Exploring New Approaches to Unsettled Legal Questions

Tag: Frank A. Schreck Gaming Law Competition

Old Laws in Modern Times: How a 1961 Law Could Mean Game Over for Online Sports Betting

by Eliz­a­beth Lewis*

The Fed­er­al Wire Act pro­hibits the use of any “wire com­mu­ni­ca­tion facil­i­ty for the trans­mis­sion in inter­state or for­eign com­merce of bets or wagers or infor­ma­tion assist­ing in the plac­ing of bets or wagers on any sport­ing event or con­test.” While, in prac­tice, this law has been sparse­ly used to pros­e­cute ille­gal bet­ting oper­a­tions that cross state or nation­al lines, a recent wave of states legal­iz­ing online gam­bling has brought to light the Act’s poten­tial applic­a­bil­i­ty to all fed­er­al­ly con­trolled wires, even those with­in a sin­gle state. This Con­tri­bu­tion argues that the Wire Act has the poten­tial to reach near­ly all online sports gam­bling, and, giv­en the clear trend towards state legal­iza­tion, should be revised either to explic­it­ly exempt gam­bling legal­ized by states, or, con­verse­ly, should be lim­it­ed to apply only to ille­gal off­shore gam­bling oper­a­tions, which may be more dif­fi­cult for states them­selves to regulate.

West Flagler Associates v. Haaland: An Attempt to Game the Indian Gaming Regulatory Act

by Matthew Dorf­man*

In 2021, the Semi­nole Tribe of the State of Flori­da and the State of Flori­da signed a gam­ing com­pact that was tac­it­ly approved by Sec­re­tary of the Inte­ri­or Deb Haa­land. The com­pact allowed the Semi­nole Tribe to oper­ate an online sports gam­bling appli­ca­tion through­out the State by deem­ing the loca­tion of all gam­ing activ­i­ty as hav­ing tak­en place exclu­sive­ly on Native lands. This Con­tri­bu­tion argues that the mean­ing of the word “on” as derived from ordi­nary usage and from usage under sim­i­lar statu­to­ry cir­cum­stances pre­cludes the per­spec­tive adopt­ed by the Semi­nole Tribe and the State of Flori­da, and thus requires the Sec­re­tary of the Inte­ri­or to reject the gam­ing compact.

Pleading the Fifth in State Regulatory Proceedings Concerning State-Sanctioned Medical Marijuana Use

by Andrew Wells*

To date, thir­ty-six states have legal­ized the pos­ses­sion and use of med­ical mar­i­jua­na. How­ev­er, mar­i­jua­na possession—regardless of use—is still a fed­er­al crime under the Con­trolled Sub­stances Act (21 U.S.C. § 811). This dis­crep­an­cy means that an indi­vid­ual legal­ly using med­ical mar­i­jua­na under state law can still be pros­e­cut­ed for vio­lat­ing fed­er­al law. In this Con­tri­bu­tion, Andrew Wells (’22) argues that Fifth Amend­ment priv­i­lege invo­ca­tion is prop­er in such cir­cum­stances because the Fifth Amend­ment pro­tects indi­vid­u­als against com­pelled dis­clo­sures that would cre­ate the pos­si­bil­i­ty of prosecution.

How One’s Status as a Medical Marijuana Card Holder Jeopardizes One’s Statutory Eligibility to Hold a Casino License

by Antho­ny Cruz*

Numer­ous states have legal­ized mar­i­jua­na both for recre­ation­al and med­i­c­i­nal use. Many of those same states have also tak­en the step of legal­iz­ing gam­bling. In this Con­tri­bu­tion, Antho­ny Cruz (’22) exam­ines the legal issues that result when two heav­i­ly reg­u­lat­ed indus­tries like the cannabis and gam­ing indus­tries over­lap. State-based pro­hi­bi­tions on gam­ing licensees par­tic­i­pat­ing in the cannabis mar­ket, both by statute and by reg­u­la­tion, present issues of statu­to­ry con­struc­tion in light of con­flict-ing leg­isla­tive sig­nals; issues of admin­is­tra­tive due process against a back­drop of per­pet­u­al­ly evolv­ing state and fed­er­al guide­lines on con­trolled sub­stances; and issues of intrastate federalism.

Voluntary Intoxication Defense to Contracting: Is Summary Judgment Appropriate in the Casino Context?

by Emi­ly Kaplan*

In this Con­tri­bu­tion, Emi­ly Kaplan (’21) address­es the pro­pri­ety of sum­ma­ry judg­ment when a casi­no patron rais­es a vol­un­tary intox­i­ca­tion defense to con­tract­ing. Courts around the coun­try rec­og­nize the vol­un­tary intox­i­ca­tion defense in a casi­no con­text, which requires the casi­no patron to prove his and the casi­no employ­ees’ states of mind. In gen­er­al, sum­ma­ry judg­ment is typ­i­cal­ly not appro­pri­ate in cas­es involv­ing state of mind because whether a par­ty had the req­ui­site state of mind will be a ques­tion of fact. This has even more weight in the vol­un­tary intox­i­ca­tion con­text, where a court will rarely be able to decide as a mat­ter of law whether a casi­no patron was suf­fi­cient­ly intox­i­cat­ed to ren­der the patron unable to under­stand the nature and con­se­quences of his action, or whether the casi­no knew or had rea­son to know of that intox­i­ca­tion. Both deter­mi­na­tions are required to pre­vail on a vol­un­tary intox­i­ca­tion defense. More­over, it would be a poor pol­i­cy choice to allow casi­nos to prof­it off of their over­ly intox­i­cat­ed patrons. This arti­cle does not address the pro­pri­ety of allow­ing a vol­un­tary intox­i­ca­tion defense in the casi­no con­text, but as long as the defense is rec­og­nized, it can­not be mere­ly illu­so­ry; patrons must have the abil­i­ty to pre­vail, at least to tri­al. There­fore, casi­nos should gen­er­al­ly not be able to use sum­ma­ry judg­ment as a tool to prof­it off of intox­i­cat­ed casi­no patrons.

Maintaining the Narrow Scope of the Bona Fide Occupational Qualification: Rejecting Gender Discrimination in Bartender Hiring

by Matthew A. Peter­son*

This Con­tri­bu­tion exam­ines whether a bar can dis­crim­i­nate on the basis of gen­der in its bar­tender hir­ing prac­tices. Matthew Peter­son (’21) argues that Title VII’s bona fide occu­pa­tion­al qual­i­fi­ca­tion (“BFOQ”) excep­tion should not shield bars from gen­der dis­crim­i­na­tion lia­bil­i­ty. The text and pur­pose of Title VII com­mand a nar­row inter­pre­ta­tion of the BFOQ excep­tion, and a bar cater­ing to pref­er­ences for female bar­tenders is pre­cise­ly the type of unde­sir­able hir­ing prac­tice that Title VII seeks to pro­hib­it. The “essence” of a bar is mak­ing and dis­trib­ut­ing drinks, and the com­ple­tion of these tasks does not depend upon the gen­der of a bar­tender. Courts should not per­mit bars to jus­ti­fy such dis­crim­i­na­tion with claims of sup­port­ing “authen­tic enter­tain­ment.” Unlike an actor or dancer, whose core job func­tion is per­for­mance, a bartender’s pri­ma­ry respon­si­bil­i­ty is pro­vid­ing service.

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