Law is like poker.
Jonathan Adler at The Volokh Conspiracy asks himself the age-old question, “Is Poker a Game of Chance or Skill?” His sly and equivocal answer:
In my opinion, playing poker at a high level requires an immense amount of skill, and better poker players will regularly outperform their less skilled competitors. Yet skill is no guarantee of victory in poker; the cards may still have their say. . . . Nonetheless, some charged with organizing or participating in illegal poker games are pressing the argument that poker is not a “game of chance” and is not illegal under state statutes prohibiting gambling on such games. I wish them luck when they make this argument in court.
[Howard Bashman of the blawg How Appealing is representing the defendants-appellees in one such case in Pennsylvania. Briefs filed in the case are available here. Unfortunately, here in Indiana the rubes in the legislature have already enacted as law their opinion that “a card game . . . is a game of chance and may not be considered a bona fide contest of skill.” There is no doubt a strong and psychologically-transparent correlation between lacking skill at poker and believing poker is a game of chance, as this anecdote from Mark Twain illustrates.]
Commenters on Adler’s post got the “joke”:
In my opinion, playing poker practicing law at a high level requires an immense amount of skill, and better poker players lawyers will regularly outperform their less skilled competitors. Yet skill is no guarantee of victory in poker court; the cards judges may still have their say.
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So then, Litigation is a game of chance, and ought to be illegal in the same states.
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Odds of beating the house soft 17 bl@ckj@ck is about 48.5%. Not awesome, by any means, but better than getting cert petition granted, reversing an agency decision, or getting to present a civil suit to a jury. So which one is the game of chance again?
But when it comes to criminal law in particular, there is at least one crucial difference between the law and poker. In the course of discussing with a certain prosecutor the terms of its unacceptable plea offer from which it wasn’t budging, the prosecutor analogized the decision facing my client (whether to accept the offer or go to trial) to a poker game. No, I don’t think so, pal. Throw 50 years of your own life in the pot, prosecutor, and maybe then we’d have a poker game.
Full disclosure: I know a thing or two about poker.
My earlier post on whether poker is gambling is here.
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Your post reminds me of the criminal defense lawyer who filed a motion to have the case decided through trial by combat between the defense lawyer and the prosecutor. As I recall, the motion proposed that they meet on the courthouse steps at a designated time and commence to fight until the other cried for mercy.
Like all creative defense motions, the prosecutor resisted the relief requested in a somewhat knee-jerk fashion.
Anyway, your post inspired me to write my own, so I have you to thank for late-night inspiration. I like your perspective. I’ll try not to rip-off too many of your ideas–just the really good ones.
1It’s kind of funny that one of my posts that Mark Bennett pointed to in his “shoutout” post was “my” post on intellectual property. I don’t know if Mark realized that I had flat-out lifted the entirety of that particular post from its original author, Thomas Knapp. (In my defense though, Thomas Knapp had invited readers to do exactly that in the very title of his post, and fully appreciated the “joke” when I pointed it out to him.) It’s even more funny because Mark has had a real problem with bloggers lifting his own posts. But who knows, maybe Mark realized what I’d done and just recognized the content of the post as an alternate view. (And regardless of the contours of intellectual property law, stealing blog posts without attribution to their authors is just impolite and unethical.)
Anyway, that’s just a riff on the last sentence of your comment, which of course doesn’t apply one bit to your new post on poker. I loved it, and I’ll stop by there later to comment.
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