pageok
pageok
pageok
More on Is Poker a Game of "Chance"?

A VC reader has forwarded to me this very interesting amicus brief filed by the Poker Players Alliance in a Kentucky case. The brief is filed "in support of every person's right to legally play poker, both on the internet and in person."

The crux of the argument is that the wagers in poker involve a great deal of skill:

While the initial distribution of cards and replacement cards are random, the decision on which cards to discard, the methods and steps in wagering, whether to wager or fold, the analysis of playing habits of other players, and the management of a player's chips from hand to hard are all player-based decisions greatly influenced by the skill levels of the player.

The brief goes on to discuss Kentucky law, under which "gambling" activities are proscribed. Kentucky Rev. Stat. Ann. section 528.010(1) defines "gambling" as:

staking or risking something of value upon the outcome of a contest, game, gaming scheme, or gaming device which is based upon an element of chance, in accord with an agreement or understanding that someone will receive something of value in the event of a certain outcome. A contest or game in which eligibility to participate is determined by chance and the ultimate winner is determined by skill shall not be considered to be gambling.

The amicus brief contends that poker does not fit the definition of gambling because "the outcome is based primarily on the skilled play of the players." The brief explains that most poker hands "are decided by all players folding to the winner. In that case the actual distribution of the cards (the element of chance) has no bearing on deciding who won. Instead it was the players' analysis as to the relative value of their cards and their opponetns cards that determined the outcome, which is based on the myriad of skill elements" such as assessing risk, players' strategies, etc.

The brief goes on to explain that Kentucky law as followed a "predominance" test to determine whether a game is one of skill or chance with regard to the gambling proscription. The Kentucky Attorney General has determined that table soccer, for example, is a game of skill — citing the presence of organized tournaments, regulations, and classifications of players. The brief goes on to offer various reasons for believing that skill predominates over luck in poker.

The whole brief is an interesting read. If the test under Kentucky law is truly a predominance test, I think the brief makes a compelling case that poker is not gambling. For example, it cites a study comparing an unskilled player making wagering decisions randomly against a skilled player in a two-player limit game of Texas Hold 'Em. The skilled player apparently wins 97% of the hand and an average of more than one-and-a-half "big" bets. Anthony Cabot and Robert Hannum, Toward Legalization of Poker: A Game of Skill, presented at the Drake Gaming Law Symposium, Sept. 12, 2008.

arbitraryaardvark (mail) (www):
staking or risking something of value upon the outcome of a contest... which is based upon an element of chance, in accord with an agreement or understanding that someone will receive something of value in the event of a certain outcome
That would include farming, investing in the stock market, &c.
2.5.2009 12:30pm
Bama 1L:
Those economic activities don't fit into "contest, game, gaming scheme, or gaming device."

The brief seems to argue that, if you have sophisticated models for understanding risk, you aren't actually dealing with risk anymore. That is not true.
2.5.2009 12:37pm
Randy R. (mail):
When I play this game, it's entirely a game of chance.

Sure, one can argue that skill is involved. But I'll bet there are plenty of people playing this game just like me, who have little or no skill, and are just playing the hand given to them. A game of skill for one set of players, a thing of chance for another set. Clearly, most inexperienced and children playing this game would be violating the law.

So does the legality of the this game turn on the skill level of the players?
2.5.2009 12:38pm
Rock On:
Don't play if you don't have any skill. I mean, is that really all that hard? Or learn some skill without using money before trying to play the game for money. It's just not all that hard to be decent at poker.
2.5.2009 12:49pm
Loophole1998 (mail):
This is not difficult.

There is an element of skill involved in achieving success and an element of chance involved in achieving success. Therefore, it is gambling under the statute.

Coin flipping = 100% chance
Chess = 100% skill

P0ker is somewhere in between.
2.5.2009 12:49pm
Alchemist:
I agree, the statement is silly. That said, how many people play illegally online or with illegal bookies? How many people play legally in native american establishments that do not have to answer to public law (as Nevada does)? Does this law really accomplish anything anymore?

At this point, I don't even understand the need to pass this through the courts. This is what the legislature was built for. (In this time of need, think of the tax revenue....)
2.5.2009 12:52pm
ShelbyC:

are decided by all players folding to the winner. In that case the actual distribution of the cards (the element of chance) has no bearing on deciding who won. Instead it was the players' analysis as to the relative value of their cards and their opponetns cards that determined the outcome, which is based on the myriad of skill elements" such as assessing risk, players' strategies, etc.



Yeah, and how many times do you think someone with 4 aces has folded to the winner?

But this is an age-old legal question.
See Mark Twain's Science vs. Luck
2.5.2009 1:03pm
Aultimer:

staking or risking something of value upon the outcome of a contest, game, gaming scheme, or gaming device which is

based upon an element of chance

, in accord with an agreement or understanding that someone will receive something of value in the event of a certain outcome


The statutory language seems closer to the South Carolina ban on dice and cards than to the Pennsylvania cases that set out a skill or chance predomination test. Since the PPA only has a couple AG opinions to tilt at, I'd guess it's either first impression or the real case law goes the other way.

P0ker is "based on" the random distribution of cards, no matter how much skill is required to win.
2.5.2009 1:11pm
therut (mail):
Breaking news: Ginsburg in hospital having surgery for pancreatic CA. According to the AP!!!!!!!!!
2.5.2009 1:16pm
Dave N (mail):
Yeah, and how many times do you think someone with 4 aces has folded to the winner?
Not many. But if the flop is A-Q-J (suited), the turn is 10 (of the same suit) and the river is the missing A and the other player is staying in, you have to worry that he has the K (suited) (or the 9-8 suited) and has a Royal or Straight Flush that will beat your 4 Aces.

You probably will call on the river position--but nervously.
2.5.2009 1:19pm
krs:

The brief goes on to explain that Kentucky law as followed a "predominance" test to determine whether a game is one of skill or chance with regard to the gambling proscription. The Kentucky Attorney General has determined that table soccer, for example, is a game of skill — citing the presence of organized tournaments, regulations, and classifications of players.

This section of the brief is awfully thin and seems like probably the most important part. Anyone who's played p0ker can appreciate the difference between it and r0ulette. But it seems far from obvious that p0ker isn't also "based upon an element of chance."
2.5.2009 1:22pm
Bruce Hayden (mail) (www):
BTW, the Kentucky case was highlighted yesterday in the National Law Journal: Kentucky suit has Web world in tizzy:
WASHINGTON — What if China seized the domain names of U.S. Web sites promoting religions that China bans? Or what if (horrors of horrors!) Nebraska seized and shut down the domain name law.com because its cutting-edge legal content, that state believed, encourages frivolous litigation in violation of state law?

Preposterous, right? Well, not so incredible as to stop a battery of lawyers for Internet businesses, domain registrars, civil liberties groups and others from engaging the state of Kentucky in legal battle over that state's attempt to halt Internet gambling by seizing 141 domain names whose owners are located primarily out of state or overseas.

Kentucky, which prohibits online gambling, persuaded a state trial judge last fall that the domain names were illegal gambling devices under state law, and the judge issued the forfeiture order to registrars — not owners — of the domain names. An intermediate appellate court recently disagreed, 2-1, and the state government late last month filed its notice of appeal with the Kentucky Supreme Court...
2.5.2009 1:23pm
Ben P:

Yeah, and how many times do you think someone with 4 aces has folded to the winner?


Depends, how did he come by 4 aces? If he's holding pocket aces and two fall in the flop, yeah, he's probably not going to lose.

But if he's holding one and the fourth comes on the river, it's entirely possible he could have folded before realizing he'd have four aces. I've had something like that happen to me but with queens.

But the key with Texas Hold-em is if there's three aces on the table, everyone with any skill is going to be trying to figure out if any of the players have that last ace. You might be taking "a gamble" but I don't know that it's more or less of a gamble than if you had money riding on a chess game and you employed a particular gambit that would win if they chose one response and lose if they chose another.
2.5.2009 1:23pm
Specast:
What's interesting is that the statutory definition appears to exclude activities that most would easily consider gambling. Betting on against another player in golf or pool, for example, would seem to fall clearly outside the definition, because those games are far more determined by the skill of the players than by chance.

The same is true even if the bettor isn't participating in the contest, at least under the statutory language quoted above. The Super Bowl is predominantly a game of skill, so my bet on it shouldn't count as "gambling" under the statute.

I like to gamble, so I'm not a fan of legal prohibitions like this. But regardless, this statute makes no sense.
2.5.2009 1:32pm
David M. Nieporent (www):
This section of the brief is awfully thin and seems like probably the most important part. Anyone who's played p0ker can appreciate the difference between it and r0ulette. But it seems far from obvious that p0ker isn't also "based upon an element of chance."
Of course it is, but almost all games have an "element" of chance. Nobody would deny that football is a game of skill, but the way the ball bounces on a punt involves an "element" of chance. It wouldn't make much sense to interpret that literally; the predominance test makes much more sense.

(I like the overall test proposed by the PPA: can you get better with practice?)
2.5.2009 1:37pm
OSU2L (mail):
As a simple example, when I play I would guess that I did not have the best hand at the table in ~50% of my winning hands. The decisions of my peers to fold at different points in the hand was not necessarily based on chance but on calculations of odds, their estimation of the strength of my hand, etc.

If it were a game of mere chance, all players would play every hand to the final card and show their hands.
2.5.2009 1:44pm
Gabriel McCall (mail):
Of course it is, but almost all games have an "element" of chance. Nobody would deny that football is a game of skill, but the way the ball bounces on a punt involves an "element" of chance.

Well, if you want to get into that mess, someone could respond that collision physics is deterministic at the human-perceivable scale, and that just because the kicker doesn't know in advance exactly how the ball is going to bounce (nor the thrower the dice, for that matter) doesn't make the bouncing "chance". Chaotic is not synonymous with random.
2.5.2009 1:45pm
resh (mail):
Just a suggestion: let's quit pretending that somehow the sweating palms of the novice in whose hands rests a full-boat will somehow regularly yield to the guile of a skilled pro with two pair.

Ain't happening, save in Hollywood.
2.5.2009 1:46pm
1Ler:
I think Alchemist has it right: the rule is stupid, there might be room for a judicial interpretation on the "chance" part, but this is essentially a political question for the legislature. I would think that many (most?) states would be open to legalizing p-ker in at least some contexts.
2.5.2009 1:47pm
Ben P:

Just a suggestion: let's quit pretending that somehow the sweating palms of the novice in whose hands rests a full-boat will somehow regularly yield to the guile of a skilled pro with two pair.

Ain't happening, save in Hollywood.


Define: "Novice"

is it the player that thinks "Oh my god, I have a full house I can't possibly lose? or the player that has just enough sense to realize that the other players might have good hands too?

The first one might win this particular hand if no one can match a full house, but he wont last in the game. He'll either bleed to death from mounting blinds or go in one time when he's wrong about his chances.

That's what's caused Texas Hold-em to become so popular among card games. It's very hard in a hold-em game for you to get a full house without anyone who's paying attention to realize that you've got a good chance at having a full house.

So our hypothetical novice gets a full house on the flop or on the turn maybe. Every decent player is going to see the cards, and the really good players will read the player himself and they'll get out and leave our novice taking a small pot. Yes he will "win" the hand, but taking the blinds or maybe a small raise or two isn't really a "WIN."
2.5.2009 2:06pm
snoey (mail):
Doyle Brunson can regularly take money from a table full of novices without looking at his cards. He just assumes that he has an average hand and lets the novices tell him what they have by their play, body language, table talk, etc.

If thats not skill I'd like to know what is.
2.5.2009 2:18pm
Aultimer:

David M. Nieporent:

Of course it is, but almost all games have an "element" of chance.


Having an element of chance isn't the same as being based on an element of chance. Boggle has an element of chance - random letters turn up on the dice, but you don't win or lose as a result of the chance element. P0ker is based on random distribution of cards.

resh:

let's quit pretending that somehow the sweating palms of the novice in whose hands rests a full-boat will somehow regularly yield to the guile of a skilled pro with two pair

What's your name on P0kerstars?
2.5.2009 2:20pm
NaG (mail):
The only time p0ker becomes a pure game of chance is when the players involved are "all-in," have revealed their hands, and there are cards left to draw to the table. At that point, it is a straight percentage call as to whether a given player will win, and the only thing left to do is to wait to see what the flop/turn/river provides.

Before that point, p0ker requires substantial skill. Even when you have the best hand (or "the nuts"), there is skill in maximizing your take by betting in such a way as to encourage your opponents to bet as much as possible.

I will always remember that Doyle Brunson himself commented that most of the time that he has gone "all-in," he had the weaker hand. Yet he wins the majority of those hands because the other player folds. Key to this is not simply that the other player happens not to have "four aces" or some other choice hand that no player would ever fold when Doyle makes his bet. The key is that Doyle knows how to figure out whether his opponent has such a hand in the first place. And that is clearly a skill -- and an unnerving one at that. Any person can win money with the best hand -- just refuse to fold. But winning money with bad hands and knowing when to fold against a winning hand requires a lot of intuition, psychology, and strategy. Not chance.
2.5.2009 2:33pm
Rodger Lodger (mail):
On a related front, in the late 1970s, I think it was, there was a movement to have the New York City Council rescind a ban on pinball games. At the hearing some pinball whizes proved to the solons that pinball is a game of skill, and the legislation passed. In subsequent years, until the predominance of video games popularity, there was a pinball parlor in Times Square that was so well managed that manufacturers would preview and pretest new games there. By the way, before the ban on pinball in New York the mob ran the games, and occasionally when an operator of games did not pay up his share he would be found at the bottom of the lake with a pinball game strapped to his corpse.
2.5.2009 2:34pm
Dilan Esper (mail) (www):
I agree with David Nieperont and Judge Cassell on this one.
2.5.2009 2:45pm
David M. Nieporent (www):
Having an element of chance isn't the same as being based on an element of chance. Boggle has an element of chance - random letters turn up on the dice, but you don't win or lose as a result of the chance element. P0ker is based on random distribution of cards.
No, it isn't, unless you're playing without wagering -- that is, just dealing hands and seeing who gets the higher one. Now that would be based on chance.

But as others have explained above, once wagering is involved, it becomes a game of skill having an element of chance. You don't win simply by getting the best "random distribution of cards."
2.5.2009 2:46pm
Dave N (mail):
Of course, all the discussion of Full Houses should include the caveat that for there to be a Full House, at least one pair is showing on the board (it is impossible to construct a Texas Hold 'em hand otherwise). Thus the person with the Full House has to be concerned with the real possibility that he will be beat by 4 of a Kind.
2.5.2009 2:46pm
Dave N (mail):
(and I would rather have a pocket pair with the flop giving me 3 of a kind with the rest of the flop pure junk than flopping a full house)
2.5.2009 2:48pm
LorenW (mail):
If it were a game of chance, I would know what my expected loss/gain would be before I sat down at the table. If they changed the rules so that each player had to raise a set amount, stay in until all cards were dealt, take a set number of cards, discard cards randomly, THEN perhaps it would become a game of chance.

But with the rules as written, it definitely is a game of skill.
2.5.2009 3:14pm
Dilan Esper (mail) (www):
I should mention something else. It's perfectly possible to come up with a definition of "the g word" (it turns out the comments filter won't let you say it!) that includes this particular game that has a five letter name starting with "p"-- i.e., lots of games that involve a lot of skill could still plausibly be defined as "the g word".

But so long as the definition excludes games where eligibility to win is determined by chance but ultimate victory is determined by skill, I don't think the five letter game starting with "p" and other theoretically "winnable" wagering activities (e.g., betting on sports events and horse races, but not games where the player is betting against the house and the house always wins long-term) fall within the definition.
2.5.2009 3:16pm
Dilan Esper (mail) (www):
By the way. Something has to be done about the comments filter. Apparently you can say "poke her", but you can't say the name of a popular card game.
2.5.2009 3:19pm
Jeff Lebowski (mail):
This happened to me playing online in a free game.

My cards: Ad (Ace of Diamonds), Ah (Ace of Hearts)
Opponent: Kc (King of Clubs), Qc (Queen of Clubs)

Flop: Ac As 7d
Turn: 10c
River: Jc

Odds of getting the exact two cards in the deck to make the one hand that will win (in this case): 989 to 1

No, I haven't seen everything playing hold 'em, but I can't imagine a worse beat than this. Thankfully, I was playing online, so when I started channeling Phil Hellmuth, no one heard me except my dog. And I didn't lose any real money...
2.5.2009 3:22pm
Justin Randall (mail):
For another in-depth look at the skill vs. chance question, see Anthony N. Cabot, Glenn J. Light &Karl F. Rutledge, Alex Rodriguez, a Monkey, and the Game of Scrabble: The Hazard of Using Illogic to Define Legality of Games of Mixed Skill and Chance, 57 Drake L. Rev. (forthcoming Mar. 2009).

The article expands on Tony Cabot and Robert Hannum's presentation at the Drake Gaming Law Symposium, which was held Sept. 12, 2008 at Drake University Law School in Des Moines, Iowa.

For my money, Cabot, Light, and Rutledge make a powerful case for chucking the "material element" and "gambling instinct" tests used by many jurisdictions in favor of the "predominance" test referenced in Paul's post.

Justin Randall
Article Editor, Drake Law Review
2.5.2009 3:58pm
Dilan Esper (mail) (www):
Jeff:

http://www.youtube.com/watch?v=xdeNyPxdxBo
2.5.2009 3:59pm
Bob The Lawyer:
A similar point came up in an interesting English case, R v Kelly, involving the Gutshot "poke her" club in London.

The question of whether the game was one of chance was held to be a question of fact, determined by a jury (this seems odd to me, although as an English civil lawyer my knowledge of juries is very limited).

When the court of first instance found against the defendant, this left him having to appeal on the basis that the jury was misdirected or had reached an irrational decision. The appeal, which he lost, is here:

http://www.bailii.org/ew/cases/EWCA/Crim/2008/137.html

Bob
2.5.2009 4:28pm
Aultimer:

David M. Nieporent (www):

P0ker is based on random distribution of cards.

No, it isn't, unless you're playing without wagering -- that is, just dealing hands and seeing who gets the higher one. Now that would be based on chance.

I disagree (and am just guessing that the KY court might see it my way).

"Just dealing" would be better called SOLELY BASED on chance. Real P0ker is BASED on chance, because it wouldn't be the same game without the random distribution of cards. Boggle is NOT BASED on chance, because the game would be the same even if you didn't use dice to create the input.
2.5.2009 4:50pm
Steve:
Thus the person with the Full House has to be concerned with the real possibility that he will be beat by 4 of a Kind.

This is only true if the player with the full house has a pair in his hand.
2.5.2009 5:15pm
Dave N (mail):
Jeff Lebowski's example was better than mine. Frankly, under my example, I might fold my 3 As if there was aggressive betting on the flop since I lose to all flushes and am hoping for the board to pair if I want a chance of winning.
2.5.2009 5:15pm
Dave N (mail):
Steve,

You are right. My bad. If the board is paired, say AAJ, and you have AJ in your hand, then there is no way for there to be a four of a kind. My prior example only holds if you are holding a pocket pair.
2.5.2009 5:22pm
Brian Garst (www):
The mere fact that some players can win, consistently, across large-n sample sizes proves that p0ker is not merely a game of chance. Nor does it suddenly become a game of chance for poor players; it's simply a game of skill in which they possess none and thus, predictably, do poorly. You know, like the Bears.

Be that as it may, whether or not it's gambling under the law depends on how strictly gambling is defined, and I'm guessing the states differ on that.
2.5.2009 6:10pm
Curt Fischer:
Aultimer:

What you are saying doesn't make sense to me. How do we tell if a game is the "same" or not, under your rules? If Boggle started with only Qs and Xs on the board, instead of a random assortment of letters, do you think it would be the same game?

On a related note, the general confusion in this thread stems from whether we mean "based on chance" relative to inputs or outputs. The inputs into Texas Hold 'Em (the cards dealt) are random, but the outputs are not. A skilled player can expect to win more than an unskilled player over time.

The relevant output is not the number of hands won, so it is borderline pointless to analyze Hold 'Em by analyzing a single hand. Money (or chips) is the relevant output. All players draw bum hands, all the time. Skilled players lose less on their bum hands and win more on their good hands.

Definitions relative to inputs make less sense to me. Is it fair to say football is a "game of chance" because one input into the game is a coin toss? Or because another input is whether the near-random collision of bodies on every play results in a season-ending injury to your all-pro tackle?
2.5.2009 7:02pm
DWPittelli (mail) (www):
It's impossible to say whether a game such as Texas Hold Them (sic) (with at least some luck and at least some skill) is won, in predominance, by luck, unless you define exactly how many hands are played, and exactly how variant the players are in their skill.

If you're only playing one hand, luck will predominate. The average mediocre player will have at least a 1/3 chance of taking money from a world-class player. But if you play 10,000 hands, luck will even out and skill will predominate, and the winner can confidently be called a better player. (In contrast, in most cass eeno (sic) table games there is no strategy or skill which will give a player an expectation of winning after playing 10,000 games.)

If the "unskilled" player is truly horrible and has a tell, and the skilled player is Doyle Bronson, then the bad player has very little chance of coming out ahead after even 10 hands. But with more normal skill variations (say, among players in a typical weekly game), it's not uncommon for the table's worst player to have a big winning night, and the table's best player to have a losing night, after playing perhaps 200 hands.
2.5.2009 9:23pm
Bill McGonigle (www):
Those economic activities don't fit into "contest, game, gaming scheme, or gaming device."

When I 'played' the stock market, it was a contest (my choices vs. others), a game (it was very entertaining, addictive perhaps), a gaming scheme (heh, yeah, see the dot-bomb, when I fled to index funds), and, um, I used a computer and schwab.com to do it all.
2.5.2009 11:34pm
spectator:

Yes he will "win" the hand, but taking the blinds or maybe a small raise or two isn't really a "WIN."

If this is a common perception among Pkroe players, it already tells us all we need to know, doesn't it? If winning a match and the enjoyment of the win itself pales in comparison to the size of the wager, clearly the statistical element expressed by the betting process predominates the game.
2.6.2009 4:04am
Curt Fischer:
DWPittelli: I agree with you that the variance in Hold 'Em is quite high. It can take a very large number of hands for skill to manifest.

Somewhat paradoxically, that is one reason for Hold 'Em's popularity. It's easier for the unskilled to delude themselves. Sometimes they win, so hey, they can't be that unskilled.

Older p0ker games, like 5-card draw, have much much lower variances.
2.6.2009 8:44am
Uh_Clem (mail):
Along similar lines, Backgammon has been found to be not gambling: "backgammon is not a game of chance but a game of skill," according to Judge in Barr v State of Oregon, 1982.
The state supreme court of Alabama made a similar finding in 1976).

Given that good players invariably beat poor players over the long haul in both games, the same reasoning should apply.

What makes both games effective ways for a good player to make money is that the fish win often enough to keep coming to the table - many fish even think that they are the good players. It's much harder to entice lousy chess players to play for money.
2.6.2009 10:00am
LM (mail):
Dave N,

You are right. My bad. If the board is paired, say AAJ, and you have AJ in your hand, then there is no way for there to be a four of a kind.

Unless, of course, there's a second pair on the board.
2.6.2009 1:28pm
Rich Rostrom (mail):
LM: That's been known to happen.

Once, I was holding A-K, and the flop was A-A-K. It was a $3-$6 game, so I slow-played, just calling. Three or four other players called on the flop.

The turn was a 3, making A-A-K-3. Another player bet out, I called, the rest folded.

The river was another 3, making A-A-K-3-3.

I bet out, the other guy raised, I raised back, he raised again, I called.

He turned over two 3s. Ouch.

However, I was not distressed, because the house had a "bad beat pool", and I collected $20,000.

Going back to the original post: I question the assertion that an element of pure chance is required for "gambling". By this definition, betting on horse races isn't gambling. If playing the ponies isn't gambling, then something's very wrong.
2.6.2009 5:08pm
Pokerstarter (mail):
Texas Hold'm NL (THNL) is a game of skill.
Why?

1. Because it takes absolutely no skill to lose money with ABSOLUTE certainty.
If it would be gambling it would be impossible to lose with absolute certainty!

2. You can't have professional players if it would be gambling.

3. Not the cards determine who wins. It is behavior that determines who wins and more important HOW much he extracts on average when he wins. You cant judge THNL on the basis of a single hand played.

4. Just because there are people who behave like unskilled players doesnt mean THNL is gambling, that would also mean that any sport with good players and bad players would be gambling. Besides, the referee makes mistakes and sometimes determines the outcome => game of chance?

5. Political definitions can't justify classification. Gambling is a game of chance where no player can influence the outcome other then de chance he takes and for how much. Any attempt to include THNL will lead to inclusion of other normal activities in life and therefore inconsequent legislation.

6. THNL is exactly like investing. Taking the best action given incomplete information and uncertain outcomes. Outperformance is a zero sum game, THNL is too. Bad players pay the good players on average.


PS. A pure political push for control because of addiction and other social, fiscal and lobby issues, should not lead to an easy reflex like the not so smart music industy did. There are other ways of dealing with these issues.
What the government should do is:
a. Determine a money levels where THNL is classified as private, business and professional.
privatelevel means no restrictions, businesslevel means at casino's, professionallevel means personal fiscal status.
b. Dont mess with definitions
c. Enforce rules of conduct at businesslevel.
2.9.2009 6:08am
Dilan Esper (mail) (www):
<i>Not the cards determine who wins. It is behavior that determines who wins and more important HOW much he extracts on average when he wins. You cant judge THNL on the basis of a single hand played.</i>

This isn't quite true, but the way in which it isn't true actually strengthens your argument.

Many investment activities involve making probabilistic judgments about future events and deploying and diversifying funds to increase the likelihood of a positive return. For instance, in the stock market, some stocks will go up in the future, and some will go down. Based on incomplete information, along with the decisions of others and a certain amount of random chance (e.g., the cyanide attacker in the 1980's went after Tylenol rather than Bayer Asprin, thereby hitting the shareholders in Johnson &Johnson rather than the shareholders of Bayer), a smart investor covers various contingencies by putting his or her money in a range of different investments with different probabilities and expected rates of return.

Well, that's exactly how a good "poke her" player plays. He or she has incomplete information-- the bets of other players, the cards in his or her hand, his or her position in the betting order, and the cards on the board. Based on that incomplete information, he or she selects hands to play that he or she is likely to have an advantage on and plays them (thereby managing risk by folding hands where his or her likelihood of success is not worth the investment), and then as each card comes out and bets are made, selects a course of action that will maximize returns on the investment, or cuts losses by checking and folding when the information indicates that it is likely that someone else has a better hand or will not fold to a bluff.

Now, you can still be felled by random chance-- if your flush is broken up by a full house on the river played by a chasing opponent, you are in the same boat as the Johnson &Johnson shareholders after the Tylenol incident. But you avoid being hurt too much by that by having a big enough bankroll to absorb occasional losses in positive expected value situations and by being selective in the hands that you play and pursue.
2.9.2009 2:45pm
Patrick Fleming:
Very interesting article and comments. As an attorney who helped write the PPA brief, let me point out one big misconception with respect to the Kentucky statute: it is not sufficient that the game be "based on an element of chance" bu that the "OUTCOME [of the game] be based on an element of chance." And "based on" would mean, at least, that the element is the predominant element (a compound isnt "based" on an element in the compound that is less than 50%).

The question then is indeed whether the outcome(s) of Hold-em are more due to chance or skill. As anecdotes exist for both types of outcomes (a novice hits a lucky card - chance; and expert bluffs another player out while holding far worse cards - skill), the key to resolving the question is which type of play is occurring more often. This is where the statistic about "hands folded to the winner" is so important. That is the method by which approximately 75% of all Hold-em hands are determined. Cards alone can NEVER account for this, cards may influence player decisions in Hold-em, but they never determine them.

Finally, when I play golf it is a pure game of chance as I have absolutely no clue how to play it well. So when T. Woods plays golf for money its a game of skill, but when I play golf for money its gambling? Of course not, it is the opportunity to use skill in the game that counts, not anyone's particular skill level. Court opinions are already clear on this point.

Also, you may wish to know where this predominance test got its start. Without a lengthy history, what this test is really designed to do is stop g—bling games that introduce a small element of skill as an attempt to get around the laws - imagine a roulette wheel where payouts were only made if you could correctly answer the question "what is 2=2" after your number hits.

Understood this way, it is clear why a game as complex as Hold-em, with myriad mathematical and psychological factors influencing its play and results, is indeed a game of mostly skill.
2.9.2009 2:54pm

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.