terminology of Texas Hold'em, when your hand is "dominated" you still have about a 25% chance of winning the pot. No poker player would normally consider it gambling to call a bet when you have your opponent dominated. In game theory, "dominated" means something much different.) If we are going to take our fight to the courts, we have to first argue about what the legal rules actually mean when applied to a game like poker, and why. If we can't convince the court that a game with an inherent element of chance can be a game of skill, then we have no chance no matter how much skill is involved.
One question that this opinion brings to mind is whether a duplicate poker game would be legal in NC. I think it could go either way. (Duplicate poker is like duplicate bridge, where the same cards are dealt at multiple tables, and the players's scores are only compared against the players' counterparts at the other tables. I've actually played duplicate poker for fun via email. I've never heard of anyone acutally playing it for real money, but there is at least one internet site that is working on the idea.)"