I agree with this 100%, Tbh, it took me a while to understand the extraterritoriality argument, including hearing the oral arguments live and reading Morrison, but I think this could be exactly the case.

To be fair, I never said lawdude is nuts, just that the premise that history, even if flawed, should continue just because it's history, is.
As to the Wire Act never being used, I think, probably Anurag Dik**** would disagree. Also, although not charged in the BF complaints, the Wire Act was referenced in some of the affidavits for seizure warrants.

Without referencing all of the cited cases, I don't think anyone can argue that there is a considerable difference between a video poker slot machine, thru which the house has an interest in the outcome of the hand, and peer to peer internet poker.

welcome to pl. get used to lawdude taking these stances and never, ever, ever changing them.

You should understand the difference between political talking points and legal arguments. "The statute doesn't mention poker" is a political talking point. Plenty of laws prohibit or regulate activities they do not mention by name. For instance, the central provision of the Sherman Antitrust Act doesn't mention ANY of the practices it prohibits. It just prohibits "contracts in restraint of trade".

As the DOJ brief explains, federal gambling law has rarely taken the approach of naming specific games and prohibiting them. I have posted before that I think that's a very bad aspect of federal law-- that laws that say "games X, Y, and Z are prohibited", with the legislature adding to the list if new games arise that they want to ban, are far superior because they are clear and straightforward. But the federal government, in its wisdom, has not done that. Instead, the government uses an extremely broad definition of gambling, carves out a couple of exceptions, and then leaves it to state laws (themselves often vague) to define what games are illegal.

That does not mean, however, that we have no evidence that UIGEA was understood to apply to poker. The definition of "gambling" in the UIGEA was broadened to apply to any game whose outcome is determined by chance by any material degree, and the drafters wrote that the reason they broadened it was to ensure poker would be included.

What you are missing is that some states clearly define poker as unlawful gambling. Indeed, despite all of our disagreements, I doubt that Skalla even contests this. We know that Washington prohibits online poker. We also know that some states' courts have specifically rejected the "skill" argument and ruled that poker is gambling. AT LEAST in those states, UIGEA was intended to cover poker.

(Further, my contention is that even in many of the states that haven't specifically rejected Skalla's skills argument, they have nonetheless ruled that poker is unlawful gambling. Further, other states defined UNLICENSED commercial poker games as gambling. In those states, as well, UIGEA was intended to cover poker.)

And let me get to one advantage of drafting UIGEA this way, even though I'd rather that Congress just say what games are legal and illegal. UIGEA was drafted so that states COULD decide to legalize and license online poker games. There's a specific intrastate exception, and with respect to interstate games, if online poker is legal in state A and legal in state B and the two states' poker rooms formed a common pool, without the state law predicate, that would not constitute unlawful internet gambling. So UIGEA had a relatively SOPHISTICATED legislative intent which would have been defeated if they had mentioned poker specifically; Congress was looking to allow states to continue to make their own gaming regulations for their own residents, thus allowing poker to be "unlawful internet gambling" in particular states today without requiring that it continue to be if the law is changed.

Courts don't write on a blank slate, and neither do legislators. UIGEA is similar in form to a statute that has been interpreted in important precedents to apply to poker.

History matters. It's not LOL. Simply put, there are all sorts of philosophical and practical problems with arguments that take the form "this thing we have considered to be X for over a century and which we have passed numerous laws regarding which assume that it is X is in fact not X and therefore you should throw all that stuff out and start over".

Not at all. We are wasting a ton of time and energy trying to find ways to get courts to strike down laws that they aren't going to strike down (and which probably wouldn't give rise to a new online poker boom in the US even if they were). Meanwhile, the political situation we face is far from unfavorable-- Americans have been getting more and more liberal in their attitudes about gambling for a long time, so there's no real need to change the terms of the debate.

^^^ ld, I don't mind you quoting me at all, however, please don't do so out of context.

In my "10 years" para, I was responding to your point that the "poker boom" was why UIGEA was passed, and that it was pruned to decrease the relevance of skill, to make sure that poker was covered. This seems totally contradictory...if you want to include bolita or roulette, you decrease the relevance of skill. Poker (excluding video poker slot machines) should be way on the other end of that spectrum. In that decade time span, surely if they wanted poker to be included, it was simple enough to add at least that ONE word, one time, rather than multiple re-writes that danced around it.


My "seriously, this is nuts" para referenced your assertion, that I interpreted as "if a statute's validity has been accepted in the past, so should it be always considered to be valid for the future". My counter was that, for example,in light of the OLC opinion, its clear that continuing such an assumption, with the Wire Act, would be a horrible injustice. I suppose your reply to that was just directed in the wrong part of your post. However, when something is wrong,(or misinterpreted via enforcement, etc), hubris and ignorance of past errors, should not win over correcting a wrong. I would think it's the responsibility of the legislators to right wrongs and to make clear what their intentions are/were as soon as that question arises.

The "lol" statement was in reply to your claim that a reason poker is gambling is because its played with chips and in casinos. That was lol then, and it still is.


My "condescending" remark was because your statement read like "don't worry your pretty little head dear, you will get poker eventually now anyway". If you didn't mean it that way, I apologize. OTOH, if you had made this comment in Winter 2010, when we thought we could also be close to legislation, and the community gave up the fight, we would be right back to square one, because it didn't happen then either.

I do think we are closer now than ever before to having some semblance of suitable regulation in the USA. I also think it's because the players, and organizations such as the PPA, have NOT given up the fight. Let's not try to kid each other into thinking that the Senators and Congressman currently supporting internet poker bills suddenly woke one day with some independent epiphany about how they were wrong all along. It's all about the money signs they see dangling in front of them in terms of missed tax revenues etc. and about the pressure from millions of constituents that resent how big a bully "Big Brother" has become. If they really could have that epiphany about staying out of decisions that the adult Americans are perfectably capable of making on their own, what to eat, drink, smoke, what to drive, what they can say to their own children, etc etc, Now that would be something.

+1,000

The problem with lawdude is that he simply cannot bring himself to distinguish between points or argument and decided facts. If you consider his posts as raising points, they can be said to be quite informative. But the posts are always written in the form: "consider point A, B, C, therefore x." If you try and point out a point D, E, or F that might challenge the conclusion "therefore x" you become an enemy that lawdude must attempt to crush.

In this case it is true that most law enforcement and most courts have long assumed poker fits the legal definition of gambling (remember, no one is raiding chess or bridge tournaments that have entry fees and cash prizes based on a % of the entry fees). And it is true that most folks have difficulty admitting that the conclusions they have publicly made might be wrong (lawdude is the perfect example of this). And this does mean that past acts have an influence on future acts.

But it is also true that with time and effort common practice based on false prejudice or false assumptions can be overcome. And that is true both in the court of public opinion and in the official state and Federal Courts. If that were not the case this would indeed be a world hardly worth living in.

Skallagrim

The problem with Skalla is he thinks that tradition doesn't matter, that you just bring the right case and the courts will see the errors of their ways and overturn the whole legal system to ensure that the technical definitions are met.

That's not how the law works. So long as the construction that poker is gambling is not absurd, and there is evidence that legislators assume that it is when they write laws, there's no way in hell that courts are going to change the law. Especially since for many losing players, poker IS gambling and the laws are designed to protect those people.

And as i said, this is not only a losing battle but one that makes no sense in a climate where gambling becomes more and more legal over time.

It's just a real dumb battle to fight. It's as if Skalla cares more about being ruled to be "right" than he cares about getting legal online poker.

Lawdude, the truth is that you are mostly right in this post. I disagree with you about 2 points.

1. It is how the law should work. Technical interpretations of statutes should matter and be met. The courts should not interpret poker to be gambling unless it squarely meets the definition of gambling in the relevant statute. So-called legislative intent was not supposed to matter unless it was near impossible to decide the issue by using the language of the statute.

2. However, this type of argument no longer works in most courts because of biased or lazy judges. Instead of strictly interpreting laws against the power and reach of government, most judges do the opposite. They do so either because they wish to enhance the power of government, laziness or they do not wish to contravene tradition. But you are wrong that it has zero chance of winning in court. I agree that it has less than a 50-50 chance, but not zero. IMO, it makes sense to attempt it when Skall actually has attempted it.

I agree they have a chance, but not on the game of chance argument. In the case of Mah Jong they won the chance argument, but:

So if a violation of NY gambling law is sufficient predicate for an IGBA or UIGEA offense, it's game over. But if the court applies NY laws to foreign businesses the same way they apply to the tribes in order for them to offer poker in NY:

Poker Club – Non-Banked Card Games are Class II Card Games in the State of New York

Then NY statutes won't apply, and it will come down to an interpretation of the constitution. The NY AG interpreted Poker to be unconstitutional, and won't even allow charities that offer casino games to offer poker:

Is poker an authorized game of chance?

The NIGC interpreted the constitution to mean the opposite, so it's hard for me to believe that the rule of lenity won't apply.

Except that poker is different than Mah-jong. In poker, a player can potentially end a hand by betting which causes his opponents to fold. Thus, he can influence future events in a hand. This is not true of mah-jong. Poker might meet both tests that the judge cited.

When someone specifically outlines a plan to overcome "tradition" it is just plain stupid and dishonest to say that person thinks "tradition doesn't matter."

Now if I were to be equally stupid and dishonest I might post something like "arrogantdude believes tradition is everything and no amount of facts can overcome traditional ways of thinking."

But the bottom line is simple: it is indeed hard to overcome traditional thinking and prejudice, but it is not impossible. It does not happen overnight, but it does happen if you work hard enough, long enough, and have the facts on your side. Ask MLK.

Skallagrim

Every one of my quotes was of the full language that you typed.

This is deep in the weeds, but you are ignoring how statutes are drafted. The UIGEA was the result of a legislative response that was a long time coming against online gambling sites. The original text probably applied to poker too. However, between the drafting of the original House bill and the passage of the SAFE Ports Act, it was pointed out to one of the committees that the text left a potential argument for poker sites to claim they were not covered. So the definition of "bet or wager" was broadened to the "material degree of chance" language so that it was absolutely clear that poker was covered.


This gets the legal system wrong. The legal system is not about reaching the platonically pure interpretations of statutes and constitutional provisions. Rather, it is based on precedents. Can precedents be overturned? Sure. But precedents matter because lots of judges disagree on interpretation and if they were constantly going back and trying to reinterpret the law consistent with what each individual judge thinks a statute means, we would never have any stability. Statutes would be constantly changing in meaning or getting struck down.

Fundamentally, the purpose of the government is to govern. This is extremely important (and may explain why some of the libertarian types here think overturning laws they see as oppressive is easier than it is-- they don't think that government's role is very important). In order for government to work, the legal system generally has to reach an interpretation and stick with it, except in extreme circumstances where the injustice is too great or the interpretation is too unworkable.

Any litigant who challenges a gambling law's application to poker is not writing on a blank slate. That litigant is asking that an activity that the law has placed in a particular category, and which legislators have relied on in regulating the activity, be removed from that category and placed somewhere else. Saying "but, but, gambling doesn't literally include poker" is not a response to that point. It may not. However, that is not the question that courts will be asking. Rather, the questions will be much closer to "(1) is the inclusion of poker within gambling absurd, unreasonable, and inconsistent with legislative intent; and (2) if so, is it workable to remove poker from that category without causing an upheaval?". If that can't be proved, IT DOESN'T MATTER that "poker" should not literally be considered a subspecies of "gambling". We lose anyway.

No it isn't. Chips and casinos are actually very important common elements of lots of games, and very importantly, they form the basis of a whole bunch of gambling regulations. For instance, the same set of regulations governs the Commerce Casino when it sells you poker chips as when it sells you blackjack or pai gow chips. The same set of regulations governs its players bank. The same set of regulations governs how it handles its decks of cards and employs its dealers.

You are thinking in terms of the word "gambling", isolated from the reality of how gaming regulation works. But a court doesn't think like that. The fact that it's convenient and allows one set of rules to apply to the entire casino is a very good reason to categorize poker with other forms of card-and-chip games. Whereas the purchase of a security or a chess tournament might be governed by a different regulator and a different set of rules. That helps the government govern-- and as I said, the purpose of the government is to govern, not to make sure every statute is given a precise interpretation.

The "Big Brother" rhetoric isn't helpful when the people we need to approve online poker happen to be a part of "Big Brother" and don't consider themselves or the organization they work for to be totalitarians.

JP, you would have been torn apart by my old jurisprudence professor in law school (as she tore many people apart who made arguments like this).

The reason why we don't require technical perfection in statutory interpretation is, fundamentally, because in order for the government to govern, stability is more important than technical perfection. It's not because judges are lazy. It's because to achieve stability, you have to try and harmonize any decision made now with the decisions made in the past unless it is imperative to overturn the prior decisions because of some massive injustice or unworkability. Otherwise the law would jump all over the place and the government would never be able to govern as statutes kept on being interpreted by different judges in inconsistent ways.

This is the grounding of stare decisis. By keeping the law stable, we allow the government to actually effectively govern. And the cost we pay-- that some statutes aren't interpreted completely consistently with whatever their "objective" meaning is-- is a small cost worth paying.

Skalla, it isn't "PREJUDICE" that causes the courts to reject your arguments. You make it sound like American judges-- who mostly went to better law schools and had more impressive resumes than you do-- are just a bunch of hidebound rubes. It's not that at all.

It's that the legal system depends on stability and you obtain that stability by imposing a high burden on litigants who try to overturn established interpretations of the law. That's how you ensure that the government can continue to govern.

And that means that it doesn't really matter if you think you can show that as a technical matter, poker isn't a form of gambling. Courts are supposed to reject your argument anyway, unless you can further show that the system as it evolved was completely unjust or unworkable.

Regulating poker as a form of gambling is not unjust or unworkable, of course.

Lawdude, the last thing that the US has is a stable judicial system. There are few standards anymore and they always change. Look at cases like the FEC v McConnell case on the election campaign bill and follow up case or the Keno eminent domain case. The US judicial system has become less and less stable since the New Deal; maybe longer.

Funny my law professors were always asking us to make distinctions based on different language in different statutes. But, I'm old, 57 and graduated law school in 1980; maybe things have changed in the way statutory interpretation is taught. Maybe now it's, we guess what the legislature intended based on the who we want to win the case. Or maybe, it's interpret the statute so that the government has as much power as possible.

BTW, few of these gambling statutes has ever been carefully considered by an appellate court especially if poker is involved.

Lawdude, you know, this "debate" just is going nowhere. You seem, as others have been pointing out for ages, so ensconced in your particular view being right, "it's your way or the highway", that any other argument just falls on deaf ears.
I will stand by my wish, that not only for these statutes, but all others, when they are ambiguous, they should not hold and when they are just plain wrong, they should be either fixed or shelved. It's that easy. For you to spout that judges have better things to do with their time than to correct wrongs, regardless of what may have slipped thru the cracks in the past, or that legislators put pen to paper and move on without question is so absurd, that it defies logic.

You are absolutely correct, that nothing may change as these statutes are concerned. To suggest however, that one should accept a defeatist attitude and never try, is just very sad. I do not know what your areas of practice are, or how long you have been practicing law, but maybe it's time to go back to basics again, and just consider what a democracy really is. I am probably at least twice the age of the average poster in this forum, and I don't view the world thru rose colored glasses, but that doesn't mean I have given up on the hope that what's right is right, no matter what it takes.

Suggesting that the "Big Brother" analogy might just irk a law maker enough that they may discard poker legislation is just the ultimate form of fearmongering. I would venture to say that many, if not most, legistators on the federal level would be happy to have the proverbial pillow embroidered with "totalitarianism is King" in their offices, which is exactly why the government is continuing to spiral out of control.

Or Billy Baxter.

William E. Baxter Jr. v. United States

The NY promoting gambling statute the judge referenced was intended to shut down businesses that profit betting or wagering, with skill games like billiards in mind.

Suggesting that cash poker might pass an uncertainty test, which a pari-mutuel chess tournament fails, defies all common sense. The only real question is whether or not that State law can trigger a UIGEA violation.

Actually, the standard is whether or not the defendants should have known what they were doing was a UIGEA violation, and while Mr. Imrich's opinion memo that poker isn't gambling doesn't provide them much cover, the NIGC opinion specific to NY law - along with the fact the tribal casinos are legally dealing cards in NY - might.

It is true, that the law is not like math, where 2 + 2 always equalls 4, and there is no room for debate. But on the issue of ambigious statutes, and legislative intent, there is simply no "debate" to be had here. Lawdude is 100% correct that the courts should and will look to the statutes legislative history and intent to interpret them. That isn't "Lawdude's Guide to Statuory Interpretation", its simply the law, in NY, and in every other jurisidiction i have ever practiced in.



[/QUOTE]
I will stand by my wish, that not only for these statutes, but all others, when they are ambiguous, they should not hold and when they are just plain wrong, they should be either fixed or shelved. It's that easy.

[/QUOTE]

You can wish all you want, and if wishes were horses, beggars would ride, but thats about it. The law in NY regading ambigious statutes is as follows ""In the interpretation of statutes, the spirit and purpose of the act and the objects to be accomplished must be considered. The legislative intent is the great and controlling principle. Literal meanings of words are not to be adhered to or suffered to `defeat the general purpose and manifest policy intended to be promoted;" As one of the greatest legal minds in american history (and probably the man with the coolest name) Judge Learned Hand wrote "it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning."

Go Diamond! About time someone with brains steps up. I believe the area of law that LawDude practices is called a Federal Prosecutor. (He, like many have blinders on.)

You picked two 5-4 constitutional cases.

If you look at STATUTORY interpretation, however, you will see that the Supreme Court decides a lot of 9-0 cases and that interpretations are much more stable. (For one thing, courts feel that it is easier for Congress to correct an error in a statutory case. Plus, the constitutional cases more often involve big ideological hot button issues.)

Here's my question back at you. Baseball is clearly covered as a business by the antitrust laws. Nonetheless, the courts for years have interpreted the antitrust laws to not apply to baseball on the grounds that it is not a business. That interpretation has gone to the Supreme Court three times and baseball has won all three cases.

How many votes do you think there are on the current Court for overturning Flood v. Kuhn?

You are knocking down straw men. The key point about interpretation is not a "guess" of what the legislature intended, it's using the available evidence (and there is usually a lot) to determine legislative intent and to harmonize the statute with other statutes.

And while there is some pushback from conservatives on this, that's really the only way to do things. Because the goal here is not to give the government "as much power as possible", but it IS to ensure that whatever power the legislature exercises can actually be exercised.

That's Skalla's argument and it's both wrong and irrelevant.

It's wrong because I know you guys are all sick of it but I did list over 100 years of poker precedents in New York. NOT "gambling" precedents. POKER precedents.

It's irrelevant because there isn't an exception to stare decisis based on whether the previous court "carefully considered" an issue. Brown v. Board of Education and Roe v. Wade were criticized by many commentators as poorly written opinions. They are both nonetheless good law. Indeed, the reason we have that baseball antitrust exemption is precisely because the first Supreme Court opinion wasn't very careful.

This is the point-- stare decisis has no bite if it only applies when we agree with the prior decisions. It gains its bite precisely from requiring courts to uphold decisions they don't agree with, that they don't think are carefully reasoned, etc.

You have 100 years of precedent in New York, and 40 years of precedent under the IGBA, that poker is covered by these gambling statutes. That counts for something even if every single one of those cases isn't "carefully considered", especially since Congress drafted the UIGEA against the backdrop of those interpretations.

I don't have a defeatist attitude. There's plenty of room to bring a court challenge to establish the legality of online poker in a state with friendly laws. The PPA lawyers don't want to do that and would rather tilt at windmills on skills vs. chance.

And there's also a strong possibility that we will get poker legislation sooner rather than later.

The problem with these arguments is that they suck up all the oxygen and give players false hopes. And further, I think they are much more serving the interests of people promoting a general libertarian ideology of hate for the government than they do the interests of poker players.

The reality is we have a very good legal system, and that the reason we've been losing is not because the legal system stinks but because it was inevitable that the government would not allow offshore unregulated poker to flourish, given the problems with tax collection, underage play, and the movement of large amounts of money overseas.

And the reason the courts aren't going to step in and stop the Black Friday prosecutions is because, fundamentally, there's no reason to believe that Congress set out to exempt offshore unregulated poker sites from the myriad of state and federal gambling statutes and regulations that have been enacted in this area. You'd have to suppose that a bunch of people who oppose tax evasion, underage poker play, and the movement of large amounts of money overseas nonetheless specifically intended that all of this remain legal when enacting restrictive statutes.

And even more fundamentally, courts simply do not see themselves as the enforcers of libertarian, anti-government ideology. They are part of the government. They are committed to helping the government function. Sometimes that requires that laws be struck down or limited, but the farther away from legislative intent and the closer you are to "I fundamentally don't think it's any of Congress' business that I play poker" or "I know Congress wanted to put ipoker out of business but GOTCHA, they didn't!", the more likely the courts are to tell you to go fly a kite.

So in that environment, we should be trying to find a friendly venue to establish a beachhead for online poker in the US until Congress passes a poker bill.

"I know Congress wanted to put ipoker out of business but GOTCHA, they didn't!"

I think it's more like "I know Congress wanted to curb the flow of money to offshore poker sites, but these bankers/processors shouldn't be convicted for running a gambling business."

Followed by "But they should be convicted for Bank Fraud and Money Laundering, which they committed."

More Campos/Elie motions discussed and explained in a good article from Diamond Flush Poker.

The government's motion, linked to in the 2/27 Diamond Flush article mentioned just above, has a section discussing and giving background on the 'Poker Company Legal Opinions'. I don't think most of us have seen the letters before; so if you want to see what companies were told about legality, the motion's appendix has the letters.