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You're a lawyer and I'm not, so I'm going to assume you know something I don't, but it seemed to me that the DOJ was saying that chance need only be present "to a material degree," and need not predominate over skill, at least in New York.
The exact wording of the NY statute is that a game is a game of chance if "the outcome depends in a material degree upon an element of chance." It does not say that if chance is
present in any material degree the game is a game of chance, it says if the
outcome depends on chance in any material degree the game is a game of chance. Let me suggest a single hand of poker: I am in early position, am a known tight player, and I have not played a hand in the last 30 minutes. The hand is dealt, and the UTG player folds to me. I raise all in. Everyone else folds and I scoop the pot. Do you even need to know what my cards were to know that the outcome of that hand/game did not depend to ANY material degree upon the element of chance (meaning the deal of the cards). Would it be clear if I told you the cards I held at that point were 2-7 offsuit? What happened there was that everyone concluded my most likely hand was AA, and the only other part the cards played was that no one else was also dealt AA. AA gets dealt 1/220 times. So the times the deal of the cards in that situation will defeat my bluff are 220 divided by the 7 or 8 remaining players. The cards defeat that bluff once out of every 27 or 28 times. Is once out of every 27 "material" ?
What exactly is meant by "outcome depends to a material degree upon an element of chance" is the subject of debate. The leading expert on NY gaming law, Professor Bennett Liebman, wrote a Law Review article in 2009 concluding that this test was essentially the same as the predominance test except that if the question is really to close to call or otherwise 50/50, the game is gambling under this test.
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The predominance argument is nonsense and by participating in it we stoop to the same level of willful ignorance as our opponents. Chance and skill do not have the sort of relationship in which it makes sense to discuss which predominates over the other. In any game with any element of skill at all, skill will be the predominant factor in determining the outcome, simply because luck evens out in the long run. More chance doesn't mean less skill. Less chance doesn't mean more skill. It is a stretch to even argue that either is a scalar quantity such that you could meaningfully compare "the amount of skill in poker" to "the amount of skill in chess" or "the amount of luck in backgammon" to "the amount of luck in deep stacked pot limit Omaha." Even if you can come up with some way of measuring things like that, it's just willfully ignorant to imagine that there exist quantifiable relationships between the two that allow a meaningful quantitative comparison of the proportion of luck to skill in two different games. Both are undoubtedly present in poker and there is nothing more to say about the matter.
It is as though we and our opponents are standing in front of a large gray rock shouting back and forth at each other:
"THE ROCK IS PREDOMINANTLY GRAY!"
"NO YOU IDIOT THE ROCK IS PREDOMINANTLY LARGE! LOOK AT MY STUDIES!"
"IT LOOKS PRETTY GRAY TO ME!"
"BUT IT IS LESS GRAY THAN MANY OTHER OBJECTS COMMONLY CONSIDERED TO BE QUITE LARGE!"
edit: I edited this post a bunch of times, sorry in advance if someone ends up quoting an older version.
I have no particular fondness for the predominance test. But it is the test that courts and statutes have used to determine whether playing a game fro money goes into the legal "skill" category (like chess) or the illegal "chance" category (like roulette).
And I also reject the idea that you cannot quantify the relationship between skill and chance in a game. It is in fact done all the time and there are many studies out there which do precisely that, it is not the same as "gray" and "large."
In poker, the distinction between the 2 elements is very clear: chance is the part of the game determined by the deal of the cards, skill is the part of the game determined by the actions of the players. To try and determine which of those two elements is more important in determining the outcome is clearly not easy, especially since to a certain extent it depends on what is meant by outcome, but it is not impossible.
Some hands are clearly more determined by chance than skill: a hand where the winner "sucks out" at showdown is clearly a "chance" hand; conversely, a hand where the winner has bluffed his opponent while holding the worse hand is clearly a "skill" hand.
Admittedly, most hands are not so clear cut. But that does not make it impossible. People review hands all the time not to see what cards were dealt or might have been dealt, but to see what different actions might have produced a different (and better) result. If a different action can produce a different result despite the cards remaining the same, that surely shows that the action is more important than the cards, does it not?
And maybe just as importantly, if you include "how much is won or lost" as part of the definition of outcome than the actions of the players becomes an even more important factor.
How much is won or lost is (with the possible small exception of blinds and antes) never determined by the cards but always by the players' actions.
Put that all together (and show some math regarding the # of hands where different decisions would clearly produce different outcomes) and I think you have shown that the decisions of the players is the predominant element determining the outcome of poker games. I think it also shows that the
outcome of poker is not dependent on chance to a
material degree since the vast majority of outcomes are not
dependent on the deal of the cards (in that the vast majority of the time the cards are not even consulted as part of determining the outcome).
Skallagrim
Last edited by Skallagrim; 11-11-2011 at 02:19 PM.
