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February 3, 2009

More Crucial Cases Pending

The Texas Hold'em Case: a Follow up. Okay, I knew the case was important when I saw it, but Ted McClure pointed out to me that it even made the Volokh Conspiracy, here. This made me realize how crucial this was, so I thought I'd follow up... Volokh even points out that there's even a whole group dedicated to proving that poker is not a crime (I am not making this up, as you can see here).

The statute at issue reads:

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.

The statute is, um, a mess. Although the 92 odd comments at Volokh suggest the importance of this statute to America, I have way better things to do with my time than figure this out, but my instincts tell me this thing's been amended many times since its enactment some 206 years ago.

Why do I say it's a mess? The way it's written, if I play a game with cards AND dice, I can play anywhere and bet away, for example. Also, I think that read literally the statute precludes about any game known to man, if played in a bar, inn, or store, field, outhouse (clearly, it must refer to some other form of "outhouse" other than what I'm thinking of), or pretty much any other place or building, and if there's betting involved.

The article I posted below points out, however, that historically the statute had been construed by the South Carolina AG to permit games which were more skill than luck. Hence the question the judge thinks she faces: is poker more skill than luck?

So, what's the answer? With no dog in this hunt (since I suck at poker and so don't play, don't live in South Carolina, etc.), I'd start with the text: any game of cards or dice, with a bet, is outlawed. Add to that the assumption that the legislature has acquiesced in this skill/luck dichotomy. So, no betting on games that are more luck than skill in various buildings and places in South Carolina. The issue then becomes a question of fact.

Is there a stopping point along the way?

To ban poker with bets in various places: I suppose you could argue that the text doesn't support the AG's limitation on it, and so his luck/skill dichotomy is simply error, and so we'd want to look very hard at acquiescence. If the AG's approach fails... then you're left with a statute that bans card games with bets, and, while that's not necessarily a statute I'd adopt, you're then left with the ban.

To keep poker with bets in various places: One "out" you have is to find the AG's approach valid, and that poker is more skill than luck. If you pull both of those out of the hat, poker bets can be placed in outhouses and bars throughout South Carolina. If you take away the AG's interpretation, though, I think poker's in trouble. I see no way to avoid the plain text other than by adopting a very "activist" purposive approach that, frankly, I don't think you could attribute to the legislature of 1802 in South Carolina: that a game of betting, on cards is legal. I don't think the text gets you there.

If I was a betting man (which I am, but blackjack, and only in Vegas and Iowa), I'd bet against poker in South Carolina.

The Ringling Bros. Elephant Walk: Animal Abuse Masquerading as Entertainment? I don't want to in any way diminish the harm of animal abuse (my dog, Jenny, is a rescue), but eight years of litigation over a circus seems to be... a bit of a circus. Read about the forthcoming bench trial, relating to a question of first impression under the Endangered Species Act, here.

February 3, 2009 | Permalink

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