December 29, 2011

The Feeling of Silence

“Silence is a source of great strength.”

~Lao Tzu

The fear started in July. I was back home in rural Nebraska to watch my parents serve as grand marshals of our hometown parade. My younger brother Kurt was home as well, with his wife Nicole and their two young daughters, Lily and Violet.* Kurt and I drove our parents down Main Street—all three blocks of it—while my sig other Chad helped Nicole watch my nieces wave at Grandpa and Grandma before gathering up candy thrown from the floats. Then we retreated from the sweltering 110 degree heat to enjoy a few beers in the air-conditioned comfort of our childhood home.

We talked for hours, catching up on local news, hearing plans for the farm, and reliving old family memories, while Lily and Violet played with the cornucopia of toys Grandpa and Grandma had purchased just for their visit. My nieces and parents all eventually made their way to bed, while the rest of us stayed up to talk. It was then, nearing midnight, that Kurt and Nicole shared with us their concerns about Violet. She was nearing 16 months old, but was small for her age and having trouble walking. A physical therapist was making twice weekly visits to work on Violet's balance and strength, but her lack of progress was worrisome. Yet, Violet otherwise seemed to be a healthy and happy young girl. It was probably nothing to worry about. Still, I worried, and I'm sure Kurt and Nicole worried even more.

The phone call came in November. But it was the voicemails that caused me concern. Kurt and I often go a few weeks without talking, then catch up with a lengthy call some evening or weekend. But the first week of November was different. Kurt and I exchanged messages as usual, but he called me mid-day to give me specific times to call him back. There was definitely something on his mind. So, I made the call that evening.

Part of the news was good. Kurt, Nicole, and my nieces were all doing fine. In fact, Violet had even been walking unassisted for a few weeks. Just that night she had made it all the way down the hall from the dining room to the living room on her own, under the watchful eyes of Buffy and Porter, the family dogs.

Unfortunately, most of the news was bad. Kurt and Nicole had for some time harbored concerns about Violet's slow development. Their fears dated back to Nicole's pregnancy, when Kurt had come down with a serious cytomegalovirus (CMV) infection. In most adults, CMV infection has few or no symptoms, while for a few people (like my brother) the virus causes symptoms similar to mononucelosis, causing fatigue for a period of several days to a few weeks. In pregnant women, however, CMV is the "C" in TORCH—the set of infectious diseases responsible for many birth defects. CMV is a particularly nasty virus for infants, leading in many cases to physical and mental developmental deficits, while also causing blindness or deafness in some victims. Still, in utero CMV infection does not always lead to problems for the child, and in a decent percentage of cases, the child goes through life with few or no problems related to the infection.

Violet was not among those fortunate enough to roll the dice and beat CMV. Although Violet had passed her hearing and vision tests at birth and had begun walking, she had yet to start talking or even babbling. Violet went in for a battery of diagnostic tests. Hearing tests raised concerns about compromised hearing. Sleep studies indicated either seizures (a common CMV complication) or a constricted throat (due to Violet's small size) were affecting her ability to sleep. An MRI of the brain revealed calcified lesions consistent with an in utero CMV infection. Still, nothing could be known definitively.

Surgery was scheduled for a few days after Christmas. The main purpose of the surgery was to remove the adenoids that were constricting Violet's throat, to help her breathe better during sleep. However, the surgery was also an opportunity to conduct a more sophisticated hearing test that required an infant to be partially sedated. The surgery was successful, and Violet was taken to recovery to awaken and be taken home that afternoon.

The otolaryngologist (ENT specialist) approached Kurt and Nicole. "Let's go into the conference room and talk," he said.

Nothing good ever follows that invitation.

The doctor was kind, but didn't sugarcoat the news. Violet is completely deaf. Her cochlea are non-functional. Deafness is an unfortunately all too common effect of CMV infection, sometimes apparent at birth, often developing before age 5, occasionally waiting to strike even into the teenage years. Violet is yet another CMV victim.

Medically, options are limited. Insurance requires that hearing aids be tried, even when doctors know they are useless. Cochlear implants are an option, but they tend to work better for people who have had hearing for a number of years and then lost it, while having poorer results for people like Violet who develop deafness early in life. Violet has been learning sign language for a few months, but my brother and sister-in-law face a difficult decision whether to pursue her education in a deaf or a mainstream, auditory environment.

Upon hearing the news, my initial feeling was sadness. Sad that Violet will never hear birds chirping on a hike with her family. Sad that Violet will never hear Buffy and Porter bark when she comes home from school. Sad that Violet will never hear the roar of a crowd, or the whispered sweet nothings of a boyfriend. Sad that Violet will travel alone in an auditory world.

I'm also afraid. Afraid Violet won't hear a smoke alarm or a car horn. Afraid Violet's education will be stunted by the communication barrier. Afraid Violet will face social isolation.

But, after further reflection, I'm also thankful. Thankful my brother is able to support his family and allow Nicole to leave her job to be at home with Violet. Thankful government programs exist to provide physical and cognitive therapy, and eventually educational opportunities. Thankful Violet has an extended family—two sets of grandparents; an aunt, uncle, and cousins in town; and even this more distant uncle—to provide love and support.

Mostly, though, I'm hopeful. Hopeful that medical science will provide Violet with some degree of hearing, whether now or a decade from now. Hopeful that Violet has escaped other physical or mental impairments that so often afflict infants with CMV. During my Christmas visit, I saw a girl who was climbing on chairs, playing with toys, serving fake coffee to her Grandpa and Grandma, and imitating her big sister, just like any other girl her age. Violet's deafness is something no parent would want for their child, yet, in the grand scheme of things, deafness is a disability that can be dealt with. There are plenty of parents who would gladly accept deafness for their child if doing so would cure their child of more serious physical or cognitive conditions. Most of all, I'm hopeful that Violet will grow up to be as happy as she is today.

My brother and sister-in-law are both civil engineers, and have already moved on to viewing Violet's situation as a problem to manage. I think their approach is absolutely correct. Violet's deafness is a challenge, not a tragedy. Violet is a happy, outgoing girl who is doing quite well despite her lack of hearing. Certainly Violet is going to face a lot of obstacles, as will her parents and sister. I have every confidence all of them will not only overcome these obstacles, but thrive in spite of them.

Violet loves her Christmas toys, but loves her
gift box even more.

Violet takes a moment away from cooking lunch for 
Grandpa and Grandma to flirt with the camera.

AFTERWORD:  There are many worthy charities out there. But, if you want to donate to charities devoted to research about and support for victims of birth defects, please consider making a donation to one of these organizations:

* Names of my family members have all been changed to protect their privacy.

December 24, 2011

Online Poker Legalization Will Ultimately Be a State by State Fight

"All politics is local."

~Former House Speaker Thomas P. "Tip" O'Neill

Earlier today I discussed the reasons why online poker isn't legal despite the DOJ's recent formal opinion stating that the Wire Act applies only to sports-related gambling. Essentially, because poker, like all gambling, is regulated at the state level, the DOJ's position regarding the Wire Act ultimately has little direct effect on the legality of online poker. An important corollary to this point is that the online poker legalization battle will have to be fought and won in each individual state.

I know poker players and the PPA are focused (correctly) on federal legislation to legalize online poker. Technically, Congress could use its Commerce Clause power to preempt state gambling laws and impose a national online poker system. Given that gambling issues are traditionally the province of the individual states, and given the lack of national consensus as to legalization of online gambling, a sweeping federal plan is a complete non-starter.

The best result poker players can hope for on a federal level is legislation permitting online poker on a national basis, while allowing individual states to choose whether to participate in the system. An "opt-out" system (where states are included in the system unless they specifically choose not to participate) is superior to a federal "opt-in" system (where states must affirmatively choose to join the system). For any controversial issue, it is politically easiest to maintain the status quo, as political change requires affirmative use of political muscle. So, an opt-out system is almost certain to bring many states into a federal system which otherwise would lack the political will to affirmatively join under an opt-in system (as of now, Nevada, California, New Jersey, Florida*, and Iowa are the only states which have actively explored legalizing online poker).

If federal legislation fails, then individual states will likely begin to legalize online poker on an intra-state basis. As I have discussed previously, it is likely states will adopt some type of reciprocity system to permit players from states where online poker is legal to play against players from other states with similar online poker regulations. Consortiums like this would improve liquidity and create synergy for all participating states, leading to increased numbers of players (and greater rake and tax receipts). It's also possible, even probable, that as states become comfortable with security issues, foreign players from countries where online poker is legal would be permitted to play as well (though there likely would be some tax and money transfer issues to work out on a federal level first).

The most important point to remember, however, is that whether online poker legalization occurs at the federal or state level, the online poker legalization process is controlled by each of the 50 state legislatures. The legalization process will be easy in some states. But in many states, online poker advocates will have to engage in a political battle against a variety of opponents. Obviously, the usual groups opposed to gambling on moral and social grounds will be vocal. In some states, local or tribal casino interests fearing loss of revenues may oppose online poker, and may have the money and political clout to prevent legalization. There will certainly be a few states where opportunistic politicians will shanghai the online poker issue to strong-arm political concessions for completely unrelated issues.

Make no mistake about it, the online poker legalization fight will be a long and messy process. Regardless of whether a federal or state level system develops, it's entirely possible that online poker may not be uniformly available in all of the states for several years, possibly even a decade. Professional players willing to relocate will likely be able to find a state where they can play legally within a year or so. Unfortunately, many recreational players will not have that option, and will be left to the whims of their state political process.

It's time for poker players to get to know their state legislators.

* ADDENDUM (26 December 2011):  Edited to add Florida to the list of states which have actively explored legalizing online poker. I was inspired to go back over my post by a thoughtful discussion of the DOJ opinion posted today by Shamus at Hard-Boiled Poker. Just more evidence my memory isn't what it used to be!

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Why the DOJ's Wire Act Opinion Is No Big Deal for Online Poker

"I don't know how to put this but I'm kind of a big deal. ... I'm very important. I have many leather-bound books and my apartment smells of rich mahogany."

~Ron Burgundy (Will Ferrell) in Anchorman: The Legend of Ron Burgundy (2004)

The DOJ today gave the poker world a nice Festivus gift, issuing an opinion letter stating the DOJ believes the Wire Act is applicable only to sports-related gambling. Consequently, by implication it is the DOJ's position that the Wire Act does not apply to bar online poker. Predictably, the poker world overreacted, misconstruing the DOJ opinion as either conceding that Black Friday was invalid, and/or that online poker is now legal.

I'm currently on vacation for a couple of days of poker in Vegas before moving on to celebrate Christmas with my brother and his family, so I have neither the time nor the computer access to write a lengthy post. However, I'm pecking a post out on my iPhone because I wanted to provide a skeleton argument to explain the interplay of federal and state gaming laws in an attempt to help combat some of the widely held misconceptions being bandied about by many poker players on Twitter and by some in the poker media. This post is just an outline of several lengthier posts I started some time ago in my poker and the law series, but shelved when Black Friday made them somewhat superfluous. I will probably resurrect a few of them to provide a fuller treatment of the topic in the near future.

First, the good news. The title of this post is hyperbolic; the change in the DOJ opinion on the Wire Act is a big deal in two respects. First, it removes one federal criminal statute from the weapons prosecutors can wield over online poker companies. Second, and to my mind more important, it removes a potential legal barrier that would otherwise prevent states which legalize intrastate online poker from forming multi-state online poker consortiums to permit residents of states with reciprocal regulations to play against each other (akin to multi-state lotteries) in the event poker legalization occurs at the state level rather than the federal level (as increasingly seems the most likely path forward). The Wire Act does contain an exemption for transmitting wagering information from a state or country where it's legal to another such state or country, but when it comes to federal criminal law, it's better to know you aren't covered by the law in the DOJ's eyes than to have to worry about how a prosecutor or judge will interpret the law.

Now the bad news. First, the DOJ opinion will have no effect at all on the Black Friday criminal or civil cases. Those cases are based on federal statutes other than the Wire Act. Frankly, I think the DOJ knew applying the Wire Act in the Black Friday prosecution would add a problematic legal issue, so they chose to rely on other criminal statutes. Going forward, if the DOJ should choose to pursue cases against other online poker sites, the DOJ has plenty of other statutory arrows left in its quiverthe UIGEA, the Travel Act, and Illegal Gambling Business Act spring to mind.

Second, and more significantly, the DOJ opinion does not change the current legal status of online poker. Online poker has been illegal since its inception and remains illegal today.

The first step in analyzing the legality of online poker is to recognize that gambling has historically been regulated at the state level, as a function of a state's police powers. Most states banned all gambling until recently, while a few (notably Nevada and New Jersey) were far ahead of the curve in permitting some forms of regulated, legal gambling.

There are a number of federal laws that criminalize gambling related activities; e.g., the Wire Act, the UIGEA, the Travel Act, and the Illegal Gambling Business Act to name a few of the more prominent. These laws, however, are generally dependent on violations of state gambling laws as a predicate act triggering federal criminal liability. Congress could, if it wished, use its Commerce Clause power to preempt the field of gambling law (or just online gambling lawwhich it might do if online gambling seems inevitable at the state level). But instead, Congress essentially lets each state determine the level of legalized gambling it wants available to its residents. Federal law then provides the legal tools needed to apprehend criminals who try to evade state gaming laws by crossing state lines in some aspect of operating an illegal gambling business.

The next analytical step is the key to understanding online gambling regulation. Currently, every state either bans poker or regulates poker as a form of gambling. To be a bit more precise, every state either bans operating a poker game for profit or only permits such for-profit poker business subject to strict state regulations; even though the playing of poker may not be illegal in many states, the offering of poker as a business (e.g., as a casino, card room, or online poker site) is the key operative activity subject to state regulation.* Note that I said "poker" and did not distinguish between live and online poker, because most states do not make that distinction.

Now many poker players assert that online poker is not illegal under state law unless the state law specifically bans online gambling. I'm not certain where this argument comes from, but it's pretty sketchy legal reasoning. If it's illegal under state law to run a for-profit poker room in your basement, simply setting up a computer server across state lines to run your poker game online doesn't magically make your poker business legal (or beyond the law). As I have discussed in prior posts on jurisdictional issues, states have routinely exercised criminal jurisdiction over people outside the state's borders who engage in illegal conduct that affects people within the state's borders (a prime example is child pornography or solicitation). If a company uses the Internet to offer gambling within a state where that form of gambling is illegal outright or only legal subject to state regulations, then that company is breaking state gambling laws. Break the state gambling laws, and the federal gambling statutes kick in. Presto! We have Black Friday.

As of right now, it's safe to say that poker is either illegal altogether or regulated as gambling in every state. As of right now, no gaming company has ever been licensed by any state gaming commission to offer online poker (or online gambling of any kind). Therefore, online poker is, and always has been, illegal under existing state gambling laws. States that added a specific statutory or regulatory prohibition against online gambling did so to make the law crystal clear or to strengthen penalties, not because there was some online gambling loophole that made online poker legal.

In sum, the new DOJ Wire Act opinion has no immediate effect on online poker. Online poker remains illegal under state law as it exists today. However, Nevada and other states may soon begin issuing licenses permitting gaming companies to offer intrastate online poker. If and when multiple states permit online poker, then one should expect multi-state consortiums to develop to permit online poker play between residents of states with similar online poker regulations. Nonetheless, the days of unlicensed foreign companies like PokerStars or Full Tilt offering online poker are at an end. All hail the new, licensed, regulated, domestic online poker sites!

* ADDENDUM (26 December 2011):  Edited to add the second half of the sentence to clarify the distinction between laws covering playing poker and those addressing those who offer poker as a for-profit business (e.g., casino, card room, online poker site).

Also added a link in the final paragraph to a post by Shamus at Hard-Boiled Poker which has some excellent discussion linking the DOJ opinion letter to the recent Nevada state legislation setting up the regulatory framework for intrastate online poker.

- Posted using BlogPress from my iPhone

December 14, 2011

The Poker Gods Send Omens

So, as of a week ago, my Christmas plans involved port, gourmet salamis and cheeses, bad movies, and a sleepy boxer in my lap at home. My parents were headed from western Nebraska to Salt Lake City to see my brother and his family (including my two adorable nieces, ages 5 and 2). My sig other was headed to eastern Iowa to his family and their personal "don't ask, don't tell" detente where I am just the landlord for the house where my sig other lives.

Then, a cosmic convergence of omens occurred. I found out I was one round trip from making Elite status on United. I am a mere 220 points from making Platinum on Caesars' Total Rewards for the first time (screw you folks who can play in a Caesars property year round and get to cut lines with your freakin' Diamond cards). I have a handful of "use it or lose it" vacation days at work. My sig other's youngest niece demanded that he bring her "best friend" Berkeley home to play at Christmas. What were the poker gods trying to tell me?

Not fully believing the portents, I checked out Orbitz,, and Total Rewards. What to my wondering eyes appeared but an opportunity for an awesome holiday excursion. A round-trip flight from Des Moines to Salt Lake was within $30 of the cost of a multi-way trip from Des Moines to Vegas to Salt Lake. I had two free nights at Planet Hollywood or Paris to use. Could the signs be any clearer?!?

Suddenly, my sedate holiday at home has transformed into a whirlwind itinerary of two days in Vegas, followed by two days in Salt Lake with my parents, my brother and sister-in-law, and my nieces. Not quite "home for the holidays", but still a perfect Christmas nonetheless.

Happy Holidays to all my followers, from me and Berkeley!

Berkeley bored by another Packers win.

The Packers are up three TDs. Can we play now?

How about a run? Frisbee? Heads up Badugi for rollz?

Yo ho ho and a bottle of rum! What?

Santa better bring me a goose and a bag of duck treats.

December 11, 2011

The WPBT Presents Food Porn

"We should look for someone to eat and drink with before looking for something to eat and drink."

~ Epicurus

One of the great things about Vegas is that there are dozens of great places to eat crammed in a small area. On the Strip alone one can find excellent dining experiences at every price point and in every style of cuisine. Every trip I take to Vegas, I make it a point to treat myself to at least one meal each day that I can't experience in Des Moines. Sometimes it's as simple as a gourmet burger or top notch Mexican or Asian cuisine with a fun vibe, while at least once each trip I venture into a higher end steakhouse or TV chef food joint. There's no shame in having a cheap sandwich or chowing down at a mediocre buffet to accommodate time and travel budgets. But it's a damn shame to spend more than a day within an easy walk of so many interesting dining experiences and never veer off the fast food and buffet path.

During the recent WPBT, I got to enjoy several excellent meals. The culinary trip got off to a fast start Thursday night as I went straight from the airport to dinner at Jaleo in the Cosmopolitan. I met up with a hilarious group including Astin, April, Heather, Ryan, Dan, and Stephane, with an after dinner appearance by the lovely Miss Chako. Jaleo is a Spanish tapas restaurant with some intriguing options. We took turns ordering dishes to share with the table, and I can't think of a single dud. Some of my favorites were the lobster paella, the asparagus, the grilled mushrooms, and the Iberico ham fritters. My favorite dishes, however, were the salad of grilled Brussels sprouts and Serrano ham, the endive with goat cheese, and the veal cheeks. Even with wine and cocktails thrown in, the total bill still came in well under $100 per head. Not too shabby a start to the weekend's festivities!

Stephane, Miss Chako, & April at Jaleo.

Astin tries Jaleo's amazing gin & tonic.

A close up of the world's greatest gin & tonic.

Friday was my birthday, but because I stayed up until 9:00 a.m. playing poker, I slept in until mid-afternoon. Since I was staying at Paris and had a Total Rewards coupon for a free burger, I treated myself to a burger at Le Burger Brasserie, one of my favorite solo Vegas dining locations. I went with my standardthe Saveur, a lamb burger on a wheat bun with mushrooms, mozzarella, and herbs. Tasty! For some reason, I forgot to use my coupon, so my last meal of the triplunch on Mondaywas a repeat trip for another lamb burger, this time built from scratch with pancetta, chevre, and roasted red peppers, with a side of sweet potato fries. A perfect end to a great culinary weekend!

My personalized lamb burger at Le Burger Brasserie.

Even though I was stuffed from my birthday burger, a small part of my stomach was jealous of the Friday night dinner antics of a group that included FTrain, MrChako, and culinary genius Astin. I know those three were enjoying a great meal at Raku because they tweeted a course by course rundown of the delectable dishes they were served, often with pictures. Just check out Astin's photos of the meal (here, here, here, and here) and tell me you aren't drooling just a little.

Saturday saw me waking up bright and early by 9:30 a.m., anticipating the noon WPBT tourney at Aria. My worries about pre-tourney sustenance were assuaged by a Twitter invite from Heather to join a motley crew for the brunch buffet at Wicked Spoon in the Cosmopolitan. I think it was most of the Jaleo crew, plus Chilly, Gus, Marty, and OhCaptain. This was easily the best buffet I have ever sampled (though in the interest of full disclosure, I have never tried the buffets at Wynn, Bellagio, or Aria). There was a great spread of food, including a salad bar I breezed past on the way to a meat carving station loaded with ham, linguica sausage, leg of lamb, turkey, slab bacon, and prime rib. I also grabbed single serve pots of short rib eggs Benedict, asiago gnocchi, and bacon mac 'n cheese, along with some awesome mushroom polenta and a variety of desserts. As is the case with most buffets, there were some hits and some misses, but overall the buffet offered great variety and good value for the money (~$30, $39 with the all you can drink mimosas and bloody marys). My personal favorites were the short rib eggs Benedict, leg of lamb, and bacon mac 'n cheese. Definitely worth another visit for dinner, where rumor has it there is a made to order mac 'n cheese station.

Plate 1: From bottom right, leg of lamb with chimichurri 
sauce, egg scramble, bacon mac 'n cheese, short rib 
eggs Benedict, bacon, apple turkey sausage, mushroom 
polenta, linguica sausage, and carved slab bacon.

Plate 2:  From bottom left, mini pecan pie, 
chocolate dessert cup, asiago gnocchi, prime rib,
and mixed berry shot glass dessert.

Plate 3:  From bottom center, passion fruit fudge,
chocolate passion fruit dessert shot, raspberry chocolate
dessert shot with gold flake, and molten chocolate
brownie in caramel sauce.

Pastry and dessert case.

Gelato bar.

Gay man's heaventhe hot meat station.

Saturday night rolled around, and I found myself headed to CarneVino, super chef Mario Batali's restaurant at Palazzo, with friends Caity, Carol (a/k/a the Black Widow of Poker), and Astin (living up to his reputation as a culinary slut). CarneVino is one of my favorite Vegas restaurants (as an aside, if you're in Vegas solo, eating at the bar in a fancy restaurant is a great dining option; no need to feel bashful!). Carol happens to be connected to the manager, so we were given a little hook-up for our meal. We began with pastrami with duck egg, another appetizer I've forgotten, and a tuna tartare compliments of the chef (thank you Carol!). The tartare was amazing! For the pasta course, we sampled the duck cannelloni, the duck liver and pork ravioli, and the gnocchi bolognese (again, compliments of the chef). For this course, the ravioli stole the show. For the entree course, Astin picked a solid barolo that paired well with our grilled veal sweetbreads, grilled venison with huckleberry demiglace, grilled lamb chops, and grilled bison. Despite my solid credentials as a former farm kid who showed livestock and judged meat, I was a sweetbreads virgin, and the ones here were underwhelmingnot  bad, just not as amazing as the red meat dishes. My personal favorite had to be the venisonjust a bit gamey like a good lamb dish, but melt in your mouth tender and exploding with flavor. However, what truly made the dinner a major highlight of my trip was getting to know my companions better, where they came from, how they tick, some of their quirks, and what makes them laugh. Dinner took almost three hours, but seemed to fly by in a wink. Truly a wonderful experience that made the whole WPBT trip worthwhile.

Caity, Carol, & Astin at CarneVino.

Sunday marked the winding down of the WPBT festivities, but my culinary adventures were not quite concluded. After cheering on some of our WPBT compatriots in the Rock 'N Roll Marathon, I found myself starving and headed to Lemongrass at Aria for a late dinner with Allen, Steve, and Dave. This dinner was a real treat, as I had really not had much interaction with these three gents beyond a cursory howdy and an hour or two at the poker tables. Despite reading their blogs and following them on Twitter, this dinner was the first chance I had to get to know them a little bit as regular folks. Well, perhaps irregular folks. In any event, dinner was an hour or two of laughs, and a truly memorable evening. One of the highlights was when Steve articulated my motto for fine dining and fine livingwhen you get the chance, you might as well try something new. For Steve and me, that meant diving into an appetizer ofcold jellyfish. The dish was actually quite tasty, with a surprisingly firm crunchy-chewy texture, seasoned with a little vinegar, sesame oil, and chili flake. Certainly not anything like what I expected, but something I would gladly order again. For my entree, I went with my standard Drunken Noodle, but this time, a "6" on the heat scale went to an unexpected inferno level, causing me to break out in a sweat quite noticeable on my fuzzy bald head. And yes, my companions might have noticed. But a little ribbing fit right into the light-hearted banter that made dinner a fun way to wrap up the WPBT weekend.

Jellyfish appetizer at Lemongrass.

As much as I love poker and degenerate gambling, what makes WPBT special is the people. And this trip, food gave me the opportunity to truly enjoy those people as people, not as poker players. Poker might bring us together, but all of us are much more than poker players. I'm grateful something as basic as food gave me the opportunity to glimpse the human sides of so many WPBT folks.
“If more of us valued food and cheer and song above hoarded gold, it would be a merrier world.”

~ Thorin Oakenshield in The Hobbit, by J.R.R. Tolkien

November 26, 2011

Harry Poker & The Magical Muck

Harry:  I swear I don't know. One minute the glass was there and then it was gone. It was like magic.

Uncle Vernon:  There's no such thing as magic!

Harry Potter & The Sorcerer's Stone (2001)

Poker player and blogger Robert Taylor posted today about a controversial ruling that arose during a low-stakes NLHE cash game at the Rivers Casino poker room in Pittsburgh. I started to write a comment, then decided the "magical muck" issue—the idea that a hand becomes automatically and irretrievably dead merely because one or both cards have touched any part of the muck—is a common misconception among poker players that deserves a lengthier discussion.

The scene as set by Robert is a pretty typical backdrop for "magical muck" situations. To sum up, an aggressive young player ("Moneybags") bet on the river. An opponent verbally declared himself all-in, and another player in the hand folded. With action back on him, Moneybags threw his cards forward. It is unclear whether the cards touched the muck. When the dealer began to push the pot to his opponent, Moneybags objected that he hadn't been aware there was another live hand, and declared he would call the all-in. The floor and later a manager were called, and based upon the dealer's representation that Moneybags' hand had not touched the muck, declared the hand live. Moneybags had a full house which beat his opponent's straight. Moneybags was awarded the pot, his opponent stormed out of the room, and controversy ensued.

Robert's discussion of the situation tracked with the obsession by the floor and manager with the question of whether the player’s cards hit the muck. Setting aside any idiosyncratic house rules for the poker room, all of the focus on the muck is misplaced under the general rules of poker. Despite widespread player assumptions to the contrary, the muck is actually not magical; nothing special occurs to a hand once it hits the muck. Let’s look at Robert’s Rules of Poker, beginning in Chapter 3, "GENERAL RULES OF POKER", where we learn:

1.  Your hand is declared dead if:

(a) You fold or announce that you are folding when facing a bet or a raise.

(b) You throw your hand away in a forward motion causing another player to act behind you (even if not facing a bet).

In this case, Moneybags did not announce a fold. Moneybags did not cause another player to act behind. Based on the subsequent action, it is arguable whether he folded or was merely surrendering his hand in the (mistaken) belief he held the only live hand and had won the pot.  Let’s look at another rule under “DEAD HANDS”:

2.  Cards thrown into the muck may be ruled dead. However, a hand that is clearly identifiable may be retrieved and ruled live at management’s discretion if doing so is in the best interest of the game. An extra effort should be made to rule a hand retrievable if it was folded as a result of incorrect information given to the player.

Here’s where we find the source of the routinely misunderstood “magical muck” rule. Note that whether the cards touch the muck is not the determining factor in whether a hand is dead; the hand merely may be ruled dead. The muck is not magical; it's touch does not turn a hand to stone, transform it into a rabbit, or even kill it. In this case, there is no question that the hand was “clearly identifiable”, so the real issue to debate is not whether the cards hit the muck, but whether the player intended to fold, folded in error, or had not actually folded at all but was merely surrendering what he thought was the uncontested winning hand.

We do, however, need some way to help us resolve the ambiguity of the situation.  This brings us to another couple of rules from Chapter 2, "HOUSE POLICIES":

1.  Management reserves the right to make decisions in the spirit of fairness, even if a strict interpretation of the rules may indicate a different ruling.

8.  The same action may have a different meaning, depending on who does it, so the possible intent of an offender will be taken into consideration. Some factors here are the person’s amount of poker experience and past record.

Here, Moneybags clearly did not realize he was the last person standing, so his throwing his cards forward is not a clear “fold” as it is also consistent with surrendering cards as the winner of the hand. Thus, the player's action was ambiguous, and not a definitive fold.

Now some players may argue that Moneybags had a duty to protect his own hand by not surrendering it before the dealer awarded the pot to him. This is unquestionably true, but it is not decisive in this type of situation. Of course, Moneybags should have known the other player had a live hand, and should have protected his hand until the pot was pushed to him. But players do in fact make mistakes, and the rules do permit some of those mistakes to be corrected under some circumstances. Let's look at the relevant rule, again in Chapter 3, "GENERAL RULES OF POKER":

IRREGULARITIES2.  You must protect your own hand at all times. Your cards may be protected with your hands, a chip, or other object placed on top of them. If you fail to protect your hand, you will have no redress if it becomes fouled or the dealer accidentally kills it.

Notice that the rule states that a player has no redress (i.e., makes a mistake for which there is no remedy) for an unprotected hand only if the hand "becomes fouled or the dealer accidentally kills it". In this situation, the hand was not fouled because it remained identifiable; there was no need to dig through the muck to retrieve the hand. Neither had the dealer killed the hand, because as we have already discussed above, the muck rule merely provides that the hand may be ruled dead, but may be retrieved as a live hand depending on the circumstances (keep in mind that other rules or actions may irretrievably kill a hand which might affect the operation of this rule under circumstances not present in the scenario under discusssion).

So, under the general rules of poker, Moneybags' hand was not necessarily dead merely because he threw them forward, or because the dealer might have touched them to the muck. Moneybags' hand was clearly identifiable. So what ruling is in the best interest of the game?

Ultimately, we should want the best hand to win, while also discouraging angle shooting. These goals will often be in tension. In my view, the correct ruling in this situation was to allow Moneybags' hand to remain live, in large part because Moneybags held a very strong hand consistent with his claim that his action was not a fold. This is not a situation where Moneybags folded a hand like Ace-high or even one or two pair on a scary board, then tried to belatedly retrieve his hand when shown a bluff by his opponent. In this case, knowing Moneybags’ hand is strong evidence resolving the ambiguity in his action—a floor could rule with a high degree of confidence that Moneybags was not shooting an angle, but rather had erroneously assumed he held the only live hand and was merely surrendering his cards thinking he had won the pot.

Although it is always satisfying to see arrogant jerks get their comeuppance, even jerks deserve to be treated fairly. Here, Moneybags made a silly mistake, but it was an error that could be corrected within the letter and the spirit of the rules. Demanding strict adherence to bright line rules (e.g., “cards touching the muck are always irretrievably dead”) can make rulings absolutely consistent, but at the price of player dissatisfaction with results that may be excessively harsh in some circumstances. Slavish devotion to bright line rules is rarely in the best interests of any game, particularly at low stakes games with a wider range of player ability and in settings that generally cater to recreational players. Rules work best and games play best when there is room for common sense and judgment calls. I think the floor and manager made the right call here, even if for the wrong reason.

November 24, 2011

Poker! Yay!

With WPBT almost upon us (yikes how time flies!), I have become painfully aware of the poker dearth in my life. It's rather amusing that, as a guy who hadn't played online in over five years, I've played poker barely a handful of times since Black Friday (not counting my Vegas trip in June). [FN1]  Out in the real world, I've run into quite a few of the regular players from the Meadows, and apparently my absence has drawn some comments at the tables, likely the same kind of coffee talk as heard between barracuda when they notice a drop off in the local clown fish population.

My last visit to the poker tables was the first weekend in October, when I had scheduled a guys' weekend trip to Kansas City for drinking, gambling, and football. From my house, it's an easy 2.5 hour drive down I-35 to the Harrah's North Kansas City casino, which is pretty convenient. My crew for the weekend consisted of Santa, Jugweed, and Big E (our designated degenerate). Two Iowa State Cyclown fans, a Husker fan, and a Jayhawk fan, riding in a car with Iowa plates in rural Missouri—what could go wrong??

On our journey, I was driving so the other guys had broken out some libations, requiring a pit stop in Deliveranceville. We found a highly sketchy gas station / closed diner combo that would make a great Criminal Minds set after dark. Thankfully, it was mid-day, so we took a chance. On the front door we saw this important notice:

Yes, apparently in Missouri it's common to have as pets chickens, cats, dogs, and donkeys ... who are circus-trained. Also, it's important to advise folks to keep their pets outside, lest they be microwaved and served to passing tourists. (Perhaps I'm misreading the sign; I'm not fluent in redneck pictogaphy.)

We arrived at the casino mid-afternoon and immediately hit the poker room, except for Big E who headed off for some Pai Gow. As is often the case, I had a good start, making nearly $300 before dinner. As is usually the case, I should have stopped there. As is always the case, I forged ahead.

Dinner was an entertaining affair, in the Irish wake fashion. The Cyclowns kicked off against Texas as we sat down for dinner in the Harrah's sports bar (interestingly, 'Clown superfan Big E was wearing a Texas burnt orange sweatshirt). The 'Clowns promptly imploded. We enjoyed beer and bleu balls until the Huskers kicked off against Wisconsin in their Big Ten debut. The Huskers waited until nearly halftime before gagging up all hopes for a BCS bowl. Santa and Big E gave up on the 'Clowns and headed back to the poker and pai gow tables. I moved to the bar for a rum and diet or five while cursing the Huskers during their spectcular second half collapse.

Santa in typical Cyclown form.

Santa & Big E in full Cyclown denial.

Following the Huskers debacle, I debated between seppukku and poker as the proper method of purging my shame. Poker being the more painful option, I headed back to the tables. After mucking around some $2/$5 NLHE, I heard the siren song of the $2/$5 PLG (Pot Limit Gamboool) game. It was a lot of fun as always, but variance was not kind to me or my bankroll (down three $300 buy-ins net by night end). I worked up a stack over $1,000 after each buy-in, but four big hands all went against me—twice my sets were run down by combo draws, twice my combo draws failed to run down sets. Eh. PLG giveth, PLG taketh away. Praise be PLG!

The Harrah's North Kansas City poker room does have a couple of annoying quirks I had not noticed on prior visits. The most annoying is the chip buying system. No chips can be sold by the dealer, and they do not allow chip runners. So players who want to rebuy or even top off their stack must go up to the poker room front desk. This isn't a big problem, except the front desk is never staffed to sell chips except during the room's busiest periods. So, much of the time (particularly after midnight which is generally a lucrative time to play against bad or stuck players), players have to go across the casino floor to the nearest cashier cage to get chips, often standing in line for five minutes or so to buy chips. The problem with this arrangement is that many bad players who would've rebought if they had stayed at the table or been able to rebuy at the poker room counter end up cooling off on the walk to the cage and keep on walking on to a table game in the pits or out to their car or hotel room. Not a great way to keep players at the poker tables.

After catching a short nap, we met up at the Harrah's buffet to fuel up for the Chiefs-Vikings game. The food was decent, nothing special, but good omelets made to order, bacon, and coffee are really all I need. Our beverage server was a nice lady with a heavy, possibly Caribbean  accent. She kept us refilled with juice and coffee, speaking little, mostly one-word questions or statements. Toward the end of the meal, our server came over with a fresh cup of coffee for me. Setting it down next to me, she gave a small fist pump and declared in a soft voice: "Coffee! Yay!" So, for the remainder of the trip, and for the next couple of weeks, our crew would point something out in the same manner: "Field goals! Yay!" "Popcorn! Yay!" "Cheerleaders! Yay!" I'm certain our spouses enjoyed our phrase-of-the-month as much as we did.

The Chiefs-Vikes game promised to be spectacularly bad, considering neither team had won a game at that point, and both teams appeared actively engaged in the "Suck for Luck" festivities. Somehow, an exciting game broke out, made even more entertaining because it was probably my last chance to see Donovan McNabb suck in person. McNabb lived down to his reputation and led the Vikes to a rather pitiful defeat.

Santa, Big E, and Jugweed enjoy a tailgate beverage.

Great view from our seats of McNabb's utter suckitude.
OK, this play was a TD, but McNabb still sucked.

This was my first game at Arrowhead Stadium, and I have to wonder about some of their management decisions. At the gates, there was security screening, but it was cartoon security theatre. Men had to lift up hats, raise their arms, and be patted down on the chest and back, but I could've easily had a knife or gun in my cargo shorts pockets and it would never have been noticed. Why bother with this kind of security charade?

I'm not certain how this lady made it
past the fashion police at the gate.

Similarly, the game entertainment presentation was overtly sexualized, making me wonder about how comfortable parents would be bringing younger children to the game (not to mention the way such shenanigans are received by female fans). It's not just that there are official dance teams and cheerleaders in skimpy outfits on the field, but those women are shown on TVs throughout the stadium in a variety of regularly repeated announcements, providing close-ups of cleavage and booty. The worst moment, however, was at halftime, when the cheerleaders introduced fifty or so "Junior Chiefs Cheerleaders"—young girls from 6-12 years old, all in cheerleader outfits. They put on a dance routine, complete with suggestive moves, set to a medley of songs which included:

Look, anyone who knows me knows I'm far from a prude. I have no problem with adult women dancing around to whatever music they want, wherever they want, and for money if they want. I also don't mind the concept of a junior cheerleaders program; plenty of girls enjoy being cheerleaders. What struck me about this program was the utter obliviousness to whether the music and dance moves were appropriate for girls that age. I know we live in a hypersexualized society, but seeing a bunch of elementary school girls tarted up and dancing around to that soundtrack in front of an crowd of mostly middle-aged, half-drunk men just seemed a little inappropriate. Certainly not my idea of family entertainment.

Happy Thanksgiving to all! Hope to see some of you soon at WPBT, and for those who can't attend, I'll be certain to post the highlights of the hijinks.

WPBT! Yay!

[FN1]  Since my last post, work has gotten even busier, rather than more settled, after one of my staff attorneys left to take a new position. Sh*t flows uphill in some universes. Hopefully we'll have someone hired and in place by end of the year.

On top of the work situation, I coached a middle school mock trial team again this year. It was a great group of smart, funny kids who I had also coached last year as 7th graders when they qualified for state, but fell just short of the top 10 (who get trophies). This year, we practiced starting in early September, twice a week for three hours. In October, we added another day of practice as well as three dress rehearsal trials. Prior to regionals and state, we practiced six out of seven days in the week before competition, plus two days of regionals and three days at state. Quite a time commitment, not just for me, but also for the kids and their parents. But, it paid off as the kids won their first three trials at state and qualified for the final four. They got to try their semi-final case in the Iowa Court of Appeals courtroom, which they won. The kids then got to try the final round case in the Iowa Supreme Court courtroom with the Chief Justice presiding and the entire spectacle filmed for broadcast later this month on the local cable network. The team ended up finishing second, which is quite the accomplishment considering our regional alone had 48 teams (with eight going on to state), and the state competition had 32 teams. These kids (as well as the team that won state) frankly are better at evidentiary objections and cross-exams than many attorneys with years of experience. Mock trial! Yay!

October 11, 2011

I'm Not Dead Yet!

It's been over two months since I last posted. I appreciate the many kind comments and emails I have received inquiring as to my blogging hiatus. It was nothing intentional, just a perfect storm of circumstances.

The major factor in my absence from these parts has been a work project the past few months involving the sale of one of our subsidiaries. Deals like this require a lot of "due diligence" and secrecy bordering on a Masonic-Illuminati conspiracy. So, given my position in the company, I was one of the very small group of folks responsible for working on the deal in addition to my normal work duties. It wasn't particularly tough—mostly lots of conference calls and endless emails—but it did cut into my free time. So, when I got home, I was more interested in playing with the dog and spending time with the sig other than in blogging. Also, with less free time, I played less poker, leading to less blog-worthy material. I think I've played maybe five sessions in the four months since my last trip to Vegas, my driest streak in years.

Of course, a lot has happened in the poker world in the past two months. Recent revelations about the depth of the problems at Full Tilt have dominated discussion, and I do have a couple of partially written posts about those yahoos that will likely find their way to publication soon. But, there has been a ton of great writing on that topic already, and I really don't want to throw something out there that doesn't add some kind of unique take on events.

I also have a handful of lengthy draft posts, most which have been a long time in the making (in some cases, having been started a year or more ago). Although these draft posts are not exactly tied to current events, there is no question that Black Friday has made them less urgent in some cases, and more in need of updating in other cases. In this vein are a critique of the overreach in the PPA's "poker is a game of skill" argument, a completion of the venue and choice of laws discussions for my poker-and-the-law series, an examination of class actions in the context of suits against Full Tilt, commentary about the need for better regulation of online poker, and similar kinds of projects. The problem with these kinds of law-related posts is that they require a significant amount of research time to meet my standards for publication, and they also are the type of posts that require several hours of uninterrupted writing time to get the kind of finished product I want to share. Partly this is my background in appellate briefing, partly it's my obsessive side that rears its ugly head when I write. For better or worse, my law posts tend to run on for some length. This probably results mostly in a lot of "too long, didn't read" (or "tl;dr" for my ADHD readers who made it this far) reaction from readers, but for legal issues, detail and nuance matter. And, over the past couple of months, I just haven't had the luxury of extra free time to devote to finishing the necessary research and polishing the analysis to bring many of my drafts to the point where I would be willing to hit "publish".

In any event, my work schedule is slowly returning to "normal". But I have to admit part of me has enjoyed the hiatus from regular blogging, even as part of me missed it greatly. It's a lot like my running habit. When I ran nearly every day for a over a decade, it felt weird to miss more than a day. But when a foot injury sidelined me for a few months recently, it became a real struggle to get back in the swing of running every day. So, please bear with me as I get back up to speed with my writing. It may take a few weeks, but I have no doubt I can shake off the cobwebs.

I would normally end with a poker analogy, witty turn of phrase, or pop culture reference. Alas, I am out of practice, not to mention I am suddenly being run over by a truck.

July 31, 2011

Revenge of the Non Sequiturs
Slots, ATMs, and Online Poker

"More slot machines than ATM's in USA. Yet online poker illegal! ..."


Variations on the Tweet above made the rounds of a number of poker players this evening. Although I share the general sentiment—gambling is widely legal, so poker should be as well—this type of argument is specious and ultimately proves nothing about the state of poker specifically or gambling in general.

The Tweet in question referenced a CBS News story about the spread of legalized gambling across the United States. The story cited one statistic relevant to the online poker legalization debate—38 states now have legal casino gambling. Given the prevalence of casino gambling, a strong argument could be made that online poker is a natural next step in the gambling market for those states. After all, those states already make money off of regulated casino gambling, online poker is being played anyway, why not cash in?

The CBS story, however, really goes off the track by throwing in the useless statistic comparing the number of slot machines (850,000) to the number of ATMs (425,000) in the United States. This type of statistical comparison is commonplace in news reporting, and is basically a variant on the time-honored method of demonstrating really big numbers in a superficial manner: "If you laid [objects, dollars, etc.] end-to-end they would stretch [from the earth to the moon and back, around the equator, etc.] X times." Considering most people don't have a clue how far away the moon is, or how many miles it is around the equator, or any other really big metric of choice, these types of comparisons are almost never useful in advancing the point of the story.

Looking at the slot machine / ATM comparison, there are two real problems with the comparison. First, most Americans don't have a clue how many ATMs there are in the United States, the same flaw inherent in most of these comparisons. Second, and more importantly, the CBS story doesn't provide any context for the statistic. What connection is there between the number of slots and ATMs? A statistic like "There are more health insurance processors than doctors" might generate useful debate about the relative impact of insurance paperwork on the delivery of health care in the United States. (Note: that statistic was created solely as an example and might or might not be true.) But where is the logical connection between ATMs and slot machines? The two might be connected within a casino (e.g., casino management might want one ATM for every 200 slot machines—again, an entirely fabricated statistic). But where is the significance in comparing slot machines to the number of ATMs in general? What possible useful conclusion can be drawn from that comparison?

To think about the absurdity of the comparison, let's compare slot machines to other categories. Why not state that there are more slot machines than:

On the flip side, here are some things more common than slot machines:

These comparisons would be equally as true, and equally as pointless as the comparison drawn by CBS. But what logical insight would any of these comparisons support? What analytical connection exists between slots and ATMs?

Nonetheless, poker advocates take the slots / ATMs analytical non sequitur and double down by suggesting there is a logical connection between the number of slot machines in casinos and the legality of online poker. What if there were only 600,000 or 300,000 or 100,000 slot machines in casinos? Would those numbers change the argument as to whether online poker should be legalized? Does the legality of any form of casino gambling really bear any direct correlation to the debate over the legalization of online gambling in general or online poker specifically?

There are plenty of good arguments for legalizing online poker. Relying on the ratio of casino slot machines to ATMs is not one of them.

July 20, 2011

South Carolina Poker—
Canary in the Coal Mine for Chimento?

Last fall, the South Carolina supreme court heard oral arguments in Chimento v. Town of Mount Pleasant, an appeal asking the court to determine whether poker is banned as a game of chance by the state's anti-gambling statute. My analysis of the appeal is that the court will likely find that poker is illegal gambling, though the court may carve out an exception for purely recreational or social games where no rake or fee is charged.

Because oral arguments were held over eight months ago, I have been tracking the appellate decisions which are released on the South Carolina judicial website in anticipation of the Chimento decision. Although the supreme court has yet to release its opinion in Chimento, the South Carolina court of appeals recently issued a decision in South Carolina Law Enforcement Division v. 1-Speedmaster SN 00218, a gambling case that could be a sign of trouble for poker advocates.

In Speedmaster, the court of appeals was confronted with the question of whether an electronic gaming device violated the state's video gaming statutes. The magistrate (trial) court had held a hearing during which a Speedmaster technician had both testified and demonstrated that a skilled player could beat the machine and win every time. Based on this record, the court of appeals ultimately concluded that the Speedmaster game was not a game of chance, and there was no evidence that players wagered on the outcome of the game. Thus, the Speedmaster game was not an illegal gaming device.

Although this decision might superficially seem beneficial to the "poker is a game of skill" advocates in Chimento, the bulk of the Speedmaster court's analysis of the "skill vs. chance" argument—if adopted by the Chimento court—is strongly anti-poker. The Speedmaster court noted that the South Carolina supreme court has not yet adopted either the "dominant factor" test or the British common law "pure chance" test for determining whether a game qualifies as "gambling" under criminal law. [FN1]. The court defined the two competing tests:
The dominant factor test provides when "the dominant factor in a participant's success or failure in a particular scheme is beyond his control, the scheme is a lottery, even though the participant exercises some degree of skill or judgment." [cite]. "If a participant's skill does not govern the result of the game, the scheme contains the requisite chance necessary to constitute a lottery." [cite].

In contrast, under the "pure chance doctrine," founded in British law, "any skill, however minimal, is sufficient to remove a scheme from the definition of lottery. [cite]."

Note that the court's formulation of the dominant factor test does not require any weighing of the relative effect of skill and chance on the outcome of the game as is usually presumed by litigants advocating the "poker as game of skill" argument. Instead, so long as chance is an intrinsic or inherent element in determining the outcome of the game, it constitutes gambling. Under this interpretation of the dominant factor test, it is difficult to see poker being found to be anything other than gambling. However, the Speedmaster court declined to adopt either test, noting that under either test, the Speedmaster machine at issue was unquestionably a game of skill because a player demonstrably could win every time he played. [FN2].

The Speedmaster court then turned to the question of whether the Speedmaster machine was an illegal "gambling device". The court first referred to South Carolina common law (which is consistent with most states’ common law) and found that the elements of gambling are “consideration, chance, and reward”, with a particular analytical emphasis on the element of “chance”:

"As legal terms, 'gaming' and 'gambling' are the same and involve either fraud, or cheating or chance applied in a situation of agreement between two or more persons in which, in accordance with certain rules, the parties play a game or contest, or await the outcome of some event that will determine one or more winners or losers."

The court also looked to a state statute regulating gambling on certain gambling cruises:

"'Gambling' or gambling device' means any game of chance and includes, but is not limited to, slot machines, punchboards, video poker or blackjack machines, ke[]no, roulette, craps, or any other gaming table type gambling or poker, blackjack, or any other card gambling game."

The Speedmaster court’s reliance on the gambling cruise statute is important, because it emphasizes a point I have previously discussed: Where poker is legalized and regulated under some conditions (e.g., in a casino, on gambling cruises, or in a “charity” setting), courts will be reluctant to interpret a general gambling prohibition as permitting legalized poker outside the regulated settings permitted by state law. [FN3]. Here, the South Carolina legislature has enacted a recent statute declaring poker to be “gambling” subject to state regulation. The South Carolina supreme court in Chimento will likely rely on that statute in two ways. First, the gambling cruise statute expresses a public policy decision by the legislature that poker is included in the games to be regulated as gambling within the state. Second, the South Carolina supreme court will likely be reluctant to interpret the general anti-gambling statute at issue in Chimento as permitting poker to be played legally anywhere without regulation while poker on gambling cruises is subject to regulation.

Finally, the Speedmaster court noted in passing that even a skill game such as the Speedmaster machine could still involve gambling:

When parties wager on a game of skill, the element of chance is injected back into the game. For example, if Player A bets Player B $10 he can get a higher score in pinball, Player A has left to chance how Player B will perform. Even though Player A controls his own score, he does not control Player B's performance, and therefore, Player A does not control the outcome of the wager.

This view of the interplay between skill and gambling is also troubling for poker advocates. South Carolina’s general anti-gambling statute at issue in Chimento includes an exempt list of games of skill—billiards, bowls, backgammon, chess, draughts, and whist—which are not gambling so long as no money is wagered on the outcome of the game. The problem for poker, of course, is that no matter how much skill dominates the game, money being wagered on the outcome is an inherent part of the game. Under the Speedmaster court’s analysis that wagering on a skill game causes “the element of chance to be injected back into the game”, poker played for monetary stakes is gambling regardless of whether a rake or fee is taken by the house.

Of course, the South Carolina supreme court is not obliged to follow or even take note of the Speedmaster decision, as court of appeals decisions are not binding on the supreme court. However, the Speedmaster decision is interesting and important because it reveals the general manner in which appellate judges in the state are likely to think about gambling statutes. [FN4]. Moreover, the Speedmaster decision is likely to at least be read by the supreme court justices given that the decision references a prior South Carolina supreme court decision, State v. Johnson, which found video poker games were not “lotteries” (leading to their immediate regulation by the legislature). Johnson is important to Chimento because the current supreme court Chief Justice Toal concurred in one dissenting opinion and wrote her own dissenting opinion in that case. In her own dissent, Chief Justice Toal asserted that video poker machines could not pass even a pure chance analysis. In the dissent by another justice supported by Chief Justice Toal, she agreed with the position that the court should apply a dominant factor analysis, and then conclude that video poker was a game of chance:

I would hold, where the dominant factor in a participant's success or failure in a particular scheme is beyond his control, the scheme is a lottery, even though the participant exercises some degree of skill or judgment. If a participant's skill does not govern the result of the game, the scheme contains the requisite chance necessary to constitute a lottery.

The third category of games ("Type III") includes games such as poker and black jack as well as one variety of keno. In these games, the player makes a variety of decisions at one or more points during play of the game. The decisions the player makes may affect the continued play and the ultimate results of the game in a variety of ways.

First, the player may make decisions as to how to continue to play. For instance, in a poker game the player will decide which cards to keep and which to discard. While this decision could be based on sheer caprice, it would normally be based on the player's view of the probability of receiving certain replacement cards that would constitute a winning hand. This decision may also be influenced by the player's analysis of the relative value of the given hands that could be received. In other words, a player faced with two or more possible "good" options may be willing to try for the less likely hand if the payout is high enough to justify the increased risk...

In short, the Type III games are the most complex and diverse .... Still, some features are common to all machines .... In particular, each game begins with the random selection of cards, numbers, or other icons. The player sees these and is given an opportunity to make one or more decisions. A second random selection is then made by the machine. The ultimate outcome is, therefore, influenced by, but is not entirely determined by the player's decisions. However. regardless of skill, knowledge, or experience, a player cannot alter the probabilities inherent in the play of any Type I, Type II, or Type III video machine games. Neither can the player modify the function of the random number generator, or the random delivery of cards, numbers, or icons.


Whether chance predominates over skill is not easily answered with regard to the Type III games because the parties define "skill" differently. The plaintiffs maintain since play is completed by a random act outside the control of a player or by a player's decision to stand on the result of a prior random act, and the odds are stacked against a player, chance predominates. In effect, the plaintiffs define "skill" as the ability to affect the odds of obtaining a given card and, ultimately, the outcome of the game.

On the other hand, the defendants define "skill" as a player's ability to maximize the numbers of credits or dollars won through knowledge of probabilities and consideration of the potential payoff. One of the defendants' experts presented a mathematical model which compared the results of a player using optimum game strategy with a player acting entirely randomly. Since the most skilled player would win back 96.5% of his credits and the most unskilled player would win back 31% of his credits, the expert concluded skill predominated over chance.


As noted in the defendants' expert's mathematical model, the probability of obtaining a particular hand does not increase, regardless of a player's level of skill. Although a skilled player (unlike an unskilled player) can improve his chances of winning and maximize those winnings, his ability to affect the outcome of a game, i.e., actually obtain the winning card, is determined by the random number generator. Similarly, if two players both exercise optimal strategy, chance would determine which player, if either, would obtain a given card. A player's skill, no matter how good or poor, does not control the random "deal" of the cards.

In my opinion, skill should be defined in terms of the ability to obtain the desired outcome - a certain card - rather than the ability of one player to play more judiciously than another. As noted by the certification order, a video poker player is unable to control the random selection of cards, in spite of his skill, knowledge, or experience. Since the player cannot improve the likelihood he will obtain a certain card, I conclude chance dominates over skill in the operation of the Type III video game machines.

This analytical approach to the skill vs. chance argument bodes poorly for poker legalization advocates in Chimento if the court chooses to follow the lead of the Johnson dissenters. Further, Chief Justice Toal is the only current member of the South Carolina supreme court who considered the Johnson decision. Consequently, it might be presumed she will be familiar with the skill vs. luck arguments, and may have more influence on the outcome of the Chimento case than usual. Of course, poker has some fundamental differences from video poker, and there is good evidence in the record for the court to consider regarding the relative role of skill in poker. Nonetheless, I think it’s safe to assume Chief Justice Toal is a likely vote against poker legalization.


[FN1] U.S. courts looking to British common law is not unusual, particularly in eastern states where the original Colonies established their legal systems by importing British common law. Common law in later states tends to diverge somewhat from the original British common law, most notably in western states where the common law reflects more of a frontier, libertarian flavor.

[FN2]. The Speedmaster court did note that the South Carolina supreme court would be confronting the issue of the proper test for determining whether a game is skillful or gambling in the Chimento case.

[FN3]. See my discussions of the Dent decision in Pennsylvania (poker is regulated in casinos), the Wong case from Ohio rejecting a claim for reimbursement of player funds, attempts to legalize intra-state poker in Iowa (poker is regulated in casinos), and the "Pokerhaus" lawsuit in Illinois (poker is regulated as charitable gambling).

[FN4]. Similarly, the Washington supreme court's anti-poker decision in Rousso was foreshadowed by that court's anti-online gambling decision a few weeks earlier in the case.