Politics—A Game of Chance

Poker players are familiar with the "skill vs. luck" debate, which leaves most poker players scratching their heads trying to figure out why the law looks at a game requiring significant skill, then labels it "gambling" and lumps it in with games of pure chance like roulette, keno, and lotteries. But given that there is an element of luck or chance inherent in the nature of the game, perhaps banning or regulating poker as "gambling" is a necessary step to insulate the public from risking money on something as random as the turn of a card.

Of course, when it comes to politics, hypocrisy and arbitrary line drawing are standard plays. Games of chance might be too dangerous for people who want to play a little hold 'em at home, but apparently betting your entire roll on the luck of the draw is perfectly acceptable for politicians:

It's one of the weirder traditions of American democracy:  In many states, if a [political] race is tied, a "game by lot" -- cards, straws, or most often, a coin toss -- determines who goes to the house and who goes home. Months of campaigning, committee assignments, the fortunes of careers, the possibility of political change -- it all comes down, like possession in a football game, to heads or tails.

That's right, after months of ads, yard signs, debates, rallies, speeches, and fundraisers, if an election is tied, the winner of the political race is generally decided by chance. But how can that be legal? Isn't a political office something too important to be left to the luck of the draw?

The election noted in the article above is a state legislature race in New Mexico, which is currently tied pending a recount. Under New Mexico law, "gambling" is defined to include both "making a bet" and "conducting a lottery". A "bet" is defined under New Mexico law as:

[A] bargain in which the parties agree that, dependent upon chance, even though accompanied by some skill, one stands to win or lose anything of value specified in the agreement. ...

A "lottery" is defined under New Mexico law as:

[A]n enterprise wherein, for a consideration, the participants are given an opportunity to win a prize, the award of which is determined by chance, even though accompanied by some skill. ...

Now, at least arguably, a political office is "anything of value" or "a prize", such that relying on the flip of a coin, playing of cards, or drawing of lots to win that political office would constitute illegal "gambling". Of course, it's not really so straightforward. Like many states, New Mexico's gambling laws carve out a wide number of exceptions for a variety of occupations and undertakings that rely in part of elements of chance. Here, New Mexico's gambling law exempts "betting otherwise permitted by law". Of course, there are statutes permitting tied political races—both state and municipal—to be determined by resorting to drawing lots:

In the event of a tie vote between any candidates in the election for the same office, the determination as to which of the candidates shall be declared to have been nominated or elected shall be decided by lot. The method of determining by lot shall be agreed upon by a majority of a committee consisting of the tied candidates, the county chairmen of the political parties that participated in the election and the district judge. The county canvassing board shall issue the certificate of nomination or election to the candidate chosen by lot.

In the event of a tie vote between any candidates in the election for the same office, the determination as to which of the candidates shall be declared to have been elected shall be decided by drawing by impartial lot. The method of determining by lot shall be mutually agreed upon by the candidates who are tied. The municipal clerk shall issue a certificate of election to the candidate chosen by lot.

So, by definition New Mexico law permits political races to be decided by drawing lots—by chance—yet still declares poker to be illegal gambling despite being predominately a game of skill. It would seem that if we as a society agree that resorting to a pure game of chance is good enough to determine something as sacrosanct as our democratically elected political leaders, then maybe, just maybe, we can trust adults to take a reasonable gamble on the turn of the cards in a game of poker.

I wonder where Ms. Ferrary and Mr. McMillan stand on the issue of legalizing poker. If one of them is ultimately awarded office by luck of the draw, I wonder if they will maybe, just maybe, look at poker in a different light.

What are the odds?

Generic Poker at Riverside

Between work and training for several road races this fall, I haven't had many opportunities to play poker. Truth be told, I haven't really made much effort to carve out time to play, either. Probably an issue for another post.

This Thanksgiving weekend, however, provided me the chance to combine a Huskers football game with a couple of nights of poker at Riverside Casino & Nit Retirement Village. First, I stopped off in Marion for a wonderful traditional Thanksgiving dinner whipped up by the wife and mother of uber-wingman Santa Claus. Santa has some great women in his life. Then I headed out for some poker.

Thursday evening, Riverside only had one cash game running, so I had to kill some time in the bar watching the late football games, sipping a beer. Not an entirely horrible turn of events. After an hour or so, I finally got a seat in the $1/$2 cash game. It was filled with a bunch of players straight from poker central casting. Grumpy Granny was there, on my left, whining about the temperature being too low and her cards being lousy. Poker Professor was in the three seat, whining about his students and how others were playing. We had two Young Dudes With Bored Girlfriends Watching Them, both of whom were predictably arrogant, terrible, and (eventually) busted. There were two Retired Almond Brokers, playing one hand every two orbits. The other three players were Interchangeable ABC Players. I was left to play the role of Jester, a role which I thankfully have plenty of experience with.

Yes, I had landed in a Generic Poker Game, where I had never played with any of the other players, yet knew precisely how they played. To say the table played ABC poker was an insult to literate poker players. This was more like Dick and Jane Poker:

See Jane check. Check Jane, check!

See Dick bet. Bet Dick, bet!

See Jane raise. Jane likes to check-raise.

See Dick fold. Dick is sad.

Given the Riverside buy-in of $60-$200, the nitty players, and the fact the standard preflop raise was $5-$8, the game played as tight as my testicles in the nasty polar wind chill of the Husker-Hawkeyes game the next day. I raised preflop with pocket pairs five times, and three times flopped sets. I managed to get paid off on one of those hands. I quickly settled into a basic strategy of only playing Top Ten hands, and not making any moves. It was more profitable to simply drink Captain and Diets, watch football, and wait for a big hand versus big hand showdown than to try to run over a table of players who wouldn't put a dollar in the pot without at least top pair.

I managed to get up $150 or so. The late NFL game ended, and I decided to play no more than another hour, knowing I had to be up early in the morning to tailgate for the Huskers-Hawkeyes game. That's when I was in early position and looked down to see the Holy Grail of poker hands.

Yes, it was the Duck Pho. Offsuit, even, to give me two flush and straight flush draws instead of merely one. Easily one of the super-elite premium hands.

I limped in, as did six other players.

Flop was Ad-3c-5c. Wheee .... llll!

Donkey Kong!

I checked, as did the other players, to the button. The button bet $15. I min-raised, expecting at least a couple of callers. Nope, everyone folded to the button, who sighed, then flashed pocket Tens and folded. I tabled my hand, and the rest of the table glared at me; clearly I had breached some sort of protocol by playing "just" deuce-four. I tried to explain that the deuce-four was a special hand made famous by one of my poker friends, but they all acted like I had tried to share a recipe for bacon-wrapped shrimp with a minyan of Orthodox Jewish rabbis. Oh well, guess they'll never know how tasty bacon-wrapped shrimp or duck pho can be.

I raked the pot, tipped the dealer, and racked up. Generic poker may be cheap, but it ain't profitable.

At least the Huskers walked away with a small profit the next day.

Same Song, Different Verse:Poker Players Lose Again (South Carolina Edition)

"Insanity: Doing the same thing over and over again and expecting different results."

~Albert Einstein

This morning, the South Carolina Supreme Court finally issued its long-awaited decision in Town of Mount Pleasant v. Chimento, the legal challenge to the application of the state's anti-gambling statute to poker games hosted in a private residence. Considering the case was argued more than two years ago, I think it's now safe to conclude that the reason for the lengthy delay between the argument and the ultimate release of the opinion was that the judges simply could find little common ground on which to agree. The court issued a fractured decision, with two of the court's five judges joining in a plurality opinion delivering the court's judgment, two judges joining in a dissenting opinion, and one judge concurring in the plurality's judgment while agreeing largely with the dissent's reasoning. Despite the fractured decision, the ultimate result was much the same as in other state court challenges to state gambling laws—the Chimento court held that poker was illegal gambling under state law, at least when played for money in a private home whose owner took a small rake or fee for hosting the game.

I.  The Three Opinions

A.  Case Background:  I previously summarized in detail the factual background of the case as well as the primary arguments raised by the parties. I will presume you are familiar with my prior summary as you read the remainder of this post. However, I will summarize the relevant facts again here to help frame the court's decision:

• The game was held in a private residence.
• The game was regular and recurring, typically being held once or twice each week.
• The game was open to new participants known to the game organizer or brought to the game by established players.
• Participants—including new players—could learn about the game via an online social network.
• The game involved very low stakes Texas hold 'em cash game play—blinds of 25¢ / 50¢, with a maximum buy-in of $20.
• The game organizer (who also resided in the house with his girlfriend) took a small rake from each pot, ostensibly to cover food and beverage expenses. The game organizer testified that the maximum rake was 50¢ per pot, while a state investigator testified the maximum rake was $2 per pot (which seems unlikely given the stakes).

B.  Issues:  The illegal gambling charges against the defendants were based on a two-century old statutory ban on gambling (the full text of the statute is set out in my prior summary of the arguments). The court's analysis came down to two particular phrases in that statute (emphasis added):

If any person shall play at any tavern, inn, store for the retailing of spirituous liquors or in any house used as a place of gaming, barn, kitchen, stable or other outhouse, street, highway, open wood, race field or open place at (a) any game with cards or dice, ...

Essentially, the defendants argued that: a) poker was a game of skill and the statute implied only that card games of chance were illegal gambling; b) a private residence could not be a "house used as a place of gaming" where the only game being played was poker; and, c) the phrase "house used as a place of gaming" in the statute was unconstitutionally vague because an ordinary citizen would not appreciate that the statute might be interpreted to apply to a private home poker game.

The state argued that: a) the statute barred gambling on all card games regardless of whether they were games of skill or chance; b) a private residence could be a "house used as a place of gaming" if the owner or host took a fee or rake; and c) the phrase "house used as a place of gaming" in the statute could be understood by an ordinary citizen to apply to a poker game such as the one attended by the defendants, and thus the statute was not unconstitutionally vague.

The court was ultimately confronted with two issues. First, is playing poker in a private residence illegal gambling under South Carolina law? Second, if playing poker in a private residence is illegal gambling under the statute, is the anti-gambling statute unconstitutionally vague because it fails to clearly define "house used as a place of gaming"? If the defendants won on either issue, they could not be convicted of a gambling offense.

C. Plurality Opinion:  At the outset, it should be noted this is the rare appellate decision (at least for a state court) which does not have a true majority opinion—a decision in which a majority of the justices agree both as to the judgment (the result) and the opinion (the legal reasoning used to reach the result). Occasionally, as here, a majority of the judges can agree on the ultimate judgment—reversal of the lower court and a reinstatement of the guilty verdicts—but do not agree on how the law supports that result. Such opinions are binding on the parties, but generally are not given as great of weight when cited by other courts. In this case, the plurality opinion by Justice Pleicones (joined by Justice Beatty) leads off the official decision because it is the opinion with the most support by the justices in the majority as to the judgment. As will be seen later, Chief Justice Toal concurred in the judgment (agreed the guilty verdicts should be reinstated), but actually disagreed with both the plurality and the dissent on different aspects of the constitutional questions presented.

After discussing the legislative history of the two-century old anti-gambling statute, the plurality first concluded that a private residence could constitute a "house used as a place of gaming", but noted that such a definition excluded "casual games" (emphasis added):

By altering the prohibition on playing prohibited games from “public house” to “house used as a place of gaming,” the legislature effectively adopted the view of Justice Brevard in his Brice dissent. What was originally a ban on merely playing these games “in a public house” became a ban on playing of these games in a residence or mansion house only when that house was “used as a place of gaming.” Thus, individuals gambling on a casual game in a person's home were no longer subject to prosecution under this statute.

If, however, a dwelling house is being used “as a place of gaming,” then all those playing the game, whether or not they are betting on it, and those present and betting, even if not playing, are guilty of violating § 16-19-40. To the extent that respondents argue that a residence or dwelling cannot be a house within the meaning of this statute, their contention is refuted by Faulkener, supra, and the plain language of the statute.

To determine whether the residence was being "used as a place of gaming", the plurality next looked at whether poker is illegal gambling under South Carolina law. This is the central issue in the case, and the place where the PPA's standard "poker is a game of skill" argument was brought to bear. The plurality sidestepped the entire skill/chance analysis, however, by finding that the skill/chance analysis applies only to "lotteries" while "gambling" involves betting on games, and thus any analysis of whether skill or chance predominates with respect to the underlying game is irrelevant (emphasis added):

Under the plain language of § 16-19-40, gambling on a game of skill is a violation if that gambling is being done in a prohibited location. The statute specifically lists several games that are exempt from the absolute ban on playing games in prohibited locations: billiards, bowls, backgammon, chess, draughts, and whist. These games all involve skill, yet betting on these games is a crime under the statute. [citations]. A violation of the gaming prohibition of § 16-19-40 does not depend on whether the particular game involves more skill than chance.

The plurality further held that, under South Carolina law, the key defining component of gambling is whether money is wagered, noting that money can be wagered on games of skill as readily as games of chance (emphasis added):

[G]ambling/gaming depends not on the skill/chance ratio, but on the wager.

We hold that one "games" within the meaning of § 16-19-40 when money is wagered on Texas Hold’em, even though it is a game in which skill predominates.

Thus, the plurality held that poker is "gambling" under South Carolina law because it involves betting on a game of cards; whether poker is a game of skill or chance is ultimately beside the point.

The plurality then moved on to the constitutional claim. The plurality first noted that merely because a phrase is undefined in a statute is insufficient to render a statute void for vagueness. The plurality cited to a 1909 decision for the proposition that "the evidence of keeping a gaming house is determined by the facts and circumstances" of each case. In this particular case, the plurality noted that the evidence supported a finding that the residence in question in fact was used as a house of gaming:

[T]he evidence showed that Stallings’s house was used regularly twice a week for poker games at which there was gambling, and that the games were advertised to interested persons on the website, and open to those individuals and their friends.

Further, the plurality contended that, although the statute might arguably be vague as to some persons involved in different types of games, the statute was not vague with respect to the poker game in question (emphasis added):

One whose conduct clearly falls within the statutory proscription does not have standing to raise a void-for-vagueness challenge. [citation]. We find respondents lack standing to challenge § 16-19-40,7 but also note that a person of reasonable intelligence would understand the statute to prohibit gambling on a card game at a house where players were invited on a regular basis to engage in this activity, especially where, while not a profit-making commercial activity, the players were required to contribute money to cover the host’s expenses.

Thus, the plurality held that because these particular defendants clearly should have known that this type of poker game was illegal under the statute, they did not have a viable constitutional complaint about how the statute was worded or applied.

D.  Dissenting Opinion:  Jumping ahead to the dissenting opinion, Justice Hearn (joined by Justice Kittredge) focused on the constitutional void-for-vagueness argument. In fact, the dissent expressly disavowed any comment on the statutory construction issues that formed the bulk of the plurality opinion, finding that it was not necessary to wrestle with whether poker was illegal gambling under the statute when the statute was, in the dissent's view, unconstitutionally vague.

Interestingly, the dissent did not directly disagree with the plurality's reasoning on the vagueness issue. In fact, the dissent specifically agreed that the defendants should have been aware that the poker game was illegal gambling:

As reasonable, intelligent people, Respondents should have understood the statute prohibited their conduct. It banned playing cards, with betting involved, in a house used as a place of gaming; Respondents participated in bi-weekly, organized poker games at someone's home with strangers that responded to advertisements on the internet, with a buy-in and the house taking a rake. While I question whether other individuals under different circumstances would have sufficient notice of whether their conduct is proscribed, such as four individuals who play a penny-ante poker or bridge game once per month, it is clear that Respondents were on notice their gambling fell within the ambit of the statute.

However, the dissent noted that there are two ways a statute can be unconstitutionally void: a) where the statute fails to give a person notice that their conduct is illegal, or b) where the statute fails to provide sufficient standards for law enforcement to objectively determine whether particular conduct is illegal. Although the two tests are intertwined to a degree, they are distinct.

The dissent then argued that the South Carolina anti-gambling statute failed to provide sufficient objective standards to guide law enforcement. The dissent noted that the phrase "house used as a place of gaming" was undefined and has no common understanding in the community. Thus,

Because the statute itself provides no guidance, it was up to police and local governments to determine just where this line is drawn. To that end, Officer Hembree believed that the frequency of the games, the number of players involved, and whether the game was run for a profit all factored into whether individuals were playing in a "house used as a place of gaming." However, none of these criteria appears in the statute, and Officer Hembree's decision to issue Respondents a citation was based on these additional elements imposed simply to ferret out conduct he truly believed violated the statute. Officer Hembree therefore had to take it upon himself to make a policy decision based on his own personal opinions as to what should be covered by the statute. It is also clear from Officer Hembree's testimony that had another officer entered Stallings' home, the officer could have come to a different conclusion.

In the dissent's view, the statute as written improperly permitted—even required—law enforcement officers to engraft their own criteria onto the statutory definition of "house used as a place of gaming", which necessarily would lead to different interpretations of the statute by different officers, and thus different treatment of poker players based solely on the policy of law enforcement where they lived:

Accordingly, when a statute such as section 16-19-40 or the one at issue in Morales grants officers too much discretion, the decision to target a certain individual is based upon the officer's own understanding of what the statute proscribes and not solely upon the language of the statute itself. Therefore, every arrest or citation is the result of the officer's personal exercise of discretion; the individuals he lets be are only granted that relief because he has decided their conduct does not fall within the proscription as he understands it. I agree with Justice Breyer that the inescapable conclusion accordingly is that the statute's application is invalid in every case, rendering it facially unconstitutional. A criminal statute is the place for setting forth with precision what conduct constitutes a crime, and our law does not sanction the idea that police and the prosecution can subjectively vary from the statutory elements and impose their separate criteria. If part of a statute permits such variance, as the one before us today does, that language is unconstitutionally vague.

E.  Concurring Opinion:  The court's decision ultimately came down to Chief Justice Toal. Her concurring opinion is quite interesting; in fact, it is rather unlike any other concurring opinion I can think of off the top of my head. The Chief Justice begins by stating, "I agree wholeheartedly with the constitutional analysis contained in the excellently researched and beautifully written dissenting opinion ...". Usually, one would expect the dissent to prevail after hearing how their argument is correct. However, the Chief Justice then goes on to proclaim that "because of the unique circumstances of this case, ... I concur in the result reached by the majority that these defendants' convictions must stand". Well, that's certainly an interesting case of judicial whiplash.

The Chief Justice begins her analysis in a rather straightforward manner, agreeing with the plurality that, even if the statute is vague, the defendants' conduct in this case was so clearly illegal that they had no legal basis ("standing") to complain about that vagueness:

I agree with the majority that these Appellants are foreclosed from challenging the constitutionality of this section because they were engaged in conduct that fell so clearly within the statutory proscription. This was not your penny ante game of poker organized in someone's home, but a regular card game hosted in Stallings's home after advertisements were posted on the Internet to recruit players who paid to participate. Thus, they do not have standing to challenge the statute as vague.

Thus far, the Chief Justice's analysis is pretty standard stuff. But then her opinion takes a twist, declaring that she finds the statute to be unconstitutionally void for vagueness, but is unwilling to strike down the statute because to do so would potentially render all gambling in private homes legal, opening the proverbial floodgates of criminal activity, causing great harm to the state (emphasis added):

In my opinion, striking this language would also open the door wide to all heretofore illegal gaming practices in this state, including video poker. See S.C. Code Ann. § 16-19-40(g) (proscribing the playing of "any machine or device . . . used for gambling purposes"). Because of this very real consequence, I am concerned that striking this critical language from the statute would beget, as elucidated by the General Assembly in 1816 when amending section 16-191-40, the "impoverishment of many people, corruption of the morals and manners of youth, . . . the tendency which is vice, misery and crime, as examples in this state have abundantly proven." These dire concerns resonate as much today as they did nearly 200 years ago. I do not need to remind any person of the havoc wreaked upon this State as a result of the "pernicious" practice of video poker. Although there are other sound provisions outlawing video poker, see S.C. Code Ann. §§ 1221-2710, 2712 (2000), I am loathe to strike the critical language from the general ban on gaming in the event that it guts these provisions, and consequently, South Carolina's longstanding prohibition against gambling.

In lieu of invalidating the statute as vague, the Chief Justice instead tossed the problems with the anti-gambling statute back to the legislature to fix:

Section 16-19-40 is hopelessly outdated, as it applies to any gaming activity (including all card games) played in a residential home whether wagering occurs or not. This section expired in usefulness long ago and should not form the basis of a modern anti-gambling statute. Thus, I now charge the legislature to modernize section 16-19-40, as I am inclined to agree with the dissent that this provision is constitutionally infirm. However, for the aforementioned reasons, I join the majority in result only, and would reverse the circuit court under these circumstances.

II. Analysis

A.  Casual, Social, Low-Stakes Home Games Are Likely Legal (For Now):  Although the court never explicitly ruled on the issue, a common thread in each opinion was that the game at issue was illegal because the game was more than a mere low-stakes, casual home game. The opinions went out of their way to emphasize that the game in this case was more than penny-ante ($20 buy-in; whoa, call in Ivey and Galfond!), was regular, invited players via social media, and paid a rake to the host. The opinions also expressed unease with applying the "house used as a place of  gaming" designation for casual, social, low-stakes games. Given how the court's opinions were written, as well as the state's admission in oral argument that the statute did not apply to social poker games held in private homes, South Carolina poker players probably have some breathing space for hosting low-stakes, rake-free, private games and tournaments. But that doesn't mean some law enforcement officer won't decide to bust even those poker games, so proceed at your own risk.

B.  "Poker As a Game of Skill" Argument Takes a Back Seat:  After all of the time spent in testimony at trial and pages devoted in appellate briefs to the skill/chance argument, the court collectively shrugged and avoided any analysis of the issue. The entire argument was essentially ignored, except for the plurality opinion stating in passing, "We hold that one 'games' within the meaning of § 16-19-40 when money is wagered on Texas Hold’em, even though it is a game in which skill predominates." (emphasis added). Poker players will almost certainly latch on to this one statement and declare that the court held that poker is a game of skill. But in fact, the court actually held it didn't matter whether poker was a game of skill, so the court simply passed on deciding the issue altogether. This distinction is important, because other courts wrestling with the skill/chance issue will give little credence to what is essentially a throwaway, conclusory sentence which had no bearing on the court's analysis of the controlling issues (what lawyers refer to as "dicta").

C.  Opinion Shopping:  This decision is rather strangely written. As noted earlier, this decision featured fractured opinions and a lengthy delay (over two years) from argument to decision. Also, both the plurality opinion and the dissenting opinion contain full-fledged procedural and factual histories, which is uncommon unless the dissent wants to highlight certain facts; here, the plurality and dissent mirror each other. My read of the situation is that Chief Justice Toal waffled in her vote, and the two opposing sides wrote multiple drafts of opinions hoping to get her to sign on to their side of the decision. Based on the Chief Justice's ultimate concurring opinion, it was a close call, but her concerns about the possible negative effects of striking down the statute entirely eventually won the day for the plurality; the Chief Justice stared into the legalized, unregulated gambling abyss and flinched. As I discussed previously, given the Chief Justice's vocal concerns about the evils of gambling in a prior case involving video poker (referenced in her concurring decision in this case), nobody should be all that shocked that she finally sided with the anti-poker argument.

D.  "Void for Vagueness" Is a Tough Argument to Win, Particularly for the Guilty:  As a general rule, constitutional challenges are rarely successful, and the "void for vagueness" sub-genre is notoriously among the least likely to prevail; courts go out of their way to find statutes constitutional against vagueness challenges. In this case, the defendants also argued that the statutory proscription against any card game was vague and overbroad. As I noted in my prior analysis of the appelllate briefs:

[T]he defense argument on this point is a bit awkward, essentially stating, "You can't convict us for gambling when we were playing cards for money, because the statute might arguably apply to the kids next door playing Old Maid." Let's just say that the kids playing Old Maid, if they were ever arrested for gambling, would have a much stronger argument on this point than the poker players in this case.

Similarly, when you make a void for vagueness challenge, you want to be in the "gray area" of the law (preferably the light gray area) to demonstrate how extreme and unfair the prosecution is. Here, by contrast, the defendants were well into the dark gray area at best, involved in a poker game one step removed from an actual underground poker room, à-la Rounders. The defendants would likely have won their appeal if their game had been a truly casual, friendly, no-rake affair.

E.  Judicial Hand-Wringing:  Chief Justice Toal's concurring opinion bothers me a bit as an attorney. She could easily have said something to the effect, "Although I share the dissent's concerns as to whether the statute might be void for vagueness in some contexts, I agree that these defendants clearly crossed the line into illegal behavior." Instead, the Chief Justice went out of her way to express in great detail how much she agreed with the dissent about how poorly the statute was written (and how archaic the statute was). But instead of voting to strike down the law and forcing the legislature to enact a "modern" gambling law, the Chief Justice flinched at the idea of implicitly legalizing gambling by fiat, and instead resorted to the classic judicial dodge: "I really hate this statute, but my hands are tied. It is up to the legislature to fix this statute, not me." Now, such a hands off jurisprudence might be appropriate in many situations. Maybe it was even appropriate here. But it feels awkward to have a judge wax poetic about how a statute is flawed, only to punt at the last second to the legislature, leaving the actual parties in the lurch (and with a criminal record).

F.  Things Could Get Worse for Poker Players:  Given that the court essentially threw down the gauntlet challenging the legislature to fix the anti-gambling statute before the court is forced to invalidate it, I would expect the South Carolina legislature to enact a "modern" anti-gambling statute in its next session. Considering how socially conservative South Carolina is compared to the rest of the nation, don't be surprised to see a sleek new highly restrictive anti-gambling law rolling off the legislative assembly line in the next year. None of the justices gave any indication they would find a general ban on poker to be legally problematic, and in fact the court endorsed the idea that skill games can be the predicate for illegal gambling. Poker players may well end up in a worse legal position under any new law than they are under the archaic current law.

G.  The PPA Is Still Inept:  This case was a perfect storm of good factors for the PPA's legalization-by-litigation strategy. The statute was, by the court's own admission, poorly drafted. The trial court found that poker was a game of skill. Yet the South Carolina Supreme Court all but ignored the arguments made by the PPA in its amicus brief, and ultimately ruled against poker players in general and the poker player defendants specifically. Although this topic deserves its own lengthy post (in the works!), this case serves to underscore the ineptitude of the PPA on the litigation front. Frankly, it probably serves to demonstrate the futility of pursuing further poker legalization litigation.

As many of my readers are aware, I've long argued that the poker legalization-by-litigation strategy is flawed and ultimately doomed to failure, primarily because of the inherent difficulty in convincing an appellate court to flout historical and social understandings of poker as a form of gambling. My readers may recall I accurately predicted the failure of the PPA's Commerce Clause challenge to the Washington state ban on internet gambling. Similarly, I predicted the failure of the Chimento appeal, as reflected below:

Given the text of the statute and the related case law, I think the South Carolina supreme court will most likely find that poker is prohibited by the anti-gambling statute, regardless of whether it is predominately a game of skill or a game of chance. To hold otherwise would overturn decades of social agreement that poker is gambling, with the effect of essentially legalizing unregulated, for-profit poker rooms and poker tournaments statewide. As I've discussed previously, asking courts to rule that poker is not gambling is really no better than tilting at windmills.

[T]his is precisely the ruling I expect the court to reach—poker is gambling, and is legal if done as a private, no-rake game, but becomes illegal when played in a public place and/or for a rake or fee. Such a ruling would preserve the traditional notion of poker as gambling, prohibit poker in public or for-profit setting contexts, but allow casual home poker games to be played legally. Such a ruling is actually the result most poker players should want.

Of course, my prediction of the outcome is not the result most poker players think they want. But those players are short-sighted. Yes, the statute is rather poorly written, though that is mostly an artifact of its age. Yes, the statute could use clarity. Yes, it would be really nice if a court would recognize poker is a game of skill, and exempt it from an anti-gambling statute. But such a ruling would essentially legalize unregulated, for-profit poker rooms and poker tournaments throughout the state. The legislature would almost certainly react swiftly and negatively to such a ruling, and likely enact draconian restrictions against playing poker, including perhaps an explicit ban on online poker. Don't forget, this is South Carolina, where conservative "family values" politics still hold sway. Frankly, a fully pro-poker court ruling might be the worst result for poker players, a Pyrrhic victory leading to explicit and more onerous anti-poker laws.

Poker is illegal gambling under South Carolina law, regardless of skill element? Check. Casual home poker games are not illegal? Check. Charging a rake is a major factor in making home poker games illegal? Check. Judicial concerns about striking down the anti-gambling statute and legalizing unregulated, for-profit poker rooms preventing a pro-poker decision? Five star check. Legislature weighing in with broad new anti-poker restrictions in response to the appellate decision? Pending.

Look, I'm no legal Nostradamus. But I am an attorney with over 17 years of trial and appellate experience. The PPA's "poker as a game of skill" argument looks great on paper. But in the real world, it's not even worth using as toilet paper.

-----------------------------------------------------------------------

ADDENDUM:

Poker Grump has posted his thoughts about the decision, many of which dovetail with mine.

PokerFuse put out a nice news article about the decision which is worthy of reading.

My Recovery Run

So last Saturday I ran the Spinx half marathon during my Mastodon trip to Greenville, South Carolina. There was joy. There was fun. There was suffering in the sun. But that story is for another post. Suffice it to say I ran 13.1 miles and, so far as I can tell, lived to tell of it.

Sunday was a travel day, and I intended to take yesterday and today as recovery days before easing back into my training for the Vegas Rock 'N Roll half marathon in December. Apparently my dog / personal trainer Berkeley had other ideas.

Berk: "OMG! OMG! You're home from work! Time to play!"

Me:  "Hey bud. Good to see you. Now settle."

"Settle? I don't think so! I've been napping all day. Time to play!"

"Bud, I'm tired."

"Fine. I'll entertain myself."

"Berkeley Cooper put down that bed! Come back! Your bed is NOT a toy!"

"OK fat boy, we're going for a run then."

"No, we're staying home. I'm still sore. Ouch! Ouch! Stop biting my feet!"

"You're wearing SOCKS. You know I own all socks in this house."

"Those are my work socks. Drop them. Stop chewing my socks!"

"OK, but I have ways to persuade you to run."

"Ouch! Dude, why do you have to punch me? I have so many bruises on my thighs, my doctor is going to ask me if I'm in a 'safe place' next time I see him."

"We can do this the easy way or the hard way. Your call."

"OK, settle down and we'll go for a run. A SLOW run."

"That's more like it. Hey! What are those?"

"Gloves. It's chilly out."

"Those aren't gloves! Those are FRONT PAW SOCKS! ATTACK!"

"Ouch! Dude, my hands are in those gloves! Ouch!"

"Well let's run then."

"Slowly. Ouch! What was that punch for?"

"We're running fast. Get with the program."

"Ouch! Fast is fine then. No sprinting!"

"Wimp."

"I am sore. I've run two half marathons in the past two weeks."

"Whatever. You need some speed work, fat guy. Whoa! Trick or treaters! Bet they want to party. Hey kids! Want to play? Huh? Huh?"

"Berk! Enough! You win, we'll run faster. Stop scaring the kids."

"They aren't scared. They love me. Everyone loves me."

"I'm not loving you so much right now. My legs hurt. We're going to walk this hill."

"Hill? Yay! SPRINT!!"

"Aaarrrgggghhhh!!"

"Baby. Suck it up. It's just a hill."

"Aaarrrgggghhhh!!"

"Knock it off. You're embarrassing me. Now sprint home!"

"Can't ... breathe ... help ... me ..."

"Hey, good run! Now get me a treat. I said, GET ME A TREAT!"

"Chicken jerky OK?"

"It'll do. Oh, and we're running again in the morning."

"No we're not. We just ran five miles fast."

"Don't make me wake you up."

"Ouch! OK, we'll talk about it. Ouch!"

Don't even think of running without me.

Play with me. Or else.

My Accidental PR—A Half Marathon Soft Opening

Rusty Ryan (Brad Pitt):  "It's a soft opening. To test the place before the grand opening."

Linus Caldwell (Matt Damon):  "Yeah it's kinda like a out of town preview on the town."

Saul Bloom (Carl Reiner):  "Soft opening, grand opening. When they opened the Flamingo, one day it was closed, the next day it was open. End of story. I know, I was there."

~Ocean's 13 (2007)

It was a hectic last week. A major appellate brief to file. An unexpected three day trip to Phoenix to put out some corporate fires. The usual stuff that justifies my existence and my salary.

I got back into town after midnight Friday night, errr, Saturday morning. Berkeley greeted me with a slobbery assault, but was none too excited when I pushed him off his comfy perch on my legs at 7:00 a.m. to go coach my junior high Mock Trial team for our final practice before the regional tournament. Then it was off to Iowa City for some tailgating and night football with the sig other; well, tailgating at least, considering the Hawkeyes apparently forgot they had a game against Penn State. After a late night drive home, I finally crawled into bed after midnight, utterly exhausted.

So, why was I up again at 4:30 a.m. Sunday morning? Why wasn't I sleeping in late? Two good questions Berkeley was probably pondering as he once again lost the use of my legs as his pillows. The short answer—I'm an idiot. The long answer—I was registered to run the IMT Des Moines Half Marathon.

As I discussed recently following my Ali-like return to competitive road racing, I have been inspired by a bunch of poker degenerates to convert my irregular fitness routine into a quest to recapture the halcyon days of my running prime, or at least to give myself a physical challenge to pursue in an effort to deny the effects of advancing middle age. My major goal is to run a solid time in the Vegas half marathon, held this year on the auspicious date of my actual 43rd birthday. I don't have a lot of life rules, but one of them is, if you plan to run under the neon lights of Vegas, be in good enough shape you don't die—at least not in front of the Stratosphere or Circus Circus. Pro tip: Wynn and Aria are much classier places to collapse from ventricular fibrillation.

So I have been pushing an irregular training schedule since early summer, inspired by the sage advice/torture tactics of poker-running guru/fanatic Poker Peaker (a/k/a Dan England). Most of the Peaker's advice includes wisdom such as, "Run faster!" and "Kill you not, tempo runs will." Still, I have slowly regained some of my prior speed and stamina over the past few months, enough so I no longer fear embarrassing myself come Vegas—well, at least not in the half marathon. I can't make any guarantees about WPBT-related festivities.

This summer, I set an ambitious goal of breaking 1:51.26 (8:30 min/mile pace) in Vegas. Hey, it's good to have goals. I knew I would need at least one long road race under my belt prior to Vegas, just to get back in the road racing groove. So I looked at the Des Moines running calendar and focused on two races—the Capital Pursuit 10-mile race and the Des Moines Half Marathon. I figured Capital Pursuit would be a good test of my progress, sort of a "proof of concept" run. The Des Moines Half Marathon would serve as a second preparation race as well as the perfect training run six weeks out from Vegas. A soft opening if you will.

Of course, I signed up for both races before committing to the Spinx half marathon as part of the Mastodon experience. So, with the Des Moines and Greenville races on back-to-back weekends, what was the ideal solution? Well, other than getting one of the races rescheduled, which is actually much more difficult than one might expect.

Based on my fairly solid—and liquid—performance during the recent Capital Pursuit, I decided to keep my appointment with the Des Moines Marathon as a "serious" training race on my way to Vegas. The Spinxville race, on the other hand, would be a leisurely romp focused more on enjoying the company of friends than pushing my physical and mental limits in search of a personal record (PR).

PRs. Funny thing—I didn't have one for the half-marathon. I had run a lot of road races in my prime, but they were mostly 10Ks, 10-milers (Capital Pursuit), 20Ks (Dam2Dam), and one marathon. Ten years and twenty pounds ago, I ran a 20K (12.4 miles) in 1:32:13 (7:25/mile pace), which would translate into roughly a 1:37:00 half marathon. These days my older, fatter self has a Vegas goal of breaking 1:51:26 (8:30/mile pace). So, I figured if I ran 1:55:00 or better (8:45/mile pace) in the Des Moines Marathon, I would be in good position to make my goal for Vegas.

So, how did I do? Well, here are the splits via my Garmin watch and the official race timing chip lashed to my shoe:

Mile        Split
  1          7:41.1
  2          8:31.8
  3          7:36.7
  4          7:59.9
  5          7:58.6
  6          8:15.3

 6.5         54:35 (chip split)

  7          8:13.4
  8          8:17.7
  9          8:15.7
10          8:24.4
11          8:40.1
12          8:34.6
13          8:09.6
13.1       1:22.4

Final       1:47:59 (chip time) (8:14/mile pace)

All things considered, I think I will give myself a solid "B+" for the race. I broke my goal pace by over 30 seconds per mile (tough), and my pace was right on the money with my pace for the Capital Pursuit 10-miler last month (very tough). Even more satisfying were Miles 6-10, where I ran consistent splits right at my race pace rather than slowing down significantly, something I have struggled with in prior races (Coach Peaker's tempo run torture really paid off). I did tweak an ankle late in the race (around Mile 10), but after 25 years of basketball injuries, my ankles really have no ligaments left and are held together with the natural equivalent of balin' wire and duct tape. Also, my kick the last two miles was not as fast as I would have liked. But I finished the race feeling strong, like I left a little in the tank.

Suddenly, running Vegas in 1:51:00 seems rather ... pedestrian. Maybe I can shoot for breaking 1:45:00 (8:00/mile pace). Heck, it wouldn't even be my greatest run-good PR for Vegas. It's good to have goals.

"Your shorts make your butt look fast."

"Bear! Run faster!"

"Half a mile for a full beer."

~Signs at the 2012 IMT Des Moines Half Marathon

Hellmuth & the Hobgoblin

"A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines."

~Ralph Waldo Emerson

In 1961, Roger Maris was chasing Babe Ruth's record for most home runs in a season. However, by that point in time, the season had been lengthened by eight games from the 154 game season played in Ruth's day. So, MLB Commissioner Ford Frick stated that, unless Ruth's record was broken in the first 154 games of the season, Maris' record would be noted officially as having been set in the longer 162 game season. The so-called "asterisk" debate stirred up great controversy, and led Maris himself to have a bitter view of how he was treated after breaking Ruth's record.

Yesterday, poker legend Phil Hellmuth became the first poker player to win both the WSOP Main Event and the WSOP Europe Main Event. The big win pushed Hellmuth into the lead for the 2012 WSOP Player of the Year award. Hellmuth's victory also extended his world record for WSOP bracelets to 13.

Or did it?

As reported by none other than poker media legend Shamus two years ago, there is (or at least was) some controversy over whether WSOP-Europe bracelets "count" as much as good old-fashioned WSOP-Vegas bracelets. Shamus even dug up a nifty quote from none other than great bracelet hound himself:

Phil Hellmuth, the all-time leader in WSOP bracelets won with 11, also chimed in on the subject this week. He was interviewed on the Hardcore Poker Show (the 9/27/10 episode) where he said he believed a WSOPE bracelet was "not the same thing" as a regular WSOP bracelet, adding that "everybody knows it's not really a bracelet."

The irony is delicious.

The debate over whether WSOP-Euope bracelets are equal in stature to WSOP-Vegas bracelets was hashed out thoroughly by poker media heavyweights BJ Nemeth and "Pokerati" Dan Michalski in the comments section of a Wicked Chops Poker post. To sum up, Nemeth noted that top poker pros did not regard WSOP-Europe bracelets as having the same prestige as WSOP-Vegas bracelets. Instead, Nemeth observed that poker players placed the greatest weight on WSOP Main Event and Players' Championship bracelets, then all other WSOP-Vegas bracelets were roughly equal in the next tier of prestige, and WSOP-Europe bracelets were yet another tier down the pecking order (often not counting as "bracelets" for bracelet prop bets). Michalski countered that if the Harrah's (now Caesars) empire declared an event a WSOP event and awarded a bracelet, then it was a WSOP bracelet regardless of the venue.

So, should Hellmuth's WSOP-Europe bracelet "count" as a "real" WSOP bracelet? As much as I love it when pesky hobgoblins come back to bite pompous jerks like Hellmuth, I nonetheless consider Hellmuth's WSOP-Europe bracelet the equal of his other bracelets (except his WSOP Main Event bracelet, of course).

If Hellmuth wants to justify changing his view as to the prestige given to WSOP-Europe bracelets, he can point to the fact that WSOP-Europe events now count toward the overall WSOP Player of the Year standings. But more fundamentally, I think WSOP-Europe bracelets are the equal of WSOP-Vegas bracelets on their own merits. Tournaments in both venues are generally among the largest in terms of buy-ins and numbers of players, and the player pools generally have greater depth and breadth of talent. Also, the WSOP-Europe events emphasize the "World" part of the WSOP. Back in the 1970s and 1980s, poker and the WSOP were dominated by Americans, and Vegas was the center of the poker world. Since the explosion of online poker, poker has truly become a worldwide phenomenon. WSOP final tables routinely have multiple non-American players, and non-Americans have won a sizable share of WSOP bracelets (including Main Event bracelets) over the past decade. Staging a WSOP series of tournaments in Europe—home to players like Peter Eastgate, Annette Obrestad, Pius Heinz, Antoine Saout, Viktor "Isildur1" Blom, and Bertrand "ElkY" Grospellier (just to name a few)—emphasizes the international popularity of the game and does nothing to diminish the accomplishments of the WSOP-Europe bracelet winners.

Disparagement of WSOP-Europe bracelets seems to be an extension of the criticism that the overall proliferation of bracelet events cheapens the value of a bracelet (there were fewer than 25 bracelet events per year prior to 2001, but then exploded into more than 50 bracelet events per year by 2007). This complaint misses the mark, however. The number of serious competitive poker players also exploded in the past decade in a perfect storm of internet poker, the Moneymaker boom, and poker media coverage, making a bracelet win a significantly more difficult accomplishment than even a decade ago.

Frankly, the discussion of the relative prestige of WSOP-Vegas and WSOP-Europe bracelets is just another contrived sports fan debate. It's really no different than the debate over whether Tiger Woods' four Grand Slam wins in a row constituted a true Grand Slam because they did not occur in the same calendar year, or an argument about whether current NFL passing and receiving records can be compared to records from the 1970s and 1980s when different rules were in force. These kinds of issues make for great faux debates, full of strong opinions but ultimately pointless. At the end of the day, players can only compete in the conditions as they are, not as they were, will be, or should be. Hellmuth's poker career spans over 23 years, with WSOP results of nearly 50 final tables in at least nine different poker disciplines, not to mention five runner-up finishes to complement his 13 bracelets, earned against increasingly larger and more sophisticated tournament fields. Hellmuth's WSOP-Europe Main Event bracelet is unquestionably deserving of the same prestige as his other WSOP bracelet wins.

But, if you have Hellmuth at your table in a tournament, I double dog dare you to tell him his record of 13 bracelets has an asterisk. Hilarity will ensue!

Breaking Wind in the Capital Pursuit

Some days, it counts as a win if you don't die or shit your pants.

I'm calling today a win.

Over the past few years, I have had the opportunity to meet a good number of good folks who happen to love poker. I have enjoyed sharing some food, cards, and hijinks with a group of poker bloggers at the annual Winter Poker Blogger Tour (WPBT) held each December in Vegas. However, a subset of these fellow degenerates—loosely based in parts East—gather each year in G-Vegas (Greenville, South Carolina) for an event known as "Mastodon", a primal celebration of man's (and woman's) refusal to evolve. Mastodon has always been alternately alluring and frightening (check out the official invite/warning video), but this year, I figured it was high time I got high in South Carolina.

Part of this year's Mastodon festivities include an optional spin through one of the road races on tap for the Spinx Run Fest. Now I've been a runner since high school, but I gave up running road races years ago. As age and complacency have taken their toll, my commitment to running has gone from fanaticism to routine workout. So Mastodon—as well as the Vegas Rock 'N Roll half-marathon during WPBT in December—served as good motivators to kick my running up a notch.

I started training to get back in racing shape this summer, bumping up my mileage while throwing in the occasional long run (7+ miles) and tempo run (faster paced runs). I pegged the Des Moines Capital Pursuit 10 mile race today as a good training race, combining a long run with a chance to knock the rust off my road racing skills (such as they are). Back when I was a serious runner—10 years and 20 pounds ago—Capital Pursuit was one of the regular stops in my annual road racing repertoire, ranking behind only the Dam2Dam 20K as fun yet challenging distance races.

One of my best road races ever was finishing Capital Pursuit in 1:08:37 (6:51 min/mile pace). Considering I'm older, fatter, and lazier, my expectations for this year's Capital Pursuit were modest—don't die, and break 1:30:00 (9:00 min/mile pace). Secretly, I hoped to break 1:27:30. It's good to have goals.

Then last week happened. I was on the road for three days for work. I came down with a sinus infection I couldn't shake. I went to the doctor who put me on an antibiotic that led to, ahem, "intestinal distress". More ominously, the meds came with a four page brochure warning of horrific possible side effects. The most disturbing warning, taking up half the brochure, dealt with a rather alarming side effect. To paraphrase the warning:

CAUTION: This medication may cause spontaneous tendon rupture and random explosion or dismemberment of one or more extremities.

Well, that could put a damper on a casual run through the park.

Long story short, I took a full week off from running, mostly because running and intestinal distress make for an uncomfortable combination.  I thought about skipping Capital Pursuit, but I had paid for my registration, my sinuses were feeling better, and my knee and ankle were feeling as good as they've felt in years, having had a chance to let my chronic tendinitis calm down.

So there I was this morning, waking up at 4:45 a.m. to start the pre-race ritual I hadn't followed in at least eight years. Rehydrate with a couple of Gatorades (the low-cal version for my older, fatter body). Munch a granola bar to get some carbs in my system. Curl up on the couch with my dog in my lap while I read my Twitter stream and Google reader feed. OK, so that last part is new. I'm a modern runner.

The weather this morning was about as perfect as could be asked for a road race. Temperature was upper 30s at the start, and mid-40s by the finish. Light breeze, low humidity. The stuff where personal records (PRs) are made.

The race followed the long-traditional course from downtown to the state capitol, then up to the Drake University area, on to the Waveland neighborhood, then back down the Ingersoll business district before the final dash though the heart of downtown Des Moines to finish at Nollen Plaza. The course is fairly flat, with no major hills and all inclines fairly gentle.

I committed the newbie sin of starting out too fast, letting the adrenaline of the start and the pace of the lead pack pull me out at a fast clip around 8:00 to 8:10 min/mile for the first three miles. For those of you who aren't runners, you have to trust me that running 30-45 seconds per mile faster than your goal pace is very difficult, and a recipe for disaster. Even thought I felt comfortable at the fast pace, I knew I likely could not maintain that pace over the entire course in my current conditioning level. I decided to pull back a bit for the middle part of the race, going closer to the 8:30 min/mile pace, and feeling good about it.

Then, disaster struck. Somewhere in Mile 7, I felt the dreaded signs of the return of my intestinal distress. Being three-plus miles from the finish line and the nearest kybos, I was in the uncomfortable position of not knowing if my guts wanted to break wind or make it rain. Letting out a small test sample was inconclusive, as the mind senses butt sweat and assumes the worst. So, I had no choice but to suck it up and finish the race with a noxious bubble of who knows what churning up and down my intestines.

Just past Mile 7, when I wasn't sure if I could finish the race, I spotted the sig other and our dog, Berkeley. Berk looked like he wanted to jump into the race himself. Seeing Berk (and the sig other) gave me a little boost, and I started to pick up the pace. I didn't have as strong a kick at the end as I would have liked, but I still tripped off the last three miles right at 8:00 min/mile. As I was pushing toward the finish line, some 40-something woman came sprinting out of nowhere to try to pass me in the last block. I tried to dig in, but quickly realized I was not going to beat her. So, I got my azz kicked by a woman—along with several dozen teenage soccer players, AARP members, mothers and fathers pushing strollers with infants, and people who outweighed my fat azz by 30+ pounds. Such is the world of running; all can compete, and often effort and training matter more than physical talent. Still, I finished in a comfortable and satisfying 1:22:21 (8:12 min/mile pace) (54 minutes in Paul Ryan timing).

As an aside, I must apologize to anyone who was in the downtown Des Moines Marriott approximately 9:35 a.m. and happened to stumble on to my version of this scene:



Altogether, I was pleased with my race. My pacing was not perfect, but I ran the entire race without feeling stressed or winded, and I feel like I could probably coax a little better effort in my next race. Coming off a rough week, I ran better than most of my practice runs. It's tough to extrapolate this race to the longer half marathons coming up, but I feel I have a solid shot at meeting my goals of running Spinx in under 1:54:42 (8:45 min/mile pace), and Vegas in under 1:51.26 (8:30 min/mile pace).

Assuming I don't die in a South Carolina bar during Mastodon, of course.

Never Forget

Like most Americans of a certain age, I remember September 11, 2001 well. I had pulled an all-nighter at the office, working on an appellate brief. I had gone home for a quick nap, shower, and clean suit. I was ironing my shirt, watching CNN, when news broke of the first plane striking the Twin Towers. I remember thinking it was a terrible tragedy, but the idea of a terrorist attack was just one possibility. Then I watched as the second plane struck in the background of a live news update. That second strike made it real. There was no way it was an accident. America was under attack.

I remember going to the office, and watching in one of my partners' office as the Towers fell. I remember heading to a noon hour special Mass with several Catholic partners, even though I am a lapsed Lutheran. I remember heading home as they closed my building, the tallest in the Des Moines skyline, because right then the idea of a terrorist attack on an insurance building in the Midwest seemed entirely plausible. I remember watching hours of news coverage as America tried to come to grips with the thousands of little tragedies spinning off from the greater tragedy we were still unable to process.

Every generation has its defining event. For my grandfather's generation, it was Pearl Harbor, when America was pulled into history's greatest war against tyranny. For my father's generation, it was the assassination of JFK, the man who steered America away from the brink of nuclear war in the Cuban Missile Crisis, and was probably the last best hope to avoid the quagmire and historical-political repercussions of the Vietnam War.

For my generation, in 1995 I would have assumed our defining event to have been the Oklahoma City bombing, then the most significant act of terrorism on American soil. I still remember where I was when I heard the news of that attack—in my last year of law school, thinking about finals and the bar exam while supervising intramural softball. But somehow, the Oklahoma City bombing faded from the public memory in a few years, maybe because the terrorists turned out to be home-grown American radicals, maybe because times were good and Americans just wanted to move on. A few months ago, I was in Oklahoma City for a mediation. We walked past the Oklahoma City bombing memorial on our way from the parking garage to the soaring building where we were meeting. Our attorney rather off-handedly pointed out the memorial and mentioned how it was just part of downtown and not something he had visited in years. Just another historical marker for another historical event.

The terrorist attack on 9/11 truly was a defining moment for my generation. It dwarfed the Oklahoma City bombing in its scale, its brazenness, its evil. It was a sucker punch to the American psyche, an attack at the foundations of our culture on our home turf. The world changed for Americans when those planes hit the Twin Towers, the Pentagon, and the Pennsylvania countryside. We solemnly vowed we would never forget.

I remember the bitter political rancor that divided the country less than a year prior to 9/11, when a few hundred ambiguous votes and a split decision of the U.S. Supreme Court decided the hotly contested presidential election between George W. Bush and Al Gore. Yet in the days after 9/11, I remember being inspired by President Bush as he visited the still smoldering ruins of the Twin Towers. I remember my pride at Al Gore solemnly declaring, "George Bush is my President." I remember how Americans—so recently and so bitterly divided—came together, their political discord mended by a renewed sense of common cause.

We forgot.

Since 9/11, there have been three presidential elections, each more vitriolic than the prior. Americans are more polarized politically than ever. Red states vs. Blue states. Republicans vs. Democrats. Politicians willing to lie, dissemble, obfuscate, and slander merely to thwart the other side, without regard for the merits of the issue in dispute. America no longer has a common cause. It's good vs. evil, and evil vs. good. Compromise is a dirty word, an unacceptable surrender to the enemy. Bipartisanship is dead, slain by ideological purity.

I remember after 9/11 how Americans were careful to separate the terrorists from their Muslim faith. How politicians and clergy spoke of treating Muslims with compassion, to recognize that their faith does not condone such senseless violence, to understand that Muslims worldwide condemned the attacks and sympathized with our loss. I remember how the terrorists were our enemies, not Muslims.

We forgot.

Today, barely a decade removed from the atrocities committed by a fringe radical group more similar to the Oklahoma City bombers than to the average Muslim in the Middle East, the idea of a mosque in the same area as the Twin Towers is grist for conservative politicians and talk show hosts to whip up their base into a frenzy. These same radicals turn "Muslim" into a pejorative slander against our President, who makes the electoral calculation that it is better to declare his Christian bona fides than to defend the millions of Muslims whose faith follows a path of peace.

I remember when we sought those responsible for the 9/11 attacks and were viewed as the good guys, the righteous people seeking justice, not vengeance. I remember the broad coalition of our allies, and the support of those countries and peoples who prior to the attacks might have shared the terrorists' view of America as an arrogant, hedonistic behemoth who imposed her will on the world.

We forgot.

America's thirst for justice was subverted and perverted. We used the 9/11 attacks to justify a war against Iraq, a country with no connection to the attacks and posing no threat to American security. We began to torture enemies and suspected enemies, using euphemisms like "extraordinary rendition" and "enhanced interrogation techniques". We opened and continue to operate a concentration camp at Guantanamo Bay, enabling us to hold prisoners—even American citizens—idefinitely and beyond any judicial authority. We have Presidents of both parties asserting the authority to order the summary executions of not just foreign terrorists, but also American citizens thought to be terrorists. Those same Presidents who decry the loss of innocent Americans in the 9/11 attacks order drone strikes on terrorist suspects without regard for the collateral damage to innocent foreign civilians.

I remember when we viewed the 9/11 attacks as a fundamental attack on our American way of life. I remember how we swore we couldn't "let the terrorists win" by changing our core principles, by sacrificing our freedoms to assuage our fears.

We forgot.

Americans sold out their liberty for the illusion of security. Sensible security upgrades gave way to a nationalized system of security theater. Airports are filled with TSA agents irradiating and patting down millions of American citizens who pose no threat greater than transmitting the common cold with an unprotected sneeze. Now TSA agents are inspecting our beverages; it's only a matter of time before we all fondly remember the days when we did not have to strip naked before boarding a plane.

Even worse than the indignities of airport security are the more fundamental erosions of our rights. Today, the Homeland Security conglomerate mines the detritus of our daily lives, looking for suspicious patterns of behavior in the goods we buy, the books we read, the web searches we conduct, the people we meet. If we trip the wrong alarm, or piss off the wrong government official, we may find the full force of the government digging into our lives via secretive "national security letters" that circumvent our Constitutional due process rights. But it's all OK because the Government is simply trying to "prevent the next 9/11".

The 9/11 attacks unquestionably struck a major blow to the American way of life. But we do a disservice to those who died in the 9/11 attacks if we superficially remember their sacrifice while fundamentally altering our time-honored American values. Saying "we will never forget" is not about a monument or a memorial service. The best way to honor those who fell on 9/11 is to remember and celebrate the fundamental values of America—liberty, equality, and tolerance.

Never forget the essence of America.

In Cursura Veritas (In Running, Truth)

"You are never really playing an opponent. You are playing yourself, your own highest standards, and when you reach your limits, that is real joy."

~ Arthur Ashe

Last week, Republican Vice Presidential nominee Paul Ryan brewed a political tempest in a teapot when he was caught lying about his history of marathon running during an interview with Republican talk show host Hugh Hewitt. Ryan, a fitness fanatic, proudly claimed to have run a sub-3:00:00 marathon, specifically asserting he had run "Under three [hours], high twos. I had a two hour and fifty-something." Trouble is, Runner's World writer Scott Douglas did some research and found that Ryan's only recorded marathon time was actually 4:01:25 at the Grandma's Marathon in Duluth, Minnesota (generally regarded as one of the top ten marathons in the United States).

Ryan's campaign issued a statement admitting Ryan had not been truthful, but suggesting Ryan simply mis-remembered his time from a race 20 years ago. Although Ryan's explanation is probably good enough to satisfy the general public, among serious runners his explanation simply doesn't hold water. By asserting he had run a marathon in under three hours, Ryan was claiming to be among the elite of recreational runners. In the 2012 Grandma's marathon, only 145/3425 (4.2%) of men and 165/5788 (2.9%) overall runners cracked the three hour barrier. By contrast, Ryan's solid but unspectacular actual time of roughly 4:01:00 was matched in the 2012 Grandma's marathon by 1573/3425 (45.9%) of men and 2169/5788 (37.5%) overall runners. Ryan's boast is the poker equivalent of bragging about making the final table of the WSOP Main Event while actually busting out long before the money.

There is exactly zero chance Ryan simply made an honest mistake. Runners remember their times from their most significant races; maybe not down to the precise second, but certainly they remember whether they beat certain paces or times. For a marathon, the significant times all runners know are sub-3:30:00, sub-3:00:00, and Boston Marathon qualifying (generally between 3:00:00 and 3:30:00, depending on age and gender). Looked at another way, the pace for a sub-3:00:00 marathon is roughly 6:30 to 6:45 minutes/mile, while a 4:00:00 marathon is roughly a 9:15 minutes/mile pace. Trust me if you aren't a runner, but 2:30 minutes/mile is a big difference over one mile, and a massive (and painfully impossible) difference over 26 miles. So, breaking a significant, elite time barrier like 3:00:00 is simply not something a serious runner would forget or make a mistake about.

On the political side, Ryan's lie generated some discussion from pundits who were baffled why he would misrepresent something so trivial and so easily checked (James Fallows at the Atlantic and Nicholas Thompson at the New Yorker have some interesting thoughts on the subject). But to to frame Ryan's lie in a political context misses the point, in my estimation. In the rough and tumble of politics, Americans have come to expect politicians of every stripe to exhibit a certain casual disregard for the Truth, spinning fantastical policy proposals and unleashing outrageous attacks on the policies and character of their opponents.

But Ryan's marathon lie is not a political lie, it is a personal lie, an illusion to provide the bona fides for the legend of Raul Ryan, all-American hero. Ryan's marathon lie points to a deeper character flaw than mere craven politicking. In Ryan, we have a man who ran a perfectly creditable first marathon at a young age. Yet it wasn't enough for Ryan to be part of the proud pack of Americans who have completed a marathon in average fashion. Instead, Ryan's personal narrative required him to be among the elite of marathon runners. So, somewhere along the way, Ryan bedazzled his racing résumé.

Ryan's lie pales in comparison to some of the more odious examples of its ilk—misrepresentations of military service and honors, job experience, and educational credentials are more serious and probably more common. Even among marathon fraudsters, Ryan's lie is rather petty compared with the notorious Rosie Ruiz who cheated her way to short-lived victories in the New York City and Boston marathons, or the lesser known but more ambitious Kip Litton who was recently outed as having cheated in several marathons in a quest to break the 3:00:00 barrier in every state, going so far as to even invent one marathon entirely (hat tip to @Iggylicious for pointing out Mark Singer's excellent piece in The New Yorker).

Still, Ryan's lie is probably more disturbing to those of us who are serious runners. For the vast majority of runners, running is not about prizes and accolades, running is purely about personal growth. In an ironic twist, running embodies the Ayn Rand-infused self-made-man mythos Ryan has long demagogued. Runners start from different baselines of ability, and have different natural limits to their talent. But within those parameters, whether a runner improves is solely a function of how hard they want to work. Sure, runners will race each other, but mostly runners are racing themselves, chasing their own personal records (PRs), seeing if they can set a faster pace through a section of hills, or trying to kick a great last mile. The only way to measure improvement—the only way to "keep score"—is by stopwatch. A runner who cheats on his time insults those runners who have put in the effort, the hard work, to earn their times.

Make no mistake, marathon training is hard work. It takes dedication to stick with training in heat, humidity, wind, rain, cold, snow, and ice. It takes commitment to organize your daily routine to include two hours or more for running. It takes grit to keep pushing yourself when you've run fourteen miles and have six more to go, and your legs are burning with lactic acid and your chest is straining for oxygen. But most of all, it takes mental toughness to silence that voice in the back of your head that wants you to ease up the pace, take a walking break, cut short a workout, or enjoy an extra rest day. Paul Ryan probably had—and may still have—the physical talent to run a sub-3:30:00 or even a sub-3:00:00 marathon. But Ryan chose the easy path, awarding himself the honor of an elite time he couldn't be bothered to work for.

Maybe Paul Ryan's marathon lie shouldn't disqualify him from becoming Vice President. Of course, in my view, many of his political positions have already disqualified him. Still, if you are an undecided voter, next time you hear Ryan wax poetic about how Americans can achieve anything they want through hard work, just remember:

Paul Ryan doesn't believe that.

United States v. DiCristina—A Win for Poker Players (with an Asterisk)

"Well, let's not start sucking each other's dicks quite yet."

~ The Wolf (Harvey Keitel), in Pulp Fiction (1994)

As most poker players are aware, earlier this week a federal district court judge entered a ruling in United States v. DiCristina finding that poker is a "game of skill" and therefore is not "gambling" for purposes of the federal Illegal Gambling Business Act (IGBA). The lengthy decision by Senior Judge Weinstein is as thorough a discussion of the statistical evidence of the effect of skill in poker as one will likely ever see in a judicial decision. The opinion also contains an exhaustive review of practically every conceivable state or federal statute or appellate decision that addresses the regulation of poker in the context of gambling laws. Every poker player should read the decision to better understand the nature of the legal issues certain to arise as online poker continues down the path to inevitable legalization and regulation in some form.

I skimmed the decision when it was issued and Tweeted some initial thoughts (one of the advantages of being a lawyer is learning how to find the legally significant spots in a 120-page decision) (for the record, those Tweets are here, here, here, here, and here). After a more leisurely perusal of the decision, my initial thoughts remain valid, but I did pick up a few additional points of interest. Now many poker players probably just care about the bottom line—a win is a win, right? In law, however, how one wins is often more important than the case specific outcome. [FN1]

So, in no particular order, here are what I found to be the key points and interesting nuggets from the opinion:

Big win for poker players and the PPA:  There is no question that this decision was a win for poker players. Having a federal judge give careful consideration to the "poker is a skill game" argument and then endorse it in a thoughtful opinion is a win, regardless of the ultimate outcome on any appeal, and regardless of whether the decision is adopted by other courts or remains a one-off outlier. The Poker Players Alliance (PPA) also deserves kudos for not merely rehashing its prior arguments, but for finding an expert economist and statistician, Dr. Randal Heeb, who provided critical analysis and testimony that formed the underpinning of the decision (more on Dr. Heeb later). This decision would not have been possible without the solid work of the PPA's attorneys, and the PPA rightfully should be proud of the decision. [FN2].

First meaningful win for poker: This decision is also important because it is the first court of consequence to issue a ruling that will have any precedential effect. To date, the handful of court "wins" for poker have all been issued by state district courts whose decisions have no binding or persuasive effect on other courts. Every appellate court to date has ruled against the "poker is a skill game" argument. But federal district courts occupy a unique spot in the legal authority realm. Federal district court decisions of consequence are "reported" (officially published) and can be cited as authority in other cases just like appellate court decisions. These district court decisions are not binding on other courts as an appellate decision would be, but they are often looked to as persuasive authority by appellate courts confronted with developing areas of the law. Having a thorough, well-crafted judicial opinion on the merits of the "poker is a skill game" argument on the books, so to speak, lends a certain gravitas to the argument which can bolster that argument if and when it is considered by other courts.

The decision has a shot at being affirmed on appeal:  The obvious question on most poker players' minds is whether the decision can survive if the government appeals. An appeal is not guaranteed, but given that the decision breaks new ground and cuts against precedents from other federal courts, and considering that the government invested a lot of resources fighting this issue rather than plea bargaining what otherwise looks to be a trivially routine gambling case, I would expect there to be an appeal. Now Judge Weinstein is known for a liberal slant, and has written groundbreaking criminal decisions that were later reversed on appeal. But the Second Circuit is less conservative than most federal courts of appeal, and Judge Weinstein is well-respected as a smart judge (and former law professor at Columbia). Also, the case involves a bread-and-butter interpretation of a federal statute rather than a hot button Constitutional issue, so ideological differences among the appellate judges will have very little impact on the outcome of any appeal.

The decision is going to generate a lot of attention among the appellate court judges for several reasons. First, the sheer length of the decision will signal that something significant is occurring. The reason for the length of the decision is that Judge Weinstein spends a great deal of time going over legislative history as well as an exhaustive analysis of poker-related statutes and decisions from around the country. That kind of effort simply is not put into a routine decision, and the appellate judges will certainly note that Judge Weinstein is setting up his argument for a novel interpretation of the IGBA. The weakest part of the decision is that it conflicts with: a) prior federal court decisions related to the IGBA in which state gambling law served as the sole determining factor as to whether a predicate offense had occurred, b) prior federal court decisions in which poker was the predicate gambling activity for an IGBA offense, and c) numerous state appellate decisions and several federal court decisions that have determined poker is "gambling", including some which have considered and rejected the "skill game" argument.

To be blunt, established case law weighs heavily against Judge Weinstein's decision, and it would be fairly easy for the appellate court to reverse the decision. But, many of the prior IGBA cases can be distinguished because they assumed that poker was within the scope of the IGBA rather than analyzing the issue. Also, this case has the best, most detailed factual record as to the "skill game" issue of any court challenge to date. In this regard, Judge Weinstein was a fortunate draw for poker players, as his decision does an excellent job of pointing out the flaws inherent in the legal and factual assumptions underlying the prior adverse decisions. Judge Weinstein has marked a clear legal analysis path for the appellate court, if it chooses to follow his lead.

Nonetheless, I think the deck remains stacked against poker players if there is an appeal. Despite Judge Weinstein's adept "skill game" analysis, poker is still regarded as gambling both under New York law and in the public eye. Poker's reputation in front of the appellate court will certainly not be enhanced by the highly publicized Black Friday prosecutions (and the DOJ's "Ponzi scheme" commentary), particularly given the context of the IGBA's anti-organized crime history and purpose. As I have discussed previously, poker's reputation is a tough hurdle to overcome. Poker's considerable historical and cultural baggage might well overwhelm Judge Weinstein's legal analysis. And if the Second Circuit decides it doesn't want to endorse legalized poker, existing precedents will make it easy for the appellate court to reverse the decision. The easiest and most likely analysis to be used by the appellate court to reverse the decision is to follow those federal courts which defer to state law to define "gambling", and to find that New York state law governs the issue of whether poker is "gambling".

Interestingly, if the decision is reversed on appeal, the portion of the decision analyzing the "skill game" argument would potentially still have precedential value. If the Second Circuit decides that state law controls the "illegal gambling" question and that no further analysis is required under the IGBA, then the Second Circuit would never reach the "skill game" analysis. In that situation, although the case would have been reversed, Judge Weinstein's analysis of the "skill game" argument would remain fair game for citation to other courts (lawyers refer to this by the phrase "reversed on other grounds").

If I were a betting man, I would wager that the decision is ultimately reversed on appeal. But the odds against poker players are not nearly as long as they have been in past cases, and with a favorable panel of judges the decision has at least a puncher's chance of surviving on appeal. [FN3]

The decision is limited in scope:  The decision only addresses the narrow question of whether poker is "gambling" for purposes of the federal Illegal Gambling Business Act (IGBA). As I have discussed in prior posts, when it comes to statutes, definitions are critical. "Gambling" for purposes of one statute may not be "gambling" for purposes of another statute. So the mere fact that poker is regulated as gambling under New York law (or another federal or state statute) is not necessarily dispositive of whether poker was gambling for purposes of the IGBA. Likewise, merely because the court ultimately found that poker was not gambling for purposes of the IGBA does not mean that poker is no longer illegal gambling under most state laws and possibly other federal laws. Still, if the decision holds up, it would remove one weapon from federal prosecutor's anti-poker arsenal.

Poker is illegal under New York state law:  Although the defense team abandoned its argument that poker is not gambling under New York state law, the court nonetheless found that the argument had no merit. The decision explicitly noted that, "New York courts have long considered that poker contains a sufficient element of chance to constitute gambling under that state's laws." Another defendant could always raise a challenge to New York's state law on poker, but it seems doubtful that such a challenge would be successful.

Poker is still illegal under most states' laws: The decision contains an exhaustive listing of state laws and appellate decisions which consider poker to be gambling subject to ban or regulation (see Section II(5), pp. 47-51). The list is pretty bleak from a pro-poker perspective. Most states either explicitly define poker as gambling, or have found poker to be within the definition of gambling, regardless of the amount of skill involved. Again, poker players must keep in mind that, even if skill predominates chance in poker, states can still define "gambling" in such a manner as to encompass poker. The decision doesn't change how any state gambling laws view poker. So if poker was illegal gambling in your state prior to the decision, it is still illegal today.

Poker may still be illegal under federal law:  The decision only interpreted the IGBA. There are other federal statutes that could still be used by federal prosecutors against businesses offering poker, most notably the Travel Act. Unlike the IGBA which contained its own definition of "gambling", the Travel Act simply relies on a violation of a state gambling law to establish the predicate offense. Also, note that the Travel Act prohibits use of "the mail or any facility in interstate commerce" to "distribute the proceeds of any unlawful activity" or "otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity". This arguably could mean that merely mailing checks, promotional materials, or awards to players could be a violation of the Travel Act. So far federal prosecutors have not used the Travel Act in any poker-related prosecutions (at least not to my knowledge), but that might change if they lose the IGBA as a tool because of this decision.

House-banked game defense was rejected:  The PPA and many poker players have argued that the fact that poker is not a house-banked game (like blackjack, or three-card poker) is a significant distinction in determining whether poker should be considered "gambling". Even Judge Weinstein rejected that argument, rather summarily (p. 109). This argument is one of those situations where an important factual distinction winds up having no legal significance. So legally, if money gets wagered, it's probably gambling, regardless of how the house makes it profitable.

Revenge of the nerds:  As noted earlier, it is obvious that Judge Weinstein was impressed by Dr. Heeb's statistical and economic research. Although there have been a number of studies that purported to prove that poker was a "skill game", those studies merely demonstrated that skill had an effect on the game, and none of those studies really reached any meaningful conclusions as to the relative effects of skill and luck on the outcome of the game. Dr. Heeb did some really interesting and persuasive analysis directed to that specific issue. One analysis showed that the "long term" required to allow skill to overcome chance is not nearly as long as might be imagined, perhaps as low as 1,000-3,000 hands (rates that can be seen over the course of a long, deep-stacked tournament or a relatively short period of cash game sessions). Another analysis attempted to isolate the skill element of poker by cleverly demonstrating how winning and losing players showed significantly different win rates even when playing the same hand (the examples Dr. Heeb used were K9o and QJs). Any fan of Freakonomics-style analysis would enjoy the court's discussion of Dr. Heeb's testimony. I don't think it is an overstatement to conclude that Judge Weinstein's decision likely would have turned out differently without Dr. Heeb's analysis.

The court's discussion also noted that most online players in the large dataset used by Dr. Heeb were losing players, with 90-95% of players showing net -EV. This statistic was somewhat higher than I would have expected. This statistic could also be used on appeal to argue that, since most players are expected to lose, poker is no different than house-banked games. Judge Weinstein dismissed this argument as irrelevant to the issue of whether poker is a "skill game", and I agree that it is not relevant. But that fact still is one that might be of interest to an appellate court.

The decision is probably not a game-changer:  Even if the decision is affirmed on appeal, its impact on the poker legalization fight is likely to be minimal. In many states, whether poker is a game of skill is utterly irrelevant as poker is explicitly regulated as gambling. In other states where poker's status is not defined by statute, courts have already ruled that poker is gambling, and those courts are unlikely to reverse course after having decided the issue. The decision probably has little application to other federal gambling statutes because the decision is based on the IGBA's particular definition of "gambling". The decision is unlikely to affect federal or state poker legislation efforts as legislation is mostly a political issue which will not be swayed by one court's technical legal analysis of one federal law; poker simply isn't the kind of hot button legal-political issue like abortion or health care where a court ruling matters to legislators. It is possible that anti-gambling groups will use the decision to press for an explicit ban of online poker, but nothing I've read suggests that anti-gambling groups would have any better success passing a poker ban than pro-poker groups have had in passing poker legalization; those issues appear to be in stalemate at least through the upcoming elections. Most likely, the decision will ultimately have only symbolic value.

PokerStars may be the hidden winner:  Because the decision is from a different court, it does not change the pending DOJ Back Friday criminal or civil forfeiture cases other than to make it marginally easier for the remaining defendants to leverage a better plea bargain or settlement because the DOJ's IGBA and associated money laundering charges are now in a somewhat weaker position. The Black Friday cases are ultimately more about the banking and financial shenanigans of those involved than the underlying poker businesses themselves. But the decision certainly strengthens the argument to be made by PokerStars to state gaming regulators that merely running an online poker business did not violate federal law. Even if the decision is reversed on appeal, PokerStars could still argue that if a respected federal judge thought that poker was not regulated by the IGBA, then they certainly had a good faith belief they were not violating the IGBA. Of course, there would still be the matter of PokerStars allegedly violating state gambling laws, the UIGEA, federal money laundering laws, and federal banking laws. But if the applicability of the IGBA and the Wire Act can now be called into question, it becomes easier to raise doubts about some of the other laws in the mix.

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[FN1]  Think of the recent U.S. Supreme Court kerfuffle over the Affordable Care Act; although the Act was upheld, the legal reasoning in the decision placing limits on Congress' Commerce Clause authority may ultimately prove critical in decisions far removed in time and subject matter from the health care debate.

[FN2]  The PPA's success in this case, however, does not change my prior critiques of the PPA's "legalization by litigation" strategy. The discussion of whether the damage done by the PPA's earlier legal blundering is redeemed by this decision is better reserved for a separate post.

[FN3]  Thinking way down the road, if the Second Circuit affirms Judge Weinstein's decision, it could potentially set up a U.S. Supreme Court appeal to resolve a conflict among the various circuit courts of appeal as to how the IGBA is interpreted. This would be most likely if the Second Circuit finds that state law does not control the determination of what constitutes "illegal gambling". A lot of stars would need to align for poker to have a day in that Court, but these are the types of issues that are SCOTUS' bread-and-butter cases (i.e., interpretation of a federal statute, and resolving conflicts among the circuits).