November 01, 2010

The Emperor's New Sunglasses

"I am quite ready," announced the Emperor, and he looked at himself again in the mirror, turning from side to side as if carefully examining his handsome attire.

The courtiers who were to carry the train felt about on the ground pretending to lift it:  they walked on solemnly pretending to be carrying it.  Nothing would have persuaded them to admit they could not see the clothes, for fear they would be thought stupid or unfit for their posts.

And so the Emperor set off under the high canopy, at the head of the great procession.  It was a great success.  All the people standing by and at the windows cheered and cried, "Oh, how splendid are the Emperor's new clothes.  What a magnificent train!  How well the clothes fit!"  No one dared to admit that he couldn't see anything, for who would want it to be known that he was either stupid or unfit for his post?

None of the Emperor's clothes had ever met with such success.

But among the crowds a little child suddenly gasped out, "But he hasn't got anything on."  And the people began to whisper to one another what the child had said.  "He hasn't got anything on." "There's a little child saying he hasn't got anything on." ’Til everyone was saying, "But he hasn't got anything on."  The Emperor himself had the uncomfortable feeling that what they were whispering was only too true.  "But I will have to go through with the procession," he said to himself.

So he drew himself up and walked boldly on holding his head higher than before, and the courtiers held on to the train that wasn't there at all.

— “The Emperor’s New Clothes” by Hans Christian Andersen (1805-75), as adapted by Stephen Corrin in “Stories for Seven-Year-Olds” (London 1964).

The Emperor's New Clothes is a classic children's tale we all know.  The usual lesson drawn from the story is about how the fear of looking stupid often leads us to do or say things that actually are stupid.  Also, there is a certain "speaking truth to power" element that resonates for kids, since the child is the only person in a huge crowd brave enough to state the obvious.

For me, however, I've often been struck by the end of the tale.  The child's cry is eventually taken up by the whole crowd.  The Emperor not only knows he has no clothes on, but he knows that the crowd knows.  Yet, he continues on his way acting as if he is wearing his beautiful robes.  Even more astonishing, the courtiers and other officials also continue to act as if the Emperor is wearing his fabulous new clothes, even though they are fully aware of the truth, and know that the crowd knows the truth.  This, to me, is the real lesson to be drawn from the tale—sometimes people become so invested in an incorrect belief that they will cling to that belief despite any contrary evidence, and regardless of how silly or stupid it makes them look to others.

I thought of the Emperor's New Clothes while researching some case law for my recent discussion of the Pokerhaus lawsuit.  In my discussion, I mentioned an Illinois court of appeals decision, People v. Mitchell, which affirmed a conviction for illegal gambling of the players in a Texas hold 'em tournament.  The interesting thing was that this decision was issued in 1983, and arose out of a home poker tournament* occurring in 1980.  That's right, a court had to confront the "skill vs. chance" issue more than three decades ago, well before the poker "boom" era brought Texas hold 'em and poker tournaments into the social mainstream.

More remarkable than the age of the case, however, is the dissenting opinion filed by Justice Heiple, who expresses rather modern views on poker, gambling, and the futility of prosecuting poker players for illegal gambling:

The position of the State of Illinois on gambling is ambivalent, inconsistent, contradictory and self-serving.  We have state regulated race track betting.  We have bingo.  We have the Illinois State Lottery.  People gamble in their homes.  They gamble on the golf course.  They bet on baseball, basketball, football, and prize fights.  They shop at certain stores so they can be in the store’s weekly lottery drawing.  They buy and sell future’s contracts through their stockbrokers.  They gamble in taverns, private clubs and fraternal organizations.

Gambling is more than endemic in Illinois.  It is epidemic.  Officially, however, it is illegal in most situations.  How is this illegality recognized?  It is tolerated, accepted, smiled at, and, in rare instances, prosecuted.  If all of the illegal gambling in Illinois were totted up for the purpose of computing the percentage of gambling that is prosecuted, prosecutions would equal an infinitesimal fraction of 1%.  No one could doubt that.  Yet gambling prosecutions continue in selected cases.  A good argument could be made that any gambling prosecution is unconstitutional as involving an unequal application of the laws.


The State argues that poker is not a game of skill but is a game of pure chance or luck.  This allegation is a canard.  Anyone familiar with even the barest rudiments of the game knows better.  Pure luck?  Send a neophyte player to a Saturday night poker game with seasoned players and he will leave his clothes behind and walk home in a barrel.  Pure luck?  This is true of bingo or lottery.  But it cannot be said of poker.  The court should take judicial notice that poker is a game of skill.  It cannot be gainsaid, of course, that there is an element of luck in poker.  Of course there is.  There is an element of luck in everything in life.  Even the prosecution of a lawsuit contains an element of luck.  But everything that contains an element of luck is not gambling.

People v. Mitchell, 111 Ill. App. 3d 1026, 1030-31, 444 N.E.2d 1153, 1156-57 (Ill. App. Ct. 1983) (Heiple, J., dissenting).

Regrettably, in the years that have passed since Justice Heiple penned that refreshingly honest and accurate dissent, despite the rise of poker both as a multi-billion dollar international industry and a staple of mainstream media, no appellate court has ever taken Justice Heiple's lead and simply declared that poker is what most folks already know it is—a game of skill with an element of chance.  For a variety of socio-legal reasons, I doubt any appellate court will ever be so bold as to flat out declare poker to be exempt from a state's gambling laws.  The courts, like the Emperor, are often reluctant to admit error and change course once a legal issue is decided.**

Still, it's nice to know there are a few judges out there with the courage to declare that poker is a game of skill, even as the appellate courts continue onward with their "poker is gambling" parade.

* There were nine total players who played in two tournaments.  The first game had a $500 buy-in, while the second game had a $250 buy-in.  The payouts for the big game were divided between the top two finishers on a $3,500 / $1,000 basis.  Pretty high stakes for a sit-n-go tourney back in 1980!

** In fairness to the appellate courts forced to confront the issue of whether poker is illegal gambling under a particular state statute, poker is often explicitly considered gambling by statute or regulation, which ties the courts' hands.  For those courts interpreting a statute which is ambiguous and refers only to "games of chance", if the courts abandon precedent or traditional understandings of gambling and declare poker to be exempt from state gambling statutes, there would be a significant regulatory vacuum for poker, permitting widespread and unregulated poker rooms and tournaments (at least until the state legislatures acted, and who knows what draconian measures they might enact?).  Abandoning longstanding precedents or traditional understandings of statutes can have very real and significant social impact, and courts have to be cognizant of those potential consequences.  Thus, it is often the best course for courts to defer those kinds of major changes in the law to the state legislatures (see my prior discussion about the principle of stare decisis in the poker law context).


  1. "A good argument could be made that any gambling prosecution is unconstitutional as involving an unequal application of the laws"

    i've been enjoying your legal analysis. i wonder if you might comment on this line from Judge Heiple's dissent. has this line of argument ever been tried? would it have a chance of succeeding?


  2. @ Anon: It is an interesting point Judge Heiple raises, but I have my doubts as to its applicability to a criminal gambling statute. It's sort of like arguing that the cop who pulled you over for speeding was acting unconstitutionally because he didn't stop the six other cars going as fast or faster than you were.

    I think a better argument could be raised if a state routinely ignored certain categories of illegal gambling, while selectively prosecuting other categories--say, letting the local sports bookies do business while prosecuting the poker games. But even then, you're looking at illegal gambling, so it would be a tough sell. Let's just say it seems like a longshot.

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