Is Texas Hold 'em a Illegal Game of Chance or Permissible Game of Skill?
According to this link, some college buddies nabbed in a poker bust are asking a South Carolina judge to decide whether Texas Hold 'em is an illegal game of chance or permissible game of skill. Here is the text of the South Carolina criminal statute that appears to be at issue:
If any person shall play at any tavern, inn, store for the retailing of spirituous liquors or in any house used as a place of gaming, barn, kitchen, stable or other outhouse, street, highway, open wood, race field or open place at (a) any game with cards or dice, (b) any gaming table, commonly called A, B, C, or E, O, or any gaming table known or distinguished by any other letters or by any figures, (c) any roley-poley table, (d) rouge et noir, (e) any faro bank (f) any other table or bank of the same or the like kind under any denomination whatsoever or (g) any machine or device licensed pursuant to Section 12-21-2720 and used for gambling purposes, except the games of billiards, bowls, backgammon, chess, draughts, or whist when there is no betting on any such game of billiards, bowls, backgammon, chess, draughts, or whist or shall bet on the sides or hands of such as do game, upon being convicted thereof, before any magistrate, shall be imprisoned for a period of not over thirty days or fined not over one hundred dollars, and every person so keeping such tavern, inn, retail store, public place, or house used as a place for gaming or such other house shall, upon being convicted thereof, upon indictment, be imprisoned for a period not exceeding twelve months and forfeit a sum not exceeding two thousand dollars, for each and every offense.
Apparently poker players have recently had some luck arguing that poker is a game of skill rather than a game of chance. This recent press release from the Poker Players Alliance says that a Unviersity of Denver statistics professor testified that poker is a game of skill, leading to a Colorado jury acquitting the organizer of a poker league.
I think the South Carolina defendants will have a harder chance escaping, as the law quoted above bans "any game with cards." Hard to see a game of skill defense given the plain language of the statute.
Board Games,Textualism, and the South Carolina Anti-Gambling Statute:
As both a Legislation professor and board game player, I am intrigued by the South Carolina anti-gambling statute discussed in Paul Cassell's recent post. The statute bans the playing of "any game with cards or dice" in a wide variety of locations, including "any tavern, inn, store for the retailing of spirituous liquors or in any house used as a place of gaming, barn, kitchen, stable or other outhouse, street, highway, open wood, race field or open place."
A strict textualist reading of the statute suggests that South Carolinians are forbidden to play board games such as Monopoly and Risk in the listed locations. After all, these games have both cards and dice. Dungeons and Dragons is also apparently forbidden, since it has many different kinds of dice, ranging from 4-sided to 20-sided. No more playing Monopoly or D&D in your barn, stable, kitchen, or outhouse in South Carolina!
This textualist reading is reinforced by the statute's list of exceptions to the ban, which includes "the games of billiards, bowls, backgammon, chess, draughts, or whist when there is no betting on any such game." Notice that Monopoly, Risk, Dungeons and Dragons, and so on, are not on the list of exceptions. That strongly suggests that they come within the terms of the general ban. Lawyers call this the rule of "expressio unius est exclusio alterius" (if something is not on a statutory list, that suggests it was deliberately excluded from it).
Of course, a purpose-based interpretation might suggest that the legislators simply didn't have these games in mind, and were instead focused on banning games that typically involve gambling. Not many people place bets on Monopoly and Risk. That possibility, however, is undermined by the fact that the banned games are forbidden even if no gambling is involved. The games on the list of exceptions are permitted so long as "there is no betting on any such game." The state legislature could have adopted the same relatively permissive rule for all board games - allowing people to play them so long as they don't do any betting. But South Carolina's legislative solons apparently rejected this approach.
The bottom line: This South Carolina statute is either an example of ridiculous puritanism run amok or an example of extremely poor drafting. It's also possible that there are some complex public choice machinations involved (e.g. - manufacturers of the exempt games lobbied for the statute so that South Carolinians would be incentivized to buy those games rather than those that are now banned).
UPDATE: This article suggests that the law in question dates back to 1802, a time when there were far fewer dice and card board games on the market than today. However, the state legislature has revised the law on various occasions since then, and hasn't changed the ridiculous wording. Indeed, the article indicates that the state legislature defeated an effort to liberalize the law just last year. Thus, it seems that today's South Carolina legislators (or at least a majority of them), not just the benighted ones of 1802, are satisfied with the statute's wording.
The article also notes that the state attorney general interprets the law as banning only games where "chance" plays a larger role than "skill." That isn't as comforting as you might think. It can easily be argued that chance matters more than skill in Monopoly, for example; the outcome of a game is often determined by which player managed to land on certain key properties first, which is in turn determined by dice rolls. Games of Risk between mediocre players are also often decided by chance dice rolls. The same can be said for many common dice-based boardgames where chance plays a large role (e.g. - Parcheesi, Life, etc.).
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.