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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.)"

TomCowley
05-06-2007, 06:36 PM
The ruling is even more idiotic because both golf and chess DO have an element of chance that creates an advantage- who goes first. Both games fail both tests.

Getting the white pieces in chess is a significant advantage determined by a random process. Getting to go second on hole 1 in golf is an advantage (albeit a much lesser one) because of the information gained about course conditions.

TomCowley
05-06-2007, 07:21 PM
[ QUOTE ]
This is not so with bowling, where the player's skill determines whether he picks up the spare; or with billiards, where the shot will find the pocket or not according to its author's skill. During oral arguments, counsel for plaintiff analogized poker to golf, arguing that while a weekend golfer might, by luck, beat a professional golfer such as Tiger Woods on one hole, over the span of 18 holes, Woods' superior skill would prevail. The same would be true for a poker game, plaintiff contended, making poker, like golf, a game of skill. This analogy, while creative, is false. In golf, as in bowling or billiards, the players are presented with an equal challenge, with each determining hisfortune by his own skill. Although chance inevitably intervenes, it is not inherent in the game and does not overcome skill, and the player maintains the opportunity to defeat chance with superior skill. Whereas in poker, a skilled player may give himself a statistical advantage but is always subject to defeat at the turn of a card, an instrumentality beyond his control. We think that is the critical difference.

[/ QUOTE ]

A player can play a perfect chess match and lose (under current international rules with a draw-odds game as the final tiebreak). An NFL team can go through the entire season, never give up a point, and not even make the playoffs (farfetched, but the final tiebreak is a coin toss).

Any game or competitive structure in which perfect play can result in anything other than 1st place is a game of chance by this logic, and almost all competitions and leagues that determine a sole winner have an element of chance at some point.

The court is obviously trying to rule what it wants to rule without even bothering to see if its opinion is self-consistent (much less sensible).

PairTheBoard
05-06-2007, 07:47 PM
I assume Poker has been illegal in NC for a long time under their predominate test. So what they mean by the predominate test as it applies to poker has been well defined by a history of precedent in their courts. That means that any new challenge to the application of that test has the burden of presenting something basically new to the court. They can't just present an essentially rehased version of old arguments and expect the court to take a newly enlightened view of them. Did the plaintiffs present something essentially new?

I think what the court really did was something like the old, "I know pornography when I see it" routine. They know a game that's predominately chance when they see it. They would not "see" such a thing in the coin flip before a football game. But they "see it" in poker. The plaintiffs had to present something that would give the court a new pair of glasses. Evidently they failed.

PairTheBoard

StellarWind
05-06-2007, 08:59 PM
[ QUOTE ]
A player can play a perfect chess match and lose (under current international rules with a draw-odds game as the final tiebreak). An NFL team can go through the entire season, never give up a point, and not even make the playoffs (farfetched, but the final tiebreak is a coin toss).

Any game or competitive structure in which perfect play can result in anything other than 1st place is a game of chance by this logic, and almost all competitions and leagues that determine a sole winner have an element of chance at some point.

[/ QUOTE ]
A court is not a computer and interpreting the law is not a math problem. This type of picky logical argument doesn't work in court. It's a waste of time to even think about things like this.

The legal status of poker is a political problem. There is a social consensus that poker is gambling and chess is a game of skill. That's what the legislators were thinking when the laws were written and what the judges are thinking when they make rulings. This by the way is as it should be. Judges aren't supposed to look for ways to twist laws to mean the exact opposite of what everyone agrees they mean.

There are two ways to solve our problem:

1. Conduct a long-term effort to educate our society so that a new social consensus develops poker is a game of skill. If everyone else changes their mind the judges will eventually follow suit and change their rulings.

2. Convince people that poker should be legal even though it is gambling. If a broad enough base of support develops the legislators will eventually rewrite the laws.

The second approach is by far the more promising in my opinion.

Andy Bloch
05-06-2007, 10:00 PM
[ QUOTE ]
I assume Poker has been illegal in NC for a long time under their predominate test. So what they mean by the predominate test as it applies to poker has been well defined by a history of precedent in their courts. That means that any new challenge to the application of that test has the burden of presenting something basically new to the court. They can't just present an essentially rehased version of old arguments and expect the court to take a newly enlightened view of them. Did the plaintiffs present something essentially new?


[/ QUOTE ]

Actually, there's never been a case NC that dealt with poker specifically. If there had been, the court surely would have cited it.


[ QUOTE ]

I think what the court really did was something like the old, "I know pornography when I see it" routine. They know a game that's predominately chance when they see it. They would not "see" such a thing in the coin flip before a football game. But they "see it" in poker. The plaintiffs had to present something that would give the court a new pair of glasses. Evidently they failed.

PairTheBoard

[/ QUOTE ]

Yes, that's pretty close to what the court did. The challenge for plaintiffs in the future is to make courts realize that that's what they are doing.

PairTheBoard
05-07-2007, 03:30 AM
[ QUOTE ]
[ QUOTE ]
I assume Poker has been illegal in NC for a long time under their predominate test. So what they mean by the predominate test as it applies to poker has been well defined by a history of precedent in their courts. That means that any new challenge to the application of that test has the burden of presenting something basically new to the court. They can't just present an essentially rehased version of old arguments and expect the court to take a newly enlightened view of them. Did the plaintiffs present something essentially new?

[/ QUOTE ]

Actually, there's never been a case NC that dealt with poker specifically. If there had been, the court surely would have cited it.


[/ QUOTE ]

Even it the predominant test has never been challenged in their Courts, Poker has been illegal in the state for years under that test. So I think there is a legal principle I heard mentioned duing a Supreme Court confirmation about Legal Status being conferred by vitue of being the law of the land for a period of time.

[ QUOTE ]
[ QUOTE ]
I think what the court really did was something like the old, "I know pornography when I see it" routine. They know a game that's predominately chance when they see it. They would not "see" such a thing in the coin flip before a football game. But they "see it" in poker. The plaintiffs had to present something that would give the court a new pair of glasses. Evidently they failed.

PairTheBoard

[/ QUOTE ]

Yes, that's pretty close to what the court did. The challenge for plaintiffs in the future is to make courts realize that that's what they are doing.

[/ QUOTE ]

I don't know how well you can argue that they are wrong in doing it if they are applying it to the word "predominantly". Unless you can argue that use of the word itself is without legal merit, it becomes a matter of judgement in how to apply it. They evidently did carefully define how the word "chance" was to be applied. A coin flip, spin of the wheel, turn of a card, roll of the dice, etc. are "chance" events totally beyond the control of the participants. How the ball bounces is not "totally" beyond the control of the athelte who throws it or hits it or shoots it. Although even then, if pinball elements of a ball game were "predominant" it wouldn't pass the predominant test.

So a Judge can look at the coin flip before a football game, which is a Chance Event, and use his judgement to determine that the element of Chance which it brings to the game is not predominant in the game as a whole. It's a judgement call to which the Judge pretty much has to apply the, "I know predominant when I see it" rule. Just because that rule was held against by the Supreme Court for pornography doesn't mean it can't apply elsewhere.

I suppose if you were trying to invent a game that invloved both chance and skill you could argue that the predominant rule is bad law unless it can be more clearly defined so as to provide you with an opportunity to conform to it. But the application of the law to poker in NC is already established by poker's history of illegality in the State under the rule. They might even use Poker as a benchmark in clarifying the rule. ie. The game has to contain at most 5% as much chance as poker to conform to the law. Or something to that effect.

No. I think you've got to come up with something essentially new to show them about how skill is predominant in poker. At least in NC. Good luck.

PairTheBoard

Andy Bloch
05-07-2007, 07:16 AM
[ QUOTE ]
[ QUOTE ]
A player can play a perfect chess match and lose (under current international rules with a draw-odds game as the final tiebreak). An NFL team can go through the entire season, never give up a point, and not even make the playoffs (farfetched, but the final tiebreak is a coin toss).

Any game or competitive structure in which perfect play can result in anything other than 1st place is a game of chance by this logic, and almost all competitions and leagues that determine a sole winner have an element of chance at some point.

[/ QUOTE ]
A court is not a computer and interpreting the law is not a math problem. This type of picky logical argument doesn't work in court. It's a waste of time to even think about things like this.

The legal status of poker is a political problem. There is a social consensus that poker is gambling and chess is a game of skill. That's what the legislators were thinking when the laws were written and what the judges are thinking when they make rulings. This by the way is as it should be. Judges aren't supposed to look for ways to twist laws to mean the exact opposite of what everyone agrees they mean.


[/ QUOTE ]

Judges don't consider the intent of the legislator when interpreting a law unless the law is vague. And, when a criminal law is vague, judges must narrowly construe the law, even if the intent of the legislature seems clear.

Judges can and do look to the historical meaning of words to determine what a statute meant when it was written, but that is much different than considering the social consensus of good and bad.

Here is a quote from State v. Gupton, 30 N.C. 271 (1848):
[ QUOTE ]

The phrase, "game of chance," is not one long known in the law and having
therein a settled signification, but was introduced into our statute-book
by the act of 1835. As it had no technical meaning, as a legal expression,
it must have been used by the Legislature in the sense in which persons
conversant in games, or the world at large, give to it in classing the
different kinds of games.


[/ QUOTE ]

But when the law was written back in 1835, poker was in its infancy, played with a 20-card deck, with no draw. Hence, there was only one round of betting and it required much less skill. It's quite possible that no one in the NC legislature had ever played or heard of the game.

[ QUOTE ]


There are two ways to solve our problem:

1. Conduct a long-term effort to educate our society so that a new social consensus develops poker is a game of skill. If everyone else changes their mind the judges will eventually follow suit and change their rulings.

2. Convince people that poker should be legal even though it is gambling. If a broad enough base of support develops the legislators will eventually rewrite the laws.

The second approach is by far the more promising in my opinion.

[/ QUOTE ]

I wouldn't rule out judicial challenges right now, at least in those states where we might succeed. Winning a court case would also help us in the court of public opinion. There are still several states where the legal status of poker hasn't been directly considered by courts, and sometime soon a poker player will end up challenging the law, either as a plaintiff or a criminal defendant. We'd all be much better off if they were well prepared.