Gaming and Gambling Law
What is gambling? The legal boundaries of the term are ill-defined, and courts often have difficulty determining how broadly it should reach. Consider the following questions: is the day-trading investor "gambling" when he "plays" the stock market? Is the political candidate "gambling" when she invests millions of dollars of her own and others' money to seek political office, uncertain if she will prevail? Is the patient "gambling" when he chooses surgery over another treatment? If betting on an uncertain outcome that is partially determined by luck constitutes "gambling," then most human beings are guilty of gambling many times every day.
So why is casino gambling or sports-betting subject to American gambling laws while so many other gambling activities, such as participating in the stock market or politics, choosing medical treatment, investing in an education, or buying life insurance, are not? What are the particular concerns that lead us to apply our gambling laws to activities that happen in casinos, but not to the other activities of life? This course addresses the fundamental legal question of how gambling is defined in courts in the United States. Because the definition of gambling for any given regulatory or prohibitory law is necessarily dependent on the reason for regulating or prohibiting gambling, we will also explore the specific concerns that motivate the prohibition or regulation of gaming.
The course will explore the legal strategies that have been used to prohibit gambling in the United States, including private law strategies for discouraging gambling, which involves examining the many issues that arise from gaming law's nexus with contract law and conflicts of law. We will explore constitutional issues related to federalism and the inherent difficulties in maintaining a gambling prohibition within a nation that has numerous political subdivisions that are authorized to make their own policies about gambling, as well as examine many of the federal laws designed to prevent unlawful gambling. We will also examine the challenges that internet gaming (and interstate commerce) pose for the federalist system.
Finally, the course will address issues that arise in efforts to legalize and regulate gambling, including the cross-boundary problems and the difficulties in limiting gambling to certain geographic areas; issues raised by licensure, which is the leading regulatory strategy for addressing the harms of gambling; constitutional due process questions that arise in a regime that allows wide discretion for regulators; the nature of the regulation of the players and the games themselves, including what constitutes cheating in the casino context; and finally, the unique taxation issues that arise in the gambling context, which really requires us to determine whether the player is seeking entertainment or profit.
The casebook for the course is Washburn, Gaming and Gambling Law: Cases and Materials (Aspen Wolters Kluwer 2011).